Week 1 - Introduction to Administrative Law

What is public law? Private law is characterised as a dispute between 2 private citizens (although many private matters involve

the government as a party, e.g. contractual dispute) Public law is characterised by the government being a party to a dispute Grounds and review and remedies which are not generally available against ‘private’ bodies (i.e. it is

concerned with the control of powers which are inherently governmental or public in nature, in the sense that only government possesses such powers.

What is administrative law? Involves review of the exercise of public power by public bodies. Public bodies meaning the executive Public bodies include

o Government departmentso Statutory authoritieso Ministers and cabinets

Administrative law includes review of:o Social security decisionso Immigration and deportation issueso Taxationo Environmental lawo Grants and funding decisionso Dismissal of public officers

The executive exercise certain powerso Statutory powers

In admin law, we are concerned with the exercise of a power already lawfully conferred on the government, rather than the validity of that conferral (different from constitutional law)

o Prerogative powers (powers once exclusive to the Sovereign such as the power to sign treaties and declare war/peace, prerogative of mercy)

o CL powers (contractual powers, power to own property)

The Role of Administrative law A branch of public law that controls and regulates the executive power by ‘governing the relationship

between the government and the governed.’ Thus the purpose of admin law is to safeguard the rights and interests of people and corporations in their dealings with the government agencies.

Underlying principle of administrative law is ‘accountability’ o Others considered by admin law include, openness, accountability, fairness, transparency,

consistency, rationality, accessibility, legality and impartiality. It establishes a relationship between the executive government and the people in a State who are affected

by the exercise of executive power. It is a means for holding the executive to account for the exercise of its power.

Accountability occurs through the principle of responsible government and through various Parliamentary means of examining executive actions, most particularly, mechanism for holding the executive to account for raising and expending public monies.

Topics of modern Administrative Law can be described as follows. o One of the aims of Administrative law mechanisms is to facilitate what has come to be known as

‘open government.’ The concept of open government recognises that ultimately government is

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Statutory and prerogative powers are public powers

and are within the scope of admin law

TOPICS TO BE COVERED: Accountability as an Underlying Principle of Administrative Law The foundational concepts and issues in Administrative Law Historical Foundations of Australian Administrative Law

for the people. The more transparent are the processes of government, the more confident the people can be of its integrity and the more they are able to participate in it.

There has been a growing concern at the increased power of the executive government and the failure of the political and administrative law mechanisms for accountability to check over power.

Who reviews executive action? Accountability to Parliament

o Various forms of parliamentary review. Ministers are responsible to Parliament but in practise it is impossible for Ministers to adequately supervise all that is done by bodies that they are responsible for.

Review by executive itselfo Internal review, external merits review and review by ombudsmen.

Judicial Review

Types of Reviewo Merits Review (conducted by tribunals)

Creature of statute with a right contained in the statute The tribunal takes no account of the original decisions. It starts from scratch, hearing the

evidence anew, deciding the facts and interpreting & applying the statute for itself. When it makes a decision, that decision stands in place of the original decision under

review. At Cth level the ATT (Administrative Appeals tribunal) and some specialist tribunals hear

review. At State level there are various specialist tribunals but the administrative and disciplinary division of the District Court allows for general merits review where Acts confer a right of appeal to the division.

o Legalities Review (conducted by courts and limited to questions of law.) The Court does not start from scratch, it does not rehear all the evidence, and instead it just

examines the procedures followed by the original decision maker, to ensure that they were ‘fair and reasonable.’

It is a review of the processes used to make a decision, not a review of the substantive outcome of the decision.

When a court finds that incorrect procedures were used by the original decision maker, it will not substitute its own decision, rather, the original decision is declared void and the matter is remitted back to the decision maker.

o Review by Ombudsmen (Review of Government action by independent statutory body) Ombudsman Acts were introduces in the Cth and all States and Territories in the 1970s

which confers power on Ombudsmen to investigate various forms of administrative malpractice.

Unlike tribunals and courts they have no coercive powers and cannot enforce any conclusion they reach about an error.

o Judicial Review Was originally an inherent CL jurisdiction claimed by superior courts. It is constitutionally

limited to questions of ‘legality.’ This means courts will only examine the process rather than a direct challenge to the substantive outcome of that process.

The remedies do no transgress into the merits of the administrative decision.

Remedies Available Prerogative Writs (only available against public bodies and their exercise of public power, i.e. statutory or

prerogative powers)o Certiorari To quash a decision, making it void and of no legal effect

Appropriate where the flawed decision-making process has been completed Only granted where the decision has a ‘discernable or apparent legal effect upon rights’ and

only directed to bodies that have legal authority.o Prohibition: An order that the government body does not proceed with a particular course of action

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Appropriate where flawed administrative process has not been completed yet or to restrain a body from exceeding its powers.

Commonly used for excess of jurisdiction and a breach of natural justice.o Mandamus: A mandatory order that a government body do something

Granted by a superior Court to command the fulfilment of a duty of public nature that remains unperformed and for which no other specific legal remedy is available.

Usually issued with certiorari to direct the following or proper procedureso Habeus corpus

May be obtained from the HC or a State or Territory SC but not the FC. Equitable Remedies: (broader in scope and more flexible that prerogative writs)

o Declaration: A declaration that the decisions are legally flawed and thus void. Technically, it has no coercive effect; but in practise it is treated the same as certiorari.

o Injunction: Can be prohibitory or mandatory. Can cover same ground as prohibition and mandamus

Judicial Review Jurisdictions At SA level, there is only 1 source of judicial review jurisdiction: the SC’s inherent jurisdiction as laid out in

rule 98 At Cth level, there are 4 sources of judicial review jurisdiction: one for the HC (s 75 Constitution), two for the

Federal Court (ADJR Act, s 39B Judiciary Act) and one for the Federal Magistrates Service (ADJR Act)o High Court (Cth jurisdiction)

Section 75(v) Constitution The HC court has original jurisdiction in matters:

o (v) Where mandamus, prohibition or injunction are sought against an ‘officer of the Cth;’ or

o (iii) Where the Cth (or person on the Cth’s behalf) is a party. Although the remedies of certiorari and declaration are not mentioned the HC is

usually willing to grant either where appropriate. The HC can in most cases remit cases commenced within s 75(v) jurisdiction to,

and only to, the FC (s 44 Judiciary Act; s 9 ADJR Act) o Federal Court

ADJR Act confers judicial review on the Federal Court (s 8) Section 3(1) The Act applies to a decision of an administrative character

made… under an enactment (other than a decision by the GG or a decision listed in schedule 1.

Only Cth exercises of statutory power can be reviewed under the ADJR Act. This overrides the CL principle of justiciability.

Standing is granted to ‘a person aggrieved by,’ a decision (s 5), conduct (s 6) or failure to make a decision (s 7)

o Person aggrieved means a person whose interests are adversely affected (s 3(4)). Picks up on CL rules of standing.

o Interested persons can apply to be made a party to an existing application (s 12(1)).

The grounds of review are set out in ss 5, 6 & 7. o These grounds are essentially the CL grounds, with the exception that any

error of law is reviewable under the Act.o Section 5 is used where the decision has already been made. Section 6 is

used where the decision has not been made and s 7 is used where an administrator failed to make a decision when there was a duty to make the decision.

The FC can order flexible remedies: broadly defined ‘order for review’ (s 16).o Section 39B Judiciary Act (Cth)

Replicates the form of s 75(v) in conferring a power of judicial reviews on the FCA. Confers an additional judicial review jurisdiction on the FC.

Designed to overcome the more limited jurisdiction of the ADJR Act.

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Limits of this Act are that must be an officer of the Cth and an s 39B (1A) (c) action must arise under a law made by the Parliament.

Relief available to FC through Federal Court Act Declarations of right (s 21) Grant remedies to which any of the parties appears to be entitled in order to quell

the controversy between them (s 22) Writs of such kind as the Court thinks fit (s 23)

o Federal Magistrates Service This is a new Cth court created in July 2000 which has ADJR Act jurisdiction. Matters may

be remitted between it and the FC.o State SC

Have inherent CL jurisdiction to review: State administrative decisions; and Cth administrative decisions (although today this restricted to very limited

circumstances) SA – s 17 Supreme Court Act preserves the inherent jurisdiction of the Supreme court

which includes the judicial review of an administrative action. Rule 98 of the Supreme Court Rules makes available the remedies of prerogative write,

declarations and injunctions.

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Week 2 - The Constitutional Framework

Introduction Administrative law is concerned with ensuring the legality of administrative decision making. The

constitutional issue is assumed. Constitutional validity of that statute may be treated as a preliminary legal issue to the administrative law question.

Concerned with whether or not a decision is made consistently with, or in accordance with, the power that is conferred on the executive decision maker by the relevant statutory or CL authority.

Constitutional principles also shape the manner in which judicial review of administrative action may be carried out.

The ‘separation of power’ prevents the Courts from carrying out merits review where a decision of the court is substituted for that of the original decision maker.

Courts cannot stand in the shoes of the decision maker and exercise that person’s decision making power. Courts are simply limited to looked for the presence of legal error including:

o Exceeding powers that have not been conferredo Irrelevant considerationso Procedural Fairness

There is a clear distinction between judicial review and merits review.

Exploring the legality/merits distinction The courts often refer to their legitimate role in setting and identifying the legal limits within which executive

action must be carried out. Within these limits, the courts must defer to an administrative decision maker’s decision.

Judicial review involves review for legal error as opposed to an appeal of the substantive decision itself. Whether a judge thinks and particular decision to be wrong, unfair or unjust is entirely irrelevant and so long as no legal error has occurred, the courts have no authority to interfere with a particular decision.

Discretionary Powers and Judicial Review The prevalence of discretionary powers in administrative decision making makes the task of identifying

specific legal limitations that apply to a given decision-making process more complex. The scope of authority is expanded and the legal limitations are pushed out or aside. With discretion often comes the capacity for ‘individualised justice’ – the ability of the DM to take into

account the particular circumstances of each case in reaching a fair decisiono Without flexibility of discretion, rigid rules will often lead to unjust outcomes.o Discretion has become a necessary feature of modern administrative decision making.

While the courts cannot direct the exercise of discretionary power and must defer to the executive within certain boundaries, the courts have largely rejected the notion of completely unrestrained discretionary power.

No such thing as an absolute or unfettered discretiono Padfield v Minister for Agriculture, Fisheries and Food

Judicial deference & restraint

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TOPICS TO BE COVERED: The Constitutional tensions that underlie administrative law and which influence and shape the

nature of judicial review and its distinction from merits review How concepts of the rule of law, the separation of powers, responsible government and

constitutionalism are relevant to administrative law The framework for judicial review An introduction to Administrative law remedies

Courts limited to looking for legal error

The courts, while attempting to preserve the role of judicial review in respect of broad discretionary powers have also adopted a deferential approach towards the executive in certain respects.

Courts have been willing to make certain allowances based on the position or skill of a particular DM. There is an approach of judicial restraint when in comes to examining the written reasons provided for a

tribunal decision.

o Minister of Immigration and Cultural Affairs v Vadarlis

o Attorney General (NSW) v Quin Area of law: legality/merits distinction & unreasonableness. Also Clarifies HC position in

regards to unreasonableness Case Details: Quin magistrate in NSW. Court abolished and Quin not reappointed after

allegations of fitness for office passed to NSW A-G.o Brennan J: ‘There is one limitation ‘Wednesbury unreasonableness’ … which may

appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such to amount to an abuse of power.’

o ‘Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of power which is so unreasonable that no reasonable repository of power could have taken the impugned decision or action.’

Repository – balance interest of majority with minority Courts not equipped to evaluate policy considerations

o Associated Provincial Picture Houses Ltd v Wednesbury Corporation Area of law involved: legality/merits distinction & unreasonableness

o Picture house needed permission from local authority to open on Sundays. Wednesbury condition was no children under 15 without adult present were allowed.

o ‘Must be a real exercise of the discretion’: Court must consider relevant & disregard irrelevant. Discretion will be valid if real exercise of discretion but courts can still interfere if unreasonable. Test for unreasonableness: Lord Greene MR:

o Authorities must not be involved in unreasonable conducto ‘If a decision on a matter is so unreasonable that no reasonable authority

could ever have come to it, then the courts can interfere.’o Authorities may not use discretion to make decisions based on bad faith,

dishonesty, unreasonableness, attention to extraneous circumstances and disregard of public policy.

o Court can’t substitute itself for the authority.

o Chaudhary v Minister for Immigration, Local Government and Ethnic Affairs Not taking into account appropriate considerations when making a decision

o Application for citizenship under MA under compassionate/ humanitarian grounds. Application refused on basis child had cerebral palsy. Compassionate vs. financial cost. Financial costs were greater.

Wilcox, Burchett and Foster JJ:o DM concluded medical costs & therefore interests of Aus community outweighed

compassionate factors. Appeal allowed by Full Court of FC because ‘error of law to see national interest in such narrow terms’. Aus interests far wider than purely economic – best interests to be seen as civilised & compassionate (reputation).

o E.g. possible omission of consideration matters which should not be overlooked in a valid decision.

Important Cases6

Minister for Immigration and Multicultural Affairs v VadarlisAttorney General (NSW) v QuinAssociated Provincial Picture Houses Ltd v Wednesbury CorporationChaudary v Minister for Immigration, Local Government and Ethnic Affairs

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Week 3 - Merits Review & the AAT

Legality/Merits Distinction (based on SOP) Executive makes substantive administrative decisions (i.e. determine the merits). Judiciary ensures that decisions are made according to law (i.e. determine whether the decision-making

process is legal, fair & reasonable).

Full Merits Review ATT represents the major generalist merits review tribunal at the federal level. It is generalist in the

sense that it is not limited to reviewing a particular type of decision, or decisions within a particular subject area.

Any Federal Act can expressly allow for decisions made under that Act to be appealed to the ATT. Merits review is one of the basic devices for the correction of administrative error. It is generally

undertaken by administrative tribunals of one sort of another (Boards, Review Panels or Commission). The extent of merits review by the DC is possible because there is no strict separation of judicial power

at the State level. Merits review allows a fresh substantive decision to be made. The merit review body stands in the shoes

of the original DM and re-makes the decision. Applicants get to re-make their case before a different DM and the tribunal endeavours to make that the

‘correct and preferable decision.’ The tribunal aims to make the right decision in a substantive sense – not simply that it be correct in terms of

being devoid of legal error and procedural defects. The ATT may be given a more limited jurisdiction to reconsider only certain aspects of a decision, and not

fully review it.

Introduction

Grounds of review & Remedies Ground of review = simply that the original decision was ‘wrong’ – or a different decision would be more

correct/preferable. No burden of proof (subject to contrary statutory intent). Remedy = re-make the decision correctly & substitute it in place of the original decision.

Judicial/Legalities Review Legalities review is undertaken by superior courts. Legalities review is created by common law.

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In essence, merits review is a fresh decision:o The original decision is disregarded.o The reviewing body stands in the shoes of the original decision-maker will

consider afresh all relevant questions of law & fact, and re-make the original decision.

o The new decision will take the place of the original decision. It re-examines the SUBSTANCE (merits) of the original decision. Note: the relevant statute may give less than full merits review.

TOPICS TO BE COVERED: An examination of the Administrative Appeals Tribunal Act 1975 (Cth) and the operation of the

AAT. Drawing distinctions between merits review and judicial review.

It examines the PROCEDURE by which the original decision was made (ask: was the procedure unlawful/unreasonable/unfair?). It does not re-examine the substance (merits) of the original decision.

Unlike judicial review, which is a common law development, merits review is a creature of statute. It follows that merit review will take whatever form is conferred upon it by the relevant statute.

With judicial review the court is limited to looking for legal error and cannot exercise the powers of the original DM. Potential legal errors that can be made are what are referred to as grounds of review. If a decision is quashed for legal error, then the matter is remitted to the original DM to be determined according to law.

When faced with merits review body in an exam context, pay careful attention to the statutory provisions governing that body, as they may depart from the provision that regulate the bodies as discussed in seminars and lectures

Availability Availability of merits review depends on legislation conferring such a right upon individuals affected by

particular decisions under an Act. In some cases where merits review is available, the case may contain a number of legal complexities and so

judicial review may be preferable. In SA, since 1991, merits review has been conducted by the Administrative Appeals Division of the DC.

o District Court Act s 7

Statutory Appeal 4 general types of appeal rights:

o Appeal on question of law only This is the only kind of appeal right which can be validly conferred to a court exercising

federal judicial power (because of constitution). Difference from common law judicial review = any (not just ‘jurisdictional’) error of law. E.g. appeal right from AAT to Federal Court (s 44 AAT Act).

o Appeal in the strict sense No further evidence is admitted, and changes to the law are disregarded. The appellate

body only intervenes where there has been an error in the decision-making process, or a finding of fact that is “clearly wrong”.

o Appeal by re-hearing The appellate body can hear new evidence. Absent new evidence, the original findings of fact cannot be overturned unless the

original decision-maker made an error.o Re-hearing de novo (‘full merits review’)

A complete fresh start. This is the typical appeal right for AAT review, although some statutes may confer

lesser appeal rights to the AAT. As the AAT re-makes the decision, it is not confined to evidence before the original

decision-maker or decisions given by the original decision-maker. Coal & Allied Operations v AIRC: The nature of a statutory appeal depends on the terms of the statute

conferring the right of appeal.o ‘appeal’ usually means appeal in the strict sense;o Provisions conferring power to take new evidence appeal by way of re-hearing is

intended;o Provisions conferring a wide range of discretionary remedial powers a hearing de novo

is intended.

The AATJurisdiction The AAT has jurisdiction to review a particular decision, only if the statute (under which the decision was

made) provided actual authorisation for AAT review.

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o Section 25(1): An enactment may provide that applications may be made to the AAT: for review of decisions made in the exercise of powers conferred by that enactment; or For review of decisions made in the exercise of powers conferred (or that may be conferred) by

another enactment having effect under that enactment. Jurisdiction is limited to review of statutory powers. The relevant Act may:

o give the AAT full merits review power;o limit AAT review to particular decisions made under the Act, rather than all decisions made under the

Act;o impose pre-conditions upon review (e.g. prior review by a lower level specialist tribunal, like the SSAT).

Meaning of ‘decision’ [defined in s 3(3)]o ABT v Bond: The AAT can only review ‘final & operative’ decisions.o Collector of Customs v Brian Lawlor: There need not be a legally effective decision; a purported

exercise of power is enough.o Section 25(5): ‘decision includes failure to make a decision.

StandingStanding for the AAT is wider than that for judicial review. Section 27(1): Applications may be made by any person whose interests are affected by the decision.

o Section 31(1): The Tribunal decides whether the interests of a person are affected by a decision. If it decides that the interests of a person are affected by a decision, this decision is conclusive.

o Section 44(2): If the Tribunal decides that the interests of a person are not affected by a decision, the person may appeal to the FCA from this decision.

Section 27(2): An organisation/association is taken to have interests affected by the decision, if it relates to a matter included in the objects/purposes [before the decision was made: subs (3)].

Section 30(1A): The AAT may, in its discretion, allow any other person whose interests are affected by the decision to be made a party to the proceeding.

Powers (also advantages/disadvantages of AAT review) Section 43: AAT can affirm, vary, substitute or remit the decision.

o This amounts to full merits review power (Drakes case). Limits on AAT powers:

o The AAT’s powers may be limited by the statute conferring jurisdiction.o The AAT cannot conclusively determine questions of law.o AAT decisions cannot form binding precedents.

Re Scott: Good administration involves consistency the AAT follows its own decisions, except where (a) the later case is more fully argued, or (b) the first decision is manifestly wrong.

o AAT does not have jurisdiction to State decisions and some Cth decisions.

ProcedureRight to access information Section 28(1): If a decision is reviewable by the AAT, a person entitled to apply for such review may request

the decision-maker to give reasons for the decision. Reasons include:o Findings on material questions of fact;o Evidence upon which the findings were based;o Actual reasons for the decision.

[note: there are exceptions] Section 37: The relevant decision-maker must lodge with the AAT

o (a) findings on material questions of fact, and o (b) Any document relevant to the AAT’s review of the decision.

Pre-hearing procedures

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Section 33(1A) provides for directions hearing. Section 34 provides for pre-hearing conferences. Section 34A provides for mediations (if parties consent). Purpose = narrow issues + encourage settlement.

Procedure during hearing Section 33(1): The proceeding is conducted with as little formality & technicality as possible. The AAT is

not bound by rules of evidence. Section 32 allows ‘representation,’ which includes legal representation. Section 40 gives the AAT power to summon witnesses & administer oaths.

Legal Constraints on AAT’s flexibility Since the AAT is in the same position as the original decision-maker, it can be reviewed by the Courts.

o Section 44(1): A party to a proceeding before the Tribunal may appeal to the FCA, on a question of law, from any decision of the Tribunal in that proceeding.

So the AAT must follow rules of procedural fairness etc. Also, although rules of evidence don’t apply, the AAT has to make a correct & preferable decision (Drake).

Reaching such a decision involves correctly ascertaining the correct facts rules of evidence remain in the background.

Social Constraints on AAT’s flexibility: AAT looks like a court. AAT members are usually Federal court judges. Usually barristers represent parties adversarial. AAT has court-like powers.

Role of Policy in AAT review Drake v Min Immigration: The AAT’s function is to independently determine the correct & preferable

decision on the material before it. (subject to statute)o Although govt policy is a relevant consideration in reaching such a decision, the AAT cannot limit

itself to determining whether the original decision conformed to government policy. The proliferation of discretionary powers conferred upon administrative decision makers in a common thee

in administrative law. Discretionary powers are often regulated though the development of government policies which are meant

to guide DM. Policy is essentially a non-statutory instrument that is developed by government to supplement legislation The benefits of having a policy, largely relate to the ability to ensure consistency and fairness between

cases. Where a policy is valid, it constitutes a relevant consideration that must be taken into account by the DM. The government cannot fetter, change or limit a discretionary power through policy, as only

parliament may amend the scope or operation of a statutory conferred power.

Tribunal Independence While merits review tribunals are essentially a part of the executive, they are also established as bodies,

independent of the departments and officers whose decisions they review.

The concept and scope of merits review Normally identified through the nature of its power with respect to the original decision under appeal Administrative Appeals Tribunal Act allows the tribunal to affirm, vary or set aside a decision. Where the

decision is set aside, the tribunal may substitute a new decision for the original decision, or remit the matter for reconsideration with directions or recommendations.

Stark contrast to those exercised by a court conducting judicial review. Key features of merits review include:

o Not limited to considering the case put by the parties or the material that was before the original DM.

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o tribunal is bound by law but not policy (though valid policy will constitute a relevant consideration and must be taken into account)

o Neither party bears the onus of proving that the original decision was right or wrongo The rules of evidence and procedure observed in judicial proceedings do not apply to tribunal

hearings Generally speaking an administrative agency does not have the authority to alter or change a decision once

it is appealed to a tribunal and most tribunals have the power to seek fresh evidence and thus accommodate changes in the facts.

Re Drake and Minister for Immigration and Ethnic Affairs (No 2)o The ATT must make a correct/preferable’ decision on the material before it (subject to

statute)o Section 12 Migration Act: Where an alien has been convicted and sentenced to imprisonment for 1

year or longer, the Minister may order deportation of that alien.o Drake was convicted of possessing drugs and the Minister for Immigration decided to deport him

under s 12 of the Act. Drake applied to the ATT for a merits review, but ATT affirmed the Minister’s decision.

o Drake then applied to the Federal Court pursuant to s 44 AAT Act, arguing that the Tribunal attached such importance to the Minister’s policy statement that the Tribunal failed to exercise its own independent judgment.

o The issue was whether the ATT’s decision was the ‘correct and preferable’ one on the material before it? (full merits review)

Principleso Ordinarily, an administrative officer with discretionary power is entitled (in the absence of statutory

defined criteria/considerations) to take into account government policy as a relevant consideration (provided it’s not inconsistent with the statute or its objects)

o But the ATT must (in the absence if specific statutory provision) determine whether the decision made was correct/preferable on the material before it; rather then merely determine whether the decision conformed with government policy.

o The ATT must independently assess all the circumstances to reach its own correct/preferable decision, rather than abdicate its functions by applying government policy uncritically to the facts.

o Even the Tribunal reaches the same conclusion as the application of policy, the Tribunal should make it clear that it has considered the property of the policy, and indicated the consideration which led it to that conclusion.

Decisiono The ATT’s reasons indicate that it failed to make an independent assessment and determination; it

simply checked whether the Minister’s decision was consistent with government policy.o It therefore failed to properly perform its function of reviewing the Minister’s decision

o Remedy is quashing the ATT’s decision and remitting the matter to it for a rehearing.

Summaryo This case is about the relevance of government policy on the ATT’s decision.o Government policy is a relevant consideration the ATT takes into account but in reality, policy

usually determines the outcomeo BUT – ATT cannot use it to mechanically determine the outcome. Instead, the ATT has to make its

own assessment of the matter and reach a correct/preferable decision.

McKinnon v Secretary, Department of Treasury

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Important CasesMcKinnon v Secretary, Department of TreasuryRe Drake and Minister for Immigration and Ethnic Affairs (No 2)

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Week 4 - The Scope & Limits of Judicial Review

Introduction At federal level: can conduct judicial review by

o Section 75(v) Constitutiono Section 39B Judiciary Acto The Administrative Decisions (judicial Review) Act

In SA, the inherent power of the SC to conduct judicial review is preserved under s 17 of the SC Act and a simplified procedure for securing both the prerogative writs and the equitable remedies of injunction and declaration is set out in Order 98 of the SC Rules.

Where judicial review of a decision is sought, a basis for invoking the court’s jurisdiction must be established.

o At federal level, an applicant is likely to invoke the ADJR Act as it gives many benefits including the right to access reasons for the decision and more flexible remedies.

o Has it own unique limits though, being subject to some of the more general requirements related to issues such as justiciability and privative clauses.

Each source of jurisdiction contains its own limits and each framework for judicial review is subject to requirements of justiciability and standing

Each of these limitations relates to questions of whether the court’s jurisdiction is enlivened in the first place.o Further limitations which can be narrowed by jurisdictional error and the effects of a privative clause.

Jurisdictional Limits on Judicial review Judicial requirements under s75(v) of Constitution and s 39B Judiciary Act

o Matter – constitutional principle required to enliven courts jurisdiction under 75(v) or 39B a matter is not a judicial proceeding but the subject of the controversy which is amenable to

judicial determination in the proceeding. characteristics include

some immediate right, duty or liability to be established by the determination of the court

o matter must be justiciable, or suitable for judicial determinationo applicant must possess necessary standing to bring the actiono The applicant must be:

seeking a remedy (prohibition, mandamus or injunction; certiorari or declaration as an ancillary remedy) - note prerogative (non-equitable) writs (mandamus & prohibition) are only available to correct jurisdictional error

against an officer of the Commonwealth this excludes decisions made by corporate bodies or statutory corporations as

these are not officers of the Commonwealth No definitive HCA ruling, but Federal court has excluded the following

o Statutory corporations Post Office Agents Association v Australian Commission (1988) 84

ALR 563 Vietnam Veteran’s Association (NSW Branch) v Cohen (1996) 70

FCR 419o State courts exercising federal jurisdiction

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TOPICS TO BE COVERED: An introduction to the jurisdictional limits that operate with respect to judicial review. Exploring the relationship between certain jurisdictional limits (i.e. jurisdictional error and

privative clauses) and the available grounds of review. An examination of the scope of the ADJR Act, including its jurisdictional limits, and other

sources of Federal and State Judicial Review

R v Murray & Cormie; Ex parte Commonwealth (1916) 22 CLR 437o President of the senate e.g. officer of court and parliament

Re Reid; Ex parte Bienstein (2001) 182 ALR 473 Section 39B(1A)(c) of Judiciary Act

o Only likely to be used where ADJR doesn’t apply, such as where schedule 1 applieso Different jurisdictional requirements – ‘any matter … arising under any laws made by the

Parliament.’o this broad phrase is limited to same interpretation given to the Constitution s76(ii) that the right or

duty in question must owe its existence to the federal law or depend upon it for it’s enforcement and simply not touch upon or involve its interpretation

o The section ‘confers a broad jurisdiction on the court … it is necessary for the party who seeks to invoke the jurisdiction to be able to identify a right, duty or defence which owes its existence to the law made by the Parliament upon which he or she relies or which relies on that law for its enforcement’ – McGowan v Migration Agents Registration Authority [2003] FCA 482

o only remedy under s39B(1A)(c) is declarationo This section has the possibility of picking up corporate bodies but has not yet been tested. In

McGowan power was derived under ADJR Act.

Administrative Decisions (Judicial Review) Act - confers jurisdiction on FC & FMC to undertake review of:

a) ‘a decision to which this Act applies’ ss 5 & 3(2) &b) ‘conduct for the purpose of making a decision to which this Act applies’ ss 6 & 3(5)

Jurisdictional limits are as follows:o Must be a constitutional mattero One that is judiciable, or suitable for judicial determinationo Applicant must process necessary standing to bring this action (person aggrieved)o The case must involve a ‘decision of an administrative character,’ that is ‘made under an enactment’

ss 3 & 5 ADJR Act o OR: The case must involve ‘conduct engaged in for the purpose of making a decision,’ and

includes ‘any act or thing preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation.’ (ss 3 & 6 ADJR Act)

‘A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making or a ruling on that point.’ – see BondCan a finding of fact amount to a reviewable decision?Ordinarily, a finding of fact cannot amount to a reviewable decision because it’s a step towards the ultimate determination. However, from Bond, if statute requires or authorises DM to determine an issue of fact as an essential preliminary to the taking of ultimate action or the making of an ultimate order > determination of the issue of fact will be a reviewable decision (Bond). BUT, if ultimate determination which depends upon finding of fact is vitiated by error of law or made without evidence, it is reviewable s 5(1)(f) & (h).Ross v Costigan (Ellicott J): ‘decision may mean an ultimate or operative determination, not a mere expression of opinion or statement which has no effect.’

Procedural benefits of ADJR Acto right to statement of reasons s13o flexible remedies available s16o simpler procedure for commencing an action s11

Specific Jurisdictional Limits Under the ADJR Act ‘Decision’ and ‘Conduct’

o Both these words are defined in s 3 of the ADJR Act, however it has been through judicial elucidation that their full meaning within the context of the Act has been explained.

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o While a braod approach was adopted in the early days of the Act’s operation, the decision of the HC in Bond, marked a more restrictive reading of those terms.

decision of an administrative charactero the term ‘administrative’ ‘describes all those decisions, neither judicial nor legislative in character,

which Ministers, public servants, government agencies and others make … in executing or carrying into effect the laws of the Commonwealth’ – Burns v ANU (1982) 40 ALR 707

o many powers overlap, and the nature of a power will take its character for the statutory context in which it is conferred and is intended to operate

o Suggestions to help determine question of administrative character can be found in Central Queensland Land Council Aboriginal Corporation v Attorney General (Cth) (2002) 116 FCR 390 per Wilcox

legislative decisions determine content of rules of general application, whereas administrative decision apply to them

parliamentary control of the decision points to it being legislative requirements of public consultation may also point to a power being legislative provision for merits review indicates that the power is administrative a decision with a binding legal effect, that effects the operation of other legal provisions of a

statute, suggest that it is legislative decision made under an enactment

o excludes review of prerogative powers (non-statutory & executive powers) and powers sourced to the common law (e.g. the power to enter into contracts)

o What is an enactment? An instrument (including rules, regulations or by-laws) made under such an Act (s 3(1)

ADJR Act) ‘includes documents of administrative as well as legislative character, since even rules

regulations and by-laws can have dual character’ – Chittick v Ackland it must be a document made under, in pursuance of, or under the authority of the Act, it

must be of such kind that it has the capacity to affect legal rights and obligations’ - Chittick In Chittick, a document setting out the terms and conditions of employees was held to have

been made pursuant to statute, it supplemented their employment contracts, and could be unilaterally changed by the employer. This is commonly distinguished from other cases as it was different to an ordinary contract.

In ANU v Lewins (1996) 68 FCR 87 a policy on the criteria for promotion of staff was not an instrument within the scope of the Act – it had no statutory basis and could not unilaterally be changed by the university.

In Chapmans v ASX (1996) 67 FCR 402, a decision to delist a company was not a decision under an enactment. Simply because the company made rules with contractual force and had been given statutory recognition was not enough.

o When is a decision made ‘under’ an enactment? there must be a direct link (express or implied) between the decision and the enactment –

Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 ‘decisions which, being authorised or required by an enactment, are given force or effect by

the enactment or by a principle of law applicable to the enactment’ – General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164

Judicial Review in the State of South Australia Under Rule 98 SA Supreme Court Rules 1987

o only jurisdictional limits are to standing and justiciabilityo While conduct is not reviewable in SA, an order in the nature of mandamus could be sought as the

state level to compel a decision maker to exercise their power where they have failed to make a decision

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o Rule 98 gives the SC the jurisdiction to grant orders in the nature of the prerogative writs, and to award the equitable remedies of injunction and declaration where ‘it would be just and convenient’ to do so.

Grounds for Judicial Review Having considered the scope and limits with regard to each source of judicial review jurisdiction, it is worth

considering the potential grounds of review that are available under each source. Section 5 of ADJR Act establishes 18 separate grounds for judicial review Judicial review under s39B or 75(v) or state supreme court are taken from the common law Differences b/w C.L. and ADJR act

o ADJR departs from C.L. at s5(1)(f) – that the decision involved an error of law, whether or not the error of law appears on the record of the decision

o ADJR departs from C.L. at s5(1)(h) – there was no evidence or other material to justify the making of the decision

o ADJR formalised CL of uncertainty s5(2)(h)o ADJR recognises ‘otherwise contrary to law’ s5(1)(j) and abuse of power s5(2)(j) due to changing

nature of common law “If a tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question,

to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it” – Craig v South Australia (1995) 184 CLR 163

Additional Limits to JurisdictionJurisdictional ErrorPrivative Clauses

CasesAustralian Broadcasting Tribunal v Bond (Limit to Judicial review, ADJR Act, Decision) ABT reached a decision that Bond was not a fit and proper person to hold a broadcasting license and that

the license holders were also not fit and proper persons. o Mason CJ: “The answer is that a reviewable decision is one for which provision is made by or under

statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue or fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute for the making or ruling on that point so that the decision, though an intermediate decision, might be accurately described as a decision under an enactment.”

“Another essential quality of a reviewable decision is that it must be a substantive determination”

Right to Life Association (NSW) Inc v Secretary, DHS and Health (Limit to Judicial review, ADJR Act, Does not doing something amount to a decision) Secretary made a decision not to stop a trial of an abortion drug. Court held that this decision was a

reviewable decisiono Lockhart J: In the ADJR Act, a reference to the making of a decision includes reference to the doing

or refusing to do a relevant act or thing. This decision had the character or quality of finality, it was an ultimate or operative decision.

Not to do something can indeed be a reviewable decision

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Kelson v Forward (limit to judicial review, ADJR Act, Preparation of report amount to a decision?) Minister ordered the preparation of a report into workplace practices at Australian War Memorial. Finn J ruled this was a reviewable decision

o Report can be said to stand alone as a separate and discrete decision. That subsequent decisions may be taken in consequence of it, does not rob it of this character

o Report can have an effect on the interests of the applicants that are protected by law. This alone would not result in the report being a reviewable decision, it is the combination of the qualities of finality and substantive determination which is necessary to produce the result.

o The report has the independent capacity to be the instrument of silent and/or collateral injurious affection to the applicants

Important CasesAustralian Broadcasting Tribunal v BondRight to Life Association (NSW) Inc v Secretary, Department of Human ServicesKelson v ForwardElectricity Supply Association Ltd v Australian Competition and Consumer CommissionGriffiths University v Tang

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Week 5 - Jurisdictional Barriers: Justiciability & Standing

Justiciability A common law doctrine that recognises that some matters are unsuited to judicial resolution Justiciability does not really turn on whether a decision is statutory or prerogative in origin, or who the DM is.

Essentially the question concerns the subject or nature of the power being exercised. In addition, whether certain prerogative powers are reviewable as a general rule or non-justiciable with respect to the manner of their exercise will ultimately depend also on the nature of the power in question.

Removal of automatic immunities from reviewStatus of Decision-maker There is no automatic immunity from review merely because the decision was made by:

o Ministers (Padfield; Murphy Ores)o Crown’s Representative (Re Toohey; FAI v Winneke) o Cabinet (SA v O’Shea; Peko-Wallsend).

SA v O’Sheao The GG, acting on Cabinet’s advice, decided not to release a prisoner.o The fact that it was in substance a Cabinet decision did not, in principle, affect justiciability

prisoner could challenge on ground of procedural fairness.o However, Cabinet decisions are usually political may impose substantive limits on review.o Parole Board hearing & Cabinet decision were parts of a single decision-making process since

O’Shea had a fair hearing before the Parole Board, and no new material was before the Cabinet, he had received a fair hearing overall O’Shea failed.

Review of Statutory powers Fettered powers are always reviewable (for ‘ultra vires.’) Padfield: A formally unfettered power must be used in a way which is consistent with the purpose of the

Act, as determined by courts unfettered discretions may be justiciable.

Review of Prerogative powers Prerogative powers – examples include: national security, defence, declaration of war, conduct of relations

with foreign powers, extradition decisions, power to grant pardon, power to proceed by ex-officio indictment, power of AG to grant/withhold AG’s fiat, appointment of judges/QCs.

Historically, courts could examine whether a prerogative power exists, but could not review the manner of its exercise.

CCSU case; Peko-Wallsend: Prerogative powers are not automatically immune from judicial review.o But some decisions made in the exercise of such powers may be immune from review because of

their subject matter.

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Justiciability = suitability of an exercise of Executive power for judicial review.o If non-justiciable, court won’t even review legalities.

It is a limit to the rule of law, which suggests no such immunity from review. Generally, political/policy decisions are non-justiciable. The ADJR Act displaces the common law test for justiciability. Rather, ‘any decision of an

administrative character made under an enactment’ can be reviewed.

TOPICS TO BE COVERED: The jurisdictional barriers of justiciability and standing in the context of judicial review of

administrative action.

Review of Contractual powers Case law: A government contract is governed by the same private law as any other contract government

contracts do not involve exercise of public power not reviewable. However it can be argued that the government is increasingly using contractual techniques to implement its

policies so should be reviewable. Also, voluntary contracts are very similar to statutory rights.

Two reasons why a decision might not be suitable for judicial review:o Constitutionality: Courts should not encroach on areas in which the legislative & executive

branches of government are responsible.o Judicial competence:

(a) Judges do not have training for certain decisions; and (b) courts are better at applying clear pre-determined standards to facts (determinative

decisions) than balancing a multitude of interests (polycentric decisions).

Examples of non-justiciable decisions CCSU v Min Civil State: National security decisions are non-justiciable

o Minister decided (under prerogative power) to ban unionship at a spy centre without prior consultation. There was an established practice that the union will be consulted on important alterations in the terms & conditions of staff employment legitimate expectation of consultation.

o Union sought review on procedural fairness ground.o The decision is not immune from judicial review simply because it stemmed from a prerogative

power. But the Minister’s decision was in the best interests of national security non-justiciable.

Minister for Arts, Heritage and Environment v Peko-Wallsend: Polycentric (complex policy) decisions, & treaty implementation decisions are non-justiciable

o PW held mining interests in land. A Cth cabinet decided (under prerogative power) to place the land on the World Heritage list, which would have the effect of confining mining operations.

o PW commenced proceedings on the basis that there was denial of procedural fairness. The mere fact that a decision is made by Cabinet, and/or is an exercise of prerogative power, does not exclude judicial review.

o The Cabinet’s decision was non-justiciable, because: Subject-matter: The decision was made in the implementation of a treaty; Polycentric decision: In making the decision, Cabinet was weighing up effects on: PW,

international relations, treaty obligations, environmental considerations, impact on Aboriginals, and economic effect on Australia. This is a complex political decision best left to Cabinet.

o The ground argued was procedural fairness, not a policy issue. This was all the court had to decide the fact that the decision was a policy one was irrelevant.

Church of Scientology v Woodwardo National security decision made under a limited power (i.e. power to collect information

‘relevant to security’ only) was justiciable. Coutts v Cth

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Key factors of justiciabilityo Position of decision-maker & nature of power?o Individualised effect?o Policy decision / determinative decision?

Policy decision = weighing of many competing policies. Largely a matter of merits + Courts lack expertise + usually politically sensitive non-justiciable.

Determinative decision = application of reasonably clear standard to facts as found. Court has expertise justiciable.

o Subject matter?o Ground of Review?

o Decision made under employment power for armed services non-justiciable. Formerly was under prerogative power but now in regulations.

Re Ditford; exp DCTo A decision made under Bankruptcy Act, to extradite a person from Germany back to Australia, was

justiciable (despite subject matter being foreign relations). McCrae v AG

o Decision not to re-appoint certain magistrates were justiciable. Waters v AG

o Decision not to appoint a QC despite recommendations, was non-justiciable.

Criticism on Justiciability The decision in Peko-Wallsend is wrong.

o The Plaintiff only asked the Court to look at whether there was denial of procedural fairness. The Court could do this without re-determining the complex policy decisions. Therefore, the Court’s reason for choosing not to review the decision should not be the fact that the decision was a complex policy one.

o The Court essentially said that since the decision involved merits, it cannot review anything, even the legalities.

o Also, courts engage in complex policy decisions all the time (Teoh) It has been argued that we should get rid of justiciability, and just rely on legalities/merits distinction to

determine what courts can review.

ADJR and justiciability Justiciability issues far less likely to arise under ADJR Act

o Act only involves statuteso Schedule 1 excludes all contentious issues

The view less substantial under recent case Griffiths University v Tang o Majority of judges did not consider issue of entry into a PhD program was justiciable; however Kirby

J was in dissent. o Many areas of university institutions where decisions are non-justiciable (like marking of academic

paper). Differentiated between academic and disciplinary decisions. ‘In the present appeal, the respondent’s claim fell squarely within the former class.’

o ‘Academic judgement is one thing, but where an individual who has the requisite interest is affected by disciplinary hearings of an administrative nature made by a university body acting according to its power under a stature, outside the few categories peculiar to ‘pure academic judgement’ such decisions are susceptible to judicial review.’

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Standing Standing = question of who can bring an action to challenge the administrative decision. Standing requires a special interest and be a person aggrieved. The Plaintiff’s interests must be affected

in a way over & above the way the decision affects the public.

Personal/Private Standing A plaintiff may have standing if the decision directly interferes with their common law rights to life, liberty &

property. Howes v Vic Railways: Actual financial loss (e.g. lowering of property values) may give standing.

o Depreciation in house value due to Vic’s decision gave standing. Day v Pinglen

o Building of townhouses that would block Plaintiff’s view of Sydney Harbour gave standing. Exp Helena Valley v State PC: Indirect effect on a right (e.g. effect on residential amenity) may give

standing.o SPC decided that re-zoning land from ‘Rural’ to ‘Urban’ was not a ‘substantial’ alteration to the

planning scheme less rigorous procedures applied.o The individuals living in land adjoining the re-zoned land had standing, because the enjoyment of

their land would be detrimentally affected (even though the value of their land would not be diminished).

Commercial Interests R v Comm of Customs exp Cooke: Courts are unwilling to allow judicial review to be used as a tool to

prevent/hinder competitors.o Plaintiff’s financial interest was burdened by the decision, more than other members of the public.o But motivation of Plaintiff was to simply put financial strain on its competitors commercial interest

is not enough. Bateman’s Bay v Aboriginal Community BF: The Court appears willing to give standing to a Plaintiff who

shows a sufficient effect on his interests, even where the interest is commercial.o Appellant (Bateman) & Respondent were competitors in a limited market (funeral benefits to

Aboriginal’s within NSW).o Appellant (Council) granted Appellant (Bateman) approval which caused financial detriment to

Respondent’s commercial interests.o This case involved a ‘purely legal issue’ in which the Plaintiff had a clear ‘special interest’ over that

of the public at large standing.

Standing in Public Interest Litigation If the whole community is affected, who has a special interest?’ Attorney-General’s role:

o The AG has standing to sue to protect a public right.o The AG can give a fiat (consent to relator action). AG’s decision whether to give a fiat is non-

justiciable. A body may bring a public interest action, if the body has a ‘special interest’ (for common law review) or is a

‘person aggrieved’ (for ADJR review).o Although judges say that standing under the ADJR Act is to be construed liberally, in line with the

remedial intent of the Act, they have not taken a more open approach (probably because the common law itself has become more liberal in granting standing) no real significant distinction between CL & ADJR standing.

E.g. Judges cite ADJR standing cases to support common law standing.

Basic position Australian Conservation Foundation v Cth: A mere intellectual/emotional concern, or a strong belief that

the law should be observed, is not enough to give standing.

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o Plaintiff challenged Minister’s approval of a Qld tourist development before making a final Environmental Impact Statement (which was clearly in breach of admin procedures). ACF had no standing.

o Gibbs: A mere intellectual/emotional concern, or a strong belief that the law should be observed, is not enough to give standing… A person only has a special interest if he is likely to gain some advantage (other than mere satisfaction) if his action succeeds, or to suffer some disadvantage (other than grievance/costs) if his action fails.

o Mason: A Plaintiff will generally have standing, when he can show actual/apprehended damage to his proprietary rights, business interests, or perhaps social/political interests.

Courts have developed 3 ways to distinguish Australian Conservation Foundation v Cth & find a special interest/person aggrieved in public interest situations:

1) Vocational Special Interest If the Plaintiff’s vocation closely relates to the subject matter, then that Plaintiff has a ‘special interest’ –

an interest greater than the interest of the public at large. Onus v Alcoa: A Plaintiff has standing, if there is a close relationship between the Plaintiff and the subject

matter.o Aboriginal custodians of relics challenged the decision to allow aluminium smelter, which would

interfere with Aboriginal relics on the land.o The custodians, despite having no proprietary interest in the land, had standing.o Stephen J: ‘special interest’ involves an assessment of the importance of the Plaintiff’s concern with,

and the closeness of the Plaintiff’s relationship to, the subject matter. Sutton v Warringah

o Councillor challenged Council’s unlawful decision to delegate powers to a sub-committee.o Councillor was granted standing to challenge the decision.

Ogle v Stricklando Customs Regulation 13: A film shall not be registered if, in the opinion of the Board, the film is

blasphemous.o Censorship Board approved registration of an imported film and Priests sought review of the

decision under ADJR Act.o The opinion of the Board is a jurisdictional fact priests are arguing that no reasonable person

would have thought that the film was not blasphemous (a legalities argument)o Lockhart: A necessary incident of the priests’ vocation was to repel blasphemy they were

‘persons aggrieved.’ If the Board found that the film was blasphemous, the importers would clearly be a person

aggrieved [party interest]. So, if the Board found that the film was not blasphemous, somebody should have standing too priests must have standing (because nobody else would have standing).

o Fisher: Concerns of committed Christians in general were only intellectual/emotional, but the priests’ vocation extended their interest beyond that.

o Need to consider if there was no organised Christian group? Then maybe no standing. Is this fair?

2) Participation in a Statutory Process (Objector Status) A person who has participated in a statutory process has a right to see that the process is conducted

according to law. Sinclair v Mining Warden: Participation in a statutory process will give standing to challenge the

conduct of those proceedings.o Regulations required the Warden to hear any objections to applications for a sand mining licence,

before forwarding a recommendation to the Minister. Plaintiff presented strong objections, but the Warden did not consider them. Standing was taken for granted.

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o Gibbs: Distinguishable from ACF v Cth, because the admin procedures violated in ACF (though derived from statute) were not themselves of statutory force & hence conferred no rights sufficient for standing (not convincing)

o (Appears that you need objection in person, rather than mere written objection, to have standing.)

US Tobacco v Minister Consumer Affairs: A Plaintiff has standing if the Plaintiff participated in a statutory process that leads up to the decision being challenged.

TPA s 65C (5): Where goods may cause injury, the Minister may declare the goods to be unsafe.

TPA s 65J: [If the Minister does so,] he must invite suppliers of goods of that kind to request the Commission to hold a conference. The Commission may invite any person it ‘considers as appropriate’ to be present at the conference.

TPA s 65K: After the conference, the Commission must recommend to the Minister.o Minister declared that certain smokeless tobacco products were unsafe (pursuant to s 65C (5)).o US Tobacco requested a conference under s 65J. Commission invited AFCO to attend the

conference (under s 65J), as its presence was considered by the Commission to be ‘appropriate.’o At the conference, AFCO challenged US Tobacco’s material & views. US Tobacco sought review of

the Minister’s decision to declare the goods unsafe & therefore call the conference. AFCO sought to be joined in the proceedings under s 12 ADJR Act.

o The mere fact that AFCO made submissions to ban the goods is not enough, as many other organisations made submissions to. (similar to ACF)

o But AFCO has a sufficient interest, because the decision challenged has benefited AFCO in a special way… the special interest arose when the Commission invited AFCO to attend conference, because AFCO can then insist that the Commission take into account its views in the conference when making a recommendation.

3) Representative Standing A body which is best placed to represent the interest of a section of the community that is specifically

affected by the decision has standing to challenge it. Shop Distributive v Min Industrial Affairs: A Union has the same interests as its members. Australian Conservation Foundation v Minister for Resources

o Minister issued a 17 year woodchip export licence, which would involve logging within the National Estate. The Minister had to decide if there was a feasible & prudent alternative to logging within this area. The ACF argued that the Minister didn’t consider this.

o ACF had a special interest in relation to the particular forests under threat (unlike in the 1st ACF case), because:

The forests were part of the National Estate were of national interest ACF, a national organisation, had a special interest in their preservation.

Public perceptions of the need to protect the environment had increased community expected a body like the ACF to concern itself in this issue.

ACF was now established as the main body for protecting the environment. It was recognised by the government & received government funding (though still a private body). It was not a busybody. If the ACF does not have a special interest in the forests, there is no reason for its existence.

North Coast Environment Council v Minister Resources: The more organised & recognised the body is, the more likely it can get representative standing.

o Minister decided to grant an export licence to a sawmilling company, for the export of woodchips from NSW forests.

o NC sought reasons for the Minister’s decision to grant the licence, under s 13 ADJR Act.o Issue was whether NC was a ‘person aggrieved’ by the Minister’s decision (ss 13, 5).o Factors suggesting special interest and therefore ‘person aggrieved’

NC is the peak environmental organisation in the NC region. Its activities relate to the areas affected by the licence;

Cth gave regular financial grants; State allowed NC to represent environmental concerns on advisory committees;

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NC had conducted projects, conferences, made submissions on environmental matters NC had a keen interest in wood chipping operations for a number of years;

There is no other conservation body with a greater interest/commitment to the issue NC is well-placed to represent the public on conservation issues.

o Note: Although government funding is a factor in favour of standing, lack of funding should NOT disqualify standing. If only government funded bodies have representative standing, then effectively excluding all representative bodies that the government does not financially influence.

Statutory ‘Zone of interests’ Statute can modify the common law standing position. Courts are increasingly interpreting standing according to the purpose of the statutory scheme (e.g.

who did parliament intend to be able to challenge this decision? What interests was it intended to protect?) Under the ‘zone of interests’ test, the Plaintiff’s concern has to be within the concerns of the Act in order to

have standing. Right to Life Association v Dept of Health: Plaintiff has standing only if there is a relationship between

o (a) the subject matter of the decision (from the relevant Act’s objects), and o (b) the matters that the Plaintiff alleges

Permission granted for importation & clinical trial of an abortion inducing drug was subject to the drug being used in compliance with legislation.

Therapeutic Goods Act regulations Item 3(e)(ii): The drug cannot be used, if the Secretary becomes aware that the trial would be contrary to the public interest.

RTL advised the Secretary that the trials were contrary to State laws against procuring abortions, and were thus contrary to the public interest. But Secretary refused to stop the trials. RTL sought review of the decision not to stop 3 trials.

RTL was not a ‘person aggrieved’ by the decision: The Secretary’s decision was made under the TG Act. Its objects are to establish

‘quality, safety, efficacy and timely availability of therapeutic goods.’ RTL’s arguments were not based on quality etc; rather, they were based on the trials being contrary to law & loss of life.

Not sufficient that RTL was incorporated since 1984, is a successor, and has objects concerned principally with protection of life from moment of conception.

RTL has no greater interest than any ordinary public member. There is only intellectual, philosophical & emotional concern. There is no advantage likely to be gained, or disadvantage likely to be suffered, in the proceeding. The most it can achieve is satisfaction of correcting a wrong decision & winning a contest.

The fact that the government does not fund RTL is not a negative factor (presumably because otherwise, the government can manipulate bodies’ actions against them by ceasing to fund them.)

Can interpret this case as saying: Mere special interest is not enough; must have a special interest within the purposes of the relevant Act.

Right to Life is hard to reconcile with other standing cases:o If apply North Coast, then RTL should have standing because there is no-one better to represent

the public’s interests. Lack of government funding should not matter.o Analogous to Ogle v Strickland, because RTL’s vocation is to defend the right of life against

abortion. Also, the case gives a lot of judicial discretion as to standing.

Important Cases Minister for Immigration and Multicultural Affairs v VadarlisOnus v Alcoa of Australia LtdShop Distributive and Allied Employers Association v Minister for Industrial AffairsNorth Coast Environmental Council v Minister for ResourcesRight to Life Association (NSW) Inc v Secretary, Department of Human Services and Health

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Week 6 - Preconditions to Power: The Fact/Law Distinction

Facts/Law distinction The facts/law distinction is due to the separation of powers:

o Marbury v Madison: Constitutionally, only courts can ultimately determine Questions of law.o Courts have no expertise in finding Questions of fact Executive determines Questions of fact.

The facts/law distinction is important because it determines what Courts can review, and therefore what decisions the administrator must get correct.

Merits review of Questions of fact & law In merits review of an admin decision, the tribunal stands in the shoes of the original decision-maker & re-

decides both Questions of law & fact:o The true meaning of the relevant statutory provision (Question of law);o The relevant facts, including primary facts & secondary conclusions of facts (Question of fact);o How the interpreted statute applies to those facts (can be Question of law/fact).

Since a tribunal is an Executive body:o Its determination of Questions of law is not final & conclusive.o It will freely replace the original decision-maker’s judgement on Questions of fact.

Judicial review of Questions of law In judicial review of an admin decision, the Court readily substitutes their opinions on Questions of law.

Examples of Questions of law:o Was the correct statutory test applied? (statutory interpretation)o Was the procedure fair?o Was the DM within its power?o Did the DM exercise its power reasonably?

Judicial review of Questions of Fact Courts generally cannot review Questions of fact.

o Why? Determinations of Question of fact are merit outcomes The Court will show considerable deference to an administrative determination of fact, and will challenge it only in extreme cases.

Only 3 ways a Court can review/determine Questions of fact:o Courts can directly review facts that are essential preconditions to the administrator’s

power/jurisdiction (i.e. jurisdictional facts). Why? Courts must review jurisdictional facts in order to determine the legal question of

whether the administrator had power to act.o Court can determine facts that relate to the process by which the original decision was made.

Why? If a ground of review is argued, Courts often must determine additional facts that relate to the process by which the original decision was made.

o Courts can indirectly review substantive conclusions of fact that are unreasonable or based on no evidence.

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TOPICS TO BE COVERED: Preconditions to power; the types of preconditions to the exercise of power; the legal effect of

failing to comply with preconditions Jurisdictional facts The distinction between questions of fact and law.

What constitutes Questions of fact & Questions of law?Questions of fact Questions of Primary Fact: who did what, where & when? Questions of Secondary Fact: what inferences may be drawn from primary facts? What is the meaning of ordinary words in a statute?

Questions of law Do the facts (as found) fall within/outside the statutory limits? What is the meaning of legal words in a statute?

Questions of Fact/Law in Statutory interpretation Overall statutory interpretation is a question of law (e.g. whether the word is used in a technical legal sense,

or an ordinary English language sense).o Word is defined in the statute, or is given a specific legal meaning in a previous judicial

decision technical.o Overall statutory context indicates that a specific legal meaning is intended technical.

If the word is used in a technical legal sense, its meaning (and application to the facts) is a question of law. If the word is used in an ordinary English language sense, its meaning (and application to the facts) is a

question of fact.o But if the administrator gave an ordinary word a meaning to that is unreasonable (i.e. a meaning so

unreasonable that no reasonable administrator could have supposed such a meaning to have been intended by Parliament) an error of law.

o So, courts will not interfere with an administrator’s reasonable interpretation of an ordinary word (even though they might not agree with the administrator’s particular interpretation.)

Reason why meaning and application of ordinary words are questions of fact and therefore usually unreviewable?

o Practicality: If the meaning of every single statutory phrase is classified as a question of law, the potential for judicial intervention would be enormous.

o Intent of Parliament.

Preconditions to Existence & Exercise of Power As a matter of statutory interpretation, statutes may contain certain preconditions to power:

o Factual preconditions (jurisdictional facts): The statute requires certain facts to exist in order for the power to exist.

Ground of review = show the jurisdictional facts did not exist at the time.o Procedural preconditions: The statute requires certain procedures to be carried out prior to the

exercise of power. Ground of review = show the procedures have not been carried out.

o Subjective preconditions: The statute makes the existence of the power dependent on the administrator’s subjective opinion that certain facts exist.

Ground of review = unreasonableness only. Distinguish preconditions to power from requirements during exercise of power.

Jurisdictional facts To make a fact jurisdictional, the Act must do 2 things:

o it must condition the power on the fact’s existence (objectivity); ando It must condition the validity of the decision-maker’s act upon that existence (essentiality).

Factors on whether a particular question of fact is jurisdictional (& therefore reviewable by courts):o Statutory language makes the fact a precondition, not a mere procedure jurisdictional.

Project Blue Sky: Language used assumes that power already exists not jurisdictional.

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Enfield v DAC: Provision directly stipulates that the fact is a precondition jurisdictional. ABT v Bond: Statute required administrator to decide a fact (fitness) before the power to

revoke flows jurisdictional. Project Blue Sky v ABA: Fact was a procedure not jurisdictional.

o Objective language v Subjective language: Objective language supports the conclusion that the fact is jurisdictional (Enfield v DAC).

Act’s factual requirements are drafted subjectively in some places, and objectively in others. AHC v MIM: A power of ‘consideration’ was objective.

o The fact is pivotal /central to the design of the statutory scheme jurisdictional. Enfield v DAC: Whether ‘special industry’ or ‘general industry’ was a choice between 2

different regulatory schemes jurisdictional. Statute provides detailed public consultation & consideration procedures not

jurisdictional (AHC v MIM).o Inconvenience of making administrative decisions conditional upon a court’s view of the facts

not jurisdictional. Project Blue Sky v ABA: Invalidity would seriously inconvenience people who relied not

jurisdictional.o Facts that incorporate strong value judgement not jurisdictional.

AHC v MIM: Whether a place had ‘aesthetic/historic/scientific/social significance, or other special value’ was a political & value-laden question (better decided by admin) not reviewable by court not jurisdictional.

Enfield: Whether a development is special/general industry (i.e. how smelly it is) is assessable by expert witnesses jurisdictional. Distinguish from AHC because there, expert witnesses can’t decide whether the place was aesthetic etc.

o Whether the facts exist has a strong impact on common law rights & liberties jurisdictional. Criticism of court’s review of jurisdictional facts:

o If a fact is jurisdictional, it’s the court’s (not administrator’s) opinion of the fact’s existence that counts. But is the court any better at finding whether these facts exist? No!

Effect of non-compliance with statutory requirements Project Blue Sky v ABA: Non-compliance with procedures will not necessarily lead to invalidity of a decision.

Whether there is invalidity depends on statutory interpretation.o If there is no invalidity, people who relied on the unlawful decision, can get injunctions against the

regulator. Factors indicating intent of invalidity:

o Statutory language makes the fact an essential preliminary?o Subject matter is determinate and rule-like?o Consequences of invalidity?

Project Blue Sky v Australian Broadcasting Authority (discretionary power, breach of an essential preliminary) Validity of legal error

Broadcasting Services Acto s 122: ABA must determine standards to be observed by broadcasting licensees.o s 160(d): The ABA is to perform its functions consistently with Australia’s international

obligations. ABA determined (pursuant to s 122) a standard which contained clause 9: Australian programs

must comprise at least 50% of broadcasts. Trade Protocol: Australia should give NZ programs access rights in its market no less favourable

than Australian programs. NZ companies argued that the making of the Standard was inconsistent with the Protocol. Section 122, when read with s 160(d), is intended to have a legal meaning: it gives the ABA power to determine Standards only to the extent that they are consistent with s 160.

Did the making of the Standard breach s 160?

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The Standard, by giving Australian programs at least 50% of broadcasting time, makes it harder for NZ programs to compete NZ programs have less favourable access rights than Australian programs clause 9 is inconsistent with the Protocol breach of s 160(d).

Was the Standard invalid? Principle: Whether an act done in breach of a condition regulating the exercise of a statutory power

is invalid, depends on legislative purpose. Factors why the Standard in breach was not intended to be invalid:

o Language: Section 160 assumes that the ABA already has power it regulates the exercise of functions already conferred on the ABA, rather than imposes essential preliminaries to the exercise of its functions.

o Subject matter: Many international conventions & agreements are expressed in indeterminate language (e.g. described as goals rather than rules). Also, the obligations here did not have a rule-like character (i.e. could not be easily identified and applied). Rather, they were matters of policy.

o Consequences: Invalidity of acts done in breach of s 160 is likely to result in (1) much inconvenience to members of the public who have acted in reliance on

the ABA’s conduct; (2) Licensees having difficulty in ascertaining whether the ABA was acting

consistently with obligations imposed by s 160; and (3) Loss of investor confidence.

But an act done in breach of s 160 is unlawful. So a person with sufficient interest can sue to obtain an injunction restraining action based on the ABA’s unlawful action.

o (This means that all the people who acted in reliance on the Standard are safe. But the unlawful Standard cannot be relied on in future.)

Evaluation This is a Green Light decision, because it considered the impact on the administrator. The remedy was

sensitively handled. Even though the administrator’s decision was unlawful, it was not invalid if Parliament did not intend it to be.

Corporation of the City of Enfield v Development Assessment Commission Jurisdictional Fact

o Development Act ss 32 & 33 forbid development unless the DAC grants consent. Section 35(3) (a): A ‘special industry’ development must not be granted consent, unless the

Council concurred & DAC gave public notice.o DAC determined that the proposed development was ‘general industry’ rather than ‘special industry

s 35(3) (a) did not apply DAC decided to give consent without public notice.o On appeal, Debelle J decided on expert evidence that the development was ‘special industry’ s

33(3) (a) applied DAC exceeded its powers by acting without Council’s consent. But Full Court the Question of fact was non-jurisdictional.

o Question of fact = ‘Whether the development is special/general industry?’ Issue = is this a jurisdictional fact? Whether the development is special/general industry is a reviewable jurisdictional question of fact, because:

The fact is central/critical to the statutory scheme. How the consent power (s 35(3)) works will depend on this fact. It is the turning point that leads to 2 different statutory schemes:

If general industry, not many procedures for consent DAC can consent. If special industry, totally different & more onerous procedures for consent

Council can veto DAC’s consent, and need public notice. The fact is phrased in objective language. The fact is phrased as a precondition that prohibits s 35(3) consent without Council

concurrence [“[special industry] must not be granted”].o If the court is in doubt upon a particular factual matter, it would be open to the court to resolve that

doubt by giving weight to any determination upon it by the Commission.

Hope v Council of City of Bathurst (subject preconditions, fact/law distinction) Question of law or fact?; Unreasonableness

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o Hope’s land was used to regularly agist other people’s cattle, there were fences & troughs, and 90% of the land was pasture improved. Hope advertised for agistment.

o Section 118(1) defined ‘rural land’ (in which lower rates applied) to mean land used for ‘carrying on the business’ of grazing.

o Land and Valuation Court decided that H had no ‘business’ lower rates did not apply. (Note: this is not a jurisdictional fact, because power does not depend on it; it is merely a

step along the way to deciding the rate.)o Issue = is the meaning of ‘business’ a question of fact/law?

Principleso Whether the facts fall within the statutory provisions properly construed (i.e. overall statutory

interpretation,) is a question of law. SO: Whether a word is used in a technical legal sense or an ordinary sense, is a question of law. The meaning of an ordinary word is a question of fact. (The meaning of a legal word is a question of law.)

o Whether the material before the court reasonably admits of different conclusions as to whether the facts fall within the ordinary meaning of the words as so determined, is a question of law.

If different conclusions are reasonably possible, the decision of which is the correct conclusion, is a question of fact [to be decided by the administrator]. [Courts cannot change it.]

[Whether the facts fall inside the conclusion(s) reasonably possible, is a question of law] Application

o ‘Business’ in Act has an ordinary meaning. It denotes activities done for the purpose of profit on a continuous & repetitive basis. This is a question of fact.

o Hope’s activities would amount to a ‘business’ under any reasonable ordinary meaning of ‘business’ that the decision-maker uses It was unreasonable for the primary judge to conclude that there was no ‘business’, as all the essential characteristics required of a business were present:

Transactions were entered into on a continuous & repetitive basis, for the purpose of making profit.

The appellant sought customers by advertising. The land was put to its best potential use, the pastures were improved, and facilities

including fences were provided for use.

Collector of Customs v Pozzolanic Enterprises Pty Ltd (Fact Law distinction) Customs Act provided rebate for diesel fuel for use in ‘primary production’. Question was whether fuel

rebate could be claimed for equipment that unloaded stock feed from a truck to a farm silo. On appeal, the Full Court of FC held that the meaning of the statutory phrase raised a question of law, but

that the tribunal had not reached an erroneous construction of the phrase.o ‘The nature of the task of the court is clear. It is to leave the tribunal of fact decisions as the facts

and to interfere only when the intended error is one of law.’o The proper interpretation, construction and application of a statute to a given case raise issues

which may be or involve questions of fact or law or mixed fact and law.o The question whether a word or phrase in a statute is to be given its ordinary meaning or some

technical or other meaning is a question of lawo The ordinary meaning of a word or its non-legal technical meaning is a question of facto The meaning of a technical legal term is a question of lawo The effect or construction of a term whose meaning or interpretation is established is a question of

lawo The question of facts fully found fall within the provision of a statutory enactment properly construed

is generally a question of law. ‘Although the words of the statute are construed according to their ordinary English

meaning that does not mean that their application to a set of facts is simply described as the matching of that set of facts with a factual description. There is necessarily a selection process involved. The range of relationships to which apply for the purpose of the Act depends upon a judgment about that purpose … In the end this is not a process of fact finding. The facts are already found. What is left is a value judgment about the range of the Act and that is a question of law.’

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Collector of Customs v Agfa-Gavaert (Fact/law distinction, ordinary use of ‘Trade,’ context is important) Question with regards to the interpretation of ‘silver dye bleach reversal process’ Brennan CJ, Dawson, Toohey, Gaudron & McHugh JJ:

o ‘the meaning attributed to individual words in a phrase ultimately dictates the effect or construction one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question.

o ‘The determination of whether an Act uses an expression in any other sense than that which they have in ordinary speech is a question of law.’

o OK to look at the trade meaning of part of phrase where whole phrase does not have a trade meaning provided does not lead to a result which is absurd in the sense that the result may be unworkable or impractical, inconvenient, anomalous or illogical, futile or pointless or artificial.

Important CasesProject Blue Sky Inc v Australian Braodcasting AuthorityCorporation of the City of Enfield v Development Assessment CommissionHope v Bathurst City CouncilCollector of Customs v Pozzolanic Enterprises Pty LtdCollector of Customs v Agfa-Gavaert

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Applying legislation to the factso Step 1 Fact finding

establish the primary facts by evidence and observation and use to prove other facts through inference

error here results only in error of fact (non-reviewable) unless no evidence to support decision which is an error of law – see below

o Step 2 Rule stating deciding what the statute says, consider meaning of each word, phrase etc rules as above

o Step 3 Rule application Legislation must be applied to the facts to reach a decision application of a word used in an ordinary sense is a process of fact application of a technical legal word or phrase is a process of law if only one reasonable conclusion is open, question of law

Week 7 - Procedural Fairness: The Hearing Rule

NB s 5 ADJR Act

Nature of Procedural Fairness (natural justice) Rules of procedural fairness regulate actual conduct of the decision-maker, while other grounds of judicial

review (e.g. irrelevant consideration, act for improper purpose) regulate the process of reasoning.o A right to be informed of adverse allegations or information – the right to know the case against

youo The right to present one’s case in response – the right to answer the case against you – tell

your side of the storyo Procedural fairness is not concerned with fair outcomes, it s concerned with a fair processo Procedural fairness conduct not the process of reasoningo ADJR Act

Section 5(1)(a) and 6(1)(a) allows for a review for ‘a breach of the riles of natural justice’ Review under ADJR Act to be determined under the common law doctrines of the PF,

therefore the same. Hearing rule – requires that before a decision is made adversely affecting a person’s right. Interests

or legitimate expectations, the decision of the maker must give the person prior notice that a decision may be made, the information (particularly adverse information) on which the decision may be based and their right to make a submission in reply.

Whether judicial review is available for breach of procedural fairness (in particular, the hearing rule) is approached through a 2-stage analysis.

Value of Procedural Fairness Procedural fairness is valuable because of:

o Instrumental importance: fair procedures help achieve the purposes of substantive rules/principles achieve the right outcome.

o Intrinsic benefits: participation, justice is seen to be done, equal treatment, psychological contributions, democratic, gives people respect and dignity.

Rules of PF create tension between administrative efficiency, and fairness to the Plaintiff. The more procedures required the more difficulty to the administrator (more red lights).

1) When does procedural fairness apply? (Scope) Kioa v West: Procedural fairness applies to an administrative decision which has a direct & immediate

effect on rights, interests or legitimate interests of an individuals; subject to clear contrary statutory intent. Since this case there is a presumption that PF applies, but subject to statutory intent.

If there is sufficient interest for standing, then usually procedural fairness applies (Bropho).

Direct & immediate effect This means individualised decision-making. The decision must be about individuals. Broad, high-level

policy decisions do not have an individualised effect.o So PF can only be implied if the decision affects an individual’s interest in a way substantially

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TOPICS TO BE COVERED: The principal limbs of the procedural fairness doctrine The scope of procedural fairness and the ‘implication’ test for the hearing rule following Kioa The remaining limits on the scope of the hearing rule Statutory exclusion of the hearing rule The flexible content of the hearing rule.

o SA v O’Shea Even though the decision not to release a sex-offender was in the public interest, and

was thus a highly political decision, it included considerations personal to O’Shea (i.e. the Parole Board’s report on him) procedural fairness applied.

o Salemio The decision must directly affect the person individually, not simply as a member of the public or

class of public. An administrative decision of the latter kind is a ‘policy’ or ‘political’ decision not subject to judicial review.

o Kioa v West Decisions which only indirectly affect the rights/interests/expectations of individuals

include: Decision to impose a tax; Decision to impose general charge for services.

The test for procedural fairness is narrower than the test for standing:o WA v Bropho

An interest which attracts principles of natural justice will always give standing; but a grievance that gives standing does not always involve a legitimate expectation that is protected by principles of natural justice.

Representative standing cannot be translated into application of procedural fairness.o [Justification? If a decision affects a large number of people, it would be impractical to give each

a hearing]

Rights, interests or legitimate interests Kioa v West (Mason):

o ‘Rights’ means legal rights (E.g. proprietary right).o ‘Interest’ is very broad (E.g. personal liberty, status, preservation of livelihood & reputation, financial

interest). Same as the standing test.o ‘Legitimate expectation’ fills the situation where the decision does not deprive of a legal right or

interest (e.g. renewal of licence) procedural fairness applies even if the decision takes away something you have not got, as long as you legitimately expected to get it.

Contrary statutory intention Cases show that judges are reluctant to say that Parliament did not intend procedural fairness to apply a

shift in focus to content of procedural fairness (Kioa v West).o Ainsworth v CJC:

Could not use expressio unius maxim to impliedly exclude procedural fairness.o Ex parte Miah:

Specification of certain procedures (Code) & right of appeal to Tribunal were insufficient to exclude procedural fairness.

o Kioa v West: A strong manifestation of contrary statutory intention is needed to exclude procedural

fairness. Procedural fairness may be excluded where its application would be inconsistent with the

statute’s operation or purposes. But the court allows Parliament to exclude procedural fairness expressly & clearly (e.g. Migration Act

successfully removed procedural fairness).

2) What does procedural fairness require? (Content)A) Hearing rule: Fair Hearing Procedural fairness requires a fair hearing. A fair hearing may require:

o Disclosure of the adverse material;o Opportunity to rebut adverse allegations;

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o Adequate notice (More time);o Oral hearing;o Legal representation;o Cross-examination of adverse witnesses.

Notice of adverse information influencing decision making Kioa v West: The administrator must notify the affected person about adverse information in the

administrator’s mind, that is prejudicial to the person’s interests (including reasons). How much the person needs to know, depends.

o Put another way, the administrator must give the Pl a reasonable understanding of the adverse allegations which could influence its decision-making.

Kioa v West: Even adverse information that is not crucial/decisive of the decision, must be disclosed to the Pl (if it’s in the decision-maker’s mind).

o *Information that the applicant was consorting illegal immigrants was not decisive of the decision to deport (b/c not in the reasons given).

o Held: K should have the opportunity to reply to the prejudicial allegations denial of PF. Exp Miah: Even adverse information that is in the public domain, must be disclosed (if it’s in the decision-

maker’s mind).

Reasonable opportunity to prepare defence Exp Polemis: The affected person must be given a reasonable opportunity to reply to the case made

against him. What is a reasonable opportunity, depends on what his argument is. Kioa v West; Russell v Duke of Norfolk: The procedures required depends on the circumstances of the

particular case (ie. are flexible). Relevant circumstances include:o The nature of the inquiry;o The subject-matter; ando The rules under which the decision-maker is acting.

Pl bears the burden of proving that the decision was unfair because it did not involve a procedure required by fairness.

Test is to ask:o What is Pl’s defence argument to the allegation? Possible responses:

Wrong facts: “The alleged event never happened”. Wrong interpretation of statute: “The allegation is false/mistaken” need to X-examine. Poor credibility: “The allegers are biased or dislike me” need to X-examine.

o What procedures are necessary in order to make Pl’s case? Why?o Were those procedures adopted in the hearing? No denial of PF.

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3 basic questions that can be distilled out of the ‘Kioa’ Test – and which underpin what might be described as the presumption that PF will be required in the making of an administrative decision.1. Does the decision have an effect upon ‘rights,’ ‘interests’ or ‘legitimate expectations’?

Rights – legal, CL or statutory Interests – broader and includes social interests such as reputation LE – now basically redundant but may help indicate content

2. Is the effect sufficient and direct and immediate? Similar to standing test Where policy decision affects the population rather than just an individual or identifiably

small class – not subject to PF requirements3. Has the statute excluded procedural fairness – expressly or otherwise?

Requires explicit statement - Like in Miah Provision of de novo review may be argued to displace the requirement of PF – not

usually upheld in court – often used by a court to decline a remedy on basis that their s an alternate remedy.

Kioa v West Scope & content of Procedural Fairness.

o K applied for an extension to his temporary entry permit.o After the permit expired, K remained in Australia allegedly because his home country was

devastated by a cyclone.o Minister decided to refuse K’s applications for entry permits, because of certain allegations about K

that were not put to K.o K argued that the Minister’s decision to refuse his application breached procedural fairness.

Threshold:o [The deportation order clearly affected the interest of K (personal liberty) in an individualised

way.]o The Migration Act as amended required the administrator to give reasons for his decision

statute did not displace the obligation to comply with procedural fairness requirements. Content:

o Procedural fairness requires the administrator to bring to a person’s attention the critical factor on which the admin decision is likely to turn, so that he may have an opportunity of dealing with it.

o Procedural fairness demands that K should have the opportunity of replying to allegations which were extremely prejudicial to K. There were 2 such matters:

The comment that: had K been genuine, he would have sought a decision on his application rather than change his address without notifying the Dept.

The comment that: K’s concern for illegal immigrants & his active involvement with others seeking to circumvent Australia’s immigration laws, must be a source of concern.

o The other materials which K complained of consist of policy & undisputed statements, which does not call for a chance to reply.

o Appeal allowed, deportation quashed order.o Obiter: In the case of a prohibited immigrant who intends to remain without lawful right and evades

authorities, procedural fairness does not require giving of advance notice of the deportation order.

Ex Parte Miah Exclusion/modification of procedural obligations by statute: How clear contrary statutory intention

has to be. M, a Bangladesh national, applied for a protection visa on the basis that he was a “refugee”. *After the date of application, the delegate received new information that the Bangladesh

government changed. The delegate thought that the ousting of the BNP meant people were more tolerant delegate considered it decisive against M’s application.

*Delegate did not inform M of the new material and give him an opportunity to respond to it before deciding to refuse.

Procedural fairness applied? Legislation was not intended to exclude common law procedural fairness requirements, because:

o there are no clear words to that effect;o the subject matter of the Act;o the Act implemented international obligations.

Content of procedural fairness requirements? Def’s 1st argument Def argued that use of the word “Code” in the heading of subdiv AB excludes any procedural

fairness requirements outside subdiv AB.o But this is a weak reason. Eg: Parliament could not have intended to exclude

bias/corruption rules. Examples of material that would NOT require comment by the applicant include:

o Non-adverse country information;

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o Favourable/corroborative information in the public domain; ando Information based on circumstances described in the application.

An applicant must be given an opportunity to comment where the delegate proposes to use new material (of which the applicant may be unaware) and which could be decisive against the application;

o This disclosure is stronger where the material concerns circumstances that have changed since application date, and is being used after considerable delay.

o It is even stronger if the material is equivocal or contains info that the applicant could not reasonably have expected to be used.

Here, the new information was decisive of the claim, and was totally new, was considered 13 mths after date of application, and M could not have reasonably expected this information to be used against him (since both parties were arguably unwilling to offer M protection). The delegate did not inform M he would use the election results, nor offer M an opportunity to comment breach of procedural fairness.

Def’s 2nd argument Def argued that because the Act gave a right to full de novo review by the Tribunal, Parliament

intended to limit requirements of natural justice at the stage where a delegate is examining the application.

Factors relevant in determining whether a right to full review excludes/limits rules of natural justice:o Preliminary/Final original decision: The more final the decision is, the more likely natural

justice applies. Here, the decision was final natural justice.

o Public/Private original decision: If private decision, it is less likely that natural justice applies (because reputation not affected as much).

Here, the decision was private no natural justice.o Formalities required for original decision.

Here, the requirement to give reasons made it harder to say that an appeal right was intended to limit natural justice requirements natural justice.

o Urgency of original decision. Here, there was no urgency natural justice.

o Judicial/Internal appellate body: If the appellate body is a court, it is easier to infer that the right to appeal was intended to limit/exclude rules of natural justice at the earlier level.

Here, the appellate body is a Tribunal natural justice.o De novo/Limited appeal: If de novo, easier to infer that natural justice was intended to be

excluded/limited. Here, there was de novo no natural justice.

o Nature of interest; Consequences for individual, Subject matter of legislation. Here, nature of interest = personal security; Consequences = serious threats;

Subject matter = international obligations towards vulnerable citizens natural justice.

Balancing these factors, the right to appeal to the Tribunal is NOT intended to exclude/limit natural fairness.

Denial of procedural fairness is grounds for relief under s 75(v).

Important CasesKioa v WestRe Minister for Immigration and Multicultural Affairs; Ex parte MiahMinister for Immigration and Multicultural Affairs v TeohRe Minister for Immigration and Multicultural Affairs; Ex parte Lam

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Week 8 - Procedural Fairness: The Rule Against Bias

Bias rule: Impartial decision-making Basic rule: The decision-maker must have an impartial mind open to persuasion during the hearing,

actually and in appearance.o It applies to judges, and also administrators (but with less stringency).o Rationale of bias rule = to maintain public confidence in the integrity of decision-makers.

The rule against bias is flexible (because of reasonable in ostensible bias test). 3 categories of bias: Actual bias, Deemed bias, Ostensible bias.

Actual Bias Courts are reluctant to find actual bias:

o because it destroys public confidence in the justice system, and the whole point of the bias rule is to make the decision-maker look trustworthy; and

o NOT because it is hard to determine the subjective state of mind of the decision-maker (we do it in criminal law all the time).

o Jia – ‘a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence of arguments may be presented’

o Sun – ‘the DM has pre-judged the case against the applicant, or has acted with such partisanship or hostility as to show that the DM had a mind made up against the applicant and was not open to persuasion.’

Deemed Bias Dimes v Grand Junction Canal: Where the decision-maker has a direct financial interest in the outcome of

the decision, he is deemed to be biased.o Court of Chancery affirmed orders made in favour of a canal company, in which the Lord Chancellor

(who sat on the appeal) held shares.o There was no evidence that the Chancellor’s decision was actually affected by the shareholding.o The HOL set aside the decree.

Ebner v OTB: If the decision has no effect on the financial interest of the DM, then there is no deemed bias. (The outcome of the decision would not affect the price of the shares that the judge owned no deemed bias.)

Apprehended Bias Livesey v NSWBA: There is ostensible bias if a fair-minded observer would reasonably apprehend that the

judge is not bringing an impartial mind to the issue. Grounds for a reasonable apprehension of bias include:

o The decision-maker has previously expressed views about a case, or announces preliminary views during a case (Livesey v NSWBA) (i.e. has prejudged the case);

o The decision-maker conducted the matter in an unjudicial way (Damjanovic v Sharpe & Hume);o The decision-maker has a close relationship with a party; and (Kayliff v ABT, Beinstein)o The decision-maker acts as prosecutor & judge (Stollery v Greyhound Racing).

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TOPICS TO BE COVERED: The various categories of bias The relevant test for establishing bias The qualifications of the rule.

Test = (Given the remarks made, relationship etc) would a fair-minded observer reasonably think that there might be bias?

Preconceptions Livesey v NSWBA: A fair-minded observer might entertain a reasonable apprehension of bias by

reason of prejudgment, if a judge hears a case at 1st instance after he has, in a previous case, expressed clear views about:

o a question of fact which constitutes a live & significant issue in the subsequent case; oro the credit of a witness whose evidence is of significance on such a question of fact.

Vakauta v Kelly: Ostensible bias does not exist merely because a judge has preconceived views about the reliability of the evidence of a particular medical witness, even if the judge discloses the existence of such views in the course of dialogue.

o Distinguish preconceived views about reliability of medical witnesses, from preconceived views about credibility of non-expert witnesses.

2 exceptions to the ostensible bias rule: Waiver of right to object

o Vakauta v Kelly: Where a party is aware of a right to object on grounds of apprehended bias, but fails to do so prior to the decision, then the party has waived that right to object. (can’t wait for final judgment and then attack it). Works most effectively with issues of prejudgement.

o Good or bad rule? Depends on whether it enhances the purpose of the bias rule (i.e. public confidence).

It’s good because: If counsel is forced to object during the trial, the judge can correct himself by declaring that although he has preconceptions of the witnesses, he is open to persuasion on the evidence (Vakauta v Kelly). Also saves time. Thus, improves public confidence.

It’s Bad because: The bias rule (especially ostensible bias) is for the benefit of the community, not just the individual individual should not be able to waive away the community’s interest in the bias. Also, waiver defeats the purpose of a hearing, which is supposed to be free from bias in all cases. Thus, damages public confidence.

Rule of Necessityo Laws v ABT: Because statute can override common law, the bias rule cannot:

Stop a body set up to do statutory functions from performing those functions; or Frustrate the intended operation of a statute.

o Deane J: But the rule does not apply where its application would involve positive & substantial injustice; and when it applies, the rule does so only to the extent that necessity justifies.

o Usually no issue of necessity, because a body has lots of delegates, and there are changes in members over time.

Vakauta v Kelly (procedural fairness, bias rule, apprehended bias, waiver) Ostensible bias (prejudgement); waiver

During a trial, the judge criticised evidence given by the Defence’s medical witnesses in previous cases, including:

o that unholy trinity;o the GIO’s ‘usual panel of doctors who think you can do a full week’s work without any arms

or legs;o The doctors’ ‘views are almost inevitably slanted in favour of the GIO by whom they have

been retained, consciously or unconsciously.’ Defence’s counsel did not object to the remarks. In a reserved judgment, the judge:

o said that the evidence of the doctor was ‘as negative as it always seems to be – and based as usual upon his non-acceptance of the genuineness of any plaintiff’s complaints of pain’; and

o Prefaced concessions made by the doctor with ‘Even Dr Lawson thought.’ During the trial

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Ostensible bias? Yes. The remarks show an adverse attitude to the expert witnesses would have led a fair-minded observer to reasonably apprehend that the judge might not have an unprejudiced mind.

o But Dawson J – no apprehensive bias because alerting the parties to a preconception assists an impartial approach. The judge can still assess the evidence fairly.

Waiver? By not objecting to the judge’s remarks, the Defence waived any right to appeal against an adverse decision on the ground of what had been said at the hearing.

Reserved judgement Ostensible bias? The observations made about the doctor in the judgement (in the context of

remarks made during the trial) amounted to ostensible bias, because they would lead a reasonable or fair-minded observer to conclude that the judge was heavily influenced by views he had formed on other occasions rather than by an assessment based on the case in hand.

Waiver? No. Since the judgment was reserved, there was no opportunity for Defence to object to its contents.

Ebner Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and NZ Banking Group Ltd (procedural fairness, bias rule, apprehended bias) Brief Case details

o Ebner Trial judge disclosed during trial that he was a beneficiary under a family trust – 8000

shares in a bank and was a creditor in bankruptcy proceedings being heard by him. The Share value would not be affected by the proceedings and the HCA held that trial judge

was not disqualified under the apprehended bias rule.o Clenae

Trial judge inherited 2400 shares in ANZ bank after an 18 day trial but before decision. During the trial the principle witness had died. Judge did not disclose his inheritance

Judge rules for bank. HCA held that trial judge was not disqualified under apprehended bias

Important quotes/ratioo Gleeson CJ, McHugh, Gummow & Hayne JJ:

‘The application of the principle in connection with DM outside the judicial system must sometimes recognise and accommodate differences between court proceeding and other kinds of decision making.’

o It is a statutory requirement that the tribunal must perform the functions assigned to it and these should prevail over and displace the application of the rules of NJ.

o ‘Subject to qualifications of waiver … or necessity … a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.’

o The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced that outcome. No attempt need to be made to inquire into the actual thought processes of the judge or juror.

o Application requires 2 steps identification of what is said might lead a judge to decide a case other than its legal and

factual merits Must be an articulation of the logical connection between the matter and the feared

deviation from the course of deciding the case on its merits. The bare assertion that a judge has an interest in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of the departure from impartial decision making is articulated. Only then can the reasonableness of the asserted apprehension of bias be asserted.

o The circumstance that a judge has a not insubstantial, direct, pecuniary interest or proprietary interest in the outcome of litigation will ordinarily result in disqualification.

o This was not the case here in either situation. Necessity

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o Clenae - witness had died. Man’s credibility was central to the case. Judges duty was to give his decision in the case, as a rehearing based on diary notes would not have been an adequate substitute

Disclosureo Prudent and professional practice for a judge to disclose interests and associations if there is a

serious possibility that they are potentially disqualifyingo Allows parties to decide whether or not to waiver

Minister for Immigration and Multicultural Affairs v Jia (Procedural fairness, bias rule, decision of a minister and apprehended bias, prejudgment) Brief Case details

o Decision by Minister that Mr Jia and Mr White not permitted to remain in Australia by reason of conviction of rape and manslaughter. The AAT reversed decision of the Minister. The Minister before making the decision had commented adversely on the radio about the leniency of the AAT and had written a letter to the AAT president on the same issues.

o HCA held that the actions of the Minister did not constitute either actual or apprehended bias Important information

o Gleeson CJ and Gummow J: The state of mind described as bias in the form of prejudgment is one so committed to a

conclusion already formed as to be incapable of alteration, what ever evidence or argument may be presented. NJ does not require the absence of any predisposition or inclination for or against an argument or conclusion

o Minister has issues of parliamentary accountability and to consider the nations interest ‘The position of the minister is substantially different from that of a judge or quasi judicial

officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. There is no reason to conclude that the legislature intended to impose such standards upon the ministers, and every reason to conclude actual bias.”

Hayne J: There is no prejudgment in such a case because of the nature of the statutory task. It is to reach a degree of persuasion (satisfaction) that a value laden standard (is not of good character) is met. The determination of that standard is not a task which the Act required=s to a minister to undertake wholly anew each time it is suggested that there may be a case for the exercise of the discretionary power.

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 prejudgment may arise is reduced accordingly.

Hot Holdings Pty Ltd v Creasy (procedural fairness, bias rule, financial interest) Case details

o Minister for Mines granted exploration licence to HH, following a recommendation by a mining warden. Ballot done by warden due to number of applications. The Minister sought departmental advice on the recommendation. The unsuccessful applicant argues that two officers in the process had pecuniary interest in the outcome and that their interest tainted the Minister’s decision with bias. One owned shares in the company that held an option to purchase an interest in exploration if HH was successful

o Son of Director of the Mineral titles division who was a party to the discussions with what the DG should recommend to the Minister

o HCA allowed the appeal against the finding of bias by FC of WASC. Important details

o Gleeson CJ: Minister had no pecuniary interest, nor knowledge of the shareholdings of those implicated, and no ground to apprehend that he might have been influenced to promote their interests

‘A fair minded member of the public, informed of all the facts set out above, would know that the Minister was personally impartial. Such a person would have no reason to apprehend that the Minister was seeking to do anything other than his statutory duty.

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‘It is not enough that an observer who knew some of the facts about the decision making process, and did not wish to know others, might have entertained a suspicion that the decision was influenced by one of the interests. No person with a personal financial interest in the outcome of the matter participated in a significant manner in the making of the impugned decision.

o McHugh: ‘It is erroneous to suppose that a decision is automatically infected with an apprehension of bias because of the pecuniary or other interest of a person associated with the decision maker. Each case must turn on its own facts and circumstances’

To consider: nature of the association the frequency of contact the nature of the interest of the person associated

o NB: Must be a logical connection

Important CasesEbner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and NZ Banking Group LtdMinister for Immigration and Multicultural Affairs v JiaVakauta v KellyHot Holdings Pty Ltd v Creasy

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Week 9 - Ultra Vires

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Ultra ViresBeyond Power

Express Ultra Vires(Narrow UV)

Implied Ultra ViresWide UV

Limits implied by C.L.

Procedural Ultra Vires

Power exists but only after following a certain procedureThe outcome of failure to comply is a question of legislative intentProject Blue Sky

Abuse of discretionUnreasonable exercise of a discretion

unreasonablenessfailure to take account of a relevant considerationthe taking into account of an irrelevant considerationacting in bad faith or for improper purpose

Failure to exercise discretion

improper delegation of a discretionacting under dictationinflexibly applying a policyimproperly fettering a discretion by constraint or estoppel

Substantive Ultra Vires

(Simple UV)lack of power to act

Week 9 - Ultra Vires: Abuse of Discretion

Ultra vires means beyond power. Administrator has no power to take that action. Ultra vires doctrine: An administrator must act within the limits of powers which have been conferred

on them, by statute or common law.

Narrow ultra vires where an administrator goes beyond the express limits of their power Matter of statutory interpretation – exact meaning is examined

Substantive or Simple ultra vireso ADJR Act ss 5(1)(d) & 6(1)(d): Review is available where the decision was not authorised by the

enactment in pursuance of which it was purported to be made.o This occurs where the administrator lacks the power to act as they did (as a matter of statutory

interpretation).o Swan Hill Corp v Bradbury: Regulations authorising intrusion into common law rights & freedoms

are likely to be construed narrowly by the courts. A statutory power to make regulations ‘regulating’ building activity did not authorise

regulations which prohibited that activity entirely. Procedural ultra vires

o ADJR Act ss 5(1)(b) & 6(1)(b): Review is available where the procedures that were required by law to be observed in connection with the making of the decision were not observed.

o This occurs where the administrator has the power to act as they did only after following a certain procedure (a precondition), and the administrator purported to exercise the power without following the procedure.

Look for preconditions – things you need to do before (not during) you make the decision.o Project Blue Sky

Whether invalidity flows from non-compliance with statutory requirements, is a question of legislative intent.

o Norvill v Chapman Difference between procedural UV & procedural fairness:

If have statutory steps & didn’t do them, then use procedural UV. If don’t have a hearing, or an adequate one, then use common law procedural

fairness.

Wide (implied) ultra vireso (where an administrator goes beyond the implied limits of their power. These limits are implied by

common law)

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TOPICS TO BE COVERED: Grounds of review, collected under the general heading of ‘abuse of discretion.’ These grounds

relate to the manner in which the power in question is exercised.

Abuse of discretion (grounds relating to the unreasonable exercise of discretion. Where one goes beyond the implied limits of their power (limits implied by CL)

o Acting for an improper purpose (or bad faith);o Failure to take account of a relevant consideration;o Taking account of an irrelevant consideration;o Unreasonableness

Failure to exercise discretiono Improper delegation of a discretion or acting in bad faith;o Acting under dictation;o Inflexibly applying a policy;o Improperly fettering a discretion by contract/estoppel.

Abuse of discretion These are rules which relate to the manner in which a discretionary power is exercised. Padfield v Min of Agriculture: No such thing as an unfettered discretion. Even formally unconfined & absolute

discretions may be reviewed for abuse of discretion. Differences between irrelevant consideration ground, and improper purpose ground:

o Irrelevant consideration ground is easier to establish, because it doesn’t matter that other relevant considerations are taken into account. No “but for” test (don’t have to show the irrelevant consideration determined the outcome).

o But success in establishing the improper purpose ground is more useful, because when the power is exercised again, it will be much harder for the administrator to reach the same conclusion (due to the “but for” test). If succeed on irrelevant consideration ground, then the administrator can still arrive at the same conclusion easily.

Improper purpose ADJR Act ss 5(2)(c) & 6(2)(c): Review is available where an administrator exercises a power for a

purpose other than a purpose for which the power is conferred. Padfield: A discretionary power may only be exercised in pursuance of the purpose for which it was

originally conferred (even if the power is expressed on its face to be unfettered). There is no such thing as a truly unfettered discretion

o Not an improper motive just an incorrect sued of the powero An innocent mistake as to the purpose of the power will be sufficient to enable this ground of reviewo Bad faith requires proof of improper motivation – difficult and quite unnecessary

Establishing this ground of review 1) Authorised purpose? (A matter of statutory construction: question of law).

o Ask: What is the purpose for which the power is intended to be exercised [or for which the power was conferred]? What purposes are consistent with the Act?

o Sometimes the power expressly states its purpose.o If not express, then the purpose must be implied from

(i) the object of the Act, or (ii) if no objects clause, the Act as a whole (e.g. Woollahra Council v Min for Env).

The power is read down to its intended purposes. 2) Actual purpose? (A matter of evidence: question of fact).

o Ask: What were the actual purposes for which the power was exercised? Are they consistent with the purposes of the Act?

o Established using documentation (letters, minutes, and interview transcripts, cross examination.)

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Week 10

Two improper purposes cases: Sydney Municipal Council v Campbell and also Shop Distributive and Allied Employees Association v Min for Industrial Affairs

If the power is exercised for multiple purposes, ask: But for this unauthorised purpose, would the same decision still have been made?

If yes, the decision’s valid. If no, the decision’s invalid.

(Note: Need cross-examination to be sure of answer. But if the proper purposes are enough to justify that decision, then probably fail ‘but for’ test ground fails)

So, real question is: Is the power actually exercised for a purpose that is consistent with the statute?o Motive is irrelevant. E.g. Sydney Municipal Council (motive is to make profit lower rates, but still

improper purpose).Examples Sydney Municipal Council v Campbell (true purpose was to make profit)

o Council had power to compulsorily acquire land: for the purpose of making or extending streets; or for the purpose of carrying out improvements or remodelling any portion of the city

o Council decided (under 1st power) to acquire: land necessary for extension of Martin Place; and Adjacent land not necessary for the extension of the street.

o After the acquisition, Council said that the 2nd acquisition was made using the 2nd of its compulsory powers. Council minutes revealed that the purpose required by statute was lacking, and was only invoked as an afterthought.

o The adjacent land was not being acquired for either of the given statutory purposes, because the purpose of the acquisition was to make profits from expected future increases in land value once the street was extended (established from Council’s minutes) improper purpose.

Irrelevant that the Council had a good motive Shop Distributive v Min Industrial Affairs (authorised purpose = to exempt particular shops totally;

actual purpose = to exempt all shops partially)o Legislation limited shop opening hours. Its purpose was to protect shop assistants so they won’t be

called to work all hours. Section 14(3) provided that shops were to be closed on Sundays, except otherwise

provided in the Act. Section 5 gave the Minister power to issue certificates to individual shops, to exempt

them from s 14(3) Section 13 allowed the Governor to alter closing times by proclamation, after some

consultation procedureso Minister decided to adopt Sunday trading by issuing certificates under s 5, rather than by s 13

proclamations. The s 5 power was conferred for the purpose of exempting particular shops totally from the legislation, not to provide a partial exclusion for all shops from 11-5 on Sundays only the s 5 power was used for an improper purpose invalid.

o Also, if it were possible to use exemption certificates to alter trading hours, then protections given by s 13 could be bypassed. This cannot be the legislature’s intention.

Woollahra Council v Minister for Environment

Relevant & Irrelevant Considerations ADJR Act ss 5(2)(a)-(b) & 6(2)(a)-(b): Review is available where the administrator:

o (a) takes an irrelevant consideration into account in the exercise of a power; oro (b) Fails to take a relevant consideration into account in the exercise of a power.

There are some considerations that the decision maker is free to take into account or ignore.o Min for Aboriginal Affairs v Peko-Wallsend:

Every statute implies that the decision is to be made on the basis of the most current material available to the DM.

An update on a relevant consideration is itself a relevant consideration.Principles For relevant considerations: (Min for Aboriginal Affairs v Peko-Wallsend):

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o Relevant considerations are considerations that a decision maker is legally bound to take into account.

o The relevant considerations are determined by construction of the statute conferring the discretion.

If the statute expressly states relevant considerations, the court must decide (by interpretation) if they are exhaustive or merely inclusive.

If the statute does not expressly state relevant considerations, they must be implied from the subject matter, scope and purpose of the Act.

o Failure to take into account a relevant consideration will not invalidate the decision, if the factor is insignificant and the failure to take into account could not have materially affected the decision.

o The weight given to various considerations is generally for the decision-maker (not the court) to determine.

However, if a factor has been given far too much weight, or far too little weight, the decision may be reviewed if the decision is unreasonable.

For irrelevant considerations:o Irrelevant considerations are considerations that a decision-maker is legally bound to NOT take

into account.o The irrelevant considerations are implied from the subject matter, scope and purpose of the

statute (even where the discretionary power is in its terms unconfined).o Taking into account an irrelevant consideration will not invalidate the decision, if the factor is

insignificant and would not materially affect the decision.Establishing this ground of review 1) What is a relevant/irrelevant consideration? (question of law – statutory interpretation)

o If the Act expressly states them, then they may be exhaustive or merely inclusive (depends).o If the Act does not expressly state them, then must imply them from the subject matter, scope and

purpose of the Act. Always link to the purposes of the Act… ask: Does this consideration have nothing to do

with the purposes of the Act? 2) Was it in fact considered? (Question of fact – evidence)

Unconfined discretionary power Padfield v Min of Agriculture: Even in the case of unconfined/absolute discretions, there are some matters

which are irrelevant and must not be taken into account.o (political embarrassment was held to be an irrelevant consideration)

Peko-Wallsend: The exact determination of these matters depends upon the subject matter, scope and purpose of the statute.’

Confined discretionary power (i.e. express relevant considerations) where the discretionary power contained in statute expressly refers to the relevant factors;Identification of legally relevant/irrelevant considerations R v Hunt; ex parte Sean Investments: The specified factors are not necessarily exclusive.

o Section 40AA (7) National Health Act conferred a discretion to fix fees chargeable by Private Nursing Homes, ‘having regard to the costs necessarily incurred’ in running the home.

o Since this ‘costs’ factor is the only one mentioned by the statute, it is necessarily a fundamental factor in the determination of fees.

o However, ‘costs necessarily incurred’ is not an exclusive factor – the decision-maker could have regard to other factors, such as those which show the fees are excessive or unreasonable.

Sean Investments v McKellar (certain non-express factors are not irrelevant considerations)o The Minister made his decision under s 40AA(7) National Health Act, giving reasons that included

(i) the costs necessarily incurred in running the home, (ii) the effect upon the patients, and (iii) a concern that rents would not be unduly subsidised.

o Considerations (ii) & (iii) were not irrelevant to the Minister’s exercise of the statutory discretion.o The relevant factors, and the weight to be given to them, will vary from case to case.

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Phosphate v EPA (economic concerns are not relevant considerations)o Section 20(6) Environmental Protection Act gave EPA power to grant licences subject to such

conditions it thinks fit. EPA, after having regard to environmental considerations only, licensed a factory subject to a condition that there will be no release of sulphuric gas when an offshore wind was blowing. The company argued that other factors, in particular economic consequences to the community of imposing the condition, should have been considered.

o Environmental factors were obviously relevant. But the other factors were not relevant: There was no indication in the Act that either economic concerns or the ‘public interest’

were to be taken into account. The Act’s sole and only purpose was to reduce pollution to specified levels. It was not to

minimise pollution consistent with the maintenance of commercial activity. The Act did not contemplate some balancing of considerations.

The Board was comprised entirely of experts in environmental matters; there were no members chosen for their financial/industrial expertise.

Whether failed to take into account a relevant consideration? ACF v Forestry Commission

o Commission decided that certain areas of forest were ‘definitely not qualifying areas’ for World Heritage Listing. The Act required the Commission to identify any such areas as soon as practicable, presumably so that they could be logged. ACF argued that it was a relevant consideration that the identified areas had a relationship with existing World Heritage areas, which the Commission did not consider.

o The relationship of the identified areas to an existing World Heritage area WAS a relevant consideration. However, the relationships have been considered (by inference), because:

The Commission had refused, with respect to a number of other areas, to say they were ‘definitely of no value’ on precisely this ground. It was unlikely that the Commission would have regard to such factors in one case, and then ignore them in the next.

This was an interim report which was required to be prepared quickly; thus, a large amount of detail was not to be expected the report did not have to expressly consider it.

Unreasonableness (quite an uncommon ground of review) ADJR Act ss 5(2)(g) & 6(2)(g): Review is available where an exercise of power is so unreasonable that no

reasonable person could have so exercised the power. Is a catch all or residual category, to argue when the facts do not really suggest either an improper purpose

at work, or an argument based upon relevant/irrelevant considerations. Wednesbury: A decision will be reviewable where no reasonable person/body/administrator could have

made that decision. A decision is not ‘unreasonable’ simply because the Court or reasonable person would have made a different decision.

o Act allowed a cinema licence to be granted ‘subject to such conditions as the Authority thinks fit to impose.’ The condition attached was that ‘no children under 15 should be admitted to Sunday performances.’ This condition was NOT unreasonable.

Some judicially recognised forms of unreasonableness are:o Discrimination without justification

Parramatta City Council v Pestel Statute: The Council has power to determine a special rate where specified works

would be ‘of special benefit to a portion of its area.’ ‘The Council, by purporting to exercise this power, levied a special rate on an

industrial area, to raise revenue to provide amenities of special benefit to the area (e.g. roads, kerbing, guttering, and drainage). Only industrial sites were levied; 90 residential purposes were not levied.

The Council could not reasonably have concluded that the work only benefited industrial sites. The improvements by the Council benefited industrial & non-industrial sites alike it was unreasonable to levy some sites and exempt others.

Sunshine Coast Broadcasting v Duncan

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o A guideline said that applications for the right to service an area should be refused, if the area is already adequately serviced by other stations. On the basis of this guideline, a station’s application was refused, while 8 other stations’ applications were accepted.

o Lack of consistency unreasonable. Also – a relevant consideration (the public interest) was not adequately considered.

Decision is out of proportion to the goal to be achieved R v Barnsley Corp; ex parte Hook (minor incident)

o Hook, a stallholder, was caught urinating in a side street when the toilets were closed. The Council decided to revoke his licence to trade in the market.

o The decision to revoke was unreasonable, because it was disproportionate to the offence: Hook was deprived of his source of livelihood, because of this minor incident. Also invalid for breach of natural justice

Fares Rural Meat v Australian Meat & Livestock Corp (long term purpose)o Act gave power to revoke an approval to engage in live stock, only for the purposes

of promoting, controlling, protecting and furthering the interests of the Australian live stock industry. The applicant’s approval was revoked after Saudi Arabia rejected its shipment.

o The decision was invalid for failure to accord procedural fairness. However, since the purpose for which the power had to be exercised is the long term best interests of trade, the decision was not disproportionate to that purpose (even though the applicant was likely to suffer substantial commercial losses).

Limited duty of inquiry Prasad v Min Immigration and Ethnic Affairs: Where material which is central to a

decision to be made is easily available, failure to obtain that material before reaching the decision would be unreasonable (if a reasonable decision-maker would have obtained that material).

o The Department rejected Prasad’s application for permanent residency, because of a suspicious marriage. This suspicion was based on inconsistent answers that the Prasads gave in interviews.

o The decision is invalid, because of a failure to take into account the relevant considerations of 8 statutory declarations from various persons declaring that they knew the Prasads as a happily married couple.

o It was unreasonable of the decision-maker not to make further inquiries to investigate the discrepancies.

Unreasonable application of statutory words to facts (where there’s discretion, e.g. satisfied) Chan Yee Kin v Minister for Immigration: A decision may be unreasonable because the DM

misconceived the legal concept involved.o Chan claimed refugee status. The grant was dependent on ‘a well founded fear of

persecution.’ Minister decided that Chan did not have ‘a well founded fear of persecution.’ Chan had been detained and interrogated in China, been listed in public as an opponent of the State, had been exiled, and had been detained for some months after unsuccessful attempts to escape.

o The Minister’s decision was unreasonable, because given the accepted facts and the meaning of the phrase; no reasonable decision-maker could have reached the conclusion that Chan did not have such a fear.

Austral Fisheries: Delegated legislation may be invalid on the ground of unreasonableness, if it leads to manifest arbitrariness, injustice or impartiality.

o Delegated legislation was made, which reduced quotas of every boat in the industry, except one boat which had its quota doubled. The stated objectives of the delegated legislation were to develop a fair and equitable process of allocation, to reflect existing market shares for fish, and to minimise disruption to the industry.

o Held unreasonable delegated legislation was invalidated.

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CasesWoollahra Council v Minister for EnvironmentImproper purpose. National Parks and Wildlife Act:

o Section 151(1)(f): The Minister may grant licences to occupy/use national park lands.o Section 152: The Minister may grant licenses to carry on business within a national park.

A private business school proposed to renovate and lease a building in a national park. Minister and Director (under ss 151 & 152) granted the school a licence to use the building, and to carry on its business there. They were motivated in reaching their decisions by the opportunity to restore the building & improve the surrounding land, at no cost to the government.

Authorised purpose? Since the power does not expressly state the authorised purposes, these purposes must be derived from

the general structure of the legislation. ‘Preservation,’ ‘care,’ ‘control’ and ‘management’ of national parks kept appearing in the Act The Act’s

overall purpose is ‘the maintenance, preservation and defence of national parks against outside encroachments.’

Thus, the broad ss 151 & 152 powers are read down to this authorised purposeActual purpose? The actual purpose of the development is inconsistent with the purposes authorised by the Act, because:

o Documentation showed that the school’s offer was the trigger for the application.o The school proposed was private and not public.o Its curriculum related to business matters and had nothing to do with the parks such as

botany/horticulture.o The school’s use of public buildings and land would restrict the public enjoyment of the park for

some time. Thus, the powers conferred by ss 151 & 152 do not extend to the grant of the licence invalid licence. The good motive of the Minister and Director in saving money on park improvements was irrelevant.

Minister for Aboriginal Affairs v Peko-WallsendImplied relevant consideration; implied delegation. Aboriginal Land Rights Act:

o Section 50(1)(a): If the Aboriginal Land Commissioner finds that Aboriginal applicants for land are traditional owners, he must recommend the land grant to the Minister.

o Section 50(3)(b): The Commissioner must comment in his report on the detriment to persons that might result, if the claim were acceded to.

o Section 11(1)(b): Where the Minister is satisfied that the land grant should be made, he must recommend that to the GG.

The Commissioner held an inquiry into Aboriginal claims, and PW made vague submissions about the location of uranium it discovered in the block. The Commissioner recommended a grant of 10% of the block. He commented on the detriment that a grant might have on the companies, but was unaware that the whole deposit lay within the 10% block recommended for grant.

After the Commissioner’s report, PW informed the Minister of the deposit’s real location by submission. A successor of the Minister, without reference to PW’s submission, decided to recommend to the GG that the grant should be made. The Minister was in fact unaware of the companies’ submissions.

1) Is PW’s submission a relevant consideration? The purpose of s 50(3) (requirement of Commissioner to comment on detriment) must be to ensure that the

Minister considers detriment when making his decision under s 11 the Act implies detriment to be a relevant consideration in deciding under s 11.

Furthermore, the Minister’s consideration of detriment must be based on the most recent and accurate information that he has at hand. Since PW’s submission is the most recent information on detriment, PW’s submission is a relevant consideration.

2) Was it taken into account? No evidence that Minister took it into account.

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The Minister could not have impliedly delegated consideration of PW’s submission to someone else, because:

o he did not use his express power to delegate;o the Minister’s function under the section is a central feature of the statutory scheme (its

importance evidenced by the preliminary procedures, e.g. Holding an inquiry under s 50);o the exercise of the power has important consequences; ando The power (s 11) requires that the “Minister is satisfied” (i.e. personal to Minister).

Tickner v Chapman (Norvill v Chapman) Minister Tickner made a declaration prohibiting construction work for a period of 25 years in connection with

building a bridge across Murray River to Hindmarsh Island. (400 submissions). Minister made decision 2 days after receiving report. Hadn’t read all submissions, and not content of sealed

envelopes (women’s business) but was briefed by a female staff member. Minister’s declaration was ruled as invalid at first instance and appeal was dismissed by FC.

o Black CJ: Ministers duty to consider report is a provision of compliance with which is a necessary step in the exercise of power under s 10.

Minister must personally consider the report and any representations attached to it. Delegation specifically removed by the Act.

The consideration of a representation involves the active intellectual process directed at that representation and again the point must be made that s10 is explicit in its requirement that not only must the reporter give consideration to the representations, but the minister must do so as well.

The reliance on female staff member opinion as to whether adequate reflection of the representations was insufficient.

Minister was required to look at the representations on the sealed envelope. Minister did not consider the representations as required by the Act.

Minister for Environment & Heritage v Qld Conservation Council

Important CasesWoollahra Municipal Council v Minister for the EnvironmentShop Distributive and Allied Employees Association v Minister Industrial AffairsMinister for Aboriginal Affairs v Peko-Wallsend LtdTickner v Chapman (Norvill v Chapman)Minister for Environment & Heritage v Qld Conservation Council

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Week 10 - Ultra Vires: Failure to Exercise Discretion

Preservation of discretion These are rules which relate to the agent who is exercising the discretionary power. If Parliament has conferred a discretion on a particular decision-maker:

o Only that DM may use the discretionary power; ando The power’s discretionary nature must be preserved.

Sub-doctrines:

Failure to Act (s 7: unreasonable delay in making the decision) Failure to perform a non-discretionary duty remedy is mandamus or mandatory injunction. This ground of review is also available where the time limit for making the admin decision has been

exceeded. If no express time limit, review is available for ‘unreasonable’ delay. Thornton v Repatriation Commission: Test of reasonable delay is objective.

o Deferring a decision to the outcome of a High Court appeal on a similar matter not unreasonable.

Rule against delegation Rule against delegation: There is a presumption against the delegation of discretionary power. Prima

facie, the power has to be exercised by the person to whom it is conferred. Express powers to delegate override this rule.

o If express delegation is used, the power must be exercised within the limits of the express delegation. If not, then ultra vires.

Carltona: Powers to delegate may be implied where administrative necessity requires it.o The functions that are given to Ministers are so multifarious that no Minister could ever personally

attend to them … this cannot mean that in every case the Minister must personally direct their mind to the matter … the duties imposed upon the Minister and the powers given to Ministers are normally exercised under the authority if the Minster by responsible officials of the Department … public business could not be carried on if that were not the case.

O’Reilly v Commissioner of State Bank of Vic (lots of times the discretionary power would be exercised implied power to delegate)

o ITAA: Section 264: The Commissioner of Tax may require persons to give such information as the

Commissioner required, and also to attend and give evidence and produce documents. Section 8: The Commissioner may delegate the power under s 264 to Deputy

Commissioner.o Notices under s 264 were issued by an Investigating Officer. Deputy Commissioner had

‘authorised’ the Investigating Officer to issue notices of this sort & stamp on them the Deputy’s signature. Issue = did Deputy Commissioner have implied power to sub-delegate?

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TOPICS TO BE COVERED: Continue the discussion of ‘ultra vires’ grounds of review. Having examined the ‘abuse of

discretion’ grounds last week, we now consider those that can be grouped under the general heading of a ‘failure to exercise discretion.’

o Improper delegationo Acting Under dictationo Inflexible application of policyo Estoppel arguments in administrative law

o Lots of cases in which the power to issue notices would be exercised the express power to delegate to the Deputy Commissioner was insufficient for the day-to-day operation of the Department Deputy had implied power to delegate.

Peko Wallsend (Minister’s function was central to the statutory scheme, evidenced by the preliminary procedures, thus requiring a personal decision no implied power to delegate)

Secretary DSS v Alvaro (factors)

Acting under dictation (ss 5(2)(e) & 6(2)(e)) Sections 5(2)(e) & 6(2)(e): Review is available for ‘an exercise of a personal discretionary power at the

direction of another person.’ Acting at the behest of another. Relevant when the statute confers power upon an identified DM but it is

apparent that following of someone else’s order. Basic principle is that the statutory requirements should be met – decision should be made by the person that Parliament intended.

Roncarelli v Duplessiso Licensing Commission had sole responsibility for the grant and withdrawal of licences.o Premier directed the Commission to withdraw the liquor licence of Plaintiff, which the Commission

did. The Commission’s decision was void.

Direction/Policy simple ultra vires Formulation of policy rules/guidelines serves 2 important aims:

o Consistency of decision-making. This is particularly important where many administrators exercise the same discretion.

o Easier decision-making. Administrators don’t have to consider afresh every case. However, policy rules/guidelines must still allow the administrator to respond to particular needs of a given

case (because statute, by conferring discretion, demands this). Basic position: Despite the legal principle that discretion must not be fettered, administrators are entitled

to formulate policy guidelines to assist them in exercising their own discretion – but not until they are deprived of any real discretion.

Where there is statutory power to issue directions/guidelines An express power to formulate directions/guidelines for use by other decision-makers in exercising their

discretionary powers, shows that Parliament intends the discretion to be constrained to some extent. Fine differences in statutory wording affect the scope of a power to issue directions, and the degree to which

those directions may constrain the exercise of discretion.o ADC v Hando NSW Aboriginal Legal Service v Min Aboriginal Affairso Riddell v DSSo Smoker v Pharmacy Restructuring Authority

Where there is no statutory power to issue directions/guidelines Rendell v Release on Licence Board:

o Policy guidelines must be consistent with the legislation conferring the discretion.o Rendell v Release on Licence Board (policy not to release prisoner until served minimum 10 yr gaol;

but statute required consideration of individual circumstances policy inconsistent with Act invalid decision)

Re Findlay (policy not to release prisoners in all but the most exceptional cases consistent with Act policy valid)

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Inflexible application of policy in exercising a discretionary power (ss 5(2)(f) & 6(2)(f)) Section 5(2)(f): Review is available for ‘an exercise of a discretionary power in accordance with a

rule/policy without regard to the merits of the particular case.’ Inflexible application of policy = applying policy guideline like a rule to reach a decision, without considering

individual circumstances of a particular case. The minimum content of the rule against inflexible application of policy is:

o British Oxygen v Minister of Technology: Policy guidelines can be used, provided that the decision-maker is always willing to listen to anyone with something new to say.

The degree to which policy guidelines may control discretion in advance, depends on o The nature of the entitlement/right which the statute confers. If, once the statutory criteria are

satisfied, there is no legal entitlement (i.e. only a hope of receiving any benefit), and then policy guidelines can be applied more inflexibly.

e.g. Green v Daniels (once the statutory criteria are satisfied, legal entitlement to unemployment benefits follows unlawful to automatically apply policy guideline without regard to individual merits).

o The matters relevant to the exercise of the discretion. If the decision on the merits turns primarily on the individual circumstances of the applicant, then policy guidelines cannot be applied as inflexibly.

e.g. Tang v Min of Immigration, Chumbairux v Min Immigration (immigration decisions turn primarily on individual circumstances of the applicant unlawful to apply policy inflexibly)

e.g. Re Findlay (parole decisions turn primarily on policy reasons unrelated to the individual circumstances of the applicant lawful to apply policy inflexibly)

So – look at the relevant considerations in exercise of the discretion.o The more personal they are, the less scope there is for policy guidelines to control discretion in

advance (Chumbairux).o But if the personal circumstances are not such important considerations (e.g. public interest is more

important) then there is more scope to make policy to control in advance (Re Findlay).

Examples Green v Daniels (administrator applied general policy like a rule inflexible application of policy)

o Social Security legislation provided that a person (subject to age & residence requirements) would be eligible for unemployment benefit, when the Director General of DSS was satisfied that

(i) they were unemployed, (ii) willing & able to undertake suitable work, and (iii) Had taken reasonable steps to obtain work.

o The Department applied a policy guideline, which said: As a general rule … people who leave school and register for employment within 28 days prior to the end of the school year, or at any time during the long vacation, will not be in a position, until the end of the school vacation, to satisfy the conditions of eligibility for unemployment benefit.

o People who are legally entitled under the statute, may be denied benefits because they have not satisfied the 12 week waiting period imposed by the policy the policy guideline effectively introduced an extra criterion for eligibility it is inconsistent with the statutory criteria (since applied inflexibly as a rule) ultra vires invalid.

o Also: If the policy was only a guide, the Dept applied it inflexibly, by automatically imposing the waiting period on Green without giving her an opportunity to establish her eligibility according to the statutory criteria.

Tang v Min of Immigration: If the decision turns primarily on the individual circumstances of the applicant, then the decision cannot be reached by simply applying policy guidelines without considering the merits of the case.

o Section 6A Migration Act: Prohibited non-citizens should not be considered for an entry permit, unless they fall into an exceptional category. One of these was that they were the spouse of an Australian citizen.

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o Tang, married to an Australian citizen, applied for permanent residency. His application was refused on the basis of a policy statement (against queue-jumpers), before his application was considered on its merits.

o Since Tang was the spouse of an Australian citizen, he was (under s 6A(1)(b)) entitled to have his case considered on the merits & not pre-emptively rejected on the basis of the policy unlawful to merely apply the policy without considering the application on the merits, as the statute requires.

o Note: The fact that he is a queue-jumper might still be a relevant consideration in assessing the merits application could still be refused.

Re Findlay: If the discretionary power is likely to be exercised primarily for policy reasons unrelated to the individual circumstances of the applicant (e.g. public interest), then the decision is more capable of being regulated by guidelines.

Fettering discretion by representations (estoppel) Minister for Immigration v Kurtovic: Estoppel is not available against a government decision-maker in its

exercise of public powers.o This rule against estoppel does not apply to exercise of the government’s private (e.g. contractual)

powers.o But Ansett Industries v Cth: A contract with Government cannot fetter a statutory power.

Theoretical reason for the rule against estoppel:o If an administrator does not have a power, they cannot give themselves that power by falsely

representing to a 3rd party that they possess it, because that would be against Parliament’s intention.

o Equally, if an administrator has a power, but mistakenly claims that they have no such power, estoppel cannot take away that power because statute has conferred that power.

Practical reason for the rule against estoppel:o If estoppel can fetter discretion, administrators would refuse to take the risk of giving any

opinions/undertakings at all in response to inquiries. This would be inconvenient to the public.

CasesSecretary, Dept of Social Security v AlvaroImplied delegation; ‘decision’ Social Security Act:

o Power 1 (s 1224): If money was paid because of a false statement, and is not repaid, the amount is a debt due to the Cth.

o Power 2 (s 1237): The Secretary may waive the debt.o Delegation power (s 1299): The Secretary may formally delegate any of its powers to an officer.

Alvaro made false statements to the DSS, and consequently received payments under the Act. An officer in the Department decided that Alvaro was indebted to the Cth (pursuant to s 1224). An authorised review officer affirmed the decision, and decided not to waive the debt (under s 1237). Neither powers were expressly delegated to the decision-makers. Issue = can they be impliedly delegated to someone?

Alvaro appealed to the AAT, which decided it had no jurisdiction to review the decisions because there was no valid decision (since neither the officer nor review officer held valid delegations from the Secretary under s 1299).

Secretary appealed to the Federal Court under s 44(1) AAT Act.‘Decision’ The AAT’s review jurisdiction extended to review of decisions made in purported exercise of powers (even

where the decision is not legally ineffective) matter should be remitted to the AAT.Can the decision-maker make decisions without a formal delegation of power from the Secretary? Parliament could not have intended that the Secretary personally perform all the functions necessary to

carry the Act into effect; some of the functions must be performed by authorised officers. Does this include the 2 powers?

For s 1224: The power can be impliedly delegated to an authorised officer, because:o A decision under s 1224 only involved ascertainment of facts from objective evidence;o The power is not discretionary (no ‘may). The result automatically follows; and

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o The decision’s correctness could be tested against evidentiary material. In short, it is a straight-forward decision that does not require much thought. For s 1237: The power cannot be impliedly delegated to an authorised officer, because:

o The power is a discretionary power (may);o It is vested expressly in the Secretary;o The exercise of the discretion significantly affects rights & liabilities of people liable under s

1224; ando The discretion is likely to be exercised to implement broad policy objectives under the Act.

Rendell v Release on Licence BoardDictation (no express power to issue guidelines) Decision-making process:

o Statute required the Release on Licence Board to consider the individual circumstances of an application, and advise the Minister.

o The Minister then looks at the public interest (deterrence), and advises the Executive Council. Life-term prisoner applied to the Board seeking consideration of his release on licence. The Board decided to reject the application, by saying that the Government would not recommend release

‘of a life-term prisoner until [he] served a minimum of 10 years in gaol. It will be noted that this is a minimum.’

The minute & correspondence was proof that the Board exercised its discretion by applying a policy rule adopted by another body without regard to the particular circumstances of the prisoner (as required by statute) unlawful decision.

o The Board never considered the merits of the application.o Board’s repeated use of “minimum” shows that it applied the government’s policy because it felt

it had no alternative.o Also, a practical consideration: If the Board considers it appropriate in a particular case to

recommend release before 10 years, its recommendation would discharge its functions of offering its best advice to the Minister.

Riddell v Secretary, Dept of Social SecurityUltra vires direction (express power to issue directions) Section 1237 Social Security Act:

o (1) The Secretary may waive the Cth’s right to recover a debt.o (2) In exercising its power, the Secretary must act in accordance with directions issued under (3).o (3) The Minister may give directions relating to the exercise of the Secretary’s power.

Minister made a determination: The Secretary’s power ‘must’ be ‘exercised in the following circumstances only.’

Riddell asked that recovery of his debt be waived under s 1237 because of extreme financial hardship. On appeal, the AAT decided not to waive the debt by applying the Minister’s direction.Is the determination valid? The determination’s purpose & effect was to limit the very wide discretion conferred on the Secretary by s

1237(1). The directions were inconsistent with the statute, because:

o The statutory language: Subs (3) refers to ‘the Secretary’s power’ and subs (2) stated ‘in exercising the power’

statute regards the Secretary as exercising the power authorises directions which affects the manner of its exercise, but will leave the power itself intact.

Therefore, s 1237(3) gives the Minister power to give general guidance to the Secretary only, leaving him free in any particular case to depart from the guidance.

The determination, by stating precise rules dictating the result of all applications, is not giving guidance in the exercise of the power, but is attempting to deny the existence of the power inconsistent with statute.

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o The legislative history: A predecessor of s 1237 did not allow the Ministers to give directions. If Parliament intended the Minister to circumscribe the Secretary’s power, the language would have addressed the ambit of the power itself rather than simply its exercise.

Therefore, since the AAT’s decision was based on the invalid determination, its decision involves an error of law and must be set aside. The matter is remitted to the AAT.

Smoker v Pharmacy Restructuring AuthorityGuideline not ultra vires (express power to issue guidelines) National Health Act:

o Section 99K(1) gives the Pharmacy Restructuring Authority power to make a recommendation with respect to applications for approval of premises as pharmacies.

o s 99K(2): ‘In making a recommendation under s 99K(1), the Authority must comply with the relevant guidelines determined by the Minister under s 99L.’

o s 99L(1): ‘The Minister must determine the guidelines subject to which the Authority is to make recommendations under s 99K(1).’

Minister’s determination, Para 3(a): ‘approval of a pharmacist shall not be recommended in respect of premises located within 3 km [of an already approved pharmacist].’

Smoker applied for approval. The premises for which approval was sought was within 3 km of other pharmacists the Authority considered itself bound to comply with Para 3(a) Secretary decided against recommending an approval.

Guideline valid? The Minister’s ‘guidelines’ were more properly described as rules which circumscribe the Authority’s

discretion. Legislature intended to authorise the Minister’s ‘guidelines,’ because:

o Statutory language: Section 99K is expressed in terms of function rather than discretionary power

(distinguishable from s 1237 in Riddell, which conferred a broad discretion). The mandatory language of s 99K(2), that the authority ‘must comply with the relevant

guidelines,’ suggests that the guidelines are to be mandatory (i.e. rules). (The Minister’s directions were essential to the statutory scheme, because the Minister

‘must’ issue them: s 99K(2).)o Legislative history: The provisions and guidelines originated from an agreement reached between

the Minister & the Pharmacy Guild, which contemplated that the Minister could radically limit the Authority’s discretion Parliament would have intended the Authority’s discretion to be circumscribed by the Minister’s ‘guidelines.’

Thus, the guidelines were valid Authority was correct in applying Para 3(a) in refusing the application.

Differences:o Discretion. In Riddell, the power conferred a broad discretion, while in Smoker, the power was

expressed in terms of function.o Mandatory language. Riddell: ‘must act in accordance with;’ Smoker: ‘must comply with.’o Importance of directions to the statutory scheme. Riddell: Minister may give directions. Smoker:

Minister must give directions.o Legislative history.

Important CasesO’Reilly v Commissioner of State Bank of VictoriaSecretary, Department of Social Security v AlvaroRendell v Release on Licence BoardGreen v DanielsRiddell v Secretary, Department of Social SecuritySmoker v Pharmacy Restructuring AuthorityNemer v Holloway

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Week 11 - Jurisdictional Error

It is said that administrative decision-making bodies must not exceed their jurisdiction. Such bodies can fall into error in one of three ways:1. Either by purporting to exercise a jurisdiction which they do not possess (excess of jurisdiction)

certiorari/prohibition2. Failing to exercise when called upon to do so, a jurisdiction which they do in fact possess.

(wrongful failure to exercise jurisdiction) mandamus3. ‘Constructive’ jurisdictional error.

o Arises where jurisdiction has been exercised, but a fundamental misconstruction of that jurisdiction has occurred, with the result that the administrative body has ‘misconstrued its power,’ misunderstood the nature of its power and functions,’ applied the wrong statutory test or, as it is sometimes or more quaintly put, ‘asked itself the wrong question.’

Difference between UV and JE is the identity and nature of the decision makero JE is the preferred term where the decision maker under review is an inferior court (e.g.

Magistrates Court, a Licensing Court or an Administrative Tribunal. UV is the preferred term where the decision maker is simply an individual administrator – including those at the top of the hierarchy such as a Minister.

The concept of a non-jurisdictional error of law implies: There will be some questions – even some questions of law – where a supervising court will not intervene and overturn the administrators’ decision, even though the court might consider that determination of the question to be incorrect.

Craig v SA: Jurisdictional errors are:o All errors of fact/law made in the preliminary stage; ando (If administrative tribunal) all errors of law made past the preliminary stage; ando (If inferior court) some errors of law made past the preliminary stageo Never errors of fact made past the preliminary stage

Whether a question is preliminary, depends on statutory interpretation This means that some errors of law made past the preliminary stage (i.e. In the course of exercising

jurisdiction correctly assumed) are non-jurisdictional, and therefore non-reviewable against the rule of law

Jurisdictional errors are reviewable; non-jurisdictional errors are non-reviewable.

Classical doctrine of jurisdictional error Only errors made at the preliminary/threshold stage (i.e. when jurisdiction to determine a matter is

initially assumed/declined) are jurisdictional errors reviewable errors.o E.g. jurisdictional fact errors concern preliminary questions upon which the very existence of

a jurisdiction depends reviewable. Errors (of fact/law) made in the course of the exercise of a jurisdiction properly assumed, would

never be jurisdictional errors non-reviewable errors. Thus, a reviewing Court would defer to the administrator’s determination of questions (even question’s

of law) if they arise in the course of exercise of jurisdiction.

Rationale Courts should defer to decisions of admin bodies which are non-jurisdictional, because of:

o Constitutional reason;o Expertise;

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TOPICS TO BE COVERED: The nature and historical basis of the jurisdictional error doctrine The meaning of ‘jurisdiction’ and the identification of errors go to jurisdiction; The operation of ‘jurisdictional error’ in Australia

o Speedy issue resolution.

Expanded theory of jurisdictional erroro Anisminic v Foreign Compensation Commission rejected the classical view that jurisdictional errors

can only be made in the preliminary stage.o Some errors of law made during the exercise of a jurisdiction correctly assumed, will cause loss

of that jurisdiction. These are jurisdictional errors (Lord Reid gives a non-exhaustive list of examples).

o Practical effect = to expand scope of judicial review of inferior courts & admin tribunals, to that which have always applied to individual decision-makers.

Jurisdictional error in Australiao Craig v SA accepts that some errors of law made after the initial & correct assumption of jurisdiction

by a decision-maker, will be sufficiently serious as to take that body outside its jurisdiction jurisdictional error.

o Where the decision-maker is an administrative tribunal, there is a presumption that an error of law at any stage will be jurisdictional, and hence reviewable.

o Where the decision-maker is an inferior court, considerable deference is paid to the inferior court a large category of non-jurisdictional errors of law which cannot be reviewed.

Anisminic and the expanded theory of jurisdictional erroro Anisminic v Foreign Compensation Commission

Applicant’s property in Egypt was sequestrated. Plaintiff sold it to TEDO. Applicant applied to Foreign Compensation Commission claiming they were entitled to participate in the Egyptian Compensation Fund.

Relevant provisions Art 4(1) Foreign Compensation Order: A claim is established if the applicant

satisfies the Commission of the following matters: … - (1)(b)(ii) [the applicant] and any person who became successor in title of such person … were British nationals…

Foreign Commission Act: ‘The determination by the Commission of any application made to them under this Act shall not be called into question in any Court of law.’ (the privative clause only protects valid determinations; not a purported determination which is invalid)

Commission rejected Plaintiff’s claim, because TEDO was the applicant’s successor in title and was not a British national

Applicant brought action, arguing that the Commission misconstrued the Order in finding that TEDO was their successor in title.

What is jurisdictional error? Some errors of law made by tribunals in the course of proceedings (past the preliminary

stage) are jurisdictional errors. Deciding in bad faith Making a decision it had no power to make Failing to comply with natural justice Misconstruing the provisions (statutory power) giving it power to act Refusing to take into account a relevant consideration Taking into account an irrelevant consideration

Some non-jurisdictional errors of remained. Presumably, minor errors are still non-jurisdictional.

Is the purported determination a nullity? There can only be a ‘successor in title’ where the title of the original possessor has

passed to his successor, so that the original possessor of the title can no longer make this claim.

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Facts

Also had privative

clause

JE errors include

Decision was a

nullity

This can only happen when the original owner ceases to exist the provisions with regard to successors in title did not apply where the applicant is the original owner and still in existence.

Since the applicant is the original owner, the Commission had no right to take into account the ground in Art 4(1)(b)(ii) their decision was a nullity

o Craig v SA Craig was charged with larceny and there was a hearing in SA District Court. Russell J

found that Craig was unable to obtain legal representation through no fault of his own and that Craig could not receive a fair trial without representation. Appling Dietrich v R, the ‘Dietrich Principle’ is that trial should be stayed and the State sought a certiorari quashing the stay order.

Full SASC made the order that Russell J misconstrued the reference in Dietrich to ‘fault’ because he failed to refer to certain facts:

Craig was granted legal assistance and received inheritance of $20 000; He broke bail and also bought a car and lost it

Craig appealed to the HC and the State argued that the trial judge’s finding was a jurisdictional error, or an error of law on the face of the record.

o Was there jurisdictional error? Arguably there was no error of law at all

HC indicated that neither the judge’s stay order, nor his failure to refer to all the facts was enough to show a misunderstanding of Dietrich on the issue of ‘fault.’

Even if Russell misinterpreted Dietrich, it would not be a jurisdictional error. The trial judge possessed jurisdiction to hear and dispose of Craig’s application for

a stay of proceedings That jurisdiction encompassed the identification and determination of relevant

questions of law and fact, including whether Craig’s inability to obtain legal representation is ‘through no fault’ of his part.

Regardless of whether it is a question of law, or mixed question of law and fact, any error would be within the trial judge’s jurisdiction.

The Full Court could not order certiorari set aside Full Court error + dismiss State’s application for judicial review of Russell’s order.

What is jurisdictional error?o A critical distinction exists between administrative tribunals and inferior courts.

Inferior courts are constituted by persons with formal legal qualifications or legal training. They are part of the hierarchical legal system.

Admin tribunals are commonly constituted by persons without formal legal qualifications or legal training. They are not part of the ordinary hierarchical judicial structure.

Tribunalso Administrative tribunal lacks authority to authoritatively determine questions of law or to make an

order or decision otherwise than in accordance with the law.o An administrative tribunal makes a jurisdictional error if it falls into an error of law which causes it to:

(from Craig) Identify a wrong issue Ask itself the wrong question (apply a wrong statutory test) Ignore relevant material Rely on irrelevant material Make an erroneous finding or reach a mistaken conclusion Denial of procedural fairness authority = S157 (not from Craig’s list)

o And the tribunal’s exercise or purported exercise of power is thereby affected.

Inferior Courtso Lord Reid’s speech in Anisminic applies to administrative tribunals only, not to inferior courts.

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Facts

Could not order certiorari

No JE error

Admin Tribunal makes a JE if it

does these things

An inferior court does not commit jurisdictional error whenever it ‘addressed the wrong issue or asked itself the wrong question.’

The ordinary jurisdiction of a court encompasses authority to decide questions of law/fact involved in matters which it has jurisdiction to determine.

An inferior court falls into jurisdictional error if it:o Mistakenly asserts or denies the existence of jurisdiction; oro Misapprehends or disregards the nature/limits of its functions/power, in

a case where it correctly recognises that jurisdiction does exist. Examples of such error:

o Where the court purports to act outside the general area of its jurisdiction, by entering a matter outside the theoretical limits of its functions and powers.

A civil inferior court attempting to hear and determine a criminal charge

Making an order beyond power such as specific performance when powers limited to awarding damages for breach

o If it does something which it lacks authority to do.o Where the court disregards or takes account of some matter that the

statute requires to be taken into account or ignored as a pre-condition of the existence of any authority to make an order/decision in the circumstances of the case.

o If it misconstrues that statute and thereby misconceives the nature of its function or the extent of powers.

Examples of errors of law committed by an inferior court that do not ordinarily constitute jurisdictional error:

o Mistake in identifying relevant issues, formulating relevant questions and determining what is and what is not relevant evidence;

o Failure to take into account relevant matters, or taking into account irrelevant considerations, in determining a question within jurisdiction.

For inferior courts, the distinction between jurisdictional and non-jurisdictional errors of law remain critical

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Examples of errors

Examples of errors that do no constitute

JE

JE

Key Questions for Jurisdictional Error Was it an error of law or error of fact? If fact, was it a jurisdictional fact? At what part of the process did the error occur?

o Both tribunals and inferior courts will commit a JE if error is in determining actual jurisdiction

o If the error was made during the decision making process, was it sufficiently serious that it ought to be classified as jurisdictional in nature?

I.e. should a court intervene and quash the decision, or should it allow the error to go uncorrected? (E.g. procedural fairness – Look at how it affects the parties and the process.)

Is the decision making body an inferior court or is it a tribunal? JE and State

o When seeking JR in State Supreme Court, it is required to be determined whether the error of law is a jurisdictional error to allow review

Important CasesAnisminic v Foreign Compensation CommissionCraig v South Australia

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Week 12 - Privative Clauses

Privative Clauses present the final complication in the law of judicial review.

What is a privative clause? It is a legislative provision whose intent is to exclude judicial review, either in whole or in part. Sometimes it

is referred to as an ‘ouster clause.’ Bring into sharp focus the constitutional tensions between the various branches of government. They bring

the parliament and the Courts directly into conflict. o The privative clause expresses a legislative intent that the Courts not review a particular class

of decisions. It could hardly be more clearly expressed than it is in many of the privative clauses found in statutes.

o In practice, Courts are extremely reluctant to simply affect to the plain meaning or the privative clause. They tend to read these clauses down, often quite dramatically and sometimes to the stage that the clause has very little substantive effect.

Decisions need to be considered in the High Court’s judgement of Plaintiff S157 where denial of procedural fairness was held to be a jurisdictional error not protected by the privative clause. Subsequent decisions have applied this decision.

Arguments supporting legislativeo Specialist expertiseo Finality and efficiencyo Quick and effective decision making otherwise justice can become lengthy and costly.o Parliamentary supremacy (legislative will must prevail over the Courts)

Arguments supporting the judiciaryo Rule of law must be maintained – irrational, unfair or otherwise unlawful behaviour must be

controlled by the courts when conduct JR.o Courts argue they are giving effect to the will of Parliament (enforcing the limits imposed on the

decision maker by Parliamento JR is entrenched in s 75(iii) and s 75(v) of the Constitutiono If administrative bodies are insulated from review, they can effectively determine their own

jurisdiction (a clear breach of separation of power)

How much affect will a privative clause have? Current treatment of privative clauses Such a clause will not wholly exclude review – at least not where the ground argued is a manifest and

fundamental jurisdictional error. Where a decision is made, for example, grossly in excess of jurisdiction, the courts are likely to respond that

this is not the sort of decision which Parliament could have intended to protect by the private clause. It seems that review of serious jurisdictional errors will no be excluded, but review of less grave errors of law

on occasions be prevented by a suitably worded privative clause. The treatment of privative clauses by the courts is less than consistent; they differ in the approach to less

grave errors. This is an area in which considerable judicial discretion is evident.

Examples of what can/cannot be protected by privative clauseso NAAV v Minister for Immigration: Where there is a relevant privative clause

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TOPICS TO BE COVERED: The operation and effect of privative (or ouster) clauses, both at Commonwealth and State

level.

Breaches of natural justice are not reviewable; Non-performance of important precursor facts needed prior to a decision being made, are

reviewableo Wang (failure to give reasons as required by Migration Act, was such a fundamental defect that the

privative cause will not protect it.)

o R v Hickman; ex parte Fox & Clinton National Security (Coal Mining Industry Employment) Regulations (Cth):

r 14(1)(a): Subject to Regulations, a Local Reference Board shall have power to settle disputes in the coal mining industry.

r 4 ‘industrial dispute and ‘local matter’ are defined in relation to the coal mining industry.

r 17: A LRB’s decision ‘shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction in any court and any account what ever.’

The Board was asked to determination a dispute is relation to the application of an award to lorry drivers. The Board decided (r 14) to make and order that F was engaged in the mining industry and were required to pay their drivers the minimum wages and conditions prescribed by this award. F sought a writ of prohibition against the Board’s chairman, prohibiting further proceeding upon the order.

Issues are that ‘dispute’ and ‘coal mining industry’ are jurisdictional facts, there was a dispute, F’s lorry operations do not fall within the natural meaning of ‘coal mining industry’ and that that the privative clause must be taken into account in ascertaining what the true limits of the LRB’s authority are.

Hickman provisos see as expanding the power of the DM originally. A privative clause will protect the decision (no decision will be invalidated) so

long as the decision:o (1) was a bona fide attempt to exercise the powero (2) relates to the subject matter of the legislationo (3) is reasonably capable of reference to the power given to the body

(tribunal) It is impossible for the legislature to

o Give power to any authority which goes beyond the subject matter of the legislative power conferred by the Constitution

o Impose limits on an authority which it sets up with the intention that any excess of the authority means invalidity, and yet deprive the HC of authority to restrain the invalid act of the authority.

Dixon J’s famous ‘Hickman compromise’ The idea of this compromise is the idea that the statutory provisions conferring a

limited jurisdiction and the privative clause must be read together – being part of the same statue, which is not interpreted and read as a whole, giving effect to all its provisions.

The result was that an exercise pf power which was protected by a privative clause should not be invalidated so long as it was a bona fide attempt to exercise the power and appeared on its face to be within power. The effect of this approach was said to be not so much to immunise jurisdictional errors from review but to ‘expand’ the jurisdiction so as to include bona fide attempted to exercise the power.

Privative clauses do not exclude review: they only expand the jurisdiction.o Can’t exclude review because we can’t override s 75(v) Constitution.

The LRB’s powers are concerned entirely with the settlement of disputes. The Regulations are not intended to give the LRB any power to conclusively determine the scope of ‘coal mining industry,’ or the extent of their own jurisdiction as so governed by that expression.

The LRB’s authority is limited to the coal mining industry The board has tried to decide the lorry dispute completely outside its authority. The private

clause did not expand to the tribunal’s jurisdiction enough to cover the actual decision. (LRB’s decision did not fit in the 3 provisos invalid decision)

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Privative Clause

Hickman principle

Facts

Issues

Decision

Writ of prohibition issued

R v Hickman; ex parte Fox & Clinton has recently been rejected by the HC in preference for Plaintiff S157. Instead of seeing the effect of privative clauses expanding the power of a decision maker, the Court in their view, the effect of a privative clause is to protect decisions provided that they comply with the 3 Hickman provisos in addition to any ‘inviolable limitations’ or ‘imperative duties’ contained within the statute.

The Court rejected the claim that an invalid decision could be remedied by a privative clause, but accepted that errors that were neither jurisdictional, nor in conflict with one of the Hickman provisos, would be so protected from judicial review.

Any decision involving the breach of an ‘inviolable limit’ or an ‘imperative duty’ upon a decision makers power would also not be protected by the privative clause.

o Plaintiff S157o Looking at the privative clause inserted into the Migration Act in s 474

(1) A privative clause decision : Is final and conclusive; and Must not be challenged, appealed against, reviewed, quashed or called into

question in any Court; and Is not subject to prohibition, mandamus, injunction, declaration or certiorari in any

court on any account The HC held that this clause was valid and read down as only applying to decisions made

‘under the act’. ‘The essential problem is the inconsistency between a provision in a statute or an

instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.’

‘The meaning of the privative clause must be ascertained from its terms, and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision.’

Reconciliation: gives effect to the whole of the statute which confers power or jurisdiction, or imposes duties, regulates conduct, and which contains a privative provision.

Purported decisions: meant to be a decision but infected by jurisdictional error = invalid, void, nullity. Purported decisions are not decisions so not protected by the privative clause.

‘This court has held that an administrative decision which involves a JE is regarded in law as no decision at all. Thus if there has been JE because of a failure to discharge imperative duties, or to observe ‘inviolable limitations’ or restraints, the decision cannot properly be described in the terms used in s 474(2) as a decision … made under this act and is thus not a privative clause decision.’

Clause could not stop review of any JE, so no conflict with s 75(v) of Constitution A decision flawed for reasons of a failure to comply with the principles of natural

justice is not a privative clause decision. Process of statutory interpretation

Reconcile the privative clause with the ‘inviolable limits and imperative duties’ found elsewhere in the statute

If any of the 3 Hickman provisos is breached – then the privative clause will not protect the decision. Hickman provisos simply a rule of construction that requires the privative clause to be interpreted in light of the whole statute.

In addition – ‘inviolable limits’ must be respected and ‘imperative duties’ complied with. These are found in the statute.

JE will not be protected from review (lack of procedural fairness is likely to lead to a JE)

Privative clauses in State legislation have also been given greater weight than their counterparts in Cth Acts. No equivalent to s 75(v) of the constitution and no entrenched separation of powers.

o Two approaches taken in State with privative clause regard to the plain will of the legislature and given the privative clause full effect thus excluding

JR Application in federal system of Hickman and S157

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Privative Clause

Reconciliation

Purported decisions not protected by

privative clause

ApplyingS157

o Mitchforce v Industrial Relations Commission (Post S157) Clause excluded even purported decisions Spigelman CJ: A privative clause does not protect from review even a purported decision which

does not satisfy the Hickman provisos – or which breaches ‘inviolable limits.’ However Jurisdictional Error outside this is exempt from review.

Sheds no light on the situation. In SA, the SC has often taken what seems a quite literalist approach to the application of privative clauses.

However the issues are complex, as a number of SC decisions illustrate.o Tsimpinos v Allianz

There were 4 grounds of appeal argued by Tsimpinos but Debelle J held that ‘none of them involves an excess or want of jurisdiction of the Tribunal either as constituted by the single member or by the Full Bench.’

As a result the application failed. There was no suggestion that the SC was prepared to do anything other than apply the privative clause in its literal terms.

o Craig v Workers Compensation Tribunal Accepted without any discussion that the WCT was an ‘inferior Court.’ Privative clause s 88I of the Workers Compensation and Rehabilitation Act prevented the Court

from intervening on any ground other then ‘an excess or want of jurisdiction.’ The ground in fact alleged was a denial of procedural fairness. The Full SC agreed that there had been a denial of procedural fairness, however applying the

HC decision in Craig v SA, they held that as the WCT was an ‘inferior Court’ this was not a jurisdictional error. In particular it was not an error involving either ‘excess of a want of jurisdiction.’

The privative clause denied Mr Craig any possibility of a remedy from the Court.o McGee v Gilchrist-Humphrey

The plaintiff sought a declaration that the Royal Commission Act did not abrogate the CL privilege against self incrimination

In view of the lack of any express reference to the remedy of a ‘declaration’ in this clause, Doyle CJ had no difficulty in finding that the sought after declaration was available. His Honour referred to the Plaintiff S157 decision and the maxims of statutory construction discussed in that case, such as the presumption against taking away fundamental rights except by the plainest of words.

In these 3 cases it is notable that the SC has accepted that the relevant privative clause meant exactly what it said. This is an easier conclusion to reach in the case of these partial privative clauses, none of which purported to exclude judicial review entirely.

Important CasesR v Hickman; ex parte Fox & ClintonPlaintiff S157 v CthMitchforce v Industrial Relations Commission

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PC in SA Decisions