WHAT IS ADMINISTRATIVE LAW?

- Admin law is defined as the law regulating the organisation, composition, functions and procedures of public authorities, tribunals: their impact on the citizen and the restraints to which they are subject.

• Encompasses the legal principles that regulate the exercise of power by public authorities and the mechanisms that exist to remedy failures in the exercise of this power.

- The overarching concept in administrative law is accountability.

• It aims to safeguard the rights and interests of people and corporations in their dealings with government agencies.

- Administrative law regulates the exercise of power by the executive branch of government:

• The Respondent: the Government

- That is, who exercises administrative power?

• Governor General (Executive Council)

• Cabinet (ministers, Assistant Ministers)

• Governmental Departments (and their officials)

• Local government bodies

• Statutory Authorities

- But where does the government get its power?

- And what restrains the government?

- It is necessary to have a separate body of law regulating executive activity because the executive possess unique and extensive powers.

• The Executive’s application of laws affects the day-to-day lives of individuals more often and more directly than the legislative or judicial branches of government.

• In administering the laws, the Executive has the power to alter the legal rights and duties of individuals.

- Eg. in the creation or denial of rights in determining whether to grant a licence.

• The Executive’s exercise of power is accompanied by an appropriately rigorous regime of accountability.

Justifications for Accountability

- There is no universal definition of accountability, but: there is some relationship between A and B, which requires A to account to B and uphold certain standards, and A must accept sanctions/ provide remedies if she/he doesn’t do what she/he said it would do, or if she/he breaches those standards.

The Rule of Law: default protections between Australians and Government Power

- Dicey definition:

• 1) The supremacy of the law over discretionary power to promote certainty and predictability in government action.

• 2) The principle of legal equality: legal restraints must apply to citizen and government alike.

• 3) The importance of the role of the courts in protecting the individual against the government, emphasising the role of the common law in protecting rights as part of the rule of law.

- The protection of civil liberties.

- The authority for action is anchored in legislation, which is legitimated by parliament [Example: M79 Case (2013)]:

• Can a law give unconfined discretion?

- During this period, the Government was actively seeking means to ‘stop the boats’.

- The Migration Act gave the Minister the power to grant a temporary safe haven visa to anyone, “where the Minister believes that it is the public interest”.

• Where such a visa is granted, however, the applicant cannot lodge any other visa application.

- Here Morrison granted an individual on Christmas Island a temporary safe haven visa (and a six month bridging visa at the same time), largely based on a desire to stop the individual lodging a refugee application.

- Invalid?

• Doesn’t the nature (and name) of the visa suggest that Parliament intended to offer a temporary visa, with the likely intention of permitting the applicant to make more permanent arrangements later on? Doesn’t seem to promote the idea of using such an arrangement to further the government’s ‘stop the boats’ policy.

- HC held that the law was designed to give the Minister flexibility about how to use

safe haven visas in a means that was ‘in the public interest’. • Hayne (in dissent)

maintained that such an interpretation of the discretion ‘in the public interest’ would give the Minister a very wide power.

• Sometimes a discretion can be so broad, that it is not valid law.

- Very hard to review such a power.

- How a statute is written can take away protections.

- Procedural fairness

• Example: 15 hours worth of documents that asylum seekers must complete in English. Translator in Australia is worth approximate $120-$150 per hour. A translator is not provided for by the Australian Government, except in the interview by which time any issues that arise are like to cause discrepancies in the application.

- Taking into account relevant evidence:

• Example: Centrelink ‘robo-debt’.

Separations of Power

- The doctrine stipulates three major organs of the governmental system:

• 1) Legislature — enacts laws.

• 2) Executive — applies those laws in individual cases. - The Administrator (usually

part of the executive) applies the law to the facts (done in private and only held

accountable by the other branches of government).

• 3) Judiciary — resolves disputes on the meaning or application of a law.

- Provides checks and balances (by separating the powers and making them independent).

Individual Rights

- Individual rights are not a universally agreed upon justification.

- The content and extent of such rights is highly contested.

• Where rights overlap and conflict, one right must yield to another or they must be balanced against each other.

• At times, individual rights must also yield to to allow collective achievements.

- It is this contested nature that has led to debate about the appropriateness of unelected judges to make final decisions regarding government intrusion on individual rights or whether these decisions are better made by political branches of government where accountability lies ultimately with the people.

• However, there are strong defences of the judiciary’s role in reviewing government action.

• The independence guaranteed to the judiciary through the separation of powers doctrine means that the judiciary is ideally placed to review the exercise of government power against the individual.

Administrative Law Values

- The justifications for accountability demonstrate that governments are accountable for a number of administrative law values.

• Including: legality, fairness, rationality, integrity, efficiency and effectiveness.

Core values underpinning the subject in Australia

- 1. The Constitutional undertow (representative, parliamentary democracy)

- 2. The principle of legality

• The exercise of government power within legal boundaries is crucial.

- 3. The rule of law (reflects the working together of the two principles above).

• Powers and decisions being grounded in legislation.

JUDICIAL REVIEW

- The role of the court in judicial review:

• “The duty and jurisdiction of the court to review administration action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in doing so, the courts avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.” (Quin) - This is why it is called judicial review, not judicial appeal.

- Judicial review gives attention to the legality of decisions, but is not otherwise concerned with the merits of the decision.

Two Pathways of Judicial Review: Common Law and Statutory Judicial Review

- There are two pathways to get a decision reviewed.

• Both pathways can cause issues for applicants.

The Statutory Pathway: The ADJR

- The first way to get a decision reviewed is through the Administrative Decisions (Judicial Review Act) 1977 (Cth) (‘ADJR’).

• The goal of this Act was to replace the technical and antiquated prerogative remedies with a simpler ‘application for an order of review’).

- There is also state level legislation.

- The impact of these statutes is to codify the common law grounds subject to:

• Removing certain restrictions; and

• Adding other restrictions.

- The ADJR should have become the dominant pathway, but did not.

• Currently 50/50 between the ADJR and the common law pathway.

The ADJR is Restricted to Decisions of a Certain Nature

For a decision to be reviewable under the DJR, the decision must be a decision of an administrative nature, made under an enactment.

• It must also be a decision to which the Act applies and the Act (s 3) restricts such decisions to decisions “of an administrative character proposed to be made, or required to be made…under an enactment”.

- Exclusions from review under the ADJR Act:

• Decisions of the Governor General

• Schedule 1. - Refers to categories that are excluded from review under the Act. Examples: decisions made by security intelligence bodies, by Commonwealth/ state ministerial councils, or to do with foreign investment approval, taxation assessment, industrial arbitration, defence force discipline or criminal prosecution.

The key provisions are ss 5, 6 and 7 which provide for an application to the Federal Court (and the Federal Magistrates Court) for an order of review.

s 5 provides for a review of actual decisions (ie. a decision has already been made);

s 6 provides for review of conduct engaged in for the purpose of making a decision (ie. the decision is in the process of being made).

Connects to s 5 as it applies to steps leading up to a s 5 decision.

Example: Procedural things such as not being informed of a time limit, not having evidence shared etc.

s 7 provides for review of a failure to make a decision.

(NB. Don’t look at ‘aggrieved’ yet).

‘Decision’ v ‘Conduct’

- Things that will fail to be ‘decisions’ (s 5):

• Interim findings - things that raise questions for decisions.

Australian Broadcasting Tribunal v Bond (1990) Facts: Bond wished to buy Channel Nine but was found by the ABT to not be a ‘fit and proper’ person for

that purpose. His corporate licencees were also not deemed to be fit and proper. Bond and the

companies challenging an inquiry into fitness to hold a broadcasting licence, attempted to stall the

administrative process by challenging every step of the process as a ‘decision’ or ‘conduct’. Issue: Restrictive interpretation Held:

The HC held that the actions were not reviewable as decisions or conduct. The terms ‘decision’ and ‘conduct’ should be read restrictively.

‘Decision’ refers to administrative activity that is substantive and final or operative and ‘conduct’ refers to administrative activity preceding a decision that reveals a flawed procedural processes, as opposed to substantive issues.

*The overall aim of this ruling was to stop those with deep pockets using the ADJR to challenge each step of a decision-making process as it occurred.*

• Applied in Salerno v National Crime Authority (1997).

- “…a reviewable ‘decision’ is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at lease in the practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. Another essential quality of a reviewable decision is that it be a substantive determination.” (Mason CJ).

- Why this approach?

• ‘Decision under enactment’ implies decision which statute requires rather than a step in the process.

• Examples listed in s 3(2) implies finality.

• Extension of decision to include s 3(3) recommendation implies ‘decision’ not intended to be all inclusive.

• No need for ‘conduct’ in s 6 if ‘decision’ was all-inclusive.

• Policy factors: - The purposes of the ADJR Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes.

- If generous approach is taken to decision though there was a risk that the efficient administration of government will be impaired. To depart from the finality requirement would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process. Those anomalous circumstances point us ‘towards a narrower interpretation’.

The Victorian Administrative Law Act 1978 uses a different formula.A decision is defined to mean “a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision” (s 2).

Decisions are reviewable if made by a tribunal, and a tribunal is defined as a body which is under a duty to observe one or more of the rules of natural justice in arriving at the decision in question (s 2).

This gives rise to a number of difficulties. One problem arises from the formula ‘operating at law’. Does this include cases where the body’s powers arise from private bodies are under a duty to afford procedural

fairness. These bodies include racing authorities (who frequently star as defendants in natural justice cases), football tribunals and law authorities.

- What does ‘conduct’ cover?

• s 6 review of “conduct (engaged in) for the purpose of making a decision to which this Act applies”.

• Australian Broadcasting v Bond (1990): - It was argued that even if the

impugned findings did not amount to findings, they could be reviewed as

‘conduct’.

- The HC rejected this: “…in s 6, the word ‘conduct’ points to action taken rather than a decision made, for the purposes of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than to decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character” (Mason CJ).

• s 3(5) includes the doing of any act or thing preparatory to making the decision including…taking evidence or the holding of an inquiry…

- Reports and recommendations fallback (for ‘decision’)

s 3(3) provides an effort to remedy the focus on ‘final decisions’ and allow the construction of reports to be brought into scrutiny. But it has been limited.

‘Where provision is made by an enactment for the making of a report or recommendation before a decision… the making of such a report or recommendation shall itself be deemed…to be the making of a decision’.

• Ross v Costigan (1982) and Magarula v Minister for Environment (1999):

- The power to make such a report or recommendation must be in the statute;

- The statute must provide that making the report or recommendation is a condition precedent to the making of the final decision; and

- The statute must provide that a decision is to be made subsequent to the report or recommendation.

‘Under an Enactment’

- Excludes review of non-statutory decisions such as those made under executive or prerogative power and under contracts to which a government is a party.

s 3(1) defines an ‘enactment’ as:“a Commonwealth Act and an instrument (including rules, regulations or by-laws) made under such an Act”.

Includes subordinate legislation.‘Instrument’ is also apt to include documents of an administrative as well as legislative character (but must still have capacity to affect legal rights and obligations).

- ‘Under’ means in pursuance of or under the authority of.

• Requires a link between the decision to be reviewed and a power conferred by an enactment to make that decision.

- Such as a scenario where a private body arguably exercises public power.

NEAT Domestic Trading v AWBI (2003)

Facts: Under the Wheat Marketing Act 1989 (Cth) s 57, no one was to export wheat without the approval of the Wheat Export Authority (WEA) and the WEA was not to give its consent without prior written approval of the Australian Wheat Board International (AWBI), a company incorporated under Vic Corporations Law. NEAT had sought approval from the WEA on numerous occasions and had been refused on the grounds that the AWBI had refused the relevant approval. The legislation did not purport to regulate the circumstances in which the AWBI might or might not refuse to give approval.

NEAT sought judicial review of AWBI’s refusal to grant approval under the ADJR, arguing that AWBI had inflexibly applied a policy of refusing approvals regardless of the merits of NEAT’s case.

Issue: “Under an enactment”.

Held: The action was unsuccessful, as was the appeal to the HC on the grounds that the relevant ‘decision’ was not a decision “under an enactment”.

The Court discussed both the availability of public law remedies against a private company and the application of the grounds for judicial review to an exercise of private power.

“When a statute confers a discretionary power which is capable of affecting rights or interests, the identity and nature of the repository of the power may be a factor to be taken into account when deciding what are intended to be matters that must necessarily, or might properly, be considered decision-making or whether it is intended that the power is at large.”

Whilst the company is not a statutory authority, to describe it as representing purely private interests is inaccurate because it holds a virtual statutory monopoly on the export of wheat, which is also in the national interests.

Their Honours found that the company was under no duty imposed by the Act to consider ‘public’ considerations when making decisions to grant or refuse export approval. Kirby J dissented, finding that the company’s refusal to grant consent was a decision of administrative character and therefore was made pursuant to governmental or statutory authority.

Common Law: The Court found that the jurisdiction under s39B was not available because the company was not “an officer of the Commonwealth” from s 75 in the Constitution.

*This decision can be contrasted to that in Plaintiff M61 where it was held that the assessments of a private contractor under executive direction were linked to the Migration Act and could be set aside for error of law and breach of natural justice.

• Privatisation and outsourcing: decisions taken by public service contractors - Sometimes it is not clear whether a body or official is exercising public powers

so as to make it amenable to judicial review, thus requiring a person affected

by any decision to find a remedy under private law.

• See Neat Domestic Trading v AWB (2003).

- Or where a public sector body wielding private power that falls outside of judicial review.

Griffith University v Tang (2005)

*New test for determination of whether a decision is made under an enactment*

1) Decision must be ‘expressly or impliedly required or authorised by the enactment’ 2) The decision must itself confer, alter or otherwise affect legal rights or obligations

Facts: A postgraduate student challenged the decision of a committee at her university, to exclude her from PhD candidacy on grounds of academic misconduct. The High Court held that the action should be dismissed as that decision was not under an enactment (the Griffith University Act).

Issue: “Under an enactment”.

Held: The University Council is empowered to make university statutes under the Act but there were no such statutes relevant to the appeal. It had established an Academic Committee which had made policies and there had been applied by a sub-committee. “The crux of the issue in each case is whether the enactment has a relevant part in affected or effecting rights or obligations”.

Decided that there can be a ‘decision’ in cases where an enactment necessarily implies the making of the decision. Avoided using the substantive requirement in their comments, but more of a hint than actual reform.

The decision means that, in general, decisions taken pursuant to a contract or to enter into a contract affect rights and obligations through the operation of private law: ie. contractual agreement and contract law. Matters are kicked into private law for lacking a so called ‘public’ character. Tang’s counsel did not properly argue the private law agreement and as such the HC did not find for this (even though it would otherwise have been open to them to do so).

Her action failed because the University’s discipline procedures were set out in ‘soft law’ policy rather than in the statute or delegated legislation and consequently the relevant decisions had not been made “under an enactment” and thus could not be subject to judicial review.

The HC held that Tang failed to establish the second limb of its test. Any expectation that she might have had that the University would follow its own disciplinary code did not create any substantive rights “under the general law” nor did it arise under an enactment, but rather under the “soft law” policy.

- Component one of the test:

• Checking for “required or authorised” — statutes impliedly ‘authorise’ the contracts or other regulatory instruments of all statutory authorities and all companies whose corporate status derives from statute.

• Easily satisfied, because even if the relevant Act did not ‘require’ the decision, or explicitly authorise it, it will frequently be appropriate to imply that a decision was ‘authorised’.

- Eg. A decision to contract is sufficiently ‘authorised’ by an Act which gave its maker contractual capacity. So statutes ‘authorise’ the contracts of all statutory authorities and all companies whose corporate status derives from statute (such as universities — but note the Bond university exception…)

Orr v Bond University (1997)Bond University was held to not be ‘established by statute’ under the Freedom of Information Act.

It was found that Bond University was the name under which a private company (Bond University Limited) operated, and that even if Bond University could be said to be distinct from the company (which the Information Commissioner did not believe to be the position), Bond University must have been created by the company and not by an enactment or by government. This rejected the claim that Bond University was established by the Bond University Act 1987 (QLD), indicating that the Act did no more than confer additional powers and restrictions on the pre-existing company.

*Link to NEAT — both companies there were also pre-existing*

- Component two of the test — ‘confer, alter or otherwise affect rights or obligations’:

• To check for affectation of rights and obligations.

• The judgement explained that a decision to make a contract has no binding consequences until counter-party consents, at which point the consequences are provided by the general law and not by statute.

- Decisions under existing contracts generally owe their force only to the general law of contract, and not to statute . The judgement emphasised the consensual nature of contractual power, in contrast to a statutory power which of its nature operates unilaterally to affect another’s rights or obligations .

• What is required is the ability to alter or confer rights not mutually agreed between the parties but derived from elsewhere (statute, common law etc).

- Rights: where to look?

• 1. Check the relevant statute or statutory framework regulating the situation: is the applicant or another body owed legal rights affected by the decision under challenge?

• 2. The Tang decision also spoke of that fact that the relevant “right” can be sourced from the “general law” eg. common law rights.

• 3. “It will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise”.

- Obligations: where to look?

• 1. Does the decision confer, alter or otherwise affect a legal obligations owed by the decision-maker to the applicant or a third party.

• 2. Remember NEAT when trying to characterise the obligations of private

companies. - Is this entity obliged by statute to have regard to something other

than its own selfinterests?

• 3. Examples of what falls outsideTang:

- Eastman v Besanko (2010)

- Palmer v The Chief Executive, QLD Corrective Services [2010]

- Nona v Barnes [2012].

- Criticism of Tang:

• “Tang’s real disappointment lies in its conclusion that there was nothing more to the university-student relationship than mutual consent. The relationship between universities and their students is notoriously unequal. That alone would not warrant calling universities’ power ‘public’, but there are additional factors. Universities receive massive public support…Depending on the university’s principal location, they pay the price of having State, Commonwealth or Territorial government nominees on their governing bodies. Students can borrow against their future income tax liabilities to pay for their fees. Ministers and oppositions alike freely offer their views on how universities should be run and even, on occasion, what they should teach” (Aronson).

REVIEWABILITY (COMMON LAW PATHWAY) - Grounds of Review: Narrow Ultra Vires

The Common Law Review Gateway

- If Tang fails and it is determined that the decision was not made ‘under an enactment’, try the common law review gateway (s 75).

- At common law, it is often left to a court to define situations in which judicial review is appropriate.

• They assess the question of justiciability whether it is a “matter” they can hear: often defined by comfort level with the matter.

- Common law upsides: backstops the technicality of the ADJR, review of non-statutory executive power such as contracting/ inquiries etc.

• Executive power = any action taken by Government under s 61 of The Constitution. So not taken under an enactment, unless they are connected to some sort of statutory action.

- Common law downsides: “Officer of the Commonwealth” is still indeterminate (no good case to properly define) but has to be given some meaning. “Matter” may also reflect philosophies under the ADJR.

“Matter”: The Aptness or Appropriateness of a Question for Judicial Decision

1. Affectation Factor

- The decision must have the capacity to affect a person’s legal rights, interests or legitimate expectations before it can be justiciable (Minister for Arts, Heritage and Environment v Peko Wallsend (1987)).

Minister for Arts, Heritage and Environment v Peko Wallsend (1987) Facts:Cabinet made a decision to nominate Kakadu for inclusion in the World Heritage List. The decision did not directly affect any existing interest of the Peko group of companies but it was disadvantageous to Peko EZ concerning the future opportunity to undertake mining within the existing mineral leases it held in the park. Peko EZ commenced proceedings in the Federal Court to challenge the validity of the decision on the ground that Cabinet had failed to give Peko EZ a hearing. The Federal Court found in favour of Peko EZ and held that natural justice had been breached. The Full Federal Court overturned the decision on the grounds that the decision of Cabinet was non-justiciable as to the breach of natural justice and that Peko EZ had been given an adequate opportunity of presenting a case and had not been denied natural justice.

Issue: Justiciability of Cabinet decisions and natural justice.

Held:The court reached the conclusion that justiciability does not turn on whether the exercise of power is statutory or prerogative in origin, but on the nature of the power being exercised or the decision being made.

The proceedings illustrate the significance that litigation can have even where an issue is non-justiciable. The government obtained leave from the relevant UN organisation to defer consideration for twelve months and in the interim amended the National Parks and Wildlife Conservation Act 1975 (Cth) to prohibit mining operations in Kakadu.

• The common law pathway was not taken in Tang but the HC (obiter) raised the question of exporting the Tang test into the common law gateway: this would infer that the mention of the constitutional term “matter” (s 75) probably also refers to decisions affecting legal rights or obligations. But there is danger that the narrowness of the ADJR may leak out into the common law review.

- In recent years, both Labor and Liberal governments have attempted to use private contractors to process asylum seekers.

• Example 1:

Plaintiff M61/2010E v Commonwealth Facts:The Rudd government contracted out the merits review process to a private company called Wizard People Pty Ltd. By outsourcing the process, making it purely recommendatory and divorcing it from the Minister’s ultimate statutory decision, attempt to immunise public law judicial review because the processing bodies were private rather than public and weren’t even making an operative decisions. The Commonwealth submitted that, as the enquiries were of this nature, they could not affect the plaintiffs’ legal rights or obligations so in making the inquiries the departmental officers and reviewers were not obliged to afford the plaintiffs procedural fairness.

Held:The HC decided unanimously that although there was no explicit statutory authorisation for the inquiries of detainees by the department or independent reviewers, the inquiries were for the purpose of assisting the Minister to decide whether he should consider exercising his statutory powers.

• Example 2: - Offshore processing case: Use of private contractors to make preliminary determinations, and advise the Minister as to whether he wanted to use his personal, non-compellable discretion to permit them to make additional statutory applications after their initial ones had failed. Court held that there was a matter, but the contractors were not obliged to provide them with procedural fairness due to the nature of the Minister’s power.

2. The subject matter in question will affect the ability to get review

- A non-statutory source of power (eg. treaty) to act can make a decision un-reviewable.

• This changed and has been expanded to incorporate such sources of power that can affect people’s rights and obligations.

Hicks v Ruddock (2007) Facts:Mr Hicks was confined to GB and sought judicial review of a decision by the Minister for Immigration not to request his release from internment. The Minister argued that there was no justiciable issue and that the Act of State doctrine required a court of one nation to abstain from hearing proceedings that might require it to pass judgment on the legality of acts of a foreign sovereign government. The court dismissed the Minister’s application and ruled that the proceedings should go to a hearing.

Issue: Justiciability of Minister’s international relations decisions.

Held: It is arguable that the necessity for judicial or manageable standards by which to decide the issues in a given case are satisfied when those issues involve considerations of the Constitutional reach of, and limitations on, executive power. Rather than excluding relations from review, the proper approach is to carefully examine the particular grounds of review raised on which the specific release is based.

- There are still situations in which the government believes that it is un-reviewable.

• This can be demonstrated by the government’s arguments in CPCF.

CPCF v Minister for Immigration and Border Protection (2015) Facts:In 2014 Crennan J issued an injunction to prevent the Australian Navy from returning the asylum seekers to Sri Lankan immigration officials. The boat had not yet entered Australian waters and the asylum seekers were interviewed briefly.

The asylum seekers were then moved to Australia and the legality of their detention between 1 July and 27 July 2014 under the Maritime Powers Act 2013 (Cth) became a primary issue. Key questions were whether they ought to have been afforded a hearing during that detention and if the detention under the MPA was unlawful, whether they are owed damages for the tort of wrongful imprisonment.

Issue: The scope of executive power to detain asylum seekers under the MPA.

The Applicants submitted that the Commonwealth’s executive power to detain and return asylum seekers outside Australian waters is limited by customary international law and that the Maritime Powers Act 2013 (Cth) does not provide express statutory authority to do this either.

The C’wealth submitted that both the Commonwealth’s executive power and the statutory power under the MPA support the government’s actions.

Judgment: A majority held that the detention was authorised by the MPA and that no hearing was required during the detention period. They also held that it was not necessary to rule on whether the Commonwealth’s nonstatutory executive power authorised the detention or necessitated any hearing.

3. ‘Officer of the Commonwealth’…Control Factor

- Boughey & Weeks:

• “In our view this is precisely what makes the control test attractive in the context of s 75(v) of the Constitution. It is only where the actions and decisions made within the private sector are subject to the direction of the Commonwealth, publicly funded and made in the furtherance of a government program or policy that the private sector body can be said to be acting as an ‘officer of the Commonwealth’.

• In situations such as NEAT Domestic, where the Commonwealth Government chose to place a privately-funded, pre-existing private sector corporation in a decisionmaking position with the deliberate intent that the corporation exercise its power autonomously and in its own self-interest, the corporation cannot be said to be acting on behalf of the Commonwealth government.

• With respect to the degree of direct government oversight or regulation required for a private sector employee exercising outsourced power to fall within the ambit of s75(v), the control test can fairly easily be adapted to achieve a different balance between accountability and commercial freedom”.

- What’s a control test?

• The course of the entity’s specific power to perform the impugned act;

- Eg. Corporations Act (NEAT Domestic).

• Who funds the activity;

• The extent to which the powers are directly related to government policies and objectives; and

• The extent to which government regulates or approves day-to-day aspects of the activity by issuing directives or approving operational matters.

The Situation in Victoria

- Administrative Law Act 1978 (Vic) s 2:

• ‘Decision’ means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision’

- The inclusion of ‘privilege’ gives more flexibility.

• ‘Tribunal’ means a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice (but does not include a court).

- The test therefore includes affecting your rights or responsibilities.

• If you can prove that the decision is affecting your interests, then you have a right to natural justice and then it is reviewable.

- The Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) provides a long and complicated definition of the ‘public authorities’ to which it applies,

including: • “an entity whose functions are or include functions of a public nature when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise)”.

- Works to solve some of the difficulties in distinguishing between public/ private.

Victoria v Master Builders Association of Victoria (1995) (A success under Vic legislation, that may not succeed under Federal legislation).

The Victorian government used its executive power to ‘blacklist’ potential contractors and thus deny them the opportunity of being awarded contracts by government departments.

Federally, those contractors would have ‘no right’ to get a contract but in Victoria it was different because: “determining a public element in the decision of the task force involved a comprehensive analysis of the power being exercised, the characteristics of the body making the decision and the effect of determining that the exercise of the power is not amenable to review.”Court concluded that the integrity and efficiency of the building industry was plainly a matter of public importance, the Government was intended to address this through the establishment of the taskforce and that the Government’s dominance of the building and construction industry meant that ‘the taskforce is applying the coercive force of the state’ and hence should be susceptible to judicial review.

Mickovski v Financial Ombudsman Service Ltd [2012]The Court held that FOS exercised only private law functions and the fact that FOS was created to fulfil a statutory purpose was insufficient to support the conclusion that FOS operated in a public law context.

The Court of Appeal agreed that FOS exercised only private law functions. It found that FOS was a private company and its powers were derived solely from contract. The fact that FOS was created to fulfil the statutory self-regulation requirements prescribed by the Corporations Act was not sufficient to bring FOS’s operation within a public law sphere. The determinative indicators of FOS’s private law context were:’(1) The public had the choice to pursue their complaint through FOS or through the courts;

(2) FOS’s power over members was derived solely through contract; and(3) FOS’s decisions were of an arbitrative nature in private law and were not supported by any public law

sanctions.The Court of Appeal therefore ruled that FOS’ decisions were not amenable to judicial review.

Grounds of Review: Ultra Vires

The decision is reviewable….now what do we review it for?

- Usually decisions are reviewable based on whether or not there was authority (or jurisdiction or vires) for the decision in the first place.

Introduction to the Ultra Vires Principle

- Generally this arises in two ways:

• 1) Whether procedural requirements for the grant and exercise of power have been met (procedural narrow ultra vires); or

• 2) Whether power has been properly exercised and not abused (substantive or broad ultra vires).

- But technically it is all the same issue of vires/ jurisdiction and the same cases can be framed multiple ways.

Executive Power

- Grounded in s 61 of the Constitution.

- Authorised to make laws in four broad categories:

• 1) Made in the execution or maintenance of a statute or expressly authorised by a statute;

• 2) Made in accordance with the ordinary administration of the functions of government; or

• 3) Supported by a common law prerogative power; or - Examples:

• McDonald v Hamence (1984) — conducting public relations

• Clough v Leahy (1904) — undertaking inquiries

• Victoria v Commonwealth (AAP Case) (1975) — creating community assistance programs, but not in a way that distorts state-federal relationships (Williams v Commonwealth (#1 and #2) — chaplaincy programme cases.

• NSW v Bardolph (1934) — entering into contracts

• Davis v Commonwealth (1988) — incorporating a company to discharge government business

• McManus v Scott Charlton (1996) — controlling staff behaviour.

• 4) (Possibly) supported by the nationhood power.

The Extent of Executive Power

- Executive power can be overridden by statute

- Executive power cannot authorise government action that is coercive, punitive, intrusive or threatening — with the exception of the power to declare and wage war, which has been expanded into including:

• 1) Keep the peace, use of gas and plastic bullets to police (UK case R v Secretary of State for the Home Department; Ex parte Northumbria Police Authority);

• 2) What about repelling people back from Aussie borders? Tampa incident in Minister for Immigration and Multicultural Affairs v Vadarlis (2001).

• 3) The nationhood power.

Delegation and Sub-Delegation

Delegated Power

- There is a principle that states that where a person is intended to take a position on a decision, they cannot delegate that power.

• At common law an administrator cannot delegate a power unless the Act allows delegation expressly or impliedly.

- Delegates act not as agents of the delegator, but in their own names.

• This requirement is substantially modified by the Carltona or alter ego principle.

• Implied authority to delegate is often inferred in the case of administrative power but depends upon the nature, scope and purpose of the power.

- Most delegation of power is done through statute.

• But also the power of the government to act using its prerogative power or as juristic entity or as a natural person (the Crown can delegate prerogative power as it likes (Council of Civil Service Unions v Minister for the Civil Service [1984]).

The Acts Interpretation Act 1901 (Cth)

S 33AB Validity of things done under appointments under Acts“Anything done by or in relation to a person purporting to act under an appointment (including an acting appointment) under an Act is not invalid merely because:

(a) for any appointment — the occasion for the appointment had not arisen; or(b) for any appointment — there was a defect or irregularity in connection with the appointment; or(c) for any appointment — the appointment had ceased to have effect; or(d) for an acting appointment — the occasion to act had not arisen or had ceased.”

S 34A (exercise of certain powers and functions by a delegate)Provides that where the exercise of a power or function by a person is dependent upon the opinion, belief or state of mind of that person in relation to a matter, the delegate may exercise that power or function upon the opinion, belief or state of mind of the delegate in relation to that matter.

s 34AA Delegation to persons holding, occupying or performing the duties of an office or position.

“Where an Act confers power to delegate a function, duty or power, then the power of delegation shall not be construed as being limited to delegating the function, duty of power to a specified person but shall be construed as including a power to delegate the function, duty or power to any person from time to time holding, occupying or performing the duties of, a specified office or position, even if the office or position does not come into existence until after the delegation is given.”

s 34AB (the effect of delegation)- A delegation may be made either generally or as otherwise provided by the instrument of delegation;- The powers that may be delegated do not include the power to delegate;A delegated function or power performed or exercised by the delegate, is deemed to have been performed or exercised by the authority that delegated it;A delegation by a person or authority does not prevent the performance or exercise of a function or power by the person or authority;If the Act containing the delegation power is later amended to give a delegator one or more additional functions, duties or powers (or it alters them) and a delegation is in force immediately before the amendment

takes effect, then, on and after the amendment taking effect, the delegation is taken to include the additional or altered functions, duties or powers (s 34AB(2) & (3)).The Carltona Principle — Who needs delegation, when you can have an agent?

- The concept is that Ministers are normally too busy to exercise the many and varied statutory powers and duties placed on them personally and that, of necessity, they must

either delegate or act through an agent. • Because the Minister remains responsible for the department, he/ she does not lose any relevant connection to the decision.

- Practical point from Carltona:

• The distinction between notions of administrative agency where are officer/ decisionmaker does things for an on behalf of the repository power (eg. the Minister) and the notion of delegation where the power is exercised by the repository of the power through the actions of the officer (the officer is NOT a delegate).

- But this has arguably been affected by s 34AB Acts Interpretation Act where, for the purposes the Act under which the power has been conferred on the delegate, things done by the delegate are taken to have been done by the delegator of the power.

Carltona Ltd v Commissioner of Works [1943] 2 All ER Facts:P, who owned a food manufacturing factory, was notified by letter that “the department” had decided that it was “essential, in the national interest, to take possession of” its premises. The letter was typed on letterhead of the Ministry of Works and Planning and was signed by a Mr Morse for and on behalf of the Commissioners of Works.

Under Reg 51 of the Defence (General) Regulations 1939, a “competent authority” was empowered to take possession of any land if it appeared to the authority to be “necessary or expedient so to do in the interests of public safety, the defence of the realm or the efficient prosecution of the war, of for maintaining supplies and services essential to the life of the community.”

“Competent authority” was defined to include the Commissioners of Works — a body that never met and whose functions and powers were, by statute, exercised by the First Commissioner of Works, and later by the Minister of Works and Planning.

P sought a declaration that the decision to take possession of its premises was ultra vires and an injunction restraining the defendants from acting on the decision.

Held: Dismissed at first instance, P appealed.

The issue was that the requisition itself was ‘bad’ because the persons constituting the requisitioning authority never brought their minds to bear on the question. This was not correct. “In the administration of this country the functions which are given to Ministers are functions so multifarious that no Minister could every personally attend to them all.” There have likely been thousands of requisitions by individual ministeries and it cannot be supposed that this regulation meant that in each case, each Minister in person should direct his mind to the matter. The duties imposed upon Ministers and the powers given to them are normally exercised under the authority of the ministers by responsible officials of the department. The decision of an official is the decision of the Minister.

Is the nature of the power such that implying delegation is appropriate?

- The nature of the power has big influence on whether an agent as opposed to a delegate must make the decision.

• For example: - The courts generally do not favour delegating judicial or quasi-judicial power (presumption against).

- Also a strong presumption against delegation of legislative functions.

- But with administrative decisions made by members of the executive, there is a presumption in favour of allowing routine decisions to be delegated to be delegated to

agents.

O’Reilly v Commissioner of State Bank of Vic (1983) Facts:Commissioner of Tax was empowered to issue s 264 notices to force parties to produce documents that may have been used for tax avoidance schemes. He was authorised to delegate the function to the Deputy Commissioner. The Deputy Commissioner issued authorisation to offices who used a fax signature of the Deputy Commissioner.

Held:

Notice was valid. Even though power was likely to adversely affect the rights of individuals, there were multiple other sections which conferred such powers on the Commissioners…scale was such that the tax system would be chaotic.

Nature, scope and purpose of the provision

- Peko Wallsend:

• “The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was ti be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him”.

• The statute vested the listing decision in the Minister.

- Unlike in O’Reilly, there was a desire for the Minister to use this power

personally. • The HC held that the Minister had to consider report from mining

company personally. It was argued that there was an implied delegation in the

statute, but the Court said no.

When the nature of the decision will not permit implied delegation

Pattenden v Commissioner for Taxation (2008) The Commissioner can issue a DPO if:

The person is subject to a tax liability; andThe Commissioner believes on reasonable grounds that it is desirable to do so for the purpose of ensuring that the person does not depart from Australia for a foreign country without wholly discharging their tax liability or making arrangements satisfactory to the Commissioner for the tax liability to be wholly discharged.

An individual is subject to 12 months imprisonment for leaving Australia.

Facts:The Commissioner delegated the DPO to the Deputy Commissioner, who in turn signed an authorisation that a subordinate (Mr B) could issue it in his name. Pattenden owed the Commissioner over $6m in respect of the 2003, 2004, 2005 and 2006 income years in relation to dealings with funeral benefits insurance premiums including dealings with a Vanuatu based company. The Commissioner’s authorised delegate (Mr B) considered this tax liability and believed it was desirable to issue the DPO.

However, the DPO was not issued for another months. During the month, the person preparing the DPO was informed of a further amount of $12K from a 2007 assessment and certain payments relating to the 2005 assessment had been made. Therefore, this person amended the DPO schedule.

Held:The amendment to the DPO was a non-procedural step and the person preparing the DPO was not authorised to make the change.

The Commissioner or his/her authorised delegate was required to believe on reasonable grounds whether it was desirable that the person does not depart from Australia without discharging “the” tax liability or arrangements made to discharge “the” tax liability , and so the amount considered by the delegate had to be the same as the amount in the schedule to the DPO, even though the relative different was very minor.

Logan J said: “It is the usurpation of that authority for that person’s unauthorised subordinate to presume to insert into what purports to be a DPO made by and on behalf of and in the name of a delegate a tax liability that is different to that in respect of which the authorised officer has made his decision on behalf of that delegate.”

The very serious nature (ie. possible imprisonment), the severe intrusion on individual rights supported this approach.

What aspects of a decision can be delegated?

Dunn v Australian Crime Commission (2008) Facts:Related to the release of information by an unauthorised person to a foreign body.

Held:“The issue which arises is whether a delegate is required to personally perform each and every act which it is necessary to perform to exercise the delegated power. Various decisions of high authority suggest that the answer to this question, in any given case, will depend on a range of considerations. The considerations include the exigencies attaching to the exercise of the power, whether or not the delegate has the capacity to exercise the power on each and every occasion it is likely to be exercised, the potential for the exercise of the power to impinge on the rights of others and the status of the agent. A delegate may be able to act through the agency of subordinates in performing some or all of the incidents of the exercise of delegated power.”

Delegating non-discretionary clerical tasks

NRMA v Falco (2012) Facts:A woman was injured in a motor vehicle accident in NSW and made a claim against the insurer for personal injury damages under the non-curial assessment system set up by the Motor Vehicles Compensation Acts (NSW).S 62 requires medical assessments to be carried out by the “proper officer”. In this case, a “case manager” wrote up a document entitled Reasons for the decision of the Proper Officer and signed it herself, but the document featured the following:“I refer to Glover-Chambers v Rey and MAA [2010], where McCallum J stated: ‘Provided that the relevant threshold is met, the final assessment of the additional information is a matter for a medical assessor’.”

Held:She had failed to use the ‘voice’ of the ‘proper officer’ and instead signed and said “I refer’, holding herself out to be acting in this position.

Delegated Legislation

- A form of legislation made by persons or bodies other than Parliament who have been given the authority to make such legislation by an Act of Parliament (‘primary legislation’).

• Often takes the form of regulations and encompasses instruments such as ordinances, by-laws, rules of court, proclamations, statutory instruments, statutory regulations and statutory rules.

- Focus is on the ‘legislative character’ of the instrument — must determine or alter the content of the law and affect a privilege or interest, impose an obligations, create a right, or vary or remove an obligations or right.

- Australian courts have jurisdiction to rule on the validity of delegated legislation (Melbourne CC v Barry (1922)).

• In deciding the validity, the court must: - Determine the meaning and scope of the

words used in the empowering or enabling Act of Parliament under which the

delegated legislation is made.

- Determine the meaning and scope of the delegated legislation in question.

- Determine whether or not the delegated legislation comes within the words used in the empowering Act (Shire of Swan Hill v Bradbury (1937)).

• If the court finds that the delegated legislation is not authorised by the enabling Act, the result is that the legislation is ultra vires and invalid.

• Challenges to the validity of delegated legislation are commonly made on the ground that the formal requirements in the relevant Act were not met when the legislation was made.

- This ground is referred to ‘procedural ultra vires’.

Narrow (Procedural) Ultra Vires

- Here the procedures required to be carried out prior to a decision are not performed.

• The Court must decide whether to declare the ultimate decision ultra vires, because the process leading to the decision was not executed correctly.

- If the empowering legislation sets out formal procedure for making delegated legislation, that procedure must ordinarily be followed if the delegated legislation is to be valid.

• Further, formal procedures for making, publishing and tabling must be complied with (Watson v Lee (1979)).

- A challenge to delegated legislation on this ground requires the court to determine the effect of the failure to comply with the relevant requirement, in particular, whether the failure rendered the delegated legislation invalid.

• “Procedures that were required by law are to be observed in connection with the making of the decision were not observed.” (ADJR ss 5(1)(b) and 6(1)(b)).

Mandatory or directory? - A decision or action can also be beyond power because

of failure to comply with mandatory procedures.

- The court must decide whether the requirements of the enabling Act are mandatory or directory.

• If mandatory — failure to comply renders the delegated legislation invalid.

• If directory — failure to comply does not invalidate delegated legislation. - Example: in the absence of an express provision, formal requirements for tabling are mandatory. Therefore non-compliance renders the delegated legislation invalid (not in Victoria — expressly provided that failure to comply does not affect operation of delegated legislation).

- Difficulty in determining whether Parliament intended non-compliance with statutory procedure to result in invalidity.

• Looking at the error in the context of the Act as a whole, is the error one which Parliament would have intended to result in an invalidation of the decision?

Watson v Lee (1979)

Held:HC ruled that certain regulations made under the Banking Act 1974 were valid, although none of the regulations challenged were available for purchase on the day on which their making was notified in the Commonwealth of Australia Gazette, as required by legislation (now repealed).Reasoning of the judges varied:

Gibbs J: ‘Substantial compliance’ is sufficient. Elaborated that there is no general principle — it is just a matter of statutory interpretation— purposive approach to establish the ‘real intention’ of the legislation. Barwick CJ: There was a presumption in favour of validity, and that the plaintiffs failed to establish that copies of the regulations were not available at the relevant time.

Hunter Resources v Melville (1987)Provision in mining legislation requiring applicants for mining tenements to identify claims by placing pegs in ground at specified intervals

Project Blue Sky v ABA (1998)ABA Australian Content Standard — required 50% Australian TV programs between 6pm and midnight. But the Australian/ NZ Closer Economic Relations Trade Agreement required equal access rights to markets. Broadcasting Services Act 1992 (Cth) required ABA to perform its functions consistent with any international treaty to which Australia is a party.

Held:‘A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in NSW. In determining the question of purpose, regard must be had to the “language of the relevant provision and the scope and object of the whole statute”.

Based on the scope and object of the whole statute, did Parliament intend for non-compliance to trigger invalidity?

>> Is the failure to follow procedure central to the purpose of the statute? Does it somehow impinge on the central purpose of the statute? If there is failure in procedure, is the decision struck down?

- There is no ‘partial compliance’ in some statutory contexts

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs Facts:The Tribunal failed to provide to the applicant for review written particulars of information that it considered would be the reason, or part of the reason, for affirming the decision under review. This was a breach of the requirements of s 424A Migration Act.

Held:“Because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal’s decision was found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. It is not to the point that the Tribunal may have give the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information…If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no ‘partial compliance’ with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not.”

*If the provision is mandatory (judged by its centrality to the statutory scheme and purpose), then there is no such thing as substantial compliance.*

Amongst the features which would confirm a court in finding the procedure as central and the error as ‘unforgivable’:

- The procedure is an essential part of a statutory scheme whereby a strict procedure is laid out that must be followed before any relevant finding or determination can permissibly arise;

- The language of the provision is such that it is mandatory that the decision-maker cannot make an adverse finding unless some other step is taken; and/or

- The provision provides for a fair procedure or is part of Parliament affording a fair procedure before the decision may lawfully be made.

- Justice Perram: “We should abandon the fiction of which Project Blue Sky Inc is the exemplar. That the Parliament has told the courts what to do when unlawful administrative action is discovered— when it quite clearly has not— and instead develop a jurisprudence directed to explaining why some unlawful action should be set aside whilst other unlawful action should be left in place.”

• The only thing we have that fights back against Project Blue Sky:

SZIZ0 (Refugee Review Tribunal) Facts:A family’s protection visas were denied. They applied for a review at the RRT and the eldest daughter was nominated as being the person to receive the correspondence. Despite this nomination, the RRT sent correspondence to the applicant father. The family nevertheless showed up to the hearing and their evidence against the application refusal was taken. They they attempted to judicially review the decision because the

statutory procedure which stipulates that all correspondence to be sent to the authorised nominee was not followed (s 441G Migration Act).

Held:The court refused to quash the decision. The family gave very honest evidence and stated that they were a family and had thus received the correspondence regardless (meaning they were aware of the hearing date and could present their evidence etc) and as such no real injustice had been suffered in that manner. Therefore the error had not lead to a denial of natural justice. The Court held that even though there was a clear legal error in one of the few prescribed procedures in the Act, it would display a practical mindset and allow the decision to stand — it didn’t result in a practical injustice so the breach of the procedure was forgivable. Stated that had there been any practical injustice, they would have found otherwise. *Important to also look at the consequences/ outcomes produced by the failure*

*It will be unforgivable in SAAP v Australian Crime Commission*

- *A practical mindset will be applied in these cases* (Minister for Immigration and Citizenship v SZIZO [2009]).

Plaintiff M47/2012 v Director General of Security (2012) Facts:The Plaintiff was a refugee who was refused a protection visa and placed in detention because ASIO assessed him as a risk to security within the meaning the s 4 of the ASIO Act 1979 (Cth). Because of that assessment, the plaintiff did not meet public interest criterion 4002 set out in the Migration Regulations 1994 and he could not be granted a visa or released from detention. Unsuccessful attempts were made to remove the plaintiff to a safe third country and these failed. He was a refugee from Sri Lanka and as a former member of the Liberation Tigers of Tamil Eelam (LTTE) he was at risk of persecution. He had also refused to rejoin the lTTE and so was also at risk on that front. He had come to Australia by boat.

He challenged the validity of the public interest criterion 4002, the legality of the refugee status decision and also challenged whether s 198 of the Migration Act 1958 (Cth) authorised his removal.

Held:The HC held that public interest criterion 4002 was invalid and that his application for a visa had not been finally determined and he could lawfully be detained. The plaintiff was validly detained for the purposes of the determination of his application for a protection visa.

Public interest criterion 4001 requires that in order to get a visa, one must satisfy the Minister that the person passes or would have passed the character test. Public interest criterion 4002 said that one can get a visa if one is not assessed by ASIO to be directly or indirectly a risk to security.

French CJ held that criterion 4002 and the provisions of ss 500-503 of the Migration Act “spells invalidating inconsistency”. The regulation effectively vested in ASIO the power to refuse a visa on security grounds and it was not consistent with the scheme of the Act, including the responsibility it imposes on the Minister and officers, the system of merits review which established and the personal responsibility and accountability of the Minister for decisions precluding review.

Summary:

- An essential part of a statutory scheme whereby a strict procedure is laid out that must be followed before any relevant finding or determination can permissibly arise;

- The language of the provision is such that it is mandatory that the decision-maker cannot make an adverse finding unless some other step is taken; and/or

- The provision provides for a fair procedure or is part of Parliament affording a fair procedure before the decision or finding may lawfully be made.

THE PRINCIPLE OF LEGALITY

- The principle:

• Courts do not impute on the legislature an intention to curtail certain human rights or freedoms, unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedom in question and has consciously decided upon abrogation or curtailment - Gleeson CJ.

- A clear statement rule — a statutory provision must be “unmistakable”, possess “irresistible clearness”, if it negatively affects rights and freedoms.

• Otherwise where ambiguity is found, we presume Parliament did not intend to limit rights and freedoms.

- This presumption can be rebutted by evidence as to a rights limiting purpose by Parliament.

- A unifying concept which should be used to encompass a range of more specific interpretive principles.

- Common law freedoms and principles (Spigelman J) that the principle of legality applies to:

• To retrospectively change rights and obligations;

• To infringe personal liberty;

• To interfere with freedom of movement;

• To interfere with freedom of speech;

• To alter criminal law practices based on the principle of a fair trial;

• To restrict access to the courts (admin-specific);

• To permit an appeal from an acquittal;

• To interfere with the course of justice;

• To abrogate legal professional privilege;

• To exclude the right to claim self-incrimination;

• To extend the scope of a penal statute;

• To deny procedural fairness to persons affected by the exercise of public power (admin-specific);

- Step One in procedural fairness: How do I interpret the legislation’s approach to procedural fairness?

• To give executive immunities a wide application;

• To interfere with vested property rights;

• To authorise the commission of a tort;

• To alienate property without compensation; • To disregard common law protection

reputation; and

• To interfere with equality of religion.

The significance of the principle in practice

- Where cases are being run and decided, the principle of legality is one of the most powerful principles at play (Gleeson).

- It is a constitutional principle — but not usually expressed in such terms.

• If every constitutional case began with ‘how do we read this legislation and can we read it down to comply with rights?’ — most constitutional cases would be unfounded.

Why has the principle of legality recently gone into overdrive?

- Part of the reason is because the French CJ court was firm on the need to protect common law rights through statutory interpretation.

- The court underlined that the intention of parliament is objective.

• This was a shift from extrinsic, subjective intent to emphasis on the four corners of the Act.

- ‘Cracked down’ on second-reading speeches and citing the Minister’s subjective intention.

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory RevenueIn a judgment which has since been cited more than 400 times, Justice Hayne led the plurality of himself and Justices Heydon, Crennan and Kiefel in proclaiming the fundamental importance of beginning the task of statutory construction with the text itself and in dictating that historical considerations and extrinsic material cannot be relied upon to displace the clear meaning of the text.

Certain Lloyd’s Underwriters Subscribing to Contract No 1H00AAQS v Cross French Cj and Hayne J:“Determination of the purpose of statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure…The purpose of the statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted.”

- So there is a combination of the presumption plus a growing reluctance to ‘patch holes’ in the text with second reading speeches and extrinsic materials.

• “A statute has many authors…Individuals have thoughts; legislatures do not have thoughts. If there are authors of a statute, their thoughts about the statute will rarely agree. And, do you look only to those who favoured the enactment or do you take

account of those who resisted its enactment? Do you try to find out what those who chose the text thought about its effect? Do you look for the hopes and expectations? Do assume Parliament is acting rationally to achieve a reasonable objective? What do you do if you judge the legislative response to be not well-founded or to be designed to make a political point? And what do you do if you reach the that most remarkable conclusion that the majority of the House voted as it did for a mixture of motives ranging from party loyalty to the fulfilment of well thought out policy aims? How do you deal with evident signs that the final draft represents a compromise between competing views? (Hayne J).

- Rejecting the speaker — Parliament’s voice as the subjective intent.

Steps of a Principle of Legality case

Step one: Are the words clear/ is there ambiguity? — Government wants the words to be clear and unambiguous.

If the court finds that the wording is clear, then don’t go beyond step one.

Step two: Apply the principle — Where we see ambiguity, we presume that Parliament did not intend to limit common law rights and freedoms, or would require the legislation to be read in a way which least limits the right or freedom.

When trying to confine or read a provision so that it impairs rights to most limited extent compatible with the meaning of the words, remember that the meaning can be confined to extreme scenarios or tied to more objective criteria (eg. the criminal offence in Monis.

Step three: Always consider whether the Parliament clearly had as its intended overall purpose, based on text and structure of legislation, for rights to be limited. Is there evidence of a clear rights-limiting purpose that would defeat the application of the Principle of Legality? Rebutting the principle — clear rights limiting/ purpose to registration.

Step One: Where’s the ambiguity?

- An Act of Parliament can appear perfectly clear on the face of it, and it is only when you apply it to the subject matter than the ambiguity appears.

• Such ambiguity arises frequently from the use of general words (Bowtell v Goldsborough Mort & Co Ltd (1906)).

- Ambiguity is not usually a result of drafter error, but rather through an extension of applicable facts that leads some words into ambiguity.

- Ambiguity is not so much a property of individual words as of words understood against the backdrop of context and surrounding provisions.

- Ambiguity often arises not so much by technicality, rather by lack of evidence that parliament intended to cover a particular set of facts, or just simply the nature of general words.

- Always consider what other words could have been chosen: alternative forms of drafting are indicators of conscious choice.

Al Kateb (2004)AK was a asylum seeker who had been denied refugee status. But could not be sent back to his home country as there was a threat to his life. So he was not entitled to a visa but the law barred him from being sent home.

Issue: Did the provisions of s 189 and s 196 authorise his indefinite detention? He had no legal status under migration law but cannot be sent back because of a prohibition on Australia from returning him.s 189: All unlawful non-citizens must be detained. s 196: They must be detained until they are removed from Australia, deported or granted a visa.

Government’s arguments:The words are clear. He cannot be removed or deported and there is no permission to grant a visa at this point. The statute therefore requires us to detain him for life.

Al Kateb’s arguments:Based on s 198: ‘an officer must remove as soon as reasonably practicable an unlawful non-citizen if (1) he asked the Minister, in writing, to be so removed or …if (6) the valid application for a grant of a visa had been refused and finally determined and no other valid application had been made.

(1) So if he asked to go home- he must be removed.(6) Links detention to being a holding ground to determine visa applications.

Held:Majority: There was no ambiguity: the words of s 196 and s 198 were unambiguous. They require the indefinite detention of Al Kateb, notwithstanding that it is unlikely that any country in the reasonably foreseeable future will give him entry to that country.

Minority: Held that the relevant legislation was ambiguous in the sense that it did not address the possibility of such a situation as arose in Al Kateb’s case. First, that Al Kateb was to be kept in detention for as long as it took to remove him which, if removal never became practicable, may result in him spending the rest of his life in detention; or, second, that Al Kateb was to be detained if, and so long as, removal was a practical possibility. If removal became impractical, his detention would come to an end, at least for so long as that situation continued.If removal was unlikely to occur, s 198 no longer retained its primary purpose and to that extents its operation was spent. Consequently, the temporal imperative imposed by the word ‘until’ in s 196(1) lost a necessary assumption for its continued operation.

*This was all step one*.

Only the minority got to step two: the presumption that we don’t interfere with rights-The primary purpose of Al Kateb’s detention was to facilitate his removal from Australia. Where that purpose could not be fulfilled, the court had a choice between indefinite detention or suspension of detention.

In choosing the later, the Court relied on the well-established principle of interpretation, by which courts should not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms unless such an intention was clearly manifested by unambiguous language. According to Gleeson, had the

Parliament intended to detain failed asylum seekers indefinitely, contrary to the right to personal liberty, it would have spelt that out in the legislation.

Shows us that clarity is a powerful idea.

- If acting against the government, find the ambiguity — the legislation doesn’t cover my client.

Evans v State of NSW (2008)Regulation provided that “an authorised person may direct a person within a World Youth Day declared area to cease engaging on conduct that:…(b) causes annoyance or inconvenience to participants in a World Youth Day Event…”This was based on s 58(2)(b) of the World Youth Day Act 2006 (NSW) anything “necessary or convenient” for giving effect to the Act, and for ‘regulating the conduct of the public on World Youth Day venues and facilities.’

A group of same sec marriage protestors engaged in protests on World Youth Day, including kissing, giving away shirts etc. The regulation is then used against them. The protesters argued that ‘annoyance’ is subjective.

Held:*Very rare* Found that ‘annoyance’ was of such subjectivity, of such potential breadth, that no meaning could be given to it. Here the ambiguity was such that it wasn’t possible to give a narrow reading to it. The legislation was tied to the subjective reaction of people, which makes it very difficult because what annoys one person may not annoy another. It could have no fixed meaning.

But contrast this, with the treatment of ‘inconvenience’.Has more objective content based on its definition as ‘harm, injure, mischief; misfortune, trouble’ or ‘arranged or happening in such a ways as to be awkward, inopportune, disadvantageous or troublesome’.Does not depend on the subjective reactions of participants in World Youth Day events to the conduct in question. Instead requires a judgment by the authorised person of objective inconvenience.“

Such inconvenience may arise, for example, where protesters by their locations or actions hinder or obstruct the movement of participants or are so loud in their protest as to impair communications between groups of participants and officials. The term inconvenience may be criticised as conferring wide powers of uncertain ambit upon authorised persons but it is a term which can reasonably be construed as limited to matters susceptible of objective judgment. The term does not reach so far as to impair expression of opinions with which people might disagree or which they might find troubling.

This is a narrow, read down, confined meaning.

HaneefHaneef was a doctor originally from India but living on the Gold Coast on a permanent resident visa. This was post-September 11 and there was an attack on an airport in Scotland. The perpetrator had in his possession a phone with a sim card that had originally been issued to Haneef. He was arrested under antiterrorism laws. The criminal case resulted in a dead end as Haneef had lived with the cousin of the attacker and before he left England, had given the phone to the flatmate. He had innocently left the phone which had then ended up in the hands of the terrorist. Haneef is released on bail while things are finalised. As he leaves the Court, two members of the Department of Immigration who announce that his visa has been cancelled under s 501: the minister reasonably believes that he has associated with someone involved in criminal conduct.

Held:It seems quite unbelievable that the members of Immigration were waiting literally at the door of the Court. The statutory inquiry confirmed that the Minister was very concerned that Haneef not be released and have the opportunity to give media interviews.

Lawyer determines that the word ‘association’ is broad language and must be read down given its interference with liberty.

Court construed the term ‘association’ in s 501 of the Migration Act narrowly. That section defined the circumstances in which a person would not pass the ‘character test’ and so be liable for refusal or cancellation of a visa on character grounds. The relevant criterion was that:

The person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct.

The Court said:Having regard to its ordinary meaning, the context in which it appears and the legislated purpose, we conclude that the association to which s 501(6)(b) refers is an association involving some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation. The association must be such as to have some bearing upon the person’s character.

It did not cover innocent association, which has no impact on your character.

Monis v The QueenMonis had been writing to the relatives of Australian soldiers killed in Afghanistan, calling the soldiers murderers and comparing them to Hitler.

He tried to use the Principle of Legality against s 471 of the Criminal Code: Provides that a person is guilty of an offence, and liable to a maximum of two years’ imprisonment, if:(a) The person uses a postal or similar service; and(b) The person does so in a way (whether by the method of use of the content of communication, or both)

that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

He argued that ‘menacing, harassing or offensive’ were general words and as such should be read down.

Held:Accepted that the words were ambiguous, particularly ‘offensive’ and believed that the meaning had to be confined. However, he was still in the narrow, core meaning of being linked to ‘threat’.

- When you approach an ambiguous word — look at what the core meaning might be.

• Is there a way to give the words meaning, while still adopting an approach which is the least restrictive of rights.

Step Two: Applying the principle - The most common result from applying the

presumption is a narrower reading of the word being adopted by the Court.

• The Court is eager to give some meaning to the words. They’re very reluctant to do what happened in Evans and ‘erase’ a word of Parliament.

- Can do this by tying it to proportionality or tying it to a particular mischief.

- Ask the broad question of ‘does this cover my client?’

• Do look at words individually, look at it collectively.

• Look to the purpose also.

- Gageler J criticises the principle of legality.

• Doesn’t believe that cases should be ‘knocked off’ in the interpretation phase, before getting to the constitutional question.

• Parties end up with an altered, read down meaning of the statute.

Step Three: Can the Principle of legality be ousted? The power of purpose

- Even if the language of the particular section is unclear, the rights limiting purpose of the legislation as a whole means the presumption should not apply.

Lee v Australian Crime Commission‘Don’t try and use the presumption where the legislation, amongst its objects, is very clearly the abrogation or curtailment of the particular right, freedom or immunity.If the overall purpose of the legislation is to take away rights, don’t play games with individual sections using the presumption.

‘The principle of legality at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that it is of little assistance, in endeavouring to work out the meaning of parts of a legislative scheme, to invoke a general presumption against the very thing the legislature sets out to achieve.’

- Sometimes the legislative intention is entirely clear, which is enough to destroy an argument based on obligations of procedural fairness (Plaintiff S10/2011).

• Intention can be derived from the cumulative effect of several structural features of the statutory scheme.

Recall the Steps:

1) Look at the words, what makes their use ambiguous in this particular case?

2) Can the principle of legality narrow their meaning to get their client off? (eg. offensive in Monis).

3) Can it be said that the overall purpose of legislation is clearly to limit rights, and that we should therefore give the words their full, broad meaning?

Challenge: Confining Meaning When the Principle/ Presumption is Activated

- Ideas of reasonable proportion (Adelaide Malls)

- Ideas of core meaning/ purpose/ mischief (Haneef, inconvenience in Evans).

- Use of emphasis in surrounding words (Monis use of threat, harassing to confine ‘offensive’).

Cunneen“Corrupt conduct” is defined to include:

Conduct of any person, whether or not they are a public official, where that conduct ‘adversely affects’ the exercise of an official function.

Part of an Australian Crime Commission investigation into organised crime. As part of that investigation, the ACC put a wire tap on a smash repair business on the basis that it may have had organised crime links. Margaret Cunneen is one of the most famous criminal lawyers in NSW. MC’s son is dating a Miss Tilly, who crashes her car where the other person is at fault. MC and Miss Tilley’s father rush to the scene and arrive just as the police are pulling up. MC calls a crash repair office that she is familiar with (the same one that is under surveillance by the ACC). MC ‘jokes’ that she has told Miss Tilley to tell the police that she has chest pains following the crash. MC says this is a joke because Miss Tilley has breast implants and the crash repair person knows this (they are obviously known to each other socially). The ACC hear something different and believe it is a matter for ICAC. The following morning, ICAC receives communication saying that there has been potential corrupt conduct on the part of the senior prosecutor for NSW - Claimed that MC told Tilley to say she had chest pains to avoid the RBT (though Tilley does not drink).

Issue: Was this something that ICAC had the power to regulate?

MC argued for the narrow approach to ‘corrupt conduct’ which linked it to honesty, stating that is MC had bribed the police officer directly then ICAC could have legitimately investigated.

ICAC stated that they, as a body, do not have to prove such direct actions (ie. bribery). Said that they have the right to investigate anything that has an efficacy on government decisions.

Held:The High Court found in favour of MC and refused to find that the words were clear.

“So to reason (regarding ICAC’s argument), however, is to invert proper processes of construction. It amounts to assuming that the words of s 8(2) are used in their broadest possible sense and then excluding all the contextual indications which imply that they have a more narrow and focussed meaning. Expressions of indefinite connotation are especially susceptible to context. They may and frequently do mean one thing in one legislative context and something quite different in another. To ignore context in these circumstances is calculated to lead to error.”

If the words were read in isolation, then ICAC would have the power to investigate any conduct that interferes with the quality of government decision-making.The context here, was the principle of legality and the court was reluctant to interpret the words in a broad sense when they are tied to some of the most coercive interrogation powers in Australian law.

ICAC took the standard second step of the Government, accepting ambiguity but looking towards the objects clause: stating that the clause was clear on the intention of restricting freedom.

(a) To promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body;

(i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials; and

(ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community; and (b) to confer on the Commission special powers to inquire into allegations of corruption.

HC flagged difficulties with the generality and vagueness of modern purpose clauses. It was trying to determined what “corrupt conduct” which “adversely affects” government functions covered. Found that the objects clause yielded no clear purpose. it confined ICAC’s power to only cover corrupt conduct where the public official directly involved is being dishonest and acting with impropriety.

Cuneen’s interpretation meant that ICAC would have to show that conduct affected the honesty of the person making the decision (ie. every time a developer gave money, you’d have to prove that the politician was acting dishonestly when making the decision). But the High Court preferred this narrow meaning, stating that a link must be found between the probity of the acts of the decision-maker.

Gageler dissented and stated that the principle of legality was bought in artificially as none of her fundamental rights had been infringed upon. “Unfocused invocation of the principle…can only weaken its normative force, decrease the predictability of its application, and ultimately call into question its democratic legitimacy”. — The more that the principle is used, the less you can trust the wording of statute.

Abuse of Power

Improper Purpose and Bad Faith

- Administrative decision-makers can only exercise their powers for the purposes for which they were conferred in good faith.

• a) Cannot exercise powers for:

- Unauthorised or improper purposes;

- In bad faith; or

- Fraudulently

• b) Determining whether this ground is established - i. Ascertain for what

purpose the administrative power can lawfully be exercised — the question of law

determined by construing the statute;

- ii. Ascertain for what purpose (or purposes) the administrative decision-maker actually did exercise the power— the question of fact determined by the available evidence and inferences made from that evidence.

- iii. Assess whether the administrative decision-maker’s actual purpose or purposes are in accordance with the lawful purpose— the question to be determined by applying the facts to the law.

- iv. If the administrative decision-maker had multiple purposes (some improper but others lawful) — requires a consideration of whether the improper purposes were substantial purposes.

• c. Statutory ADJR Act:

- i. Improper Purpose: s 5(1)(e) with s 5(2)(c) (for decisions) and s 6(1)(e) with s 6(2) (c) (for conduct) allows a challenge on the ground that the administrator’s power was exercised for a purpose other than a purpose for which the power was conferred.

• s 5(1)(e)— that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made

• s 5(2)(c)— an exercise of a power for a purpose other than a purpose for which the power is conferred

• s 6(1)(e)— the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made.

• s 6(2)(c)— an exercise of a power for a purpose other than a purpose for which the power is conferred.

- ii. Bad faith: s 5(1)(e) with s 5(2)(d) (for decisions) and s 6(1)(e) with s 6(2)(d) (for conduct) allows a challenge on the ground that the administrator’s power was exercised in bad faith.

• s 5(1)(e)— that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

• s 5(2)(d)— An exercise of a discretionary power in bad faith

- iii. Fraud: s 5(1)(g) and s 6(1)(g) allow decisions and conduct to be challenged on the basis that they are affected by fraud.

• s 5(1)(g)— That the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;

• s 6(1)(g)— That fraud has taken place, is taking place, or is likely to take place in the course of the conduct.

• d. Common law considerations

- i. Improper purpose

• R v Toohey; Ex parte Northern Land Council

- Held: A statutory power may be exercised only for the purposes for which it is conferred.

• ‘If it can be seen that from the words of the regulation themselves that the

regulations go beyond the purposes of the statute, they will be invalid.’ - What evidence is available to prove improper purpose?

• Samrein Pty Ltd v Metropolitan Sewerage - Held:

• Adopts more than one purpose— Where a decision-maker adopts more than one purpose for exercising administrative power, it will be an abuse of that power if one of those purposes is an ulterior and substantial purpose.

• Adopts no purpose— If the decision-maker made no attempt to exercise its administrative power then that would suggest an improper purpose ground would be made out.

Reasonableness/ Relevant Considerations: Account for the Statute

- Do not argue the merits (ie. fairness, justice) in judicial review, explain what standard of justification is required under this statute and why it is not met.

• Ie. illogical or didn’t consider the factor.

- Evident and intelligible justification is an elastic, chameleon like standard, explain your approach to it as you use it.

- Is this a statute or a context where a more demanding or forensic approach would be taken (ie. like Li) or a less demanding approach would be taken (ie. like Stretton) - one where there is a fight over the legal test.

- A similar dynamic haunts relevant considerations - what does proper, genuine and realistic consideration amount to in this context.

Step One:

Identify the relevant consideration (can be express -listed in the Act or implied -such as the purpose of the Act as a whole )…is it mandatory?

Step Two:

Factually — identify to what extent did the decision-maker consider the issues?

(What events make up the consideration — eg. read documents, include a statement in their reasons etc)

Step Three:

Did the consideration which did occur amount to ‘proper, genuine and realistic’ consideration? Or ‘active, intellectual engagement’ with the with the issue?

Irrelevant Considerations

- 1) Administrative decision-makers must not take into account irrelevant considerations when exercising their discretionary powers.

• Talking/ referring to an irrelevant consideration is unforgivable, unless it is insignificant (prejudice must be isolated).

- Australian Conservation Foundation v Forestry Commission (1988)

• Held: ‘It is true that a decision-maker may not take account of an irrelevant consideration, but I think he may pick up a red herring, turn it over and then put it down, so long as he does not allow it to effect his decision.

• a) Determining whether this ground is established:

- i. ascertain what was in fact taken into account by the decision-maker; - ii. assess

whether anything taken into account was irrelevant.

• b) Statutory ADJR Act:

- i. s 5(1)(e), when read with s 5(2)(a), allows a decision to be challenged on the basis that a decision-maker took into account an irrelevant consideration when exercising administrative power.

• s 5(1)(e) — that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

• s 5(1)(a) — taking an irrelevant consideration into account in the exercise of power.

- ii. s 6(1)(e) when read with s 6(2)(a) — allows the same challenge in relation to the conduct of the decision-maker .

• s 6(1)(e) — that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;

• s 6(2)(a) — taking an irrelevant consideration into account in the exercise of power.

• c) Common law considerations:

- i. ***Relevant effect of irrelevant consideration***

• When discretion is open (eg. public interest), the Court views the decision-maker as having broad discretion and feels that the decision-maker’s task is not merely legal but also fits within administrative, political responsibility.

- This makes irrelevant consideration arguments more difficult.

• Klein v Domus Pty Ltd

- Held: ‘the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion’.

• Upheld in Lu v minister for Immigration and Multicultural and Indigenous Affairs.

- ii) Using ‘common sense’

• Roberts v Hopwood

- Held: ‘should only take into account those things that justice and common sense demand it taking into account when determining a decision.’

- iii) Decision-maker cannot be influenced by extraneous considerations

• Padfield v Minister of Agroculture, Fisheries and Food

- Held: A repository of administrative decision-making power must not allow itself to be influenced by something extraneous and extra-judicial ought not to have affected its decision.

Relevant Considerations

1. Who are we advising? What are we claiming? Why?2. Look at the words of the statute: what are the relevant considerations?3. Look at the facts of the problem:

- what did the minister take into account? What do her/his words say? - Read the wording of considerations VERY closely. Then read them again EXTREMELY closely - what “counts” as consideration? Is it the written reasons, together with the documents tabled evidence of their consideration (if that can be established). E.g. notes, convos

- Administrative decision-makers must take into account all relevant considerations when exercising their discretionary powers.

• Don’t get waylaid by the value or to what degree the decision-maker took it into account — first, did they take it into account???

- Really mandatory considerations which can be express or implied in the statute.

• Usually they’ll be listed (express) but can also be found in the purpose and nature of the statute (then impliedly incorporated).

• Sean Investments v Mackellar (1981)

- Held: “the ground of failure to take into account a relevant consideration will only be made good if it can be shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.”

• Parramatta City Council v Hale (1982) - Application made to the Council for consent

to use part of the park as a sports ground. The relevant legislation instructed the Council to take into consideration ‘environment, traffic, socio-economic effects’. Lobby groups sent reports to Council and they were not read.

- Held: Consent granted.

- Always try and find an alternative argument that the other side may produce.

• a) Determining whether this ground is established

- i. Ascertain whether there was an express or implied statutory obligation for the decision-maker to consider a particular matter; and

- ii. Assess whether the decision-maker failed to consider that matter.

• b) Statutory ADJR Act:

- i. s 5(1)(e), when read with s 5(2)(b) allows a decision to be challenged on the basis that a decision-maker failed to take a relevant consideration into account when exercising their administrative power.

• s 5(1)(e)— that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

• s 5(2)(b)— failing to take a relevant consideration into account in the exercise of a power.

- ii. s 6(1)(e) when read with s 6(2)(b) allows the same challenge in relation to the conduct of the decision-maker

• s 6(1)(e)— that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;

• s 6(2)(b)— failing to take a relevant consideration into account in the exercise of a power.

• c) Common law considerations:

- i. ***Breach if material is ‘readily’ available’***

• Prasad v Minister for Immigration and Ethnic Affairs

- Held: Wilcox J stated that a decision will breach this section if ‘if it was obvious that material is readily available which is centrally relevant to the decision to be made’ such that proceeding to a decision without attempting to obtain such information is considered unreasonable.

- ii. Effect of failure to take a relevant consideration

• Minister for Aboriginal Affairs v Peko-Wallsend - The failure of a decision-

maker to take into account a relevant consideration in the making of an

administrative decision is an abuse of discretion. Furthermore:

• Must be bound to take it into consideration— The ground can only be made

out if a decision-maker fails to take into account a consideration which he is

bound to take into account (ie. what does the statute require?) - What factors

is the decision bound by?

• The consideration mustn’t be insignificant— Not every failure to take into account a relevant consideration is fatal. A relevant factor may be so insignificant that it could not materially have affected the decision.

• Weight of the consideration only for the decision-maker— Issues of ‘weight’ are generally for the decision-maker, in the absence of any statutory or contextual indication

- Statute may indicate factors as ‘primary’ or ‘secondary’ considerations, which may indicate weight to be given.

- iii. ‘Have regard to’/ ‘take into account’ — not a high level obligation.

• NAJT v Minister for Immigration and Multicultural Affairs (2001)

- Held: ‘a fleeting, uncritical reference’ to a letter showed that the decision-maker did not adequately consider its significance.

• Minister for Immigration v Khadgi (2010)

- Held: Statute stated ‘have regard to’ ten criteria, so the Minister had the right to treat some as more fundamental than others.

• Number of criteria can help to establish how much discretion the decisionmaker has in consideration (ie. fewer criteria = less discretion, more criteria = more discretion).

• Meaning will depend on statutory context— consider the verb used in the statute.

- iv. ‘Proper, genuine and realistic consideration’ (Khan v MIEA (1985)).

• Such consideration must be given to all mandatory factors.

- But this will depend on the context.

• Blue Wedges Inc v Minister for Environment (2008)

- Held: In some contexts it is legitimate for a decision-maker to take a global view of an issue, rather than working through each element of the larger picture.

• Carrascalao v Minister for Immigration and Border Protection [2017]

- Held: Found that on the deportation of two individuals, the Minister gave 43 minutes to review 273 pages. Court held that this was not sufficient time to read the material, let alone “engage in the active intellectual process” and thus there was no consideration.

• Parroting of information will not show engagement in the active intellectual process.

Lafu v Minister for Immigration and Border (2009)A deportation case which was struck down. The Tribunal was required to consider six factors in whether to deport Lafu from Australia. One factor was ‘general deterrence’, which is the supposed impact that deporting him would have on other immigrants— ie. it would deter them from engaging in the conduct that Lafu had engaged in. The Tribunal’s decision-making was flawed because even though it had taken into account general deterrence, it had not explained the role that it played in the eventual decision. He listed the reasons for his decision, including deterrence, but did not include how important it was to the Tribunal’s reasoning — Was it marginal? Was it key?

Held: ‘[The Tribunal’s reasons for decision]…fall on the wrong side of the line: they do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account and therefore whether it was taken into account at all, in the exercise of discretion to cancel. Mr Lafu would be left to guess what role, if any, the issue of general deterrence had played…”

A narrative ought to be provided to explain the degree to which each factor played a role in the decision.

Tarkine v Minister for Sustainability (‘Tasmanian Devil Case’) Another example of a failure to consider a relevant factor.

Regarding the granting of a mining licence in Tasmania. At the same time, the issue of cancer wiping out TDs was also very prevalent at the same time.

Under the EPBC Act, the Minister was required to have regard to the Conservation Advice in making his decision.

Here, however, the Minister was not adequately briefed with the Conservation Advice before making his decision. Moreover, the Minister’s reasons for the decision only made brief, generic references to him having considered ‘conservation advices’ and ‘any relevant conservation advice’. But he had received no oral briefing and it was determined that there had been no ‘active, intellectual process’.

- Can take political advantage into account, but not party politics.

• Can be difficult to distinguish.

Porter v Magill [2002]Decision to sell off public housing stock in marginal wards in order to change voting composition of wards.

Lords said it is legitimate for council to make decisions which have popular appeal and electoral support but it is different if ‘a public power…is exercised not for a public purpose for which the power was conferred but in order to promote the electoral advantage of a particular party’.“There is all the difference in the world between a policy adopted for naked political advantage but spuriously justified by a reference to a legitimate purpose…and a policy adopted for a legitimate purpose and seen to carry with it significant political advantage.”

*Only case where this had succeeded (and in UK)*

BHP Billiton Direct Reduced Iron Pty Ltd v Deputy Commissioner of Taxation (2007) BHB challenged a refusal to extend time during an infringement matter. The decision-maker was not a politician, but DC of Tax. The ATO in refusing the request said that extensions of time are discretionary, in the public interest and as BHP had been the subject of huge public and governmental criticism, the ATO felt it was inappropriate to grant an extension at this time.

Held: Wrong to refuse an extension of time to penalise a taxpayer for tax avoidance.

The Federal Court quashed the decision on the basis of irrelevant considerations. While such a consideration may have been ok in relation to a statutory power of a Minister, this was meant to be an administrative decision and it was wrong for them to take into account political atmosphere around a particular applicant in the midst of an administrative decision.

A bureaucrat, such as the DC of Tax, is unlikely to know any anything about politics and as such politics is an irrelevant consideration.

“Where the parliament has conferred wide discretions on an official decision-maker, particularly in relation to high volume decision-making, it is entirely consistent with the legislative intention in conferring such a discretion that its exercise will be guided by administrative policies. Indeed, it may be inferred that the creation of such policies is contemplated by the legislature when it confers such discretions”.

Botany Bay City Council v Minister for Transport and Regional Development (1996)

Had promised to re-open the east-west runway in battleground seats which were affected by the re-opening. Kept promise and made a complicated statutory process very quickly. Re-opening predominantly affected labor seats, where flights were redirected over.

Decision was valid. Too difficult to distinguish responsiveness of government to community views and a government using statutory power to carry out party politics.

- NB: Government workers often mistake policy for the law. • This can be

problematic as policy can be inflexibly applied, which can result in decisions being

struck down (it is not the same as law).

- Policy is a tool (unwritten, written and coded in online forms etc) but cannot shut down consideration of individual cases.

- The decision-maker must always be open to making an exception.

• ADJR s 5(2)(f): ‘an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.’

Drake v Minister for Immigration (1979)Federal Court discussed the interrelationship between Ministerial policy and sections of the Migration Act dealing with deportations. Basically, a decision-maker must leave him or herself free to consider the unique circumstances of each case. This is not to deny the lawfulness of an appropriate policy that ‘guides but does not control’ the making of decisions, a policy which if informative of the standards and values that the decision-maker usually applies.

Re Abrams and Minister for Foreign Affairs and Trade (2007)Australian Passports Act 2005 (Cth) provided that a passport could not be granted until an officer was satisfied as to the person’s identity. The Passport Manual of the department required the presentation of a birth certificate.

A person of reassigned gender (which the birth certificate did not reflect) applied for a passport with other forms of gender proof (medical documents etc). Was told that this was not in accordance with the Manual.

Judicial review struck the decision down, based on inflexible application of the policy.AAT decided:“The policies outlined in the Manual will undoubtedly help in maintaining consistency in establishing identity. This is important and desirable. But where a situation arises which is not specifically provided for by the policy, a decision-maker….is to exercise the available discretion as to the means to be adopted by which the identity is confirmed or otherwise…’

UNREASONABLENESS

Controversial Ground

- Potentially ‘offends’ two great principles of administrative law.

• 1) The Court is concerned with the legality of the decision under review, not its merits (unreasonableness can be interpreted as akin to being ‘wrong’).

- Attorney-General for the State of NSW v Quin [1990] and Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986].

• 2) The second principle was that where reasons for the decision are given, those reasons must never be read critically with an eye for error.

- Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996).

- Both the decision-making process and the decision must be ‘reasonable’.

- Decision-makers may not make decisions which are so unreasonable that no reasonable decision-maker acting according to the law could have made them.

- Global founding of the unreasonableness ground:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) Concerned a ban on entrance to cinema houses on Sunday afternoons.

Local authorities were empowered by the Sunday Entertainments Act and the Cinematograph Act to grant licenses permitting cinemas to be open on Sundays “subject to such conditions as [they thought] fit to impose.” The WC granted APPH such a licence, subject to the condition that “no children under the age of 15 years shall be admitted to any entertainment whether accompanied by an adult or not.” The Plaintiff sought a declaration that the condition was unreasonable and ultra vires.

Held:‘If a decision can be described as so unreasonable that no reasonable authority could ever have come to it, it should be struck down.’

‘It is true that discretion must be exercised reasonably. Now what does that mean?…There may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.’ Example: The red-haired teacher, dismissed because she had red hair — closely linked unreasonableness to irrationality.

Unreasonableness in Australia

- Unreasonableness from Wednesbury was very limited and tied to irrationality.

• Reflected traditional rule of Australian judges and the concern to stay focussed on legal authority and not on matters of policy.

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Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005]

‘A challenge to the exercise of a statutory power on the basis of irrationality or unreasonableness requires the court to be conscious of the permissible scope of judicial review. The legal/ merits dichotomy is at the heart of Australian administrative law and the boundary between the two is policied more rigorously in this country than appears to have become the case in recent years in other common law jurisdictions.’

• In 2010, the HC, appeared to link unreasonableness to irrationality in Minister for Immigration v SZMDS, a sign that the ground had a continued by residual, in extremis existence.

• Such decisions seemed to limit successful judicial review for unreasonableness.

Examples of Traditional ‘Unreasonableness’

- 1) Discrimination without justification

Minister for Primary Industries and Energy v Austral Fisheries (1993)

The Australian Fisheries Act 1952 (Cth) empowered the Minister to construct a fishery management plan involving formulating the fish quotas for licensed fisherman in particular areas.

Problem — the plan turned out to be a ‘statistical fallacy’. The quotas were created in a completely irrational manner and gave one fisherman a quota 100% higher than anything he had had previously. The other 50-60 fishing operators ended up with lower quotas. The first fisherman ended up with 18% of the total catch.

Held: There was manifest arbitrariness, injustice and impartiality.

- 2) Reasonable enquiries not carried out.

Prasad v Minister for Immigration & Ethnic Affairs (1985)The applicant had met and married his wife in Fiji. The wife had a permanent residence in Australia so after the marriage, he was able to come to Australia. They stayed at his brother’s flat in Sydney and he applied for residence, which was refused. The evidence for the refusal was pretty flimsy: after the couple got engaged the applicant wrote a letter to his brother saying that he wanted to live in Australia and there were inconsistencies in what was then called the ‘green card’ interview (low scale inconsistencies). But what was most significant was the evidence that was not sought out.

Held:Held that there had been a failure to take into account relevant considerations (including report by interviewing officer in Fiji, numerous statutory declarations and personal observance of officer at legal advice centre) but also court looked at unreasonableness.

Wilcox J said that the decision was unreasonable (‘devoid of any plausible justification’) because the evidence was not good enough and the decision-maker should have made the relevant enquiries to discover the other relevant evidence.

Cited in:Wei Minister for Immigration (2015)

Wei was a Chinese student studying at Macquarie Uni. Under the relevant legislation, education providers use a system called ‘prisms’ on which they need to record the enrolment. The confirmation of the applicant’s enrolment was not properly uploaded to the system and was not forwarded to the Department of Immigration. A letter was sent to the last known residential address and went unclaimed. At this point, there is consideration of visa cancellation. The Department called Macquarie Uni seeking an alternative address and a second letter went unclaimed. Attempts were also made to reach Wei by telephone but the Plaintiff hung up because he did not believe that the call was from the Department (which is unusual). They then moved to cancel the visa.

Held:The Department had failed to make a ‘critical enquiry’ as to whether Wei was actually enrolled. Were not open to the possibility that there had been a computer error. Nettle J went back to Prasad and said that “where it is obvious that material is readily available which is centrally relevant to the decision to be made and the decision-maker proceeds to make the decision without reference to the material, it will be unreasonable.”

- 3) Manifest lack of proportionality

• Voiding a decision (in this case a regulation) for disproportion.

SA v Tanner (1989)Act dealt with water quality in catchment areas. Tanner wanted to build an aviary (large hobby size, not commercial) but planning authorities were concerned that the bird poo would impact the water quality.

Held: It was reasonable to for the planning authority to refuse an application for the construction of an aviary (not commercial, but large hobbyist) under regulation directed against zoos because the birds would poo in the river and damage the water quality.

Decision was ‘reasonably proportionate’ to the object of the Act. There needs to be some harm proven — the bird poo was tested as quite corrosive that particular environment.

- No track record beyond those three cases.

Modern Unreasonableness

- It should be noted that, since this decision, this area of law is not settled.

• Answers must reflect changes made by this case:

Minister for Immigration v Li (2012) Facts:Li was on a Skilled-Independent Overseas Student Visa. Minister’s delegate found that she was not a cook under the Trades Recognition Australia scheme.

On review before the MRT, the respondent sought more time to secure a review of a second TRA application that she had made.

Held:Li’s request for more time was rejected and she was told that the MRT that she had been provided with enough opportunities to make her case.

Found on all three levels (FMC, FC and HC) that the MRT acted unreasonably in the denial.

The decision to not permit an adjournment, was a decision lacking “evident and intelligible justification”.The majority stressed that s 34 of the AAT Act requires the Tribunal to act in a ‘fair, efficient and just manner’. Saw it as the Tribunal decision-maker had totally over-estimated the efficiency benefits to the Tribunal by not giving Li time. Yes the statute mentioned ‘efficiency’ but also mentions ‘ just and fair’.

- Has been interpreted both narrowly and broadly.

• Ultimately the differences between narrow and broad are really based on the idea that the statute and decision in Li was of particular character which made the court more likely to strike the decision down.

• Best to take the basic test and then move into particular statute and consider whether it is one where a broad or narrow approach is likely to apply.

Narrow Interpretation

- Argue that this is a procedural matter — but there are exceptions to this.

• If the statute is different, then the result will be different.

- The approach in Li was tied to the particular statute regulating the Tribunal.

- Li was a very extreme case — where a decision maker gives a clear reason for their decisions, and has taken into account adverse matters, the court will not overturn the decision.

• Look at the facts of Li, this was a tribunal which just failed to engage with the issues.

- Li only applies to cases involving manifest disproportionality — it really needs to be a sledgehammer to crack a nut, which is a rare circumstance.

- In areas policy judgment unreasonableness will be harder to make out.

Stretton v Minister for Immigration*Ask if the statute is similar to Li or is it similar to Stretton. This will shape how intense the court will be on review*

Despite the statute being one involving balancing the Full Federal Court stressed that it was a policy area shaped by the Minister’s evaluation.

Broad Interpretation

- Argue that Li has made a huge impact on this area of law.

• Arguably created a new (easier to prove) test.

- Basic Test : A decision will be regarded as unreasonable where it lacks evident and intelligible justification.

- There was a privative clause present and the Court still went ahead — supports its use where statute didn’t have that overtone of limiting judicial review.

- Unreasonableness might be made out where:

• Distorted weighting of the factors making the decision. - Eg. great weight was given

to a matter of little importance; little weight was given to a matter of great importance.

• The reasoning is illogical or irrational. - Eg. you have to struggle to understand what

determined the outcome (“evident and intelligible”)

• While the precise nature of the error is not apparent, the outcome “bespeaks error”, because it is “unreasonable, plainly unjust”, or is disproportionate to the benefits obtained from it.

Step One: What is the power?

Consider the statutory context.

A statute will have a framework of rationality, eg.

Purpose, a standard of reasoning and factors to be taken into account.

Unreasonableness will arise where the decision-maker fails to reflect the framework.

Eg. in Li, the tribunal exaggerated and obsessed over speed without properly considering/ balancing the need for accuracy and justice in their decision-making.

This did not reflect the statute’s overall goal that tribunals be “fair, just, economical and quick”.

Step Two: Factual analysis.

Step Three: Is it unreasonable?

PROCEDURAL FAIRNESS

- Core principles:

• Right to a fair hearing (s 5(1)(a) ADJR

• Bias (s 5(1)(a) ADJR)

- Gateway question: does procedural fairness apply? (rare for it not to)

• 1. The default content of the principles of procedural fairness.

• 2. To what extent do those general principles apply in this context?

- Default entitlement exists at common law.

• But this entitlement can be watered down by policy (eg. National security).

Forming a Judgment

- Government may argue policy context, statutory wording, no general entitlement to anything.

- Applicant must show how the requested procedural protection is needed to avoid practical injustice to deliver a reasonable opportunity to present one’s case in the circumstances.

• If you believe your right to PF has been breached, you say two things:

- 1. Cite cases that say your entitled to the lawyer, cite general principle cases.

- 2. Talk up the practical injustice of what has happened (ie. I didn’t have a lawyer, I didn’t know what was happening and I didn’t have a reasonable opportunity to present my case in the circumstances).

• Reasonable opportunity might mean lawyer, might mean interpreter etc. - But

may depend on circumstances: ie. can’t expect an oral hearing if you are

amongst thousands of people disputing.

Where does Procedural Fairness Come From?

- It is an implication drawn from rule of law values …(also from concepts like democracy, libertarian ideas, dignity of the individual).

- It is a principle of statutory construction.

• So not constitutionally rooted right.

• Does not have the rigidity of constitutionally protected rights.

- Re Refugee Tribunal; Ex parte Aala:

• “…it may be that for many purposes the competing views lead to no different result, the ultimate question being whether the obligation asserted is compatible with the terms of the relevant legislation. On either view, the obligation to accord procedural fairness is an obligation affecting how the decision maker is to go about the task of decision-making.”

1. Gateway Question: Does this decision attract procedural fairness obligations?

- Kioa v West (1985):

• “The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations , subject only to a clear manifestation of a contrary statutory intention.”

• “The reference to ‘right or interest’ in this way must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.”

- Don’t worry about legitimate expectations (being phased out).

- The gateway includes ‘interests’ = reputation, financial interests.

• Not necessary to show the Tang criteria.

- Once interest is demonstrated, the general entitlement of procedural fairness will then be implied in as part of statutory interpretation (unless excluded).

- Procedural fairness attracts the principle of legality, and the courts are quick to preserve this right.

• So often no consistency in cases in terms of clarity and ambiguity.

• But may not find for procedural fairness if the result will frustrate the purpose of the legislation — extremely rare for this finding to be reached.

- Ie. in Kioa the person was a flight risk and so no notice was given to them of their deportation (would have frustrated the purpose of the law, which was to deport the person).

2. General or default requirements?

Adequate prior notice

- Prior to someone making a decision about you, that affects your rights and interests, they must share with you evidence that is credible, relevant and significant (Kioa).

• Core material relating to the question at hand, such that if you didn’t get it in advance you would have no reasonable opportunity to present your case.

• But what level of detail?

- Can’t be solved at general level, requires judgment.

- ‘Adverse material should be disclosed’ — ABT v Bond (1988)

• Particulars of the investigations were provided to Bond, but Bond claimed these particulars were inadequate given the adversarial nature of the inquiry.

- Dainford v ICAC (1990) — ICAC inquired into Dainford’s land dealings (property developer). D didn’t know about the allegations. D wanted all of the details of the allegation, but Court held that “credible, relevant and significant’ meant (jn these circumstances) all they needed was notification as to the general scope and nature of the inquiry.

- Re MIMI; Ex parte Miah (2001) — Protection visa application. Applicant not informed of decision-makers intention to rely on change of government in home country as means for arguing that there was not a well-founded fear of persecution. Higher level of detail required where personal liberty of livelihood at stake .

• Failure to notify of change in government meant that he ‘could not adequately run the case’.

- But does not include the implications which the Tribunal draws from the relevant factual material “procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given” — SZBELK v Minister for Immigration and Multicultural and Indigenous Affairs.

• Decision-maker found that the applicant had not been truthful about how he had left his home country.

• Applicant said that the decision-maker had never suggested that he thought the applicant was not being credible, so he never had the opportunity to rectify it.

- But court held that the decision maker did not have to do this.

- Really trying to show that the material is so significant to the question at hand, such that if you didn’t get it in advance then you would have no reasonable opportunity to present your case.

• Why must you have this document is order to present your case?

- Public policy grounds, such as confidentiality may also reduce the notice requirements.

• Also consider commercial sensitivity, safety etc.

- Need for confidentiality can really ‘water down’ prior notice.

• Minister for Immigration v Maman [2012]— an applicant for a visa was denied access to the full contents of a letter given by his former partner, alleging domestic violence. In denying the visa, the decision-maker stated that they had relied on the contents of the letter, but all Maman had received was a summary of its contents. Full federal court held that on the facts Maman was entitled to the letter, despite the very personal nature of its contents and had been given on a confidential nature. Because of the centrality of the letter to the analysis of the decision-maker it was held that the full details had to be shared. The material was adverse to Maman and his request for a visa.

- Difficult because the situation was 1:1, no other way to rebut what was said about their relationship.

• BUT in VEAL of 2002 v Minister for Immigration [2005], the HC stressed that confidentiality was a relevant factor. Neighbour blew the whistle on a visa-holder. HC held that the identity of the whistle blower and his letter should be protected in order to protect whistle-blowers. On balance, the applicant had enough information to contest the allegations in the letter.

Right to a hearing

- General principle: No absolute right to an oral hearing.

• In most administrative matters (as high volume decision making), there will be no hearing and only a chance to put in written submissions.

- Must show a special case to get a hearing.

- Hearings attach to areas where credibility (judging truth of account), understanding (is the person going to struggle to understand what is happening) and narrative are important.

• Eg. asylum area where a right to hearing has been installed.

- In Chen Zhen Zi (1993), French J said that when it comes to a right to fair hearing it is about one set of policy factors vs another set of policy factors.

• Decision-makers should make value judgments about the importance of the private interest that will be affected by the decision on one hand and the burden to the administrative process on the other hand.

• Have tried to fast-track this and remove right to fair hearing, but French installed a very strong common law presumption regarding the right to a hearing in asylum cases.

Steps to Problem Solving

- Step One: Is the decision one to which procedural fairness applies? (Does this decision attract procedural fairness obligations?)

• Not all decisions attract procedural fairness, but many do.

- Can tell if it does if it affects the rights, interests or legitimate expectations (Kioa v West).

• Eg. proprietary rights.

- Presumption that procedural fairness applies in all decisions that affect the rights and interests of the applicant (S10).

- Step Two: What default or common law entitlements might apply?

• What entitlements arise from the factual scenario? - Ie. right to representation,

fair hearing, adequate notice, entitlement to crossexamine etc.

- Also any other issues that may affect the client’s entitlement to PF (ie. time, interrupting witness, not explaining terms).

• Step Three: Context

- To determine to what the content of procedural fairness that applies in this case?

• Courts are quite willing to apply PF, but often cases turn on how the context strengthen or limits procedural fairness entitlements?

• Step Four: Conclude - Explain why there was no reasonable opportunity to

present/ present their case/ that they suffered practical injustice because the PF

entitlement was denied.

• If acting in for G’ment — PF did not cause any practical injustice.

BIAS

Bias

- No real ‘step by step’ structure.

• Questions to be answered mostly on a case-by-case basis.

- Does procedural fairness apply to this decision?

• As soon as procedural fairness is applied, decision-maker cannot be biased.

• Standard: Who is the reasonable observer? - Not a lawyer, but someone who

has an understanding of the law and background of the facts.

• What the reasonable observer knows will depend on who the decision-maker is.

- The reasonable observer is expected to know that the judge has had training and has the benchbook etc (which in turn has information about indigenous Australians etc in it) (Gaudie).

- Malleable, open to interpretation, almost artificial.

- General statistics are not enough — the reasonable observer would look at statistics and determine how they would apply to the facts at hand.

JURISDICTIONAL ERROR

- S 75 of the Constitution is the original jurisdiction of the HC.

• Jurisdictional error aims to protect this right.

- Protect the separation of powers between the judiciary and the executive.

- 1. Look for a blocking clause (jurisdictional error is only enlivened when there is a blocking clause).

• Legislature have included a blocking clause which aims to block jurisdictional

review. - Look for different forms — pretty clear on the exam, don’t spend too

much time deciding whether it is a blocking clause or not.

- Examples:

• “The decision is final”

• Jurisdicitional review can only be sought… (limit the grounds).

• Restrictions on time limits.

- Legislature are getting creative and trying to get around these blocking clauses.

- 2. Find an error.

- 3. Is this a jurisdictional error or a non-jurisidictional error?

• The effect of a jurisdictional error is subject to a remedy (ie. being quashed) and renders the blocking clause invalid — the error can then be judicially reviewed.

• In determining if the error is J or Non-J, look to the statute (process of statutory construction) —

- How forgivable (or not forgivable) of errors is the statute?

• Concerned about what powers have been conferred upon the adjudicator.

• Purpose/ context/ text. - Look to things like mentions of cost, degree of formality —

potentially less concerned with adherence to legal principals, more concerned with

keeping the contract ongoing.

- Wide discretions in the processes used (ie. not bound by rules of evidence).

- The adjudicator’s qualifications - if legally qualified, likely to be less forgiving.

TRIBUNALSDifferent to judicial review.

- A tribunal is a merits review forum.

• Is the answer actually correct? — Not just the best possible.

Merits Review: Foundations

- The AAT, established pursuant to Administrative Appeals Tribunal Act 1975 (Cth), is the most important merits review body at the Commonwealth level.

- State-based equivalents are also on the rise.

- Systematised appeals process:

• Across many different statutes (300) there is this same avenue of appeal.

- Invented in the 1970s, between the Fraser and Whitlam governments.

• The Kerr Committee Report accepted the view that judicial review is an aristocratic remedy.

- That on its own would never deliver justice.

• Brought forward the idea of independent merits review — so when the government takes a decision against you, there should be an independent appeal to that decision.

- But judicial review did not speak to that — “The basic fault of the entire structure is, however that review cannot as a general rule, in the absence of special statutory provisions, be obtained on the merits— and this really what the aggrieved citizen is seeking.”

Fundamental Goals of the System

- Low cost

- Quicker than court system

- One of the first dispute resolution mechanisms (outside of formal court).

Statutory Objectives

- Section 2A: The objective of the AAT in carrying out its functions is to provide a mechanism of review that is fair, just, economical, informal and quick.

- Section 33:…as little formality and technicality, and as much expedition, as the requirements of the AAT Act and of very other relevant enactment, and proper consideration of the matters before the tribunal, permit.

- Out of this has grown a dynamic tradition of ADR, pragmatism, expedition….

State Tribunals

- Almost victims of their own success (now handle private disputes etc).

• No longer critique government (administrative law), now operates as something of a small claims court.

Divisions of the AAT (all aimed at government)

- General division

- Freedom of information division

- Migration and refugee division

- National disability insurance scheme division

- Security division

- Social services and child support division

- Taxation and commercial division

• Including applications on regulatory action by ASIC, Australian Prudential Regulation Authority (APRA).

• Including application about decisions of the Commission of Taxation under a taxation law within the meaning of the Income Taxation Assessment Act 1997; PPSA etc.

- Veterans’ appeals division.

Merits Review: Central not peripheral

- Reveals the biases and flaws in legal education in Australia.

- Rule, red light and court-based focus.

- Undervaluing of first instance decision making.

- Sells us on the idea that law’s business model is complex dispute resolution, not proactive dispute avoidance.

- Undervaluing of ‘government sense’, ‘business sense’ - dispute resolution in reality. “AAT has jurisdiction to engage in merits review only if an enactment specifically confers rights to merits review. While repeal of existing review rights is not on the horizon, merits review needs champions lest it become residual, available to citizens only in wellestablished niches. [The members of the Kerr Committee had broad aspirations for the system that arguably have not been fulfilled to the fullest extent].

Case Study: Asylum Law

- There used to be the AAT and a separate refugee review tribunal.

• Appeal rates (overturns) were very high (consistently over 50%).

• In 2012/2013 the refugee review tribunal was made a division of the AAT.

• The refugee specific Members were not not renewed (no experts).

The AAT Approach

- Full merits review, with some procedural fairness provisions (s 425, s 424A and s 424AA Migration Act).

• Has a defined role under the Migration Act.

- Limitations on lodgement times:

• 7 working days if in detention;

• 28 days from notification if not detained.

- Requirement to have a hearing

- No restriction on process unless s 423A applies.

• This section does provide a limitation, but there is still a significant degree of procedural fairness.

s 423A How Tribunal is to deal with new claims or evidence(1) This section applies if, in relation to an application for review of an RRT-reviewable decision (the primary

decision) in relation to a protection visa, the applicant:(a) Raises a claim that was not raised in the application before the primary decision was made; or (b) Presents evidence in the application that was not presented in the application before the primary decision was made.

(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim of evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

Immigration Appeals Authority

- Decided to strip maritime arrivals between 2012-2014 from the AAT and create a new authority: The Immigration Assessment Authority (fast tracked system).

• Does not hold hearings (review is done by paper, except in exceptional circumstances).

s 473BA Immigration Appeals Authority: Fast Track HearingsIn reviewing the fast track reviewable decisions, the Immigration Assessment Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review). —- No mention of fairness or independence!

The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances the Immigration Assessment Authority may consider new material and may invite referred applicants to provide, or comment on, new information at an interview or in writing.

- Whatever information the applicant makes available to the department initially, is what the decision will be based upon — prevented from providing more or different information (unless exceptional circumstances).

s 473DBA Immigration Assessment Authority to Review Decisions on the Papers(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision

referred to under section 473CA by considering the review material provided to the Authority under section 473CB:

(a) Without accepting or requesting new information; and (b) Without interviewing the referred applicant.

(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

- Some people are excluded from the IAA, if they have:

• Come from ‘safe third countries’ or have ‘effective protection’ in another country;

• Made an unsuccessful claim for protection in another country;

• Provided ‘without reasonable explanation’ a ‘bogus document’ in support of the application; or

• Made, in the opinion of the Minister, a ‘manifestly unfounded’ claims.

Case Study: The Siege of the Office of the Information Commissioner

- Not only the AAT that is being stripped of powers, also happening to independent watchdogs.

- The Information Commissioner is the independent watchdog and advocate of open, transparent government and was forced to work from home between 2015/ 2016 because he had no budget.

• Statutory body (which means it can be taken away and defunded).

• Argued that this was a breach of Section 61 (Executive power- maintenance and execution of the Constitution and laws).

Practical Differences Between Merits and Judicial Review

- Merits = was it right or wrong? Eg. do you get the visa?

Purpose

- Judicial review is often concerned with whether the decision maker had the power to make the decision and whether the process whereby the decision was made was lawful.

• Also, if there was any kind of material procedural error, the court may order the matter to be set aside.

- With review of merits, the question of whether there were prior procedural errors is immaterial, so long as the review tribunal avoids making them.

• Conversely, a decision may be legally impeccable, but ‘wrong’ on the merits.

Remedies

- While courts can set aside a decision, they cannot ordinarily substitute a different decision as they cannot substitute their own opinion on matters which parliament has left to the administrative decision-maker.

• Can generally only ‘quash’ a decision - which may not even happen.

- Merits review tribunals have the power to remake decisions and to exercise the same powers and discretions as those conferred upon the primary decision-maker by the

enabling statute. • Accordingly, the tribunal’s decision has the same legal effect as the decision that is under review.

• Can send the decision back to the department with remiss.

Cases and Precedent

- No precedent in Tribunals.

• Tribunal decisions are not binding precedents in the way that higher court decisions are.

• But they do have a lot of persuasive force, especially given the importance attached by administrators to consistency.

• More fact driven area of law.

The Nature of Tribunal Review

- When you have a review by the AAT, they are looking for the “correct and preferable decision”.

• And they “stand in the shoes of the decision maker” — have all the powers of the original decision-maker.

Defining the Approach to Review: How do we know what is correct and preferable?

- Done through principles set by the Federal Court.

• But evolved through practice by the AAT itself.

• Early cases which considered the question of whether the Tribunal should take its decision on the basis of material in front of the original decision maker or on the material in front of it at the time of the hearing.

- This lead to the larger question of how free0standing and broad the Tribunal’s power was: was it essentially a de novo reconsideration of the decision?

Drake v Minister for Immigration and Ethnic Affairs (1979) (No 1)Positive decision for the emergent Tribunal, on specific issue it was held:

“The question for the determination of the Tribunal is not whether the decision which the decisionmaker made was the correct or preferable one on the material before him. The question for the determination of the tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.”

Left this very general — not specific about how the correct or preferable answer should be reached.

Drake v Minister for Immigration and Ethnic Affairs (1979) (No 2)Brennan J took the ruling in Drake No 1 and distilled it into the simple finding:

The Tribunal must try to reach the correct or preferable decision on the material before it.

Smithers J added “that stands in the shoes of the primary decision maker”.

Correct or preferable is not tied to a particular set of values

Role of Policy

- The Tribunal decides what is correct or preferable through looking at Ministerial and departmental policy and guidelines in its decision-making.

• The Minister has the right to administer the department and to set the policy.

- The Minister can set policy that does outside statutory power.

- Can set the priorities of the department.

- Where the legislation under which the relevant decision was made fails to specific the particular criteria or considerations which are relevant to the decision, the Tribunal (Drake No 1):

• Is obliged to act judicially, that is to say, with judicial fairness and detachment;

• Is subject to the constraints applying to the administrative decision-maker whose decision is under review; and

• Must take into account relevant considerations at law and must not consider irrelevant consideration.

- In the absence of specific legislation requiring or authorising the Tribunal to make its determination in accordance with specified policy, the Tribunal can treat policy as a relevant factor in determining a review;

• But must not abdicate its function of determining the ‘correct or preferable decision,’ by determining whether the decision conformed with whatever the relevant general government policy might be.

- Policy does not determine the outcome — Tribunal must remain free to not apply the policy in particular cases.

- Improper for AAT to ignore ministerial policy.

- If policy exists, this is a relevant factor to be considered by the AAT:

• Policy are open to Parliamentary scrutiny (many have to be tabled and discussed)

• Minister is responsible for Department (and therefore must have lever of control and so the Minister has the right to set priorities)

• AAT not linked into the chain of responsibility

• AAT not qualified to revise all policy — the AAT only sees individual matters, not its role to think collectively (but Government does think collectively).

• Consistency aided by policy.

- What weight is given to policy depends on AAT in each case.

- Working through ‘preferable’ outcome:

• 1. Use the Minister’s policy;

• 2. But be open to making an exception. - But should be done so cautiously and

sparing where there are “cogent reasons to the contrary” such as “injustice in a

particular case” (Brennan in Drake No 2) (basically an exceptional case).

Community Expectations and Values

- Attempted to define what “cogent reasons” are:

Visa Cancellation Applicant v Minister for Immigration and Citizenship [2011]“It must be the case that the proper basis of evaluation, of reaching the preferable decision, in these cases, is reference to community standards or community values. It is not the decision-maker’s personal or idiosyncratic view of what will adequately protect the public which is relevant, but what the decision-maker determines will achieve that result in accordance with community standards or values.”

- Controversial because people believe that Tribunal is disconnected to community standards.

• Ie. not deporting people because of various crimes.