ADMINISTRATIVE LAW

TABLE OF CONTENTS

Administrative Law______________________________________________________________________1

The Executive (2-7)____________________________________________________________________3

Reasons_____________________________________________________________________________4

Common Law Duty to give Reasons____________________________________________________4

Statutory Duty to give reasons________________________________________________________4

Freedom of Information__________________________________________________________________5

Main Exemptions (NSW)_____________________________________________________________6

Main Exemptions (Commonwealth)____________________________________________________7

Conclusive Certificates_________________________________________________________________8

Ombudsman_________________________________________________________________________9

Other means of accessing Information_____________________________________________________9

Procedural Fairness (Natural Justice)_____________________________________________________11

Judicial Review______________________________________________________________________20

Rationale________________________________________________________________________20

Review under the Administrative Decisions ( Judicial Review) Act_______________________________21

Remedies under Judicial Review______________________________________________________23

Privative Clauses__________________________________________________________________23

Institutional Distrust_______________________________________________________________23

Non-Justiciability – v rare____________________________________________________________24

Public / Private Distinction___________________________________________________________25

Time Extensions___________________________________________________________________25

Grounds for judicial Review______________________________________________________________25

Considerations____________________________________________________________________25

Unreasonableness_________________________________________________________________26

No Evidence______________________________________________________________________27

Exceeding POWERS - Minister (Ultra Vires) – AAT (jurisdictional error)______________________29

Jurisdictional Error –_______________________________________________________________30

Jurisdictional Facts:________________________________________________________________32

Delegation_______________________________________________________________________33

Dictation________________________________________________________________________34

Self –fettering – ‘Applying policy inflexibly’_____________________________________________34

Bad Faith and Improper Purpose_____________________________________________________35

Unauthorised Decision Making___________________________________________________________36

ADJR Act (8.2.1)_____________________________________________________________________36

The presumption of regularity__________________________________________________________36

Unauthorised Decision-Making:_________________________________________________________36

Statutory construction and public law__________________________________________________36

REGULATIONS - s 48 Acts Interpretation Act_______________________________________________36

Publishing requirements - Golden Brown v Hunt________________________________________37

Ultra Vires_______________________________________________________________________38

Guidelines__________________________________________________________________________40

Administrative Appeals Tribunal (AAT) – Merits Review______________________________________40

Standing_________________________________________________________________________40

Merits Review____________________________________________________________________40

Power and Discretion of original decision maker s43(1)____________________________________41

Evidence and Law before it._________________________________________________________41

Policy Considerations_______________________________________________________________41

Delegated Legislation_________________________________________________________________42

Checks on Power__________________________________________________________________43

THE EXECUTIVE (2-7)

= The relationship between the principle components of the executive.

~ CROWN >- head of executive arm of the government

~ CABINET >- ministers deterD1ined by the gov to make governmental decisions

~EXECUTIVE COUNCIL .>- formal version of the cabinet

~ MINI STERS >- elected by the people but are ministers of the crown

~ GOVT DEPARTMENTS .>- specialised govt sections to address specific issues

~ PUBLIC SERVANTS >- Employed under Public Service Act, serve minister, implement decisions

~ STATUTORY AUTHORITIES >- a body established by statute for management and delegation

~ STATUTORY OFFICES >- like a body but with a single office holder

~ QANGOS >- quasi autonomous non government organisation. Public and private eg RSPCA

~ CLUBS >- type of qango, sports/unions/professional associations which regulate access to employment

~ LOCAL GOVT elected councils appointed as bodies corporate by Local Govt Acts

~ ADMINISTRATIVE TRIBUNALS – Stat Authorities fulfil admin tasks of a quasi-judicial nature

Relationship is governed by a mixture of law and convention and politics

Public Service and Bureaucracy are politically and functionally dependent on Ministers and executive

Statutory Authorities and Tribunals are both formally and informally independent

Not always a strict separation though p 7

Privatization of the bodies -de facto privatization of low level decision making and contracting out.

REASONS_____________________________________________________________

COMMON LAW DUTY TO GIVE REASONS

(1) Osmond – no Common law duty

Could be forced to provide reasons through affidavit

- Spigelman Practice Note no 119.

BUT also Cypressvale v Retail Shop Leases – Qld Court of Appeal

suggested reasons where required – but only lower court. So Osmond.

STATUTORY DUTY TO GIVE REASONS

(1) Applicability

a. s28 AAT applies if appeal to the AAT is allowed

b. s13 ADJR applies if decision is:

i. of an administrative nature

ii. made under an enactment

(if both s13 and s28 apply under s13(11)(a) of ADJR use s28 of AAT)

c. Any express requirements under the enactment

d. s25D of AIA provides content for unspecified detail of reasons in other acts

e. Also briefly mention standing – who can apply.

f. Does application for review need to be made? – no just right to review s28

Para 15(2) (e) of Ombudsman Act authorises Ombudsman to take action where he or she is of the opinion that reasons should have been given, but weren’t, for a decision of a department or agency.

s13(5) - request made within 28 days or a reasonable time from receipt of decision

s13(1) – standing – must be entitled to make application under s5 – ie person aggrieved

(2) Content (Yusuf) or s25D AIA

a. State all material findings

b. All material evidence on which findings were based

c. Reasons for the decision

Materiality is determined by the original decision maker

(distinction in Yusuf between subjectively material and objectively material – HELD only subjectively material is required for adequate reasons)

Bad reasons, bias, discrimination etc do NOT constitute inadequacy of reasons.

may however disclose jurisdiction errors due to findings exceeding its authority or power (Yusuf), failure to take into account relevant considerations etc…

FREEDOM OF INFORMATION

No standing requirement – s11: ‘every person has a legally enforceable right to obtain access to documents – no need for a proprietary or any other interest’

“ If the institutions of representative and responsible government are to operate effectively and as the constitution intended, the business of government must be examinable and the subject of scrutiny, debate and ultimate accountability of the ballot box” Aust Capital TV v Commonwealth No2,

Re Eccleston & Department of Family & Community Services and Aboriginal and Islander Affairs

(1) Applicability

a. Minister s35 NSW FOI.

i. Ministerial Documents: “document held by the minister relating to the affairs of the agency and that is not an agency document” ss6 & 7 NSW FOI Act.

b. Tribunals/Agency (may have exemptions) s16 NSW FOI

s6 - govt departments, public authorities, local authorities, public offices

i. s13-15 requires agencies to publish internal manuals, workings and functions

c. Private Organisations

(2) Type of document

State the type of document your after

eg documents relating to assessment or advice given in response to Mr X’s application for ….’

(3) Exemptions

ADT has a discretion to release exemption documents s25(1), (3) FOI Act 1989(NSW)

Stands in the shoes of original decision maker who has this discretion

Mangoplah Pastoral Co v Great Southern Energy [1999] NSWADT

MAIN EXEMPTIONS (NSW) - see attachment

Cabinet Documents (submissions, records, deliberations) c1

10yr limitation, doesn’t apply to factual or statistical material

Executive Council Documents (as above) c2

Effecting law enforcement or public safety c4

Effecting relations with other governments

Personal affairs

Business affairs – trade secrets, info of commercial value c7

reverse FOI applies and third party interests must be consulted

Conduct of research which would be adversely affected c 8

Internal Working Documents c 9

Concerning operations of agencies – contains PI component c 16

must be substantially and adversely impacted

MAIN EXEMPTIONS (COMMONWEALTH) – see attachment

National security s33

State Relations s33A

Cabinet Documents s34

Executive Council Documents s35

Internal Working Documents s36

would it limit exchange of opinions, in frank manner

opinion, advise, recommendation obtained

consultation or deliberation

taken place in the course of , or for the purposes of

deliberative processes involved in the functions of an agency or minister

AND

would be contrary to the public interest s36 (1) (a)

DOESN’T include statistical or technical information or expert opinions on scientific or technical matters subsection 6(a)

Financial or property interests of the commonwealth s 38

Operations of agencies s 40

prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits 1(a)

prejudice the attainment of the objects of particular test examinations pr audits conducted 1(b)

substantial adverse effect on the management or assessment of personnel 1(c)

substantial adverse effect on the proper and efficient conduct of the operations 1(d)

AND

would be contrary to the public interest s 40 (2)

Personal privacy s 41– see exceptions

Business affairs s43

Public Interest qualification:

Re James and ANU

Public interest in having examiners not being threatened by disclosure of reputation v rights of individual as a PI – see also Re Burns and ANU.

applicant’s right to know is a public interest

Harris v ABC

Re Kamminga and ANU - access to referee’s reports

exemption s36, s40 – prevent frank and open opinions – failed PI test

confidentiality s45 see page 109.

convention that they are given and received in confidence

Colakovski v Aust Telecommunications Corporation - Kirby

wanted access to taped telephone conversations

s41 unreasonable disclosure of personal information

Right to correct information defined as ‘personal information’ s4

if out of date, incomplete, incorrect or misleading s48.

N.B - if access is refused adequate reasons must be given s26

- right of review – internally s53(1), then AAT s55 or Ombudsman s57.

Presumption of disclosure - Re Eccleston, Commissioner of Police v District Court of NSW

no general presumption – but arguable.

CONCLUSIVE CERTIFICATES

discretion to issue exemption certificates is reviewable

Shergold v Tanner

____________________________________________________________________________________

OMBUDSMAN

OTHER MEANS OF ACCESSING INFORMATION –

Ombudsman – access information as well as just documents

Ministerial Exemption

‘RELATES TO A MATTER OF ADMINISTRATION’ s5 p190

Administration v Policy – Booth, Glenister - distinction unclear – probably good

Booth v Dillon in practice still covers policy matters

specific decision or act or specific failure to decide or act = admin action

Admin v Commercial decisions s6(12)

no specific exclusion of comm decisions but power to decline s6(12)

- not judicial or legislative either

Glenister

‘BY A DEPARTMENT OR PRESCRIBED AUTHORITY’

s5 - s3 exemptions

Ministers – but ministerial advisors

public servants employment issues – hire/fire only

some tribunals

Courts

Powers and Procedures

Complaint (written or oral) or on ‘own motion’

Standing – no specifics but Ombud can decline of interest is insufficient s6(1)(b)

(ii)

After complaint lodged – Ombud does rest – becomes the complainant.

Discretion to decline to investigate

other right to cause of action in crt or tribunal s6(3) (reasonable)

12 months old – stale

hasn’t been taken up with agency first

commercial activity of department or authority s6(12)

Can’t be made to pay costs – cheap and easy avenue

Wide powers to obtain information and docs

Power is recommendatory only

investigates rule of law, justice, discriminatory etc–doesn’t matter if still legal

Political avenues – question time in parliament

ICAC

Legal Proceedings – Spigelman – Practice Note No 119.

Industry Ombudsman

PROCEDURAL FAIRNESS (NATURAL JUSTICE)

(0) Court

a. ADJR Act (See below)

i. Decision of administrative character

Minister for industry and Commerce v Toohey

classification of powers is not a sound basis for review

Subordinate legislation can’t be challenged under ADJR

could use JA Act s39(B)

ii. Made under an enactment

b. Judiciary Act

(1) Standing (identify what you are challenging)

Standing for Judicial Review

a. Person Aggrieved

b. Special Interest

Ogle v Strictland

Priests and Hail Mary Case

Sufficient standing – due to role & job of representing and protecting the church.

c. Commercial Interest

i. doesn’t necessarily exclude – Batemans Bay

ii. not necessarily enough – Alphapharm Pty Limited v SmithKline Beecham

Object of applicant v Objects of Statute

must relate to scope and purpose of the act

- private rights must be affected.

or public right but with special damage peculiar to himself from interference with that public right

– Boyce v Paddington Borough Council

not just pecuniary damage, and doesn’t have to be unique

‘special interest’ - ACF

not a mere emotional or intellectual concern – ACF v Cth

must gain some advantage other than winning or righting a wrong

They were involved in writing EIS – but still only had a political intellectual interest – no real effect on them at all

all depends on the case and the interests at hand

– Robinson v Western Aust Museum

Onus v Alcoa – has legitimate interest in protection of relics & lands – more than in ACF v Cth

‘affected to a greater degree or in significantly different manner to member of public’

ACF (2) v Minister for Resources (1989)

highlights a growing public perception of need to protect the environment. – ACF is there to represent public

interests

ACF national conservation org & forests national Estate

North Coast Environment Council v Minister for Resources (1994)397

NC recognised as advisor and representative in committees for environmental issues etc

government funded – standing as responsible body

regional or nation is no distinction w/ ACF

Application must be within 28 days of the decision in writing, although discretion to accept late applications (see below)

assertion of public rights and public wrongs is job of A-G.

at a parties request ex relatione, or by own initiative ex officio.

Bateman’s Bay Local Aboriginal Land Council v Ab Com Benefit Fundp 391

Commercial interest isn’t enough to disentitle you to standing

test for standing is enabling not restrictive

Standing for the AAT

- s27 (1)– ‘person be affected by the decision’

- s27(2) a organisation is affected by the decision if it relates to a matter included in the objects or purposes of the organisation

Standing for ADJR

“person aggrieved” s5(1)

not narrow (Tooheys)

– at least as generous as standing to seek equitable remedies - Ogle

(2) Jurisdiction

(3) Procedural Fairness – Duty to Afford

a. Is it excluded ?

Explicit statutory provisions – eg Migration Act

‘Clear manifestation of contrary intention” Kioa

i. Appeal to AAT usually excludes – may not be enough

b. Rights, Interests – FAI Insurance

“There is a common law duty to act fairly, in sense of according procedural fairness, in making of administrative decisions which affect rights, interests, and legitimate expectations”

– Kioa v Minister for Immigration and Ethnic Affairs

Broad interpretation – includes reputational interests – Kioa

personal liberty, status, preservation of livelihood, proprietary…

Stronger case with legal rights and interest – but not needed.

Importance of interest at stake

Interests indirectly affected – maybe not – Corio Bay and District Hospital v Minister for Family Services

direct and immediate way – Kioa.

Substantially different way applies to affect interests of public at large

political decisions - no duty of PF Peko Wallsend, O’Shea

general application – affect people due to membership of a class not there particulars.

Minister for Arts, Heritage and Environment v Peko Wallsend

cabinet decision – non justiciable

c. Legitimate Expectations note Lam – may be just for content

i. “undertaking” of hearing –Quinn, Coughlan

Administrative behaviours/practices: CCSU

Undertakings by administrators: amnesty in Salemi v MIEA( no2)

Clean record in Cole v Cunnigham

policy statements as undertaking – Haoucher v Minister for Imm

policy stating he would follow recs of AAT – didn’t

note: policy was tabled – not simply de facto policy

ratification of international conventions – Teoh

Lam (in Obiter) in general ratifications no LE

‘If proposed to make a decision inconsistent with legitimate expectation, Procedural fairness requires that the persons effected should be given notice and adequate opportunity of presenting a case against the taking of such a course’ - Teoh

Effect on rights interests etc

Large group – not individual – no PF

Pensinsula Anglican Boys School

Qld Medial v Blewett

Right to appeal curing the failure to give NJ – Twist v Council of the Municipality of

Randwick

it was a de novo hearing (from the beginning) – Hill v Green

but what happens if refused – life of liberty –argue PF.

if right is exercised! – definitely no PF

if not exercised depends on legislative intention – usually still duty to provide PF

Courtney v Peters

Preliminary Decisions and investigations

less likely to require PF

– Re Minister for Imm and Multicultural Affairs; Ex parte Miah

Level of Formality – more formal – more PF

less formal – right to appeal could be suffice

Failure to provide PF usually makes decision a nullity

(4) Content

a. “undertaking” of legitimate interests

b. Fair Hearing Rule

Right to know matters considered by the decision maker

Bond v ABT (No2)

need not be informed of the precise nature of matters which the DM might take into account.

Failure to provide adequate particulars: any stage in proceeding

courts reluctant to intervene on possible inadequate putting on notice

Romeo v Asher

more formal proceedings earlier intervention able earlier.

‘Duty to warn’ of adverse findings - administrator acts on material prejudicial to person and they don’t know of its existence.

even when they do but don’t know of its prejudicial nature

Somaghi v MILGEA, Heshmati v MELGEA

Public policy grounds for non disclosure – Ansett v Minister for Aviation

would break confidentiality

Rights arising out of administrative practices – Hamilton v MILGEA

introduced and formalised uniform procedures must be made available under normal circumstances

Rights to make submissions in response

Form of submissions: may have a right to oral submissions, particularly with credibility issues

– Chen v MIEA – applicant for refugee status

Legal Representation (s73 requires ART to ensure understanding of proceedings and have fullest opportunities to have evidence etc heard)

1. ability to understand proceedings - complexity

2. interests at stake

3. credibility of procedure

4. capacity to represent themselves w/o reliance on rep

Cairns v Jenkins

Krystic – age, grasp of English, educations

Canellis – right to rep doesn’t necessarily mean legal aid

also doesn’t extend to legal rep be provided to a witness at trial/inquiry

Right to Cross examine – O’Rourke v Miller

no general right to cross-examine.

look at circumstances, rules under which the DM was acting, nature of inquiry – here ad hoc employment dismissal

Right to have all members of the tribunals consider the issue

where there is power of delegation, the decision making body may look at the evidence and may make its own finding or adopt the delegates finding as its own without addressing the evidence or any summary of it

Re Macquarie University; Ex parte Ong

Breach of proper hearing = decision void

not necessarily fatal – but usually

Stead v Govt Insurance Commission.

Hamilton v MILGEA

c. Bias Rule (apprehended Bias, not actual)

- applies to judges only strictly speaking – weakened for others

‘Whether circumstances are such as might give rise in the mind of a fair minded and informed member of the public a reasonable apprehension that the decision maker might not be impartial and unprejudiced’ – Johnson v Johnson

not fanciful – Angliss Group

Justice must be done and be seen to be done - objective

Enber – no difference for pecuniary interests, (or interests of a son – Mr Phillips in Hot H)

Hot Holdings – mechanical function irrelevant, also a peripheral functions

- test as to a judge is different from that of a minister

Personal Connections:

Kaycliff- ABT chair unsuccessfully challenged – no discussion between parties

Koppen – conciliator successfully challenged because of statements about daughters

i. Prejudgment

1. of witness’s credibility

a. Lay - R v Watson, Ex parte Armstrong

Said credit was a “non-issue” he wouldn’t believe either

b. Expert – Vakauta v Kelly

c. Class of witness – Ferati v MIM –(refugee witness)

Note – judge is allowed to express tentative views in a clear provisional nature – Johnson v Johnson

2. about matters in issue and preconceptions

a. Ex parte Angliss Group

open mind != empty mind (Bertard Russell,p474)

is persuasion a genuine possibility?

Application to Administrators

Century Metals v Yeomans

|____________|_________________________________|

judge tribunal administrator

increasing strictness

Ministers meant to reflect public opinion, to be opinionated

Minister for Immigration v Jia

-minister required to consider national interests

Hot Holdings v Creasey

- McHugh ‘ focus must be on the nature of the advisor’s interest, the part that person played in the decision making process and the degree of independence observed by the decision maker in making the decision’

N.B dissent (Kirby)

should again goes to public perception

- increase accountability

- - is there a general impression of bias?

ii. Discrimination

(5) Discretionary Factors

(6) Waiver

i. Did they object? – required by Vakauta

ii. Why didn’t they object?

iii. Where they in a position to object?

1. Hostile negotiations

a. Presumed rejection, prejudice position/proceedings?

(7) cured prejudgment

a. statement qualified or withdrawn

but may involve ineradicable apprehension of prejudgment – Johnson

(8) Necessity

a. No other decision maker available

i. To give effect to statutory intention that tribunal perform its assigned functions – Laws v ABT (1990)

(9) Statutory Exemption

a. If expressly modified or excluded in statute (eg Migration Act – actual bias)

Remedies

b. Prerogative Writs

c. Constitutional Writs

d. Equitable Remedies

e. ADJR

f. Mandamus

g. Order of Review

h. Certiorari – error of law on face of the record

i. Declaratory Remedies – Golden Hunt v Brown

real not hypothetical – Jodex

not final decision – should usually revert back to tribunal

JUDICIAL REVIEW

addresses legality of administrative action.

Lawfulness of decision

Did they have the power to make the decision?

Ultra Vires - regs

Did they follow proper procedures?

RATIONALE

accountability

keeping discretion within the bounds of the law

Societal participation – ensuring democratic representation

- identifies problem areas – source of information

Openness – FOI, Reasons

Honesty

Consistency

Rationality - reasonableness

Impartiality – bias rule, natural justice, disinterested

Fairness

________________________________________________________________________

REVIEW UNDER THE ADMINISTRATIVE DECISIONS ( JUDICIAL REVIEW) ACT

Standing for ADJR

“person aggrieved” s5(1)

not narrow (Tooheys)

– at least as generous as standing to seek equitable remedies - Ogle

administrative character, made under an enactment s3

‘administrative character’ :

Minister for industry and Commerce v Tooheys Ltd p 338

Creation or formulation of new generalised rules = legislative

application of those general rules to particular cases = administrative

by-laws can be both – address the content and character

A decision not to make a determination is an administrative decision

SAT FM v ABC p 342

did it require notification in a gazette – legislative (SAT FM v ABC)

public consultation, policy considerations, power to ‘vary’ or amend

decision to promulgate a plan is not reviewable by AAT – legislative

some are subject and others not – others not administrative

Austral Fisheries

Queensland Medical Laboratory v Blewett p 339

decisions made under an enactment of the parliament by a Minister or his delegate under a statutory power may be legislative and direct and immediate not incidental.

‘Under and enactment’:

ANU v Burns p343.

the power to dismiss was under the contract not the university act.

can be both depending on inheritance

rights to review are additional to contractual rights etc…

‘a decision’ s5, ‘conduct for the purpose of making a decision’ s6

Australian Broadcasting Tribunal v Bond p 349

a decision which the statute requires or authorises

not simply steps in determination – it has finality

acts done preparatory to the decision are not ‘decisions’

if essentially preliminary - ok

substantive determination - ‘ you can or can’t do X’

finding of fact as a reviewable decision

if statute requires or authorises the particular finding

ordinarily – findings and inferences – no- merely steps in determination

Aust Broadcasting Tribunal v Bond

‘Conduct’ (ABT v Bond)

the way in which the proceedings were conducted

mainly procedural and not substantive in character

the process of decision making was flawed

inquiries preceding the making of the decision

an error of law in proceeding conduct precludes an error of law in the decision itself

– Chan Yee Kin v Minister for Immigration & Ethnic Affairs

or failure to perform a statutory duty s7

Decisions by the GG are not reviewable (AG (NT) v Minister for Aboriginal Affairs )

nor decisions listed in schedule 1.

REMEDIES UNDER JUDICIAL REVIEW

Common Law – prerogative writs + equitable remedies

Statutory – ‘order of review’ under ADJR

Constitutional – constitutional writs

PRIVATIVE CLAUSES

s474 Migration Act

Tries to exclude judicial review of executive action

less scrutiny

reduced costs and delays

political aims and issues

tribunal expertise

generally refused to apply to errors which are ‘jurisdictional’

– Plaintiff S157

s 75 Constitution allows the HC to hear matters against officers of the commonwealth

original jurisdiction

entrenched in the constitution and can’t be overruled by govt.

INSTITUTIONAL DISTRUST

subject to the rule of law.

even the government is subject to the judiciary

legal reasonableness v merits – v fine line

NON-JUSTICIABILITY – V RARE

ousting p359

too political

courts ill equipped

polycentric – v high policy content

dissolving parliament

treaty making

declarations of war

CCSU Case

Decisions made under the prerogative are justiciable

with exceptions based on subject matter

- too political

- war

- treaties

- national security

Church Scientology Inc v Woodward

lack of evidence doesn’t make it non-justiciable

judicial review of ASIO stuff despite evidentiary problems

Kakadu World Heritage Listing

- too political

abos, mining ….

Re Ditford; Ex parte Deputy Commissioner of Taxation (NSW)

if excess is in relation to s61 of Constitution – okay

not if merely just politically deficient or failing in conduct

Peko-Wallsend – even if you have standing matter must be justiciable

Spy Catcher Case

how to correctly catch a spy

(1) pretend your dead

(2) that you fell on your head

(3) wait like bait and

(4) then raise your eyebrows one at a time

PUBLIC / PRIVATE DISTINCTION

Datafin case - assignment

TIME EXTENSIONS

Hunter Valley Developments v Cohen p 382

Must seek review within 28 days – Lucic v Nolan

show an ‘acceptable explanation for the delay’ and that ‘it is fair and equitable in the circumstances to extend the time’ Duff, Chapman v Reilly

what actions have they taken in the mean time – have they rested on

their rights?

did the defendant suffer prejudice in the delay?

GROUNDS FOR JUDICIAL REVIEW

CONSIDERATIONS

- ADJR s 5(1)e + 2(a)&(b)

RELEVANT CONSIDERATIONS

something you are bound to do – Sean Investments, Peko Wallsend

matter of statutory interpretation

expressly – exhaustive or inclusive

implication from subject matter, scope and purpose of Act

decision is only set aside if failure to consider materially affected decision

sufficient weight given to relevant considerations is irrelevant

may be of issue in unreasonableness

applies to Minister but broad policy considerations may be relevant to Ministerial discretion

IRRELEVANT CONSIDERATIONS

Consideration of Irrelevant matter

ADJR - 5(2)(a) - taking an irrelevant consideration into account in the exercise of a power

- Must be expressly forbidden

- otherwise can still go to merits review – Roberts v Hopwood

Roberts v Hopwood - old school case about wages and cost of living

‘taking into consideration’

Orthodox or thin view

Mason J in peko wallsend

tick a box

must simply deal with it

Khan

Gummow J

‘proper, genuine & realistic consideration’

UNREASONABLENESS

ADJR s5(1)e + s5(2)g

Eshetu – group assignment

- Irrationality

Bond – decision can be valid not withstanding a flawed reasoning process

see also Austral Fisheries/Bienke/Fuduche

- Discrimination – rare

Parramtta CC v Pestell – inconsistent levy

NSW Aboriginal LC v ATSIC-80% of funds for NT was held discriminatory

Sunshine Coast v Duncan – guidelines not consistently applied

note – under ground of abuse of power and breach of s5(2)(j).

Treating people differently doesn’t constitute discrimination if they are differently situated – Bristol-Meyers Squibb v Minister for Health

- Disproportionality

‘you must not use a steam hammer to crack a nut if a nut cracker would do’ – Lord Diplock at 584.

means must be appropriate and necessary to obtain authorised objective

NSW v Macquarie Bank, SA v Tanner.

Bruce v Cole NSW CA doubted existence of independent proportionality ground in respect of judicial review of administrative action.

- Duty to Inquire

- see group assignment class 18.

NO EVIDENCE

Common Law Position

Fact finding is role of the decision maker

Orthodox View

- If no evidence at all (0, zilch)

- Bond – Mason

Broader View ( not widely accepted )

- Insufficient evidence

- evidence must have some probative value

- not just a suspicion or speculation p 572

-Pochi – Dean J - requirement stems from procedural fairness

Statutory Requirements

s5(1)(h) + s5(3)(a)-(b) ADJR

Rajamanikkam:

HELD: decision must be based on facts which do not exist

if 2 out of 8 are incorrect, decision is still okay.

FACTUAL ERROR OUTCOMES

Could equal

= error of law (Bond – no evidence at all for factual finding)

inference not reasonably open on facts

decision capricious Szelagowicz

improper exercise of power s5(1)f & e

common law stuff

Not an error of law is merely a wrong finding of fact – Waterford

OR unsound reasoning in reaching factual conclusions

OR illogical inference of fact is not error of law

-Bond

= ‘no evidence’ see above

= breach of consideration grounds

Pashmforoosh

finding of fact constitutes a decision reviewable

Taking into account facts found unreasonably or failing to take into account facts a reasonable decision maker would

= breach of procedural fairness

decisions must be based on probative and relevant material

not mere speculation or suspicion

EXCEEDING POWERS - MINISTER (ULTRA VIRES) – AAT (JURISDICTIONAL ERROR)

ADJR ss 5/6(1)(e)

(1) Person aggrieved by a decision to which this Act applies may apply … in respect of any one or more of the following grounds:

(e) that the making of the decision was an improper exercise of the power conferred by the enactment …

ADJR Act s 5(2)

The reference in para (1)(e) to an improper exercise of a power inc:

(e) an exercise of a personal discretionary power at the direction or behest of another person;

(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

Higher seniority of decision maker allows greater discretion‐

Allows expanded bureaucratic discretion to overcome uncertain choices

Re Drake and Minister for Immigration and Ethnic Affairs

The application of a stated policy ensures consistency and fairness [SG 151]

A policy must be lawful

Repository of discretion must

Exercise discretion, and

NOT fetter discretion by being dominated by

policy

Statutory Interpretation

AIA 1901 (Cth) (Acts Interpretation Act)

15AA a construction which would promote the underlying purpose of the act is preferred

15AB extrinsic materials can be used to find the meaning of a provision

Incidental power must complement not supplement the primary power

London County Council v AG – trams != buses

must be necessary to fulfil the primary purpose

economics or convenience not good enough

Kent v Johnson(CB 8.3.23C)

Regulation doesn’t allow prohibition – Foley v Padle (CB 8.4.16)y, Melb Corp v Barry

Intentions to remove rights and freedoms must be unmistakeably expressed in legislature

Plaintiff S157 v Commonwealth

Coco v R

tap telephones necessitated trespass to install devices

BUT rights curtailed by trespass and specific legislative purpose not expressed.

Interpreted to minimise discrepancy between international and domestic law

Gleeson - Plaintiff S157 v Commonwealth

Authorisation of a tax or penalty is needed to be clear and concise

AG v Wilts United Dairies

Legislation to control supply of food does not authorise the levy of the payment of any money.

JURISDICTIONAL ERROR –

Decisions aren’t decisions at all because they didn’t have the power to make them

decisions are void and referred to as nullities

errors jurisdictional in nature or ultra vires

Certiorari is available for error of law on face of record

Equitable remedies – injunction, declaration

available on any error of law – jurisdictional or non jurisdiction

Non- jurisdictional error –

error made in conduct of lawful jurisdiction

still valid – unless on face of record

Craig – inferior court errors – presumed non-jurisdictional - DC- & Local Crt

Tribunals – presumed jurisdictional errors

NB: largely pointless distinction

ADJR – all errors are reviewable s5, 6, 7– no distinction s5(1)(f)

ERROR OF LAW ON THE FACE OF RECORD – Certiorari

Error of Law

Distinction between error of law and error of fact.

FACT – primary facts, material, judicial notice and knowledge of Decision Maker

LAW – Application of legal terms and standards to facts ‘as found’

No universal test for distinguishing – Agfa-Gavaert

ADOPTED Pozzalanic (1993)

Ordinary or technical meaning of words = LAW

Ordinary meaning or non technical meaning = FACT

Meaning of technical legal term = LAW

Construction of a term whose meaning is established (effect of word) = LAW

Whether facts fall within statute = LAW

BUT

When statute uses words according to ordinary meaning and reasonably open on facts fall within words = FACT

Whether a phrase is composite ie FACT or LAW it is LAW.

all that is needed is that it be used differently to ordinary speech

Record

initiating documents, pleadings, formal order – no transcripts, exhibits, reasons

Craig, s69 NSW Supreme Crt Act.

JURISDICTIONAL FACTS:

courts will intervene

Facts which are preconditions for the exercise of power

OR

facts which ‘in truth’ must exist before a decision maker can validly act

Approval of Minister – requirement – not jurisdictional error but procedural

ABC v Redmore p469

No confinement of power – merely procedural

Project Blue Sky v Australian Broadcasting Authority

‘An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends on whether there can be

discerned a legislative purpose to invalidate any act that fails to comply with the condition.’

look at language of statute

subject matter and objects

consequences for parties of holding void every act done in breach

Directory conditions – procedural

Mandatory conditions – jurisdictional error

pointless classification

Errors in determination of jurisdictional facts are judicially reviewable on evidence before it.

Parisienne Basket Shoes v Whyte:

Legislature can make jurisdiction contingent on

(1) actual existence of state of facts

(2) on decision maker’s opinion that facts exist

DON’T INFER (1) unless clearly expressed. Usually (2)

Corporation of the City of Enfield v DAC – assignment

DELEGATION

Who can exercise a power?

Expressed Statutory repository

+

Delegate

+

Authorised Agents / Carltona Doctrine / alter ego theory

O’Reilly

NOT IN READINGS

GJ Coles & Co v Retail Trade Industrial Tribunal p474

“An Officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.”

‘It is not the act which declares the award invalid but the common law doctrine that an act dependant on a mandatory condition is void if the condition is not fulfilled. However the doctrine of de facto officer, when applicable prevents the nullification of such an act.”

Alter Ego Rule – Carltona Doctrine

The decision of an official of a minister is the decision of the minister

Administrative Functions only – O’Reilly v State Bank of Vic Commissioners

also Metro Borough and Town Clerk of Lewisham v Roberts

legislative functions can’t be entrusted to a subordinate.

Was the action on behalf of X or was it Y using the powers of X.

DICTATION

degree of outside influence – ‘Acting at the behest of outside bodies’

R v Anderson; Ex parte Ipec-Air Pty Ltd p 495

acting other than in due exercise of discretion

‘to hold valid a decision given at a political level instead of at the permanent administrative level would be to contradict the Regulations’

Anzett Transport Industries(Operations) v Commonwealth

giving weight to government policy is not dictation.

SELF –FETTERING – ‘APPLYING POLICY INFLEXIBLY’

ADJR s5(2)(f)

‘in exercise of discretionary power in accordance with a rule or policy without regards to merits of particular case’

Green v Daniels – Dole and school holidays case

Drake

policy must always be lawful

Guidance is permissible and desirable

Policy must never be so inflexible that decision maker refuses to listen to an argument for exemption – Khan v Minister for Immigration

Decision maker must give proper, genuine and realistic consideration to merits of case and be ready in a proper case to depart from any applicable

policy – Khan v Minister for Immigration

BAD FAITH AND IMPROPER PURPOSE

ADJR s 5(1)

Discretionary power must be exercised to achieve legislative purpose; otherwise decision is ultra vires

explicit or implied purpose

purpose can’t be private or illegitimate public purpose

levels of influence on decision maker if removed

Motivating Purpose test; Only the power which has been conferred for that purpose can be used

Thompson v Randwick Council

Doesn’t matter if ulterior purpose was to raise money for legitimate purpose.

R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council [9.2.12C]

Land zoning changed to prevent future aboriginal land title claims not legitimate.

Schlieske v minister for immigration and ethnic affairs [9.2.18C]

Improper purpose to use the migration at for extradition –“it is not the purpose of the Migration Act to aid foreign powers to bring fugitives to justice

Samrein v MWSD Board [9.2.17c]

“but for” test would the decision maker have reached the same decision “but for” the irrelevant consideration

Mixed Purposes and Collective Decisions

IW v City of Perth –

Gummow J – fatally flawed if one person

Toohey J – But for

UNAUTHORISED DECISION MAKING

Governments require legal authority for action they undertake known as ‘ the principle of legality’

ADJR ACT (8.2.1)

5 Applications for review of decisions

(1)(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(1)(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(1) (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(1)(e) that the making of the decision was an improper exercise of the power conferred by the enactment …

(1)(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

SOURCE OF EXECUTIVE POWER

Government is a legal person

It may sue or be sued, employ staff, conduct an enquiry, own and rent property etc etc.

Known as prerogative power – allows governments to enter treaties , declare war etc

not statutory

there are 3 constraints -Clough(1904) (CB 8.2.19)

1. It can be overridden by, and cannot be exercised inconsistently with statute

2. Executive power cannot justify a government act that would be actionable at common law

3. executive power will not authorise action that is coercive, punitive, intrusive or threatening – see CB for case references

VARDALIS (2001)

Controversial (Tampa case)

Differing judgments

French J

o Extended Clough

o Coercive approach was legitimate under prerogative powers

o So executive could determine who could enter Australia

o Subsequent legislative change to support judgment

Contrast with Black CJ

o Stressed that such power needed to rely on statute – but no statute here to prevent arrival of unlawful citizens at peacetime

JARRATT (2005)

Involved traditional common law rule that executive could dismiss its servants at its pleasure

Found no longer applicable under modern administrative law

Unlike Vardalis, the Court did not rely on old prerogative mechanisms

THE PRESUMPTION OF REGULARITY

omnia praesumuntur rite et solemniter esse acta – ‘all acts are presumed to have been done rightly and regularly’ also known as the ‘indoor management rule’ –Royal British Bank v Turquand (1856) (8.2.25

Rebuttable

onus falls in the party wishing to dispute the validity of an action or decision Cubillo v Commonwealth (2000)

STATUTORY CONSTRUCTION AND PUBLIC LAW

Four Criteria

1. Common law and Statutory rules

2. Principles derived from legal policy

3. presumptions based in the nature of legislation

4. general linguistic canons applicable to any piece of prose

Literal approach or Purposive approach (CB 8.3.3)

refer Act Interp Act 15AA(1)

IS THE CROWN SUBJECT TO STATUTORY LAW

Basic presumption before Bropho and supported by Province of Bombay v Municipal Corporation of Bombay was a presumption that the Crown was not bound by a statute that affected it adversely. The crown being Gov. or GG and in some cases extending to statutory bodies doing government business

Bropho v Western Australia (1990)

Section 17 of the Aboriginal Heritage Act 1972 of Western Australia prohibited the destruction or damage of aboriginal sites except with the consent of the responsible State Minister. The Act did not expressly say whether it bound the Crown, although the Act provided that it applied to "all places" in Western Australia.

“A stringent and rigid test for determining whether the general words of a statute“ bind the Crown “is unacceptable” at 218

for statutes passed after the judgement, the court will look at the whole circumstance to see if the crown should be bound at 218

Minister if Immigration v Teoh (1995)

The HC held that when the executive ratified a covenant, at least when concerned with, human rights, it was declaring to the outside world and the Australian community that it was bound by the covenant.

the HC held that a decision maker was required to give some regard in its decision making process

BUT there was criticism

the government introduced a bill Administrative Decisions (Effect of International Instruments) Bill 1999 to override this

domestic legislation is presumed not to violate rules of international law

REGULATIONS - S 48 ACTS INTERPRETATION ACT

A regulation is a regulation if it is stated as a ‘regulation’ – s48

Was it published in the right gazette? ie NSW regulation in NSW gazette

If copies not available – Statutory Rules Publication Act 1903 s 5(3)

reg doesn’t take effect till they are made available

NOT void abanitio

Internet as a ‘place’( see below)

PUBLISHING REQUIREMENTS - GOLDEN BROWN V HUNT

Regulations are made when signed by GG.

not operative till notice given

operative when notice given or at a subsequent date

Watson v Lees

anterior dates must be ‘expressly and intractably specified” by parliament

becomes invalid if not tabled.

Has ordinance been made with reasonable clarity

s48(1)(c) Cth, s40(1) NSW tabled in both houses within 15 sitting days.

after which ceases effect if Cth s 48(3) Cth.

NSW survive lack of tabling

Thorpe v Minister of Aboriginal Affairs

election rules – valid within the 15 days

Cth Parliament Research and Development Tax Concession Scheme

2 years of laws and decisions invalid – retrospectively amended

A disallowance motion can be laid within another 15 of tabling.

s48(4) Cth, s41(1) NSW

if passed the legislation ceases to have effect

or if not disposed of within 15 days also ceases effect (Cth) s48(5)

if not then becomes void – but is valid until.

ie void abinitio.

Clearly and inexplicably state a ‘place’ where it can be obtained s12(2A)

though the mail is not a ‘place’ - Golden-Brown v Hunt

is the internet a place? – possibly – address – location

stipulate addresses not just name of shop. GB v Hunt

must be extremely clear and precise

– ‘making’ of ‘ordinance(s)’ not suffice p 302

GB v Hunt

Copies must be available and in stock on that day p 305

presumption of regularity

onus on the person to prove they were not available

Watson v Lees

if not it is inoperative not invalid

- Watson v Lee

- inoperative till notification s48 AIA

NSW must state the whole rule

Commonwealth - just state title and where copies can be obtained

ULTRA VIRES

Outside scope of the act

1. Identify scope of parent legislation

2. Identify scope of subordinate law

3. Does (2) fit within (1). – McEldowney v Forde

‘necessary or convenient’ to achieve the purpose of the act.

the delegated legislation must be ancillary and incidental

not widen the purposes of the act OR

add a new or different means of carrying it out

Shanahan v Scott

‘regulate or prohibit’

Paull v Munday p 440

emissions not source – ie means not end result controlled

Foley v Padley – “when a power to make by-laws is conditioned upon the existence of an opinion, it is the existence of the opinion and not its correctness which satisfies the condition”

opinion must be held, and must be reasonable.

Melbourne Corp v Barry

regulate doesn’t include a power to prohibit

‘means v ends’

Where a power to make a subordinate law for a purpose, HC adopts a proportionality approach

South Australia v Tanner

Lawlor – AAT can hear appeals from an ultra vires decision

Scrutiny Committees Senate Standing Committee on Regs and Ordinances (Cth)

Regulation Review Committee (NSW)

does it accord with statute

trespass unduly on personal rights/liberties

unduly make rights dependant on non reviewable decisions

contain matter more appropriate for primary legislation

GUIDELINES

- Disallowable instruments – s46(a) AIA

Does the power exist to publish guidelines ie delegated power?

- Dignan’s case.

Common Law duty to publish

Watson v Lee – Mason J

ADMINISTRATIVE APPEALS TRIBUNAL (AAT) – MERITS REVIEW

OBJECTIVES OF THE AAT

To ensure a review is fair, just, economical, informal and quick (AAT 2A)

33 (b)That proceedings are conducted with as little formality and technicality, and with as much expedition (c) is not bound by rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

The AAT has no general power to award cost, but there are limited exceptions s69B

The AAT does not exercise C/wealth judicial power, it exercise administrative or executive power Drake v Minister for Immigration and Ethnic Affairs

STEP 1 JURISDICTION OF AAT

s 25 Any federal enactment decision can be reviewed by the AAT

Jurisdiction is strict

Provisions are construed strictly and if anything is required to be done prior to attempting AAT review it must be done

Re Reynolds and the Defence Force Retirement and Death Benefits Authority (2000)

o Required mediation before seeking ATT review in statute, plaintiff had not sort mediation, therefore AAT refused application

Re Carey and Collector of Customs

o Where a provision is regarded as mandatory, it must be fulfilled prior to a AAT hearing. the AAT will decline jurisdiction if it has not been fulfilled- tick boxes on forms

1) Enactment

a) s3(1) - = Cth Act of Parl or instrument thereunder or Ordinance of External territory (not ACT/NT)

2) Decision

a) What is a decision?

i) s3(3) includes

o Making or refusing to give an order

o giving or refusing to give a licence, consent etc

o retaining an article (FOI)

o Doing or refusing to do any act or thing

STANDING

s27 (1) AAT Act interests affected by a decision

(2) organisation is affected if decision relates to matter in objects or purposes.

Application made within 28 days – s29

MERITS REVIEW

was the decision of the administrator correct or preferable?

whole decision is looked at again – fresh look at facts, law, policy…

ARC “Better Decision Report”

Also Kerr report 1971 –

improve quality and consistency of agency decisions

provide assessable and responsive review mechanisms

enhance openness and accountability of government

Not bound by rules of evidence s 33(1)(c)

little formality and technicality s33(1) (b)

Application of procedural fairness – ‘ambush evidence’

APC v Hayes, Prica, Bessey

Appeal to FC on question of law s44(1). – note this isn’t judicial review.

POWER AND DISCRETION OF ORIGINAL DECISION MAKER S43(1)

Remake the decision

Exercise same powers and discretions conferred on the primary decision maker

Brian Lawlor – the AAT can still hear an appeal from a decision which was ultra vires.

if it was purported to be intra vires.

EVIDENCE AND LAW BEFORE IT.

can look at fresh evidence, apply the current law (if changed), re-looks at everything

Drake v Minister for Immigration and Ethnic Affairs

Esber v Commonwealth

conditional right under old law, satisfied conditions after law repealed

yet on appeal they used old law

Note strong dissent by Brennan J.

distinguished accrued rights and a granting of a current right.

POLICY CONSIDERATIONS

Drake and Minister for Immigration and Ethnic Affairs (No. 2)

Following policy fosters consistency

at cost of individualised justice

accountability

Policy must be consistent with the statute and allow ministers to take into account relevant considerations and not force irrelevant consideration

There is no statutory duty for the minister or tribunal to follow policy

there is Common Law obligation (Drake)

esp. if approved by parliament

can only follow lawful policy!

‘practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. ie If it were shown that the application of ministerial policy would work an injustice in a particular case’

s12 injustice = balance between detriment suffered by those effected and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community’

all from Drake

DELEGATED LEGISLATION

1. Is it labelled as a regulation? – s48 AIA Act 1901

legislation made by an administrator under a power conferred to them under statute

Dignan's Case (Victorian Stevedoring and General Contracting Co ply LId and Meakes v Dignan (1931) 46CLR73

delegates non potest delegare: the delegate must not delegate.

Separation of Powers: Legislative power only to be exercised by the legislature

s 3 of the Transport Workers Act 1928 (Cth)

Government would be impossible without delegation of law making power

'The further removed the law-making authority is from continuous contact with parliament' -ss51 & 52 per Evatt J.

'The greater the extent of law-making power conferred the less likely it is that the enactment will be law w respect to any subject matter assigned to the Corn Parliament.’

Exceptions in times of war or national emergency or under circumstances where essential to retain in some authority a continuous power of alteration or amendment of regulations.

Separation of powers – executives ability to make laws p 339

prerogatives

CHECKS ON POWER

Senate Standing Committee

-checks from inappropriate provisions by reference to specified criteria initially as Scrutiny of Bills secondly on Regulations and Ordinances

Requirement of explanatory statement involving Ministers and other department offices

Tabling and Disallowances rules and publication rules

Subordinate legislation will only be valid to the extent to which it is authorized by governing statute

-thus limits usually made by construing empowering statutes.

The power to regulate and activity is not the same as the power to prohibit Foley v Padley, Paul v Munday