Administrative Law – LWZ312

EXAM NOTES

1. PROBLEM SOLVING......................................................................................................................42. Practical steps.....................................................................................................................................63. IRAC Method.....................................................................................................................................84. Standard Exam Answers....................................................................................................................9

A. INITIAL ISSUES......................................................................................................................16B. NATURAL JUSTICE...............................................................................................................30

(i) Hearing rule...........................................................................................................................32(ii) Bias rule.................................................................................................................................35(iii) Jurisdictional errors in natural justice....................................................................................36

5. Administrative Decisions (Judicial Review) Act 1977....................................................................386. Key principles in judicial review.....................................................................................................427. Narrow/substantive ultra vires.........................................................................................................43

C. Simple Ultra vires......................................................................................................................43(iv) Power to regulate...................................................................................................................43(v) Power to prohibit...................................................................................................................44(vi) Necessary and convenient clauses.........................................................................................44(vii) Proportionality...................................................................................................................45(viii) Uncertainty.........................................................................................................................45(ix) Statutory interpretation..........................................................................................................46(x) Rebuttable presumptions.......................................................................................................46

D. Procedural ultra vires................................................................................................................49(xi) Notice.....................................................................................................................................50(xii) Consultation.......................................................................................................................50(xiii) Time limits.........................................................................................................................50

8. Broad ultra vires grounds.................................................................................................................519. Abuse of power................................................................................................................................51

E. Improper purpose......................................................................................................................51F. Bad faith........................................................................................................................................53

10. Irrelevant and relevant considerations..........................................................................................54(xiv) Discretions.........................................................................................................................54(xv) Relevant considerations.....................................................................................................54(xvi) Irrelevant considerations....................................................................................................56

G. No evidence...............................................................................................................................60H. Wednesbury unreasonableness..................................................................................................62I. Irrational fact-finding....................................................................................................................66

11. Failure to properly exercise a power.............................................................................................68J. failure to perform a statutory duty................................................................................................68K. unlawful sub-delegation............................................................................................................69

(xvii) Express and implied power to delegate.............................................................................69(xviii) Power of an administrative nature.....................................................................................70(xix) Power of an administrative nature - alter ego doctrine......................................................70(xx) Power of a legislative nature..............................................................................................71(xxi) Power of a judicial nature..................................................................................................71(xxii) Retrospective validation.....................................................................................................71

L. Unlawful application of policy..................................................................................................77M. Acting under dictation...............................................................................................................78N. fettering discretionary power....................................................................................................80

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O. Estoppel.....................................................................................................................................8112. Jurisdictional error........................................................................................................................84

P. Summary position in Australia.....................................................................................................84(xxiii) For tribunals - (and ordinary administrators):....................................................................84(xxiv) For inferior courts:.............................................................................................................84(xxv) For both courts and tribunals:............................................................................................84

Q. What are jurisdictional errors?..................................................................................................84(xxvi) Craig v SA..........................................................................................................................86

R. Non-jurisdictional errors of law................................................................................................86S. The Anisminic doctrine.................................................................................................................87

(xxvii) Anisminic in Australia...................................................................................................87(xxviii) Quasi-judicial tribunal....................................................................................................88(xxix) Distinction between error of fact and error of law.............................................................89

13. Jurisdictional fact doctrine............................................................................................................92(xxx) Subjective opinion.............................................................................................................92

14. Error of law on the face of the record...........................................................................................95T. Error of law and the ADJR Act.................................................................................................96U. Legal effect of a jurisdictional error..........................................................................................96

15. Privative or ouster clauses............................................................................................................98V. Federal Private Clauses...........................................................................................................100W. Privative clauses under State law............................................................................................103

16. Natural justice.............................................................................................................................106X. Hayley’s notes.........................................................................................................................106

CONSIDERATIONS THAT CAN REBUT THE PRESUMPTION AGAINST NJ............................107Y. Topic 7 study guide.................................................................................................................112Z. Kioa v West – summary of Mason J’s judgment....................................................................117AA. Study guide 8...........................................................................................................................119

17. Bias rule......................................................................................................................................128BB. Law Society – Brief (Robert Lindsay)....................................................................................135

(xxxi) THE HISTORY OF NATURAL LAW...........................................................................135(xxxii) PROCEDURAL FAIRNESS IN ADMINISTRATIVE LAW.....................................135(xxxiii) THE SOURCE OF POWER TO CORRECT PROCEDURAL FAIRNESS:STATUTE OR COMMON LAW?...................................................................................................................135(xxxiv) THE APPLICATION OF PROCEDURAL UNFAIRNESS.......................................136(xxxv) APPLICATION OF NATURAL JUSTICE PRINCIPLES TO DISCIPLINARY BODIES 136(xxxvi) JURISDICTIONAL ERROR.......................................................................................137(xxxvii) JUDICIAL REVIEW REMEDIES..............................................................................137(xxxviii) LEGITIMATE EXPECTATION IN DECISION-MAKING...................................138(xxxix) PROCEDURAL FAIRNESS AS AGAINST SUBSTANTIVE PROTECTION: THE ENGLISH POSITION...................................................................................................................139(xl) PRIVATE LAW ESTOPPEL..............................................................................................139(xli) THE POTENTIAL FOR DEVELOPMENT OF SUBSTANTIVE PROTECTION IN AUSTRALIAN ADMINISTRATIVE LAW: NEVER SAY NEVER..........................................140

CC. The rules of procedural fairness [Text]...................................................................................141(xlii) The fair hearing rule.........................................................................................................141(xliii) When does the fair hearing rule apply? The ‘threshold’ question...................................142(xliv) Statutory exclusion of the hearing rule............................................................................143(xlv) The content of the hearing rule........................................................................................144(xlvi) Content and legitimate expectations................................................................................146(xlvii) The rule against bias........................................................................................................146

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(xlviii) Extending the boundaries of procedural fairness.........................................................14818. Standing [from text]....................................................................................................................149

DD. Hayley’s notes.........................................................................................................................149EE. 6.1 Two Approaches To Standing...........................................................................................160

(xlix) Fairness in Australia........................................................................................................16419. Remedies.....................................................................................................................................174

FF. Certiorari and Prohibition........................................................................................................175(l) The nature of certiorari and prohibition..............................................................................175(li) The decision-maker must exercise public power................................................................175(lii) Discretionary criteria for refusing certiorari and prohibition..............................................175

GG. Mandamus -- orders to perform duties....................................................................................176(liii) Bodies or people to whom mandamus lies......................................................................176(liv) The nature of the duties enforced by mandamus.............................................................176(lv) The effect of mandamus......................................................................................................176(lvi) ADJR's equivalent of mandamus.....................................................................................176

HH. Declarations.............................................................................................................................177II. The discretion to refuse declaratory relief...............................................................................177JJ. Injunctions...............................................................................................................................178

20. Peiris Paper - Prerogative Remedies...........................................................................................179KK. Certiorari.................................................................................................................................179LL. Prohibition...............................................................................................................................179MM. Mandamus...........................................................................................................................180NN. Declaratory proceedings..........................................................................................................182

21. CASES........................................................................................................................................18422. LATIN TERMS..........................................................................................................................204

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1. PROBLEM SOLVING

PreliminaryIs merits review on foot? If so, cannot seek judicial review.

An applicant must establish:

1. JurisdictionTwo types of jurisdiction:

HCA/FCA/FMC: judicial review at general law as part of the inherent supervisory jurisdiction and statutory judicial review – ADJR Act

statutory appellate jurisdiction (appeal from administrative decision)

HCA original jurisdiction: s 75(v)

FCA Original jurisdiction: s 39B(1A)(c) – jurisdiction in all non-criminal arising under any Commonwealth statute

must be a ‘matter’ – a justiciable controversy (cannot give advisory opinions): South Australia v Victoria

arising under a Cth law: Abebe v Cth; Felton v Mulligan no express time limit under section 39B

Accrued jurisdiction: that part of the matter which is not specifically federal: Re WakimAssociated jurisdiction: Federal Court of Australia Act (Cth) s 32

Causes of action (consider the scope of the jurisdiction and the potential remedies)Common LawAdministrative Decisions (Judicial Review) Act 1977

2. Justiciability. that the administrative action challenged is justiciable Executive power: Ruddock v Vadarlis Prerogative power Separation of powers doctrine Doctrine of Ministerial Responsibility Kable incompatibility doctrine merits/law distinction – relevant/irrelevant considerations, Wednesbury unreasonableness,

jurisdictional fact doctrine and the ‘no evidence’ rule

3. Standing. that they have standing to seek judicial review; person may have been charged with a criminal offence, so they have a defence that the law is

invalid: Boddington v British Transport Police special interest – an interest greater than the public

4. Grounds. that there is a ground of review; and Is the body under review a tribunal or a court? Has there been an error of law or fact:?

5. Remedy – only discuss if specifically asked in the exam. that the court in its discretion should grant a remedy.

Constitutional remedies:

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1. mandamus: order to compel a public official to perfrom a public duty or to exercise a discretionary power

2. prohibition: an order forbidding a specified act or omission3. certiorari: quash

injunction: require a person to do or refrain from doing a particular action declaration habeas corpus: allow a prisoner to be brought before the court to have the matter for which they

were detained determined quo warranto: requires a person to show by what warrant they hold office or exercise a function

(abolished in most jurisdictions)

Federal court powers - Section 39B of the Judiciary Act 1903

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2. PRACTICAL STEPS

1. Identify the precise decision sought to be impugned. Ascertain its date and how it was communicated to your client. This may be important for time limits and other purposes. Do you need clarification of the decision (e.g. do you need to write to the relevant Minister, Board, Council etc)? 2. Identify the legal authority for the decision. Usually it will be found in a statute (including regulations, by-laws etc) but check to see if prerogative powers (i.e. non-statutory powers) are the source. Note that the source of authority may affect the choice of remedy and issues such as justiciability (see below). 3. Check that the decision is in the public law sphere and is not a matter of "pure" private law (e.g. a narrow commercial contractual dispute). Apart from natural justice issues, which can apply to some contractual relationships (e.g. expulsion from domestic bodies such as a club), generally some aspect of governmental power (direct or indirect) must be engaged. 4. Identify collateral issues of statutory interpretation. Often power or jurisdiction questions will turn on the legal meaning of words or phrases found in a statute or regulation. 5. Do you need written reasons or access to documents? Consider the options (e.g. further correspondence, FOI -- if available -- etc). Note that the remedy chosen may enable you to obtain discovery of documents under court process. Consider establishing your own "paper trail" to flush out the true reasons for a decision by initiating correspondence yourself with the decision-maker about the relevant decision. 6. First consider merits review. Carefully check the relevant legislation and departmental practice: is there an internal review or appeal mechanism available (formally or informally)? Can the Ombudsman, a Member of Parliament or cautious use of publicity assist? Note that legal issues (including statutory interpretation issues) may be advocated before internal review bodies (i.e. internal merits review claims for the "correct or preferable" decision which also includes legal issues). However, check always that internal review does not prejudice judicial review (watch time limits, if any). 7. Note that some internal review mechanisms can lead to appeals (usually only on points of law) to the Supreme Court. Internal review mechanisms and appeals must usually be exhausted or unavailable before judicial review becomes available. Thus, a remedy may be denied on discretionary grounds even if a substantive review ground can be made out, purely because your client has failed to exhaust her/his internal review options before resorting to litigation. 8. If merits review fails or is unavailable or unsuitable, then consider judicial review. Go back to 3 above: is the decision in the public sphere? Is it a question of power (ultra vires) or jurisdiction? Check the precise category of review. Does the fact situation also potentially involve a denial of natural justice (procedural fairness)? 9. Does the ADJR Act (or its State equivalents in New South Wales and Victoria) apply?Which courts are available in which to commence proceedings? 10. Be careful to advise your client that decisions can be set aside by a court only to be re-made properly (although the risk of this should not be overstated). Likewise, Parliament may sometimes overrule court decisions (although usually only in a very high profile case). Hence the client may "win the battle but lose the war". 11. What remedy should be pursued? Prerogative-type review (e.g. certiorari) or private law injunction or declaration? Note that, at least under the NT Supreme Court Rules, both types of remedy may be sought in the same proceedings. Consider procedural advantages and time limits issues (if relevant). 12. Consider discovery of documents (if available). Discovery generally will be available if you are seeking injunction or declaration, but may be trickier to achieve if you're only seeking prerogative-type remedies). Check carefully the relevant statute for privative or ouster clauses which attempt to oust judicial review. 13. Consider whether your client has standing to bring an action. If not, should the Attorney-General be approached for his or her fiat? Even if the A-G's fiat is unlikely to be granted, that fact itself

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might ground standing (see Bateman's Bay Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247). 14. Last but not least, consider arguments of justiciability and judicial discretion -- is relief unlikely to be granted for policy reasons or "misconduct" on the part of the client (e.g. substantial delay, "unclean hands", failure to exhaust internal review mechanisms)?

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3. IRAC METHOD

PRELIMINARY MATTERS1. Arrange the facts provided into chronological order.2. Identify all of the parties involved with your client (the person seeking advice). This includes individuals, employers (such as a company or trading name mentioned), even third parties. 3. Identify the actual and/or potential relationships of each of the parties to your client (ie. contractual relations, fiduciary duties, bona fide purchaser for value without notice, accessory to a breach, etc)4. What is the nature of the property (if any) in dispute and the attaching proprietary and personal rights?

ISSUESWhat facts and circumstances brought these parties to court? (ie. Identify all the legal issues which created the controversy and the law related to each party’s actual or possible relationship) Consider civil causes of action and criminal sanctions created by statute, common law and equitable law. Break up the legal test(s) into elements to be considered separately from the relevant leading case(s)

RULESWhat is the relevant governing law for each issue based on the factual matrix? (ie. Identify all the material and inferred facts (eg time spans from dates provided)) [NB: Some evidence may be inadmissible (eg. parol evidence rule)] Do the issues raise separate statutory, common law and equitable causes of action? (eg. Constructive trust) Do the issues suggest the need to identify a proprietary interest (whether legal or equitable)? Do the facts suggest that you may be able to legally prevent something occurring (eg. lodgment of a caveat, appointment of an administrator, removal of a director, termination of a contract)? For each issue, what principle of law does each case stand for? Are the legal principles consistent? Which cases are authoritative and persuasive? (eg. You may be seeking to rely on an international case) Could a principle be extended to the current fact situation? (Does the public policy or legal rule fit the circumstances?)

ANALYSIS (the most important aspect of the IRAC method)1. Discussion of why the law applies to the facts of the case, citing analogous cases and cases which may be distinguished. Compare the material facts to the rule and apply the law. Where the facts suggest two possible scenarios (eg through an ambiguity), consider them both. Which facts suggest liability of the Defendant and which facts relate to the quantum of damages? Are there defences and/or counter-claims available to the Defendant? Define all approaches used, use statutes (interpretation acts, definitions) Reason by analogy. What are the analogous and distinguishable cases? Discuss penalties always Public policy argument (Why is the rule in existence?)2. Discussion of the (poor) arguments the other party(ies) will raise as against the ones already raised (NB: there could be a genuine controversy) 3. Based on the analysis, what are the rights and obligations arising for the parties and what that means in a practical sense.4. What are the proprietary and personal remedies flowing from the rights and their potential outcomes?

CONCLUSIONA summary of how the rules apply from the analysis What is the way forward for the client (ie. What is the preferred solution or what should they do next) Is there an additional, alternate or practical solution?

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4. STANDARD EXAM ANSWERS

JurisdictionThe duty and jurisdiction of the court to review administrative action do not go beyond thedeclaration and enforcing of the law which determines the limits and governs the exercise ofthe repository's power. (Attorney-General (NSW) v Quin)

The issues raised for [XX] are subject to judicial review at common law as part of the inherent supervisory jurisdiction of the Court.

CourtsHigh Court – original jurisdiction under 75(iii) and 75(v) [arises as a basic element of the rule of law]

must give rise to a ‘matter’ (Re McBain; Ex parte Australian Catholic Bishops Conference) officer of the Commonwealth, but note the pendent jurisdiction

Federal Court – original jurisdiction (section 39B of the Judiciary Act), extended jurisdiction (section 44 Judiciary Act 1903) accrued jurisdiction – similar to the pendent jurisdiction of the HCA (see 39B Judiciary Act.

section 21 Federal court of Australia Act)

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associated jurisdiction - matters not otherwise within its jurisdiction that are 'associated' with matters in respect of which the jurisdiction of the court is invoked (section 32(1) Federal court of Australia Act)

Federal Magistrates Court – original jurisdiction conferred by a range of statutes.

ADJRThe issues raised for [XX] may be considered for judicial review under the Administrative Decisions (Judicial Review) Act.

JusticiabilitySince the power arises from a statute, not from a prerogative, common law or executive power, the decision is justiciable (see generally Ruddock v Vadarlis)

Privative clauseA privative or ouster clause may seek to limit or oust the jurisdiction of superior courts to review decisions. The High Court has largely superseded the test in R v Hickman by its decision in Plaintiff S157 of 2002 v Commonwealth which held that a privative clause does not protect a decision of a tribunal from judicial review for jurisdictional error since such decisions are a nullity (see also Minister for Immigration & Ethnic Affairs v Bhardwaj) and to confer upon an administrative tribunal the power to make an binding, and authoritative decision as to the limits of its own jurisdiction, would involve an exercise of judicial power. (Plaintiff S157 of 2002 v Commonwealth; Huddart, Parker & Co Pty Ltd v Moorehead)

jurisdictional error includes all broad ultra vires grounds. Plaintiff S157 adopts Anisminic in relation to privative clauses

A privative clause however will be effective to insulate a tribunal’s decision from review of a non-jurisdictional error of law on the face of the record (Craig v South Australia) since such a decision is voidable (Plaintiff S157 of 2002 v Commonwealth).

CrownThe Crown is not immune from judicial review (R v Toohey; Ex parte Northern Land Council).

Procedural requirementsA privative clause will prevent judicial review if some procedural requirement, (such as an exercise of a discretionary statutory power) laid down by the Act are to be construed as not essential to the validity of the decision (Plaintiff S157 of 2002 v Commonwealth)

State constitutional positionPursuant to the decision in Kirk v Industrial Relations Commission, State Parliaments do not have the constitutional power to remove administrative law judicial review jurisdiction from their Supreme Courts because the State Supreme Court's judicial review (supervisory) jurisdiction is a fundamental aspect of a Supreme Court, which is a court that may be invested with the judicial power of the Commonwealth by virtue of section 71 of the Constitution.

Supreme Court of a State is a constitutional expression (see s 71, 73) the position of the Territory Supreme courts was not considered in Kirk.

Standing (locus standi)The Court has a discretion to deal with the issue of standing as a preliminary issue (Robinson v Western Australian Museum (1977) 138 CLR 283).

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Special interest testA party will have standing to sue if it has a special interest in the subject matter of the action over and above that enjoyed by the general public: Australian Conservation Foundation v Cth (ACF case)

financial or proprietary interests are affected by the administrative decision, even if those interests do not amount to legal rights (New South Wales Fish Authority v Phillips).

Social and political interests (Australian Conservation Foundation Inc v Commonwealth) or interests of a spiritual or emotional nature may ground standing (Onus v Alcoa of Australia Ltd). it will be important that the group was long established; it has secured Cth funding for its

activities & made numerous submissions to govn dept over yrs – thus it was regarded more than just a busy body & its interests more than merely intellectual or emotional.: ACF v Minister for Resources; North Coast Environment Council v Minister of Resources

Class. The individual does not have to be the one who is directly affected by the decision in an individual sense – its enough if they are a member of a group whose members are equally affected by the decision in ways that exceed members of the general population.

Union did have standing. It represented members who were shop assistants employed in the Central Shopping District and had a special interest in the trading hours since alteration of them would necessarily affect the terms and conditions of employment of members of the Union (Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552)

Excludes. A special interest does not include ‘an intellectual or emotional concern’ (ACF case) but see ACF v Minister for Resources & in North Coast Environment Council v Minister of Resources1

statute may exclude classes of persons who have standing, but this is subject to the requirements of section 75(v) and 75(iii) of the Constitution.

review of the A-G decision: Bateman’s Bay case

Business competitorsThe question whether a business competitor has standing will depend upon which legal test is applied.

The special interest test.: SDA case; Allan v Development Allowance Authority; Bateman's Bay Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 (Bateman’s Bay case) In order to attract standing, a plaintiff's 'special interest' must as a matter of principle be an

interest of the general kind which the relevant public right was intended to safeguard or protect, or, where the 'special interest' consists in a vulnerability to 'special damage', the damage must be 'within the same class of damage as the public suffers as a whole' and not just 'any side effect of the infringement of the public right".: Bateman's Bay at first instance per McLelland CJ

The zone of interests test requires that a business competitor has an interest which is consistent with the objects and purposes of the statute that created the right or duty: Alphapharm P/L v SmithKline Beecham (Australia) P/L but considered too narrow and inflexible: Bateman’s Bay case

ADJR ActPursuant to section 5(1) or 6(1) of the ADJR Act, to gain standing, a plaintiff must be a person ‘aggrieved’ by a decision to which the Act applies.

ADJR test similar to common law test of seeking injunction or declaration (ie. special interest)

1 In the latter case, the enviro group was entitled to demand statement of reasons from the Minister under ADJR Act for decision to grant woodchip licence. The Court emphasized that it was imp that the group was long established; it has secured Cth funding for its activities & made numerous submissions to govn dept over yrs – thus it was regarded more than just a busy body & its interests more than merely intellectual or emotional.

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must be judiciable (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321) Pursuant to section 3(4) a ‘person aggrieved’ includes: (i) to a person whose interests are

adversely affected by the decision; or (ii) in the case of a decision by way of the making of a report or recommendation—to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and (b) a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.

if there is no clear and imminent danger to the interests of the applicant, then they will not have standing. See Australian Foremen Stevedores Assn v Crone (1989) 98 ALR 276

Joinder. Section 12(1) requires a person interested.

Types of interests A party to tribunal proceedings: United States Tobacco Co v Minister for Consumer Affairs Business interests: Bateman Bay case Rights against 3rd parties affected Employment: Offensive film to Christian faith – priest has standing: Ogle v Strickland

AATSection 27 allows people to apply if their ‘interests are affected’ by a decision to which appeal can be had to the AAT.

Loss of standingAn applicant loses standing if they can no longer satisfy the test for standing (Transurban City Link Ltd v Allan (1999) 168 ALR 687).

Criminal/civil proceedings – collateral attackA person involved in criminal (Flynn v DPP) or civil proceedings (Dept of Social Security v Mariot) may establish a defence in respect of an unlawful administrative decision.

Abuse of processWhere a final decision has been made by a criminal court of competent jurisdiction, it is a general rule of public policy that a civil action cannot be used to initiate a collateral attack on that decision; and if it does, it is an abuse of the process of the civil court (Hunter v Chief Constable).

Torts – collateral attackA plaintiff affected by an unlawful administrative decision may be able to sue for damages under the torts of trespass, negligence or false imprisonment (Cooper v Wandsworth Board of Works)

The A-G’s fiatA person who lacks standing may seek the fiat of the Attorney General.

The A-G ensure public law upheld: Gouriet v Union of Post Office Workers but this was questioned in Bateman’s Bay case

decision not reviewable (Gouriet v Union of Post Office Workers [1977] 3 All ER 70; Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493)

The Attorney-General has standing to seek an injunction or declaration to enforce a public right. See Cooney v Council of the Municipality of Ku-ring-gai (1963) 114 CLR 582.

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Remedies & standing issuesUnder section 75(v) of the Constitution and section 39B(1) of the Judiciary Act, discretionary public law remedies, including certiorari and prohibition, will only lie against an officer of the Commonwealth exercising public power (ie. where the respondent's powers can be classified as "judicial" or "quasi-judicial") as distinct from private power.

Certiorari - Certiorari lies for any jurisdictional error, and also for non-jurisdictional errors of law appearing on the face of the record. A person who has a particular grievance of his own is entitled to certiorari ex debito justitiae, while the grant of the remedy to a “stranger” is purely discretionary (R. v. Thames Magistrates’ Court, ex p. Greenbaum; Cheatley v R). Where there is a manifest want of jurisdiction, a stranger generally has standing. Upon a grant of certiorari, the legal effect of the legal consequences of the decision is quashed (Ainsworth v Criminal Justice Commission).

A decision can only be quashed if it has legal effect (Ainsworth v Criminal Justice Commission) A non-material finding of fact cannot be quashed (Australian Broadcasting Tribunal v Bond)

Prohibition – Prohibition lies only for actual or threatened excess of power (Re Refugee Review Tribunal; Ex parte

Aala). Prohibition will lie if a body is under a duty to afford procedural fairness, irrespective whether the body

has the power to affect a person’s legal rights (Ainsworth v Criminal Justice Commission; R v Little; Ex parte Fong)

Prohibition lies in respect of acts to be done judicially. Acts which are Ministerial, administrative or only amount to an exercise of a subordinate legislative power are not subject to the writ of prohibition (R v Wright; Ex parte Waterside Workers’ Federation of Australia)

Prohibition does not lie for non-jurisdictional errors.

The legal position applicable to cases of patent error may be expressed in one of three propositions, each of which has reliable judicial antecedents.1. Proof of patent error vitiating jurisdiction makes the grant of prohibition mandatory, irrespective of

sufficiency of the interest demonstrated by the applicant in the decision or action. The Supreme Court of New Zealand has badly asserted that, in these circumstances, “It is not necessary that a plaintiff in prohibition should have any interest in the subject-matter.” (The Master Retailers’ Association of N.S.W. Ltd. v. Shop Assistants’ Union of N.S.W.)

2. The countervailing opinion, underscoring the pivotal role of discretion in the conception of the remedy, insist that the jurisdiction is “in all cases discretionary.” The Court of Appeal of New Zealand has unequivocally declined to give its assent to the proposition that a stranger to proceedings before an inferior tribunal necessarily has the “right” to seek prohibition on the ground of want or excess of jurisdiction (New Zealand Sheepowners’ Industrial Union of Employers v. Tyndall).

3. An intermediary position which incorporates elements of these competing views has been evolved by the courts of Australia. The essence of this compromise is that, although discretion is not wholly eroded by the manifest quality of the jurisdictional error, the gravity of the defect and the degree of its susceptibility to proof would be treated almost invariably as overriding the cogency of the grounds for refusal of the remedy in the exercise of discretion (Ex parte Wurth, re Tully).

A person has standing to seek prohibition if that person was a party to the proceedings before the tribunal or inferior court against which prohibition is sought. However, a 'stranger', who is not a party to the proceedings, has standing only at the discretion of the court. However see Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Ltd (2000) 200 CLR 591 where various Justices indicate that “strangers” have standing to seek prohibition, habeas corpus and quo warranto.

Mandamus - Mandamus compels the respondent to perform a public duty which is justiciable and unperformed (R v Anderson; Ex parte Ipec Air). The invocation of a strict test (R. v. Commissioners of Customs and Excise, ex p. Cook ) for standing in applications for mandamus is exemplified by insistence on a “legal right,” “a specific legal right” or “an ascertainable right.” (Water Conservation and Irrigation Commission v. Browning; R. v.

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Registrar of Titles, ex p. Moss; R. v. Commonwealth Court of Conciliation and Arbitration, ex p. Ellis). This test appears narrower than for either a writ of prohibition or certioriari.

StrangersA stranger will not generally have standing to seek mandamus (Re McBain).

A person who exercises a legal right to participate in a tribunal hearing has standing to seek mandamus in respect of the tribunal's proceedings (Sinclair v Mining Warden at Maryborough)

Generally ADJR s 7 Whilst "may" indicates a discretion, the repository of the discretionary power is usually under a duty at

least to consider its exercise Unlike certiorari and prohibition, is not regarded as being limited to cases where the respondent's powers

can be classified as ‘judicial’ or ‘quasi-judicial’.

CrownOn current authority, vice-regal representatives are immune from mandamus (FAI Insurances v Winneke).

Injunction or declarationInjunctive relief will be available where the writ of prohibition is not available (Thompson v Randwick Municipal Council). The courts will generally only grant an injunction in public law where a statute can be characterised as evincing an intention to grant private statutory rights, however there are recent judicial statements suggesting a broader and more flexible view as to the availability of an injunction (see Abebe v Commonwealth (1999) 197 CLR 510; Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52)

injunction available for administrative and legislative decisions

Persons [other than the Attorney-General] have locus standi (standing) to seek an injunction or declaration in two situations:

1. the plaintiff’s private right is interfered with at the same time as the public right then the private individual has standing; (Australian Conservation Foundation Inc v Commonwealth; Boyce v Paddington Borough Council) or

2. the plaintiff has a 'special interest in the subject-matter of the action' over and above that enjoyed by the general public (Australian Conservation Foundation Inc v Commonwealth)

DamagesDamages are not available unless the wrong is recognised by the common law (Cooper v Wandsworth Board of Works; Green v Daniels; Rush v Commissioner of Police).

trespass (Cooper v Wandsworth Board of Works) false imprisonment (Park Oh Ho v MIEA) negligence (Bienke v Minister for Primary Industries and Energy) – but excludes negligence in law

making or delegated law making.

Order for reviewADJR Act s 5, 6

Constitutional writsRe Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Discretion to refuse relief

Certiorari/prohibition."If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains

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its discretion to refuse relief if in all the circumstances that seems the proper course." (R v Ross-Jones; Ex parte Green; Re Refugee Review Tribunal; Ex parte Aala ).

Declaration. Lockhart J. summarised the factors governing the discretion to refuse declaratory relief in Aussie Airlines Pty Ltd v Australian Airlines Limited (1996) 139 ALR 663 at 670-671:

"For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:(a) The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies. The answer to the question must produce some real consequences for the parties.(b) The applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen'; or if the Court's declaration will produce no foreseeable consequences for the parties.(c) The party seeking declaratory relief must have a real interest to raise it.(d) Generally there must be a proper contradictor.

These other rules should in general be satisfied before the Court's discretion is exercised in favour of granting declaratory relief." (see also Forster v Jododex Australia P/L)

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A. INITIAL ISSUES

ContradictorThe degree to which a decision maker can act as contradictor is restricted: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13

Jurisdictional errorThe availability of judicial review, leaving aside the jurisdictional fact doctrine and the irrational fact finding exception, rests on the requirement that an error of law is a jurisdictional error. Thus if the error of law is intra-jurisdictional, it is not judicially reviewable (R v Gray; Ex parte Marsh; Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia).

Administrators and quasi-judicial tribunalsAll errors of law corresponding to broad ultra vires abuse of power grounds (as well as narrow ultra vires) are jurisdictional errors (Craig v South Australia)

That includes a tribunal does not have unchallengeable power to define the extent of its own jurisdiction. (See

Ex parte Wurth; Re Tully) refusal to exercise jurisdiction upon a misconstruction of the very legislation which confers

jurisdiction upon it, makes a jurisdictional error (Dickinson v Perrignon) the non-fulfilment of a condition precedent to jurisdiction e.g. where the legislation empowers

the tribunal to hear only matters arising in a particular geographical location (Bunbury v Fuller) imposes a time limit (Parisienne Basket Shoes Pty Ltd v Whyte), requires service of a notice. (R v Thomas; Ex parte Sheldons Consolidated Pty Ltd) Wednesbury unreasonableness (Re Refugee Review Tribunal; Ex parte Aala; Abebe v

Commonwealth; Minister for Immigration and Multicultural Affairs v Eshetu) failure to comply with a procedural requirement as to time has sometimes been held to be a

mere irregularity rather than non-compliance with a condition precedent to jurisdiction (David Jones (Aust) Pty Ltd v Araune)

Denial of natural justice (Re Refugee Review Tribunal; Ex parte Aala) “misconceiving their function” (R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott;

R v Connell; Ex parte Hetton Bellbird Collieries Ltd) “asking the wrong question” (Sinclair v Mining Warden at Maryborough; Craig v South

Australia). identifying a wrong issue (Craig v South Australia) ignoring relevant material (Craig v South Australia) relying on irrelevant material (Craig v South Australia) at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion

(Craig v South Australia))

Inferior courts (even if exercising merits review)Only errors of law corresponding to narrow ultra vires are judicially reviewable (Craig v South Australia)

an inferior court does not have unchallengeable power to define the extent of its own jurisdiction. (Ex parte Wurth; Re Tully)

narrow ultra vires includes the error of “misconceiving function” (R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott; R v Connell; Ex parte Hetton Bellbird Collieries Ltd)

“asking the wrong question” (Sinclair v Mining Warden at Maryborough).Page 16 of 203

Denial of natural justice (Re Refugee Review Tribunal; Ex parte Aala)

Courts and tribunals – intra-jurisdictional errorsThe distinction between jurisdictional and non-jurisdictional errors of law has not been abolished i.e. there are still some types of error of law that are “intra-jurisdictional” and therefore not judicially reviewable (Abebe v Commonwealth; Pelechowski v Registrar, Court of Appeal (NSW); Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission).

If an inferior court misinterprets the law, the error will generally be an intra-jurisdictional error because the error has been made within the jurisdiction of the Court (Craig v South Australia; Australian Broadcasting Commission v Redmore P/L).

Distinction between errors of law and factJudicial review does not extend to errors of fact with 2 exceptions:

1. jurisdictional fact doctrine; and2. the prohibition on review of a decision-maker's finding of fact is where the decision is

irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002

Jurisdictional fact doctrineWhere a tribunal or court makes an error in the course of making a finding of fact whose actual or objective existence is a preliminary matter upon which its jurisdiction depends, this will be a jurisdictional error (Minister for Immigration and Multicultural Affairs v Eshetu).

the issue of jurisdictional fact turns on the proper construction of the statute (Ex parte Redgrave; Re Bennett)

whether a question of fact is jurisdictional is a question of statutory interpretation: Corporation of the City of Enfield v Development Assessment Commission

A Court may have regard to evidence that was not before the decision-maker when deciding the existence of a jurisdictional fact.

‘jurisdictional fact’a jurisdictional fact satisfies the criterion which enlivens the power of the decision-maker to exercise a discretion (Corporation of the City of Enfield v Development Assessment Commission)

Exception for subjective opinionWhere the words “subjective opinion” appear in the provision establishing the body’s jurisdiction, the court can only review whether the opinion was “reasonably open” (Melbourne Stevedoring; R v Connell; Ex parte The Hetton Bellbird Collieries Ltd).

R v Connell; Ex parte The Hetton Bellbird Collieries Ltd

[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.

What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that

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event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.

Review of fact findingThis allows the court to review the fact-finding process undertaken to reach the decision.: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002

Review of a court decisionWhen a lower court’s decision is subject to judicial review, the grounds exclude the broad ultra vires grounds, even if the lower court was involved in merits review.

Review of a tribunal decisionWhen a tribunal’s decision is subject to judicial review, all grounds of review are apt to found invalidity in the decision.

Delegated legislationThe making of delegated legislation is reviewable on the ground of improper purpose.: R v Toohey; Ex parte Northern Land Council

It is immaterial that the decision-maker is a Governor, Governor-General or Queen's representative.: R v Toohey; Ex parte Northern Land Council

It may be that review of the making of delegated legislation is restricted to the situation where the delegated legislation is required to be made for a purpose and upon the condition precedent that the delegated law maker form an opinion as to the existence of a state of facts.: R v Toohey; Ex parte Northern Land Council

PoliciesPolicy, which is not otherwise ultra vires, is not unlawful because it attributes great weight to particular factors and little or no weight to other factors which at common law would be relevant considerations that the decision-maker would have been bound to take into account: Re Findlay

Questions of factThe making of inferences from primary facts to reach findings or conclusions of fact is a question of fact.: British Launderers' Research Assn v Borough of Hendon Rating Authority

The question of the meaning of an ordinary English word or phrase in a statutory provision is also a question of fact, which may be resolved by consulting a dictionary.: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126

Questions of lawThe question of whether an expression is used in any other sense than that which it has in ordinary speech is a question of law,2 similarly, if the word is a technical legal term, which requires construction by reference to principles of law, then the question of its construction is a question of law.: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126

A question of law may arise in connection with the drawing of an inference from primary facts. It is accepted in Australia that an error of law occurs if an inference is drawn from a complete absence of evidence.: Hope v Council of the City of Bathurst

2 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389Page 18 of 203

the meaning of a term (even if used in a ‘non-legal’ sense and thus a question of fact) can always be qualified by asking how the term is to be construed in the wider context of the statute (and this raises a question of law) (Collector of Customs v Agfa-Gevaert Ltd)

the distinction between the meaning of a term and the construction or effect given to a statutory term was dismissed as ‘artificial, if not illusory’. (Collector of Customs v Agfa-Gevaert Ltd)

Errors of lawInsufficiency of evidence, illogical reasoning and a mere incorrect finding of fact of themselves do not amount to an error of law.

Whether an error of law renders a decision invalid is matter of construction of the Act: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme

Decision-maker when under a duty fails to give adequate reasons: Dornan v Riordan (1990) 24 FCR 564

Two important distinctions arise between review at general law and review under the ADJR Act: At general law the ground of error of law on the face of the record required that the error appear

on the 'record' of the tribunal or inferior court, a question which involves technical questions of law. In sections 5(1)(f) and 6(1)(f) of the ADJR Act, on the other hand, it is expressly stated that the error of law may be reviewed irrespective of whether it appears on the record.3

The development of jurisdictional error as a ground of review at general law in Australia has incorporated the jurisdictional fact doctrine.

Errors of law and the ADJR ActThe Administrative Decisions (Judicial Review) Act 1977 (Cth) Act draws no distinction between jurisdictional and non-jurisdictional error of law. Whether or not a legal error appears on the face of the record is also irrelevant pursuant to sections 5(1)(f) and 6(1)(f).

Presumption of regularityUnder the presumption of regularity, a decision is assumed to be valid unless on a balance of probabilities, the decision is found to be invalid (Hoffman La-Roche)

Where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act." (Knox County v Ninth National Bank)

The maxim omnia praesumuntur rite et solemniter esse acta is applicable so that, in the absence of evidence to the contrary, both the existence of the necessary delegation and that the Deputy Commissioner in requiring the return had acted properly in the administration of his office were presumed, and the defendant had been properly convicted (Pertl v Kahl)

Rules of evidenceAt common law and generally under the provisions of empowering statutes, administrators have a broad discretionary power to determine their own procedure: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228

At common law and under such statutory provisions, an administrator's freedom to depart from the rules of evidence does not indicate that the administrator may ignore the rules of evidence as being of no account.: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott

Since the rules of evidence have evolved as a method of inquiry designed to avoid error and to elicit truth, in many cases their rationale indicates what the requirements of procedural fairness

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should be, even though they need not be complied with completely: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott

Weight on primary evidenceReview of the legality of administrative action does not encompass interference by the court with the weight attributed by an administrator to primary evidence: Sean Investments Pty Ltd v MacKellar; Australian Broadcasting Tribunal v Bond

The statutory duty to 'have regard to' a matter requires a decision-maker to take into account that matter and give it weight or consideration as a fundamental element in making the determination: R v Hunt; Ex parte Sean Investments Pty Ltd

Ministerial dutiesIt would be permissible for a minister with a duty to consider to be given some limited assistance in this task by way of summaries prepared by staff members.: Tickner v Chapman

However, the obligation is not subject to any implied exception that the role may be performed by a person other than the minister, where according to Aboriginal tradition, the matters disclosed in the representation can only be read by a person of the opposite sex.: Tickner v Chapman

Compliance with a statutory requirement that a minister take all reasonable steps to 'consult' must be judged according to the circumstances but non-compliance is unlikely to be excused on the ground of urgency: Aboriginal Legal Rights Movement Inc v South Australia (No 2)

Effect of error

Jurisdictional errorThe decision is void ab initio (Minister for Immigration & Ethnic Affairs v Bhardwaj; Anisminic v Foreign Compensation Commission; Plaintiff S157 of 2002 v Commonwealth)

Non-jurisdictional error on the face of the recordThe decision is voidable. Accordingly, the decision remains valid until a court decides otherwise (Craig v South Australia).

Statement of reasonsAt common law, there is no right to obtain the reasons for a decision (Public Service Board of NSW v Osmond)

However: Natural Justice. The High Court raised the possibility in Public Service Board of NSW v

Osmond that there may be special cases where procedural fairness might require the provision of reasons for administrative decisions, the clear message was that the imposition of duties to provide reasons for administrative decisions was best left to the legislature.

Implied by statute. there is increasing judicial willingness to recognise implied statutory obligations to give reasons in relation to particular statutory powers. Such an implication is more likely to be drawn if there is a right to appeal (which would typically be meaningless without a statement of reasons), and in circumstances where the decision-maker undertakes functions similar to those undertaken by judges. In England, it is well accepted that procedural fairness may impose an obligation to intuitive that explanation is required

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ADJR Act s 13 – can be used to obtain reasons for a decision free of any fees before commencing an application for judicial review (Secretary, Department of Foreign Affairs and Trade v Boswell)

see also AAT Act s 28

AAT Act s 28 - allows those who have a right to appeal to the tribunal to obtain a written statement of reasons setting out the material findings of fact and the reasons for the decision.

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GROUNDS FOR REVIEW

Ultra vires - Narrow ultra vires Simple ultra vires – action taken in excess of grant of statutory power Procedural ultra vires – power not exercised in accordance with a certain procedure

Simple ultra viresThe validity of [the regulation; By-law; rule] depends upon the scope of the grant of the statutory power (London County Council v A-G).

Procedural ultra viresThe validity of the [regulation; By-law; rule] depends upon whether the necessary statutory procedure was adopted when the [regulation; By-law; rule] was enacted.

Statutory interpretation issuesPresumption. The presumption is that the law is valid and the burden is on the defendant on a balance of probabilities to establish that the law is invalid: Boddington v British Transport PoliceProcedural. Courts will not interpret the statutory procedural requirements narrowly.: Tickner v Chapman (1995) 57 FCR 451Sanctions. The absence from a statute of any express sanctions for breach of its procedural provisions is not enough to justify the conclusion that steps taken in breach of those procedures are invalid, particularly in a case where the provision is essentially a prescription of administrative procedures to be observed within government and imposes no obligation upon citizens, who may be adversely affected by invalidation: Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1Ministerial approval. Statutory procedure which appears designed to ensure that obligations or benefits of a particular measure or kind should not be incurred or acquired without prior ministerial approval may be construed to have been enacted for the purpose of the protection of public funds and hence the protection of the public interest, which ought to prevail over the private interest of the contracting parties: Australian Broadcasting Corp v Redmore Pty LtdPractical consequences. If the practical consequences of a particular construction are curious, and unlikely to have been intended by parliament, then that construction ought not to be adopted.: Capricornia Electricity Board v John M Kelly (Builders) Pty Ltd (1990) 71 LGRA 256

If non-compliance has an adverse effect upon the property rights of individuals, the court may be more inclined to conclude that invalidity results from noncompliance.: Scurr v Brisbane City Council (1973) 133 CLR 242

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Ultra vires – Broad ultra vires Abuse of power Failure to properly exercise a power

Abuse of power grounds

Improper purposeTo find an improper purpose, it must be established that the decision-maker acted for a purpose which is extraneous to the statutory scheme (R v Toohey; Ex parte Northern Land Council).

A statutory power must be exercised in accordance with purposes which are expressed to be the purposes of the Act in an objects clause (Municipal Council of Sydney v Campbell)

When the purposes of the statute are not expressly stated the court must construe the statute in order to determine which purposes are proper (R v Toohey; Ex parte Northern Land Council)

available against regulations made by the Crown (R v Toohey; Ex parte Northern Land Council)

If the purpose of a decision has to be ascertained by inference from other facts, a presumption of regularity operates (Industrial Equity Ltd v DCT).

Multiple purposesIf a decision is made for several purposes, not all of which are improper, an abuse of power occurs only if the improper purpose is ‘a substantial one (Thompson v Randwick Municipal Council) or a dominant purpose (Samrein Pty Ltd v Metropolitan Water Sewerage & Drainage Board).

Bad faithBad faith arises where a power is exercised for corrupt or dishonest motives which amount to male fides or a deliberately malicious or fraudulent purpose (Roncarelli v Duplessis). an applicant bears a heavy onus of proof (Municipal Council of Sydney v Campbell).

The following set of principles is used to establish lack of good faith: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs

1. An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker.

2. The allegation is not to be lightly made and must be clearly alleged and proved.3. There are many ways in which bad faith can occur and it is not possible to give a

comprehensive definition.4. The presence or absence of honesty will often be crucial.5. The circumstances in which the court will find an administrative decision-maker had not acted

in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.

6. Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism.

7. Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.

8. The Court must make a decision as to whether or not bad faith is shown by inference from what the a decision-maker has done or failed to do and from the extent to which the reasons disclose how the decision-maker approached its task.

9. It is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.

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Relevant considerationsThe ground of failure to take into account a relevant consideration is only made out if the decision-maker fails to take into account a consideration which he or she is bound to take into account in making the decision (Minister for Aboriginal Affairs v Peko-Wallsend Ltd)

The categories of ‘relevant considerations’ and ‘irrelevant considerations’ do not cover the field. There are also considerations which may be considered but need not be considered. It is necessary to consider whether the listed factors are exhaustive or inclusive (Minister for Aboriginal Affairs v Peko-Wallsend Ltd)

In Peko-Wallsend, Mason J identified the following 5 factors as crucial to proper application of the 'considerations' ground:

1. The ground of failure to take into account relevant considerations can only be made out if a decision-maker fails to take into account the consideration which he is bound to take into account in making that decision.

2. What factors a decision-maker is bound to consider in making a decision is determined by construction of the statute conferring the discretion. If the statute expressly states considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.

3. Not every consideration that decision-maker is bound to take into account for fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

4. The limited role of a court reviewing the exercise of administrative discretion must constantly be borne in mind. It is not a function of the court to substitute its own decision for that of the administrator by exercising a discretion which the Legislature has vested in the administrator. The court's role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

5. The above principles apply to an administrative decision made by a Minister of the Crown. But with a Minister, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion.

Current materialThere is at least an implication arising from statute that the decision is to be made on the basis of the most current material available to the decision-maker (Minister for Aboriginal Affairs v Peko-Wallsend Ltd)

Discretionary power policyA policy which structures the exercise of a broad discretionary power will be a relevant consideration which the decision-maker is bound to take into account (Drake v Minister for Immigration and Ethnic Affairs)

Other casesTickner v ChapmanHindi v DIMA

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Irrelevant considerationsA decision which is based on consideration of irrelevant matters is invalid (Minister for Aboriginal Affairs v Peko-Wallsend Ltd)

In the case of a broad discretionary power it is clear, almost without exception, that corrupt or entirely personal and whimsical considerations, unconnected with proper governmental administration, are irrelevant considerations (Murphyores Inc Pty Ltd v Commonwealth; Bewley v Cruickshanks)

No evidenceThe ‘no evidence’ ground is made out if there is no evidence to support a finding which is a critical step in its ultimate conclusion (Australian Broadcasting Tribunal v Bond) however, the ground may be restricted where the factual finding in question is a ‘jurisdictional fact’

The making of findings and the drawing of inferences in the absence of evidence is an error of law (Sinclair v Maryborough Mining Warden)

Irrational fact finding (extended no evidence ground)The ground of irrational fact finding as an extension of the no evidence ground. It requires a finding for which there was some primary evidence but the decision is invalid for "no evidence" because the finding was reached by such an irrational, illogical, capricious, perverse reasoning process or lacking a basis in findings or inferences of facts supported on logical grounds as to rob the finding of an evidentiary basis having any probative value (Minister for Immigration & Ethnic Affairs v Pochi; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002)

Normally the reasoning must produce absurd results, one in which no logical basis can be discerned (Eshetu)

The appropriate ground of review is whether the ultimate determination of the relevant tribunal or body was based on factual determinations which were illogical, irrational or lacking a basis in findings or inferences of facts supported on logical grounds (Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002)

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Wednesbury unreasonableness

To establish Wednesbury unreasonableness requires a decision which ‘looked at objectively [must be] so devoid of any plausible justification that no reasonable body of persons could have reached [it]’ (Bromley London Borough Council v Greater London Council; Associated Provincial Picture Houses Ltd v Wednesbury Corporation)

To prove a case requires something overwhelming (Associated Provincial Picture Houses Ltd v Wednesbury Corporation)

ADJR s 5(2)(g) can only be used in relation to the exercise of a discretionary power (S20/2002)

Margaret Allars has proposed a 3 part categorisation of the cases on unreasonableness:1. Use of one head of power when another and clearly more appropriate head of power was

available (Laker Airways v Department of Trade)2. Unjustified discrimination (Parramatta City Council v Pestell)3. Gross lack of proportionality (South Australia v Tanner )

Unreasonable fact finding – does not fit within unreasonablenessThe High Court has held that the Wednesbury unreasonableness ground of review does not apply to grossly unreasonable fact-finding (Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002)

Delegated legislationthe court may apply a test as to whether the delegated legislation is so oppressive or capricious that no reasonable mind could justify it (Kruse v Johnson)

Limited duty of inquiryA failure to attempt to obtain information which it is obvious is readily available and which is centrally relevant to the decision to be made, will amount to a procedure so unreasonable no reasonable person would have so exercised the power (Prasad v Minister for Immigration and Ethnic Affairs)

Undue weightWednesbury unreasonableness may be established on account of a failure to give adequate weight to a relevant consideration of great importance, or an undue weighting of a relevant factor of no great importance (Peko-Wallsend).

Unreasonableness is established only where the finding of fact is critical to the ultimate decision, rather than relating to a matter of peripheral importance (Luu v Renevier)

Other casesTickner v Bropho

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FAILURE TO PROPERLY EXERCISE A POWER GROUNDS

Failure to perform statutory dutyThe failure to perform a statutory duty is a ground for judicial review at common law.

At common law the duty may be a duty to make a decision, to make a decision properly, to take action to implement a decision or to take any other form of action.

Unlawful sub-delegationIn the absence of express power to do so, a decision-maker has no power to delegate a discretionary power to another decision-maker

If it is clear from express words or by implication that the legislative intention was to permit delegation, then effect will be given to that intention.

A Court may infer such a power by considering the subject matter of the power and the person or body on whom the power is conferred (Ex parte Forster; re University of Sydney)

The usual presumption is that the powers not expressly delegated must be exercised personally (Peko-Wallsend)

An instrument which delegates power or part of it should not be construed loosely (Perpetual Trustee Co (Canberra) Ltd v Cmr for Australian Capital Territory Revenue)

Info gathering. In the absence of an express or implied power to delegate the task of making a decision, one may imply the power to make inquiries and findings of fact and convey these to the actual decision-maker (Taylor v Public Service Board (NSW); Sean Investments Pty Ltd v MacKellar)

Part power delegationWhere a power is expressly conferred to delegate ‘either generally or as otherwise provided by the instrument of delegation’ the decision-maker has power to delegate either the whole of the relevant power or some specifically limited part of that power (Singh v Minister for Immigration, Local Government and Ethnic Affairs)

Legislative powersThe broad law making powers of a legislature, to make laws for the peace, order and good government of a State, may not be delegated (Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan)

Administrative natureCarltona principle. The powers exercised by a minister, local council or other administrator may be so multifarious that they could never be personally attended to and so the power to delegate is implied by the statute (Carltona Ltd v Cmrs of Works)

University Senate delegating its disciplinary powers to faculty committees and individual academics (Ex parte Forster; Re the University of Sydney [1963] SR (NSW) 723).

Tax Commissioner had an implied power of delegation to more junior officers of what was in effect a statutory power to issue subpoenas to taxpayers, notwithstanding that there was an unexercised express power to delegate to such officers in the legislation (O’Reilly v Cmrs of the State Bank of Victoria (1983) 153 CLR 1).

The alter ego doctrine – powers of an administrative natureIt is necessary to draw a distinction between the delegation of a power and the exercise of that power through an agent since there will be no unlawful subdelegation if an agent acts, irrespective of the nature of the power and even without the knowledge of the officeholder (O’Reilly v Cmrs of the State Bank of Victoria (1983) 153 CLR 1)

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The notion that departmental officers may be ‘authorised’ rather than delegates of the minister is known as the alter ego principle (Carltona Ltd v Cmrs of Works)

An agent remains an agent of the superior officer, acting on behalf of, and in the name of, that person.

a statutory prohibition on delegation or subdelegation will not interfere with the power to act through an agent (O’Reilly v Cmrs of the State Bank of Victoria)

A delegate, on the other hand, is a transferee of the power of the delegator, and may validly exercise that power in his or her own name (Re Reference Under Ombudsman Act s 11)

in some cases, it has been held that the power is so important that it must on a proper construction of the statute be exercised by the minister personally (Peko-Wallsend)

Unlawful application of policy

‘Proper, genuine and realistic consideration of merits’In requiring administrators to have regard to the merits in applying policy, the principle requires that administrators not shut their ears to an applicant who wishes to make representations about the particular circumstances of the case, nor refuse to listen to anyone with something new to say (British Oxygen Co Ltd v Minister of Technology; Green v Daniels)

Uncertainty – s 5(2)(f)Decisions or conduct made in accordance with a rule or policy without regard to the merits of the particular case.

Acting under dictationA decision-maker must exercise an independent discretion, rather than simply carry out instructions of other decision-makers

Deference to a policy of another decision-maker, even in the absence of duress or pressure to defer, is sufficient if it amounts to a complete failure to exercise independent discretion (H Lavender & Son Ltd v Minister of Housing and Local Government)

Where a minister possesses a statutory power to give directions but does not exercise that power, a court is less inclined to conclude that the administrator, potentially subject to direction, has acted under dictation by making a decision likely to be accepted by the minister (Bread Manufacturers of New South Wales v Evans)

A number of factors affect the extent to which a government policy which is a relevant consideration may be determinative of the decision: Bread Manufacturers of New South Wales v Evans

1. the particular statutory function; 2. the nature of the question to be decided; 3. the character of the tribunal and the general drift of the statutory provisions in so far as they

bear on the relationship between the tribunal and the responsible minister; and 4. the nature of the views expressed on behalf of the government.

Public servantsWhere a statutory power is conferred upon a departmental secretary or director general, government policy is clearly a relevant consideration which that person is bound to take into account in exercising the statutory power (R v Anderson; Ex parte Ipec-Air Pty Ltd; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth)

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Different views have been taken, however, as to the extent to which such a decision-maker is free to depart from government policy (see R v Anderson; Ex parte Ipec-Air Pty Ltd; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth)

Fettering discretionary powerFettering a discretionary power is a failure to have complied with an obligation to retain and exercise a free and unfettered discretion

Fettering of discretion in this sense can be seen to be pre-judging and/or not making the decisions personally at the time

A public authority with a discretionary power must exercise the discretion itself, and not at the behest of another: Roncarelli v Duplessis; Administrative Decisions (Judicial Review) Act 1977 ss 5(2)(e), 6(2)(e)

EstoppelUnder the Southend-on-Sea principle, an administrator's discretion to act in the public interest in the future cannot be estopped thereby preventing the performance of a statutory duty or to hinder the exercise of a statutory discretion (Southend-on-Sea Corporation v Hodgson (Wickford) Ltd ; South Australia v O'Shea)

rule limiting the effectiveness of contracts entered into by administrators fettering their future exercise of statutory discretionary power. See Ansett Transport Industries (Operations) Pty Ltd v Commonwealth

ExceptionsThe guiding factor is that the estoppel should not hinder the exercise of the discretion in the public interest, which is to be balanced against the harm to the individual who will suffer injustice by having acted upon the representation (Attorney-General (NSW) v Quin)

long practice. If an administrator has long followed a practice of waiving a procedural requirement, the administrator may be estopped from later relying upon the fact of non-compliance with the procedure, provided there is no inconsistency with statutory duty (Minister for Immigration and Ethnic Affairs v Kurtovic)

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B. NATURAL JUSTICE

Semble, procedural fairness is a common law doctrine (Annetts v McCann) which gives rise to a general duty to act with procedural fairness (Kioa v West) as a means to protect an individual’s rights, interests and legitimate expectations (Kioa v West) which may be destroyed, defeated or prejudiced (Ainsworth v Criminal Justice Commission) in a direct and immediate way (Ridge v Baldwin).

The requirements of procedural fairness are flexible and adapt to the circumstances of a particular case. It has been described as ‘fair play in action’ (Furnell v. Whangarei High Schools Board) and accordingly, the principles of procedural fairness are a limitation on a decision-maker’s power (Re Refugee Review Tribunal; Ex parte Aala) irrespective of the status of the decision-maker R v Toohey (Aboriginal Land Commissioner); ex parte Northern Land Council).

Jurisprudential basisThe jurisprudential basis for procedural fairness at common law was considered by the High Court3 but remains unsettled. One approach suggests that procedural fairness is a common law right which protects rights, interests and legitimate expectations.4 A second approach suggests that the scope of procedural fairness arises from the proper construction of the statute construed against a background of common law notions of justice and fairness.5 A third basis established in earlier cases is that there is a general duty of administrative fairness.6

3 Kioa v West (1985) 159 CLR 550.4 Kioa v West (1985) 159 CLR 550, 31. Mason J stated ‘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 the clear manifestation of a contrary statutory intention.’5 Kioa v West, Brennan J [9]; Salemi v Mackellar (No 2) (1977) 137 CLR 396 [6] (Barwick CJ). In Kioa v West, Brennan J stated ‘At base, the jurisdiction of a court judicially to review a decision made in the exercise of a statutory power on the ground that the decision-maker has not observed the principles of natural justice depends upon the legislature's intention that observance of the principles of natural justice is a condition of the valid exercise of the power. That is clear enough when the condition is expressed; it is seen more dimly when the condition is implied, for then the condition is attributed by judicial construction of the statute. In either case, the statute determines whether the exercise of the power is conditioned on the observance of the principles of natural justice. The statute is construed, as all statutes are construed, against a background of common law notions of justice and fairness and, when the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that "the justice of the common law will supply the omission of the legislature" (Cooper v. Wandsworth Board of Works [1863] EngR 424;(1863) 14 CB(N.S.) 180, at p 194). The true intention of the legislature is thus ascertained. When the legislature creates certain powers, the courts presume that the legislature intends the principles of natural justice to be observed in their exercise in the absence of a clear contrary intention (cf. Twist v. Randwick Municipal Counci [1976] HCA 58; (1976) 136 CLR 106, at pp 110,112-113, 118; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, at pp 491,498-499). The presumption may apply to powers classified as legislative or administrative as well as to powers classified as quasi-judicial (Bread Manufacturers of N.S.W. v. Evans (1981) 56 ALJR 89, at p 94;).’6 Re HK (An Infant); Annetts v McCann; Haoucher. In Haoucher, Deane J stated that ‘Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to 'the particular statutory framework' (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just.’

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Interests include inter alia ; personal liberty,7 status,8 preservation of livelihood,9 employment if there is something required to dismiss the person,10 (NB: public service is at

pleasure, so NJ not implied, but note effect of the Fair Work Act, and state public sector legislation: Public Service Board of NSW v Osmond)

reputation,11 proprietary rights to land,12 licences,13 membership of clubs14 and legitimate expectations.15 (meaning reasonable expectations Cf Kioa v West)

Legitimate expectation casesIt is not always clear what is a legitimate expectation16 since the expectation must be reasonable and not a mere hope.17 Also, where an interest or right already infers to a duty to act fairly it would seem legitimate expectation is unnecessary although it provides a useful tool to expand the scope of procedural fairness.18

A reasonable expectation can arise from: a promise or undertaking,19 a recommendation,20 an established practice,21 a renewal of interest,22 preservation of an established liberty or interest,23 meets legislative criteria,24 satisfying that standard administrative procedure will be followed25 and allowing a discretion on conformity with a treaty.26

7 Kioa v West (1985) 159 CLR 550.8 Ibid.9 Ibid.10 Ridge v Baldwin11 Kioa v West (1985) 159 CLR 550; Annetts v McCann (1990) 170 CLR 596; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Johns v Australian Securities Commission (1993) 178 CLR 408.12 Cooper v Board of Works for the Wandsworth District (1863) 14 CBNS 180.13 Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222; James v Pope [1931] SASR 441; Nakkuda Ali v MF de Jayaratne [1951] AC 66; FAI Insurances v Winneke Cf R v Metropolitan Police Commissioner; Ex parte Parker [1953] 1 WLR 1150.14 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.15 Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149; Heatley v Tasmanian Racing Commission (1977) 137 CLR 487; FAI Insurances Ltd v Winneke; Fire and All Risks Insurance Co Ltd v Winneke (1981) 151 CLR 342; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Minister for Immigration and Ethic Affairs v Teoh (1995) 183 CLR 273; Kioa v West (1985) 159 CLR 550 but see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam Cf Salemi v Mackellar (No. 2) (1977) 137 CLR 396.16 Esparraga, Francisco and Ian Ellis-Jones, Administrative Law Guidebook (Oxford University Press, 1st ed, 2001), 70.17 Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648.18 Esparraga, Francisco and Ian Ellis-Jones, Administrative Law Guidebook (Oxford University Press, 1st ed, 2001) 71.19 Salami v MacKellar (No 2) (1977) 137 CLR 396.20 South Australia v O’Shea (1987) 163 CLR 161.21 AG v for the State of NSW v Quin (1990) 170 CLR 1.22 Fai Insurance Ltd v Winneke (1982) 151 CLR 342.23 Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648.24 Green v Damiels (1977) 13 ALR 1.25 Kioa v West (1985) 159 CLR 550.26 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

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Promises/representations: Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; Kioa v West (1985) 159 CLR 550; Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374; Cole v Cunningham (1982) 151 CLR 342; Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648 Conventions: Minister for Immigration &Ethnic Affairs v Teoh But see Re Minister for Immigration & Multicultural Affairs; Ex parte Lam

What does fairness require?"What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting" (Kioa v West per Mason J)

The grundnorms of the doctrine of natural justice or in contemporary sense ‘procedural fairness’27 can be described by two rules; (i) the hearing rule28 and (ii) the bias rule.29

(i) Hearing rule

The right to a fair hearing.

Content of procedural fairnessEssential

Adequate notice of potentially adverse decision affecting rights, interests or legitimate expectations; (Kanda v Government of Malaya; Re Macquarie University; Ex parte Ong); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah; Bond v ABT (No 2); NCSC v. News Corporation Ltd)

Disclosure of adverse material that is credible, relevant and material (Bond v ABT (no 2)) access to materials (Such as knowing the allegations, see Kanda v Government of Malaya

[1962] AC 322 337-8 (notice of adverse material), Re Macquarie University; Ex parte Ong (1989) 17 NSWLR 113 (notice of allegations); disclosure of adverse materials (see Kanda v Government of Malaya [1962] AC 322)

Probative evidence (ABT v. Bond; Re Pochi and Minister for Immigration and Ethnic Affairs; R v War Pensions Entitlement Appeal Tribunal and Another; Ex Parte Bott)

Varying aspects which depend on the nature of the administrative proceedings and the interests affected by them:

Oral hearing or just written submissions (Heatley v. Tasmanian Racing & Gaming Commission; White v Ryde Municipal Council; Chen v Minister for Immigration and Ethnic Affairs)

Right to call witnesses Right to cross-examine adverse witnesses (O'Rourke v. Miller; Russell v Duke of Norfolk;

NCSC v. News Corporation Ltd) Right to legal representation (Cains v. Jenkins; Krstic v Telecom; NSW v. Canellis) Interpreter (Cains v. Jenkins; Krstic v Telecom; NSW v. Canellis)

Exclusion of procedural fairness

27 The language of the Courts suggests that ‘procedural fairness’ provides a better description of the doctrinal requirements than ‘natural justice’.28 Cooper v Wandsworth Board of Works (1863) 14 CBNS 180; Twist v Randwick Municipal Council (1976) 136 CLR 342; Kioa v West (1985) 159 CLR 550. The right to a hearing may vary from the right to make written submissions to a full blown court hearing (see Kioa v West (1985) 159 CLR 550).29 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759.

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The duty to provide procedural fairness does not arise in respect of (i) policy and rule making decisions which affect large numbers of people (polycentric decisions),30 (ii) if limited or excluded by statute,31 (iii) to exercise the power of arrest32 (iv) involve a preliminary decision33 or (v) where disclosure of information would not be in the public interest.34

Exclusion by statuteSince natural justice is a fundamental common law right, the parliament may exclude procedural fairness by plain words of necessary intendment (Kioa v West; Ex parte Miah; Cooper v Wandsworth Board of Works)

National securityCouncil of Civil Service Unions v Minister for Civil Service (GCHQ case); Coutts v Commonwealth

Urgency/emergencyMarine Hull & Liability Insurance Co Ltd v Hurford; Commissioner of Police v Tanos; Heatley v Tasmanian Racing Commission

Multi-stage administrative processesThe obligation to afford procedural fairness may be satisfied by a hearing before a body not having final decision making power (State of South Australia v O'Shea)

investigative inquiries: Bond v ABT (No 2)

Provided that no fresh material is taken into account at the second stage, procedural fairness will not be implied in relation to the second stage decision (State of South Australia v O'Shea; Haoucher v Minister for Immigration and Ethic Affairs). The final decision-maker is under a duty to take any recommendation into account (Minister for Immigration and Ethnic Affairs v Pochi; Haoucher v Minister for Immigration and Ethic Affairs)

Disclosure of informationWith respect to disclosure, the decision in Kioa v West35 left open the possibility that confidential disclosure may be treated differently. Two cases demonstrate that procedural fairness may be devoid of any content where confidentiality must be maintained; Leghale v Director General of Security36 and Nicopoulos v Commissioner of Corrective Services.37 In these cases, non-disclosure of information to the affected party was considered to be in the public interest because of an ASIO assessment in respect of national security concerns and the desirability of ensuring the confidentiality of the individuals who

30 Ridge v Baldwin [1964] AC 40; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Peninsula Anglican Boys’ School v Ryan (1985) 7 FCR 415; Harvey v Minister Administering Water Management Act 2000 (2008) 160 LGERA 50.31 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Shaw v Minister for Families, Housing, Community Services and Indigeous Affairs (2009) 181 FCR 201. 32 Francis v Attorney-General (Qld) [2008] QSC 62; Nguyen v Critchlow [2000] NSWSC 1145.33 Less likely to attached procedural fairness where they are advisory in nature. Can argue it directly involves affecting their individual rights. See Testros Bros P2L v Tait (1963) 109 CLR 353.34 Edelsten v Federal Commissioner of Taxation (1989) 85 ALR 226; Ridge v Baldwin [1964] AC 40; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; South Australia v O’Shea (1987) 163 CLR 378.35 (1985) 159 CLR 550.36 [2007] FCAFC 37.37 [2004] NSWSC 562.

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provided evidence respectively.38 Neither case was cited by the High Court in VEAL v Minister for Immigration and Indigenous Affairs39 which applied Kioa v West.40

The High Court confirmed the necessity of disclosure of the contents of the letter, even in circumstances involving confidentiality (VEAL v Minister for Immigration and Indigenous Affairs).

Can an appeal right cure an earlier breach?It has been queried whether the availability of a fair, independent avenue of merits review has the effect of foreclosing judicial review of an earlier breach of procedural fairness by the primary decision-maker. In Queensland Newsagents Federation v Trade Practices Commission,41 Spender J considered that two cases were legal authority for the proposition that the provision for a de novo appeal was an indication that the right of appeal was the only remedy, therefore judicial review was excluded.42

In Miah McHugh J cited Twist v Randwick Municipal Council43 as supportive of the principle that ‘there is no general rule that a right of appeal or review necessarily denies or limits the application of the rules of natural justice’. McHugh J advanced the general proposition that the ‘presence or absence of certain factors can often be relevant in determining whether such a right does exclude or limit the rules of natural justice.’ No attempt was made however to develop unifying principles which would clarify the common law position in Australia.

The High Court’s acquiescence on the issue of whether an appeal right may cure a breach of procedural fairness only serves to highlight the need for the common law to continue to develop the principles on a case by case basis. Lord Reid famously stated in Ridge v Baldwin44 that ‘[w]e do not have a developed system of administrative law.’. Procedural fairness has been recognised in cases dating back to 184045 and it was recognised in 1911 as requiring a duty to ‘fairly listen to both sides’.46

It is notable that McHugh J’s principles as set out in Miah do not give any consideration to (i) the desirability of the person seeking merits review to enjoy procedural fairness in the first instance for the purposes of efficiency in decision-making, (ii) the inconvenience and delay caused by a further appeal47 (iii) the continued benefit of informality at a further hearing48 and (iv) the minimisation of costs whether in respect of the system of decision-making or when considered from the perspective of the person seeking merits review.49 The judiciary’s ignorance that such matters could be a factor which suggests strongly that the common law principles are not settled, or it may simply mean that procedural fairness must maintain its chameleon-like character to ensure flexibility and adaptability of the common law to the various decisions which must be made by governments.

38 See also Chu v Minister for Immigration & Ethic Affairs (997) 78 FCR 314; Maritime Union of Australia v Geraldton Port Authority [1999] FCA 151.39 (2005) 225 CLR 88 (‘VEAL’).40 (1985) 159 CLR 550.41 (1993) 118 ALR 527.42 Calvin v Carr; R v Marks (1981) 147 CLR 471.43 (1976) 136 CLR 106.44 [1964] AC 40.45 Burder v Varley (1840) 12 Ad & E 233.46 Board of Education v Rice [1911] AC 179.47 Courtney v Peters (1990) 27 FCR 404.48 J McMillan, ‘Natural Justice: too much, too little or just right?’ (2007) 58 AIAL Forum 33. http://www.ombudsman.gov.au/pages/publications-and-media/speeches-and-presentations/speech-2007-august.php at 23 April 2011.49 Burder v Varley (1840) 12 Ad & E 233; Courtney v Peters (1990) 27 FCR 404.

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(ii) Bias rule

A person may not be judge in his/her own cause.

Actual biasActual bias is available only if the decision-maker’s mind is closed and not open to persuasion.

No direct interest, see Dimes v Grand Junction Canal (1852) 3 HLC 759. Although in Australia a direct pecuniary interest falls within the “reasonable apprehension of bias” grounds. See Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Group (2000) 176 ALR 644.;

Apparent biasThe rule against ‘apparent’ bias concerns whether anything said or done has given rise to a reasonable apprehension of bias (ie objective test).

personal relationships: R v Cavitt; Ex parte Rosenfield (1985) 33 NTR 29, involved in the decision making,

Association with party or Counsel: Kartinyeri v The Comonwealth; Re Polites; Ex parte Hoyts Corporation Pty Ltd

accuser taking part in adjudication: Stollery v Greyhound Racing Control Board; Re Macquarie University; Ex parte Ong

prejudgment on the issue: Re Maurice; Ex parte AG (NT) (1987) 17 FCR 422; Livesey v NSW Bar Association; Koppen v Commissioner for Community Relations; Keating v Morris; Leck v Morris [2005] QSC 243 but, the expression of a tentative view of a matter will not of itself give rise to a reasonable

apprehension of bias: Johnson v Johnson; Vakauta v Kelly; Livesey v NSW Bar Association; Minister for Immigration and Multicultural Affairs v Jia

TestThe test for apparent bias is whether an informed and ‘fair-minded lay observer might reasonably apprehend’ that the decision-maker ‘might not bring an impartial mind’ to the decision to be made.: R v Commonwealth Concilliation and Arbitration Commission; Ex parte Angliss Group; Livesey v NSW Bar Association; Webb v R; Johnson v Johnson

Inquiry: Keating v Morris; Leck v Morris [2005] QSC 243

Test distinction in the UKThe UK test relies on a suspicion of bias and is therefore a subjective test.

Application to ordinary administrators and MinistersThe bias rules are applied less rigorously to ordinary administrators (as compared with courts and quasi-judicial tribunals):

Century Metals and Mining NL v Yeomans (1989) 100 ALR 383

And even less rigorously for Ministers (due to policy/political role): Minister for Immigration, Local Government & Ethnic Affairs v Mok Gek Buoy (1994) 127

ALR 223 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507.

Implied waiverIf the objection is not taken promptly after the reasonable apprehension of bias becomes apparent, this may be an implied waiver: Vakuata v Kelly

Doctrine of necessityThe doctrine of necessity may require that a decision taken is not tainted by bias where:

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the particular statutory scheme gives rise to an inevitable, inherent prejudgment (Builders Registration Board v. Rauber);

no decision-maker is available to hear the matter because they are all are tainted by a reasonable apprehension of bias (see generally Laws v Australian Broadcasting Tribunal where it was held there is no institutional bias);

if a key witness is unavailable, or if the expense of re-conducting the hearing makes it prohibitive to do so (see Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group (2000) 176 ALR 644 considered above).

(iii) Jurisdictional errors in natural justice

After the decision in Plaintiff S157, the following errors have been held to constitute such a jurisdictional error (the list is not exhaustive): (Xiang v Minister for Immigration and Multicultural and Indigenous Affairs)

1. denial of legal representation; WABZ v Minister for Immigration and Multicultural and Indigenous Affairs

2. ostensible bias; Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs

3. actual bias; NAQS v Minister for Immigration and Multicultural and Indigenous Affairs4. illogicality; Minister for Immigration and Citizenship v SZMDS5. delay; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs and6. failure to comply with procedural requirements.: Minister for Immigration and Citizenship v

SZMDS; SAAP v Minister for Immigration & Multicultural Affairs (2005) 79 ALJR 1009

Effect of minor breach of the hearing rule Stead v State Government Insurance Commission (1986) 161 CLR 141 (though dealt with

appeal rather than judicial review); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (difference of judicial opinion

on whether a minor breach of procedural fairness that could not have affected the outcome of the administrative decision would invalidate the decision/constitute jurisdictional error);

SAAP v Minister for Immigration & Multicultural Affairs (2005) 79 ALJR 1009.

However, it will very rarely be the case that the court could be sure that the decision would not have been affected had natural justice been afforded.

Jurisdictional errorSee preliminary matters.

Error of law on the face of the recordA non-jurisdictional error of law on the face of the record is subject to judicial review (Craig v South Australia; Ex parte Bone; Robins and Shire of Greenough)

The recordthe record normally only includes the initiating process and recording of the substantive decision (e.g. “application dismissed” but not the reasons) (Craig v South Australia; Hockey v Yelland), unless the record incorporates information by reference (Craig v South Australia; Public Service Board of NSW v Osmond)

reference only to extent to make sense (Craig v SA) can’t be an incidental or accidental reference (Craig v SA)

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Intra-jurisdictional errorsSee above

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5.ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977

Errors of law – cause of action

Error of law ADJR Section5 – decision (must be past)6 – engaged in conduct for the purpose of making a decision (conduct can be in the future)

Cases

Error of law 5(1)(f) and 6(1)(f)Simple ultra vires 5(1)(d) and 6(1)(d)Ultra vires uncertainty 5(2)(h) and 6(2)(h)Procedural unfairness 5(1)(b) and 6(1)(b)

Broad ultra vires groundsImproper purpose 5(2)(c) and 6(2)(c) R v TooheyBad faith 5(2)(d)Relevant & Irrelevant considerations

Rel - 5(2)(a) and 6(2)(a)Irr - 5(2)(b) and 6(2)(b)

Peko-Wallsend; Tickner; Hindi v DIMA

No evidence 5(1)(h) BondIrrational fact finding as extended no evidence ground

Not within 5(1)(h) or 5(3)

Unreasonableness & irrationality 5(2)(g) and 6(2)(g) S20/2002; Eshetu; Prasad v DIMIA; Tickner v Bropho

Unlawful sub-delegation 5(1)(c);5(1)(d) and 6(1)(c);6(1)(d)

Acting under dictation / Behest of another person

5(2)(e) and 6(2)(e)

Inflexible application of policy / uncertainty

5(1)(e);5(2)(f) and 6(1)(e);6(2)(f)

Green v Daniels; Hindi v DIMA

Other groundsJurisdictional fact doctrine 5(1)(h);5(3) and 6(1)(h);6(3)(a)Jurisdictional error 5(1)(c)Non-jurisdictional error on the face of the record

5(1)(f) or 6(1)(f)

Breach of natural justice 5(1)(a)Exercise of delegated law making power

Not a decision of an administrative character

StandingA person aggrieved

CourtFCA. FMC – Order for review of a decision

Statement of reasonsAt common law, there is no right to obtain the reasons for a decision (Public Service Board of NSW vOsmond)

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ADJR Act s 13 – can be used to obtain reasons for a decision free of any fees before commencing an application for judicial review (Secretary, Department of Foreign Affairs and Trade v Boswell)

see also AAT Act s 28

Requirements‘Decision’ – administrative capacity that is substantive, final and operative (Bond)‘Conduct’ – Capacity preceding a decision that reveals a flawed process (Bond)

In this section, decision to which this section applies means a decision that is a decision to which this Act applies, but does not include:(a) a decision in relation to which section 28 of the Administrative Appeals Tribunal Act 1975 applies;(b) a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision; or(c) a decision included in any of the classes of decision set out in Schedule 2.

Any person entitled under section 5 ... may by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

Time limit for applications 13(5) A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and furnish the statement if:(a) in the case of a decision the terms of which were recorded in writing and set out in a document that was furnished to the person who made the request—the request was not made on or before the twenty-eighth day after the day on which that document was so furnished; or(b) in any other case—the request was not made within a reasonable time after the decision was made;

Time limit for responses 13(2) – within 28 days

The applicant has a further 28 days from the making of the request for a statement of reasons to commence Federal Court proceedings under the ADJR Act.

Failure to provide reasons under s 13A substantial failure of a decision-maker to state reasons for a decision, where the legislation under which the decision is made requires reasons to be given, constitutes an error of law (Dornan v Riordan)

Excluded decisions under schedule 2Schedule 2 excludes:3(1) personnel decisions in relation to the Australian Public Service (redress of grievances and personnelmanagement of members of the Defence Force, personnel management, promotions, transfers,appointments, and settlement of industrial disputes in the Australian Public Service and the AustralianFederal Police, decisions of certain remuneration tribunals, appointment of Parliamentary staff andconsultants);4(2) certain decisions of the Commonwealth Employment Service in relation to reference of particularclients to particular employers;5(3) decisions under consular and diplomatic legislation;6

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(4) some decisions under the (CTH) Migration Act 1958 (including, for example, decisions in connection with the issue or cancellation of visas);7(5) some decisions under the (CTH) National Security Information (Criminal and Civil Proceedings) Act 2004 (including, for example, decisions in connection with the issuing of civil proceeding certificates by the Attorney-General preventing the disclosure of certain information);8(6) decisions relating to the administration of criminal justice;9(7) decisions under the (CTH) Law Enforcement Integrity Commissioner Act 2006 that are in connection with a corruption investigation or in connection with a public inquiry;10(8) decisions under the (CTH) Australian Crime Commission Act 2002 in connection with intelligenceoperations or in connection with the investigations of State offences that have a federal aspect;11(9) decisions in connection with the institution or conduct of proceedings in a civil court;12(10) certain high-level decisions relating to the granting of funds, finance, auditing, banking and decisions relating to the enforcement of court orders for the recovery of money;13(11) commercial decisions of specified government business enterprises;14 and(12) certain decisions under the (CTH) Civil Aviation Act 1988.15

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Remedies – only discuss remedies if the question specifically asks

Federal court powers - Section 39B of the Judiciary Act 1903

The Court in its discretion should grant a remedy.

Prerogative remedies

Mandamus. Enforce the performance of a public duty where there has been actual or constructive failure to perform the duty or exercise of a jurisdiction (R v War Pensions Entitlement appeal Tribunal; Ex parte Bott)

Prohibition. An order to a decision-maker to refrain from exceeding its jurisdicton

Certiorari. Quashing order, depriving a decision of legal effect. The Crown is not immune (R v Toohey; Ex parte Northern Land Council)

Jurisdictional error may be quashed retrospectively (Re McBain; Ex parte Australian Catholic Bishops Conference)

Error committed with jurisdiction and is apparent on the face of the record, the error may be quashed with prospective effect (Re McBain; Ex parte Australian Catholic Bishops Conference)

Other remedies

Injunction. May be prohibitory or mandatory. May be issued even in cases of non-jurisdictional error (Project Blue Sky v ABA)

Declaration. Used where a decision is invalid; an un-made decision would exceed jurisdiction and that a public duty should be performed

cannot be awarded in relation to a non-jurisdictional error of law on the face of the record (Punton v Ministry of Pensions and National Insurance (No 2))

a declaration does not quash a decision and it its not coercive.

Habeas corpus.

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6. KEY PRINCIPLES IN JUDICIAL REVIEW

Separation of powers doctrineJudicial power of the Commonwealth must be vested in a Chapter III court, including a state court exercising federal jurisdiction (Boilermaker’s case).

courts only review the legality of administrative decisions weight given to primary evidence by administrator cannot be interfered with by a court merits/law distinction – but note the grounds of relevant/irrelevant considerations, Wednesbury

unreasonableness, jurisdictional fact doctrine and no evidence. doctrine of ministerial responsibility

Rule of law

The exercise of power by administrators, including the State (or Crown), ministers, departmental officials, tribunals, boards, commissions (and so on), must be based upon legal authority (Entick v Carrington).

The source of that legal authority may be statute or the common law, which includes prerogative power.

The ambit of jurisdiction, or power, exercised by administrators may be interpreted by those administrators themselves, by tribunals and by courts. The courts have final authority to determine the scope of administrators' power.

Doctrine of ministerial responsibilityUnder the doctrine of ministerial responsibility, ministers are responsible not only for the implementation of Cabinet decisions, but also for the proper functioning of departments and agencies for which they have responsibility, including receiving complaints about administrative decisions which may be made to them and other members of parliament.

However, the introduction of statutory reform and, probably, the development of the common law, owes much to a developing perception of the decline of ministerial responsibility (see Kerr Committee Report; R v Toohey; Ex parte Northern Land Council)

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7. NARROW/SUBSTANTIVE ULTRA VIRES

There are 3 possible findings: Project Blue Sky v ABA retrospective invalidity prospective unlawfulness; or validity

Whether invalid or unlawful, will depend on the statute.

But see Wattmaster – invalid/unlawful same

Timing of invalidity. Under the ADJR Act, usually ab initio ie date of the decision: Wattmaster Alco Pty Ltd v Button (see also Cooper, Park Oh Hoh, Bhardwaj, Re Kretchmer)

Invalid ab initio from date of court order some other date

C. Simple Ultra vires

At common law, administrative action must not be taken in excess of the grant of a statutory power: London City Council v Attorney-General

Incidental. Some administrative action may be within power as an activity incidental to or consequential upon the statutory grant of power: Attorney-General (UK) v Smethwick Corporation; Boral Resources (Qld) Pty Ltd v Johnstone Shire Council [1990] 2 Qd R 18

Cause of actionJudicial review at common lawADJR Act ss 5(1)(d); 6(1)(d)

CasesLondon City Council v Attorney-General – authorised for trams, not buses.

(iv) Power to regulate

In Australia, a power to regulate does not include a power to prohibit: Swan Hill Corporation v Bradbury Cf Boddington v British Transport Police

power to regulate supports complete prohibition of an activity only in the exceptional situation where the subject-matter of the power is something in itself evil or of a doubtful tendency

Whether a partial prohibition of an activity is ultra vires a power to regulate depends upon the matter to be regulated and the nature of the partial prohibition.

Delegated legislation made under a power to regulate may prescribe the time, place, manner, circumstance and conditions in which the activity may be pursued without being ultra vires.

A partial prohibition may be so wide that it is not regulation of the keeping of animals, as in the case of prohibition (subject to an unstructured discretion to make exceptions) of the keeping of two or three dogs (Conroy v Shire of Springvale and Noble Park [1959] VR 737.

CasesSwan Hill Corporation v Bradbury Boddington v British Transport Police

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(v) Power to prohibit

The making of delegated legislation, under a power ‘to prohibit’ is not ultra vires if the delegated legislation prohibits the activity absolutely: Foley v Padley (1984) 154 CLR 349 (Hare Krishnas handing out pamphlets in Adelaide's Rundle Street Mall)

under a power to prohibit, is not ultra vires if it prohibits the activity subject to a condition, such as a condition conferring a discretionary administrative power to consent to the activity, or to give dispensation from the prohibition.

Improper purpose. An exercise of a power to prohibit is ultra vires if it involves conferral of a discretionary administrative power, if the conferral was made for an improper purpose.

Reasonable opinion. If the exercise of a power to prohibit depends upon the administrator’s having formed the opinion that an activity is of a nature which warrants prohibition, the exercise of power may be ultra vires on the ground that the administrator could not reasonably have formed the opinion required by the empowering Act.

CasesFoley v Padley (1984) 154 CLR 349 (Hare Krishnas handing out pamphlets in Adelaide's Rundle Street Mall)

(vi)Necessary and convenient clauses

May use ‘necessary or convenient’ or ‘necessary or expedient’

An exercise of power under a ‘necessary and convenient’ clause is ultra vires if the delegated legislation or administrative action does not fall within the scope or operation of the Act: Shanahan v Scott (1957) 96 CLR 245

A ‘necessary and convenient’ clause included in a statute lays down only the main outline of provisions, leaving a wide ambit for completion by the administrator of details which are ancillary to the purposes of the Act: Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402.

The ambit of a ‘necessary and convenient’ clause is more confined when it is accompanied by express heads of subject matter. The Court construes the particular heads of power in order to determine whether the administrative action or delegated legislation is supported by them: Utah Construction & Engineering Pty Ltd v Pataky [1966] AC 629 There must be a real and substantial connection between the delegated legislation and the

subject matter of the grant of the power: Minister of State for Resources v Dover Fisheries Pty Ltd

A ‘necessary and convenient’ clause is unlikely to support an exercise of power invading a fundamental common law right which is not otherwise unambiguously overridden in the empowering Act (see below for fundamental common law rights).: Anthony Lagoon Station Pty Ltd v Aboriginal Land Cmr (1986) 13 FCR 262

A conferral of power in terms of the ‘necessary or expedient’ clause is a conferral of power which is strictly ancillary to the purposes of the Act as a whole.

Cases

Shanahan v Scott

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‘such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary [subordinate]. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental tot he execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.’

Morton v Union Steamship Co of New Zealand Ltd In Moreton the clause read "all matters ... as may be necessary or convenient to be prescribed for giving effect to this Act or for the conduct of any business relating to the Excise".

(vii) Proportionality

The concept of proportionality as a judicial review ground was introduced from European civil law. It was first adopted (or at least canvassed) by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service ("the GCHQ Case") [1985] AC 374 at 410.

In construing the empowering Act, for the purpose of ascertaining the scope of a power to prohibit, the delegated legislation must be found to be reasonably proportional (i.e. appropriate and adapted) to the end to be achieved by the delegated law making power. See South Australia v Tanner (1989) 166 CLR 161 (development proposal including small aviary in water catchment for Adelaide's water supply - regulation prohibiting "piggery, zoo or feedlot" within catchment area - majority held that the regulation was not so obviously inexpedient ot lacking in reasonable proportionality with the purpose of the power as to be ultra vires). However, as a result of the High Court's decisions in Cunliffe v Commonwealth (1994) 182 CLR 272 and Leask v Commonwealth (1996) 140 ALR 1 it now appears that "proportionality" has only very limited applicability as a general ground of administrative review, although note that both Leask and Cunliffe dealt with the use of proportionality in a constitutional law context (i.e. they concerned the validity of laws enacted by the Parliament rather than delegated legislation made by the Executive). It will only be permissible to examine whether delegated legislation is "reasonably proportional" or "appropriate and adapted" to a head of legislative power where the head of power itself is expressly purposive. Otherwise, the High Court said, the use of a general test of proportionality has a tendency to draw the court into the impermissible areas of policy and value judgments and review of the merits of a decision. Spigelman CJ expressed the view in Bruce v Cole (1998) 45 NSWLR 163 at 185 that proportionality had a proper place in constitutional law and in challenges to subordinate legislation, but had not otherwise become a ground of judicial review in its own right. On the other hand, Margaret Allars has suggested that gross disproportionality may be regarded as a recognisable subset of Wednesbury unreasonableness (see Allars text at 9.8.8). This topic will be dealt with in a later lecture.

(viii) Uncertainty

The power will be ultra vires because it is not well exercised, in the sense that it leaves undecided some matter of estimation, assessment, discretionary allocation or apportionment requiring judgment or further determination: King Gee Clothing Co Pty Ltd v Commonwealth

At common law administrative action is ultra vires if there is no proper exercise of a statutory power because the exercise of power is uncertain. Although this ground of review may arise in relation to any administrative action, it tends to occur in connection with more formal exercises of power, such as the making of delegated legislation, or the grant of licences or permissions. The making of delegated legislation not being reviewable under the ADJR Act (because it is not a decision of an administrative

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character), many of the cases arising at general law relating to uncertainty could not arise under that Act. Nevertheless, to the extent that it can apply to administrative decisions, this ground of review is reflected in the ADJR Act sections 5(2)(h) and 6(2)(h).

Courts attempt to construe delegated legislation, licences, and so on, so as to avoid ambiguity, giving them a sensible meaning in order that they are intra vires (i.e. within power). See Television Corp Ltd v Commonwealth (1963) 109 CLR 59 (broad, general TV licence condition forbidding broadcast licensees from obstructing, interfering etc with other licensees). If the court cannot place a sensible meaning upon the words used by the administrator, then the court turns to consider whether the administrative instrument or delegated legislation is invalid for uncertainty in its operation. The power will be ultra vires because it is not well exercised, in the sense that it leaves undecided some matter of estimation, assessment, discretionary allocation or apportionment requiring judgment or further determination. See King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 (wartime price control orders made pursuant to regulations were held insufficiently specific/uncertain, and therefore ultra vires the regulations). A power to fix prices is exercised properly only if the delegated law-maker either states the price expressly or fixes a certain, objective standard or formula which can be applied mechanically.

Note, however, that a degree of uncertainty or imprecision may be inherent in the subject matter of the regulations. Thus, in Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598at [111]-[135], the Court held that, despite a common law requirement of certainty, major development proposals needing Environmental Impact Statements were of necessity somewhat open-ended, although their overall nature needed to be clearly ascertainable.

(ix) Statutory interpretation

The presumption is that the law is valid and the burden is on the defendant on a balance of probabilities to establish that the law is invalid: Boddington v British Transport Police

You must look at the statutory context to determine by statutory interpretation the meaning of the clause: Boddington v British Transport Police

Acts Interpretation Acts 15AB

(x) Rebuttable presumptions

No member of the executive can interfere with the liberty or property of a British subject except on condition that he can support the legality of his action before a court of justice: Eshugbayi Eleko v Government of Nigeria

An Act of parliament can override or abolish fundamental common law rights, however the intention of the statute must be express or utterly unambiguous, otherwise courts will interpret general words so that they are subject to a qualification, which will avoid infringement of such rights: Re Bolton; Ex parte Beane (1987) 162 CLR 514

The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose: Coco v R; Plaintiff S157/2000 v Cth

An administrative decision may be ultra vires if there is an infringement of fundamental rights: Coco v R; Bropho v WA

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Fundamental common law rightsPresumption that statutes are not intended to derogate from common law rights

Right to freedom of contract: Mixnam’s Properties Ltd v Chertsey Urban District Council; hayes v Cable

Right to freedom of speech: Davis v Cth; Evans v New South Wales; Watson v Marshall Freedom of opinion and expression: Brown v Classification Review Board; Art 19 of the

International Covenant on Civil and Political Rights (ICCPR); Attorney-General v Guardian Newspapers Ltd [1990] 1 AC 109

Implied constitutional freedom of political communication: Lange v Australian Broadcasting. Qualifications apply to the implied constitutional freedom of communication with respect to public affairs and political discussion. The freedom is not absolute and must remain limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution: Brown v classification Review Board

Right to liberty: Park Oh Ho v Minister for Immigration and Ethic Affairs; Watson v Marshall Freedom of assembly: Melbourne Corporation v Barry Interference with enjoyment of property rights: Ex parte Fitzpatrick right to preservation of private property: Anthony Lagoon Station Pty Ltd v Aboriginal Land

Commissioner (1986) 13 FCR 262 Presumption against retrospectivity: Maxwell v Murphy legal professional privilege: Baker v Campbell (1983) 153 CLR 52 privilege against self-incrimination: Controlled Consultants P/L v Commissioner for Corporate

Affairs (1985) 156 CLR 385 Procedural fairness: Kioa v West (1985) 159 CLR 550 A person who has a statutory right has a common law right to appoint an agent to exercise that

right: Registrar of Aboriginal Corporations v Baker (1997) 81 FCR 53; Christie v Permewan, Wright Co Ltd

right to carry on one’s own business: Cth v Progress Advertising and Press agency co Pty Ltd manner of carrying on one’s business: Committee of direction of fruit marketing v Collins preparation of goods for sale and selling them: Mudginberri station P/L v Langhorne legal representation: Bell v Australian Securities Commission Navigation of a navigable river: Fergusson v Union Steamship Co of New Zealand Ltd hearing before dismissal from office: Gladstone v Armstrong disposing of an interest in a lease: American Dairy Queen (Qld) P/L v Blue Rio P/L subleasing of land: Re Shearer rights to ground water: Rashleigh v EPA excluding others from entry onto premises: Coco v R Trial by jury: Tassell v Hayes Challenging detention in custody: Papzoglou v Republic of Phillipines Deportation: Minister for Immigration and Ethic Affairs v Sciascia Refusing a blood test: O’Brien v Gillies establishing random breath testing sites: R v Kola

International law normsPresumption that statutes are to be interpreted in a manner which minimises the discrepancy between domestic and international law presumption that legislation is not intended to violate international law or international treaty

obligations if instrument is ratified and incorporated in domestic law, Administrators are under a duty to take

into account those rights, including human rights

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Text

Finally, it is necessary to mention briefly a ground of review which is expressed in the ADJR Act as involving ‘an exercise of a power in such a way that the result of the exercise of the power is uncertain’. There is some uncertainty over whether this basis for review is also recognised at common law. But even if it is not, it is accepted that particular statutes may give rise to an implication that a degree of certainty in decision-making is required. The ground of review is not made out merely because delegated legislation, a licence or the effect of a determination is unclear or not immediately obvious; courts will in most cases be able to construe such words in a way which will avoid ambiguity. However, in some circumstances, a determination may be so vague or unclear that it fails to give the level of guidance demanded by legislation. For example, a prices order which is intended to ‘fix’ prices will be invalid if it fails to provide an objective standard by which prices are to be determined.

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D. Procedural ultra vires

Procedural ultra vires occurs where a statutory provision indicates that a power is to be exercised in accordance with a certain procedure (e.g. by being done within a time limit, taking specified matters into account, conducting an inquiry, giving notice, or consulting particular persons or groups.) Failure to comply with such a statutory procedural requirement may amount to procedural ultra vires at common law.

When is a statutory procedure required by law to be observed? Traditionally, whether the administrative action is ultra vires and hence invalid has been said to depend upon the question whether the procedure was mandatory or directory. If it is only a directory procedure, non-compliance may not result in invalidity.

Directory. A directory procedure must be complied with substantially (Scurr v Brisbane City Council) unless the statute requires strict compliance (Hunter Resources v Melville).

Hunter Resources Ltd v Melville (1988) 164 CLR 234 is an example of a case where the statutory language left no room for an interpretation that substantial compliance was enough: only strict compliance could meet the highly specific statutory requirement in relation distance between mining pegs.

Mandatory/directory distinction unhelpful

Test. The modern test (Project Blue Sky) - Whether as a matter of construction of the language, scope and object of the statute, Parliament intended that non-compliance with the procedure would result in invalidity of the action.

In Project Blue Sky, the Court held that the ABA had breached a legislative requirement to act in accordance with international agreements to which Australia was a party, by promulgating TV licence conditions containing minimum Australian content requirements. The agreement required Australia to grant commercial access to New Zealand businesses on terms no less favourable than those applying to Australians.

However, the Court held that the Act did not evince an intention that such a breach should result in [retrospective] invalidity of the decision (and thus potentially of all Australian TV station licences).

the Court granted only declaratory relief but indicated that Project Blue Sky could return to the Court for injunctive relief if the ABA did not act promptly to remedy the breach by promulgating licence conditions which did not discriminate against New Zealanders.

Cause of actionADJR. The ADJR Act grounds corresponding to procedural ultra vires at common law are sections 5(1)b)and 6(1)(b). See Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 for the operation of procedural ultra vires in an ADJR context.

Degree of non-complianceSome statutes are so unambiguous, as to procedural requirements applying to an area of administrative decision making, that it is clear when a procedural defect occurs: Norvill v Chapman (Hindmarsh Island case) (1995) 133 ALR 226 , where section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) required the Minister to consider both a report and representations concerning the heritage value of certain land.

In an ADJR context, section 5(1)(b) clearly applies to a particular case where the statute makes the observance of a particular procedure an express condition precedent to the taking of a particular

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decision. See Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 77 ALR 577 (where the obligation to give reasons for decision under the Broadcasting Act was held not to be a condition precedent to the making of the decision).

Construction of each statute depends on its particular provisions and the object of the statute as a whole. Some general principles of statutory interpretation tend to be frequently relied upon by the courts in construing statutory procedures. For example, the courts are reluctant to construe legislation in such a way that its effectiveness would be materially restricted.

The presence or absence of strong penalty provisions for breach may also be relevant to the question of whether invalidity is intended to result from non-compliance. Finally, note that when judges speak of a legislative intention, they mean the objective intention to be derived from the words of the statute themselves, not the subjective intention of the members of parliament (most of whom will have no particular intention at all other than to vote the way their Party Whip tells them to). Nevertheless, it is permissible for the court to have regard to Hansard debates to assist in determining Parliamentary intention if a provision is ambiguous.

Finally, the distinction between procedural and substantive error may sometimes be a fine one. As the House of Lords indicated in Boddington v British Transport Police [1998] 2 All ER 203 per Lord Steyn:

"A distinction between substantive and procedural invalidity will often be difficult or impossible to draw ... [T]he grounds of judicial review have blurred edges and tend to overlap ... thus the taking into account by a decision-maker of extraneous considerations is variously treated as substantive or procedural."

(xi) Notice

(xii) Consultation

(xiii) Time limits

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8. BROAD ULTRA VIRES GROUNDS

9. ABUSE OF POWER

E. Improper purpose

TestA statutory power must be exercised in accordance with purposes which are expressed to be the purposes of the Act in an objects clause. Thus, in Municipal Council of Sydney v Campbell [1925] AC 338 (land resumed in Sydney's Martin Place to defray the cost of road widening by reselling it at a profit), the relevant legislation stated that acquisition could only be for public purposes. When the purposes of the Act are not expressly stated (which will most often be the case), the court must construe the statute in order to determine which purposes are proper.

When the purposes of the statute are not expressly stated the court must construe the statute in order to determine which purposes are proper: R v Toohey; Ex parte Northern Land Council

Onus of proof At common law and under the ADJR Act a person challenging the exercise of a power on the basis of improper purpose bears the onus of establishing that issue.: Municipal Council of Sydney v Campbell

An improper purpose is not lightly to be inferred.: Haines v Annwrack Pty Ltd

If the purpose of a decision has to be ascertained by inference from other facts, a presumption of regularity operates.: Industrial Equity Ltd v DCT (1990) 170 CLR 649

In order that an order for discovery be made as an exception to a claim of legal professional privilege, for the purpose of providing evidence of improper purpose, there must be something to give colour to the charge, such as evidence of dishonesty, including trickery and sham contrivances. See Attorney-General (NT) v Kearney (1985) 158 CLR 500, which arose from the declaration by the NT Administrator of a huge area of land as part of the Darwin metropolitan area. It was alleged (and ultimately proven) that the decision was made for the improper purpose of frustrating the Kenbi (Cox peninsula) Aboriginal land claim.

The purpose of a decision-maker, such as an authority which consists of several individuals, is not normally ascertained by reference to the motives of individual members, unless those individuals have provided reports on behalf of the decision-maker.: Arthur Yates and Co Pty Ltd v Vegetable Seeds Committee

Although decisions of a legislative nature are not reviewable under the ADJR Act they are normally justiciable at general law. The making of delegated legislation (e.g. regulations, orders, by-laws) is reviewable at common law on the ground of improper purpose. It is immaterial that the decision-maker is a Governor or Governor-General or Queen’s representative. See R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 (the earlier stage of the Kenbi challenge).

Multiple purposesIf a decision is made for several purposes, not all of which are improper, an abuse of power occurs only if the improper purpose is ‘a substantial one in the sense that no attempt would have been made to exercise the power if it had not been for that purpose’. See Thompson v Randwick Municipal Council

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(1950) 81 CLR 87 (another land acquisition case, where only part of the land was genuinely required for road-widening). In some cases it appears that this test may have been replaced by a dominant purpose test e.g. Samrein Pty Ltd v Metropolitan Water Sewerage & Drainage Board (1982) 41 ALR 46 where the Water Board used its statutory acquisition power to acquire adjoining blocks to build an office tower in Sydney, only about half of which was needed to house its employees - the rest of the building was to be sold or rented for profit. However, because the improper or unauthorised purpose was said not to be dominant, the High Court said the decision was valid.

Text

This ground is described in the ADJR Act (ss 5(2)(c) and 6(2)(c)) in terms of ‘an exercise of a power for a purpose other than a purpose for which the power is conferred’. To make out this ground it must be established that the decision-maker acted for a purpose which is extraneous to (ie unauthorised by) statutory scheme. For example, a power to deport a person cannot be exercised for the purpose of ‘disguised extradition’. In another example, a power to make rules for town planning purposes could not be used to defeat an Aboriginal land claim. The oft-used word ‘improper’ does not apply that dishonesty or fraud is required, though decisions or rules will be invalidated if actual bad faith or fraud can be demonstrated.

A decision based on an unauthorised purpose may also be described as a decision which was made after the consideration of an irrelevant matter (ie the unauthorised purpose) – the test in both cases is whether the purpose or consideration is extraneous to the statute. If, however, the ground of unauthorised purpose is successfully established, it may often be practically difficult for the administrative decision-maker to remake the same decision. This is because unauthorised purpose is only available if the Court is satisfied that no attempt would have been made to exercise the power if ‘it had not been desired to achieve the unauthorised purpose’. Where the irrelevant considerations ground is argued, all that must be shown is that the irrelevant matter was considered.

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F. Bad faith

Elements of bad faith Bad faith arises where a power is exercised for corrupt or dishonest motives whichamount to male fides or a deliberately malicious or fraudulent purpose.: Roncarelli v Duplessis

The Federal Court of Australia has extracted from case authorities the following set of principles for establishing lack of good faith: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs(1) An allegation of bad faith is a serious matter involving personal fault on the part of the decisionmaker.(2) The allegation is not to be lightly made and must be clearly alleged and proved.(3) There are many ways in which bad faith can occur and it is not possible to give a comprehensivedefinition.(4) The presence or absence of honesty will often be crucial.(5) The circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.(6) Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism.(7) Errors of fact or law and illogicality will not demonstrate bad faith in the absence of othercircumstances which show capriciousness.(8) The Court must make a decision as to whether or not bad faith is shown by inference from what the a decision-maker has done or failed to do and from the extent to which the reasons disclose how thedecision-maker approached its task.(9) It is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.

Bad faith has been established where a council was dishonest in expressing an acquisition to be made for permissible purposes when it was previously made for improper purposes.: Municipal Council of Sydney v Campbell

An administrator was found to act in bad faith by exercising power for the purpose of defeating the statutory rights of indigenous people under land rights legislation.: R v Toohey; Ex parte Northern Land Council

Management of a prison may be conducted for malicious ends.: McEvoy v Lobban

Delegated legislation may be made with the object of harming an individual or presenting a pecuniary benefit to a particular individual rather than acting in the public interest.: Bailey v Conole

The applicant bears a heavy onus of establishing bad faith.: Municipal Council of Sydney v Campbell

Conscious maladministrationSee Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146

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10. IRRELEVANT AND RELEVANT CONSIDERATIONS

(xiv) Discretions

"A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so - he must generally exercise the discretion to do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably": Roberts v Hopwood (1925)

(xv) Relevant considerations

Study guide

Expressly enumerated considerations

Failure to comply with a statutory procedure may result in invalidity of the administrative action. Students will recall that this is an aspect of narrow ultra vires considered in the previous lecture. However, where the procedure is one which requires the decision-maker to take into account listed factors, review tends to occur under the broad ultra vires or ‘improper exercise of power’ head of failure to take into account relevant considerations, reflected in sections 5(2)(b) and 6(2)(b) of the ADJR Act. Similarly, in review at general law this type of error of law tends to be described as a failure to take into account relevant considerations rather than as narrow procedural ultra vires. Like Wednesbury unreasonableness, the "considerations" ground has the potential to be abused by activist judges, thereby blurring the legality/merits distinction. An early British example where such judicial abuse arguably occurred is Roberts v Hopwood [1925] AC 578. Note, however, that there are now major differences between English and Australian administrative law.

Considerations the decision-maker is bound to take into account

The ground of failure to take into account a relevant consideration is only made out if the decision-maker fails to take into account a consideration which he or she is bound to take into account in making the decision. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (which dealt with failure by the Minister to consider, on the issue of "detriment" under the Land Rights Act, material submitted by Peko concerning a mining lease situated within an area of under claim in the Kakadu region). The factors, which a decision-maker is bound to consider, are determined by construction of the statute in which the discretionary power is conferred. If the discretion is unconfined by the statute, the factors which may be taken into account are at large, except to the extent that they may be found in the subject matter, scope and purpose of the statute, which may impose some implied limitation on the factors to which the decision-maker may legitimately have regard.

Some considerations expressly stated

If the statute expressly states the considerations to be taken into account, it is often necessary for the court to construe the statute in order to determine whether the enumerated factors are exhaustive or merely inclusive (see Peko at CLR 39). This does not mean that

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an affected person is entitled to make an exhaustive list of every conceivable relevant consideration which the administrator ought to have taken into account and attack the decision on the ground that one of them was not specifically taken into account. Where relevant considerations are not specified in the statute, it is largely for the decision-maker, in the light of matter placed before him or her by the parties, to determine which matters she regards as relevant and their comparative importance. Although a tribunal may omit to list a particular statutory consideration in its determination or statement of reasons, under the ADJR Act section 13, a court need not infer that there was a failure to take that matter into account. In the case of a broad unstructured discretionary power, or where the factors enumerated in the statute are not exhaustive on a proper construction of the statute, then the court turns to the general test, regarding which considerations the decision-maker is bound to take into account, given the subject-matter, scope and purpose of the statute. Key aspects of relevant/irrelevant considerations ground in Peko (see CLR 39-42) Mason J identified the following 5 factors as crucial to proper application of the 'considerations' ground (the first two have already been discussed above): • The ground of failure to take into account irrelevant consideration can only be made out if a decision-maker fails to take into account the consideration which he is bound to take into account in making that decision. • What factors a decision-maker is bound to consider in making a decision is determined by construction of the statute conferring the discretion. If the statute expressly states considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. • Not every consideration that decision-maker is bound to take into account for fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. • The limited role of a court reviewing the exercise of administrative discretion must constantly be borne in mind. It is not a function of the court to substitute its own decision for that of the administrator by exercising a discretion which the Legislature has vested in the administrator. The court's role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned. • The above principles apply to an administrative decision made by a Minister of the Crown. But with a Minister, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion.

The above formulation is generally regarded as the definitive exposition of the principles governing the "considerations" ground. However, in addition to the above generally accepted approach, Mason J. also has the following to say at CLR 41: "I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground of which the system, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'." This statement by Mason J. is somewhat more controversial, as it arguably invites the court to intrude into the merits of the administrative decision. No doubt that was why Mason J suggested that this principle should generally be considered as an aspect of Wednesbury unreasonableness.

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The principles governing this review ground are perhaps more succinctly set out by Street CJ in Parramatta City Council v Hale (1982) 47 LGRA 319 at 335: "The law is clear that a provision such as section 90 (1) necessitates, as a precondition to the validity of the council's decision, consideration being given to such other matters listed therein as objectively are of relevance to the application. Secondly, if a council takes into account irrelevant considerations, that will vitiate the decision. Thirdly, if a council misdirects itself in law as to the scope or content of its statutory powers of duties, that, too, will vitiate the decision. All of these three grounds of invalidity have three points in common. In the first place, in each of them proof of the invalidity rests upon the challenger. In the second place, none will lead to invalidity unless it was a material error such as to justify the intervention of the court: it need not be shown to be of critical or decisive significance in the council's decision; on the other hand de minimis non curat lex." ....

Policy as a relevant consideration

A policy, adopted by a decision-maker in order to structure a broad discretionary power, will be a relevant consideration which the decision-maker is bound to take into account (Drake v Minister for Immigration and Ethnic Affairs 24 ALR 577). However, the policy must not be ultra vires the empowering Act. Thus, if the policy contravenes the Act, by pushing out of consideration a factor which is enumerated expressly by the Act, following the policy involves failing to take into account a relevant consideration. Although a policy is normally a relevant consideration, it need not be exhaustive of all relevant considerations which the decision-maker is bound to take into account.

Constructive knowledge and new material

As a general rule, a decision-maker must make decisions on the basis of material available at the time the decision is made. There may be found in the subject-matter, scope and purpose of nearly every statute conferring administrative power, an implication that the decision is to be made on the basis of the most current material available to the decision-maker (Peko at CLR 45). The decision-maker is, therefore, bound to take into account, as relevant considerations, submissions which correct, update or elucidate material previously received. Moreover, the decision-maker need not have actual knowledge of the additional material. Constructive knowledge, by reason of the submissions containing the material having been received within a minister’s department, is sufficient to indicate that the material was available, and it follows that if the material was relevant, as updating and elucidating other relevant material previously received, a failure to take it into account constitutes an error of law.

(xvi) Irrelevant considerations

In the case of a broad discretionary power it is clear, almost without exception, that corrupt or entirely personal and whimsical considerations, unconnected with proper governmental administration, are irrelevant considerations.: Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1

In the case of some statutes, however, it is not possible to infer from a construction of the statute any general criteria which limit the considerations to which the decision-maker may have regard, particularly in the case of broad ministerial discretions.: Minister for Aboriginal Affairs v Peko-Wallsend Ltd

Thus, an environmental report was not irrelevant to an exercise of power to relieve from a prohibition on the export of rutile.: Murphyores Inc Pty Ltd v Commonwealth

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Environmental considerations are not irrelevant in granting a woodchip licence.: Australian Conservation Foundation v Minister for Resources

The cost to revenue of providing a drug is not irrelevant to a determination regarding supply and pricing of brands of drugs.: ICI Australia Operations Pty Ltd v Blewett

A requirement made by the former Australian Broadcasting Tribunal that it be kept informed and receive an application well before time, in connection with an application for extension of time to remedy contravention of cross-media interests rules, was not irrelevant to the exercise of its powers.: Bond Corp Holdings Ltd v Australian Broadcasting Tribunal

The youth, inexperience, pregnancy and family difficulties of a public servant who had disclosed confidential information were not irrelevant to the question of imposition of penalty by a disciplinary committee.: Secretary, Department of Social Security v Willee

A Medical Services Committee of Inquiry was not limited, in terms of relevant considerations, to specific services to a particular patient, but was entitled to take into account a pattern of services which was unusual.: Edelsten v Health Insurance Commission

Admission of evidence relating to work practices of truck drivers was held not to be irrelevant to a coroner's inquiry into the cause of an accident where it was alleged that dangerous driving of a truck was due to sleep deprivation and drug use.: WRB Transport v Chivell

On the other hand, there are cases where considerations which are not of a personal or whimsical nature have been held by the courts to be irrelevant considerations, given a proper construction of the statute.: Bewley v Cruickshanks

The taking into account of without prejudice negotiations has been held to undermine the public policy underpinning the privilege of without prejudice communications because, for the complainant to vindicate his or her complaint about the lack of procedural fairness, he or she would have to disclose fully the otherwise confidential communications in order to show that he or she has not had an opportunity to be heard if an open decision was to be made.: White v Overland

Where the Refugee Review Tribunal seeks information from an applicant and that information is the subject of legal professional privilege, the tribunal commits a jurisdictional error.: SZHWY v Minister for Immigration and Citizenship

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A decision which is based on consideration of irrelevant matters or which results from a failure to consider relevant matters is invalid. Stated in the abstract, these grounds of review appear to allow judges a great deal of control over the reasoning processes of administrators. Clearly, what is relevant or irrelevant to a particular decision is a matter about which reasonable minds may disagree. Moreover, the relevance of particular matters is often best judged with the benefit of hindsight. For these reasons, the courts have insisted that the categories of ‘relevant considerations’ and ‘irrelevant considerations’ do not cover the field – there are also considerations which may be considered but need not be considered (ie permissible considerations). Thus, a party affected by a decision is not ‘entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant then attack the decision on the ground that a particular one of them was not specifically taken into account’.

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In determining whether a consideration either must or must not be considered, the question to be answered is whether the statute conferring a discretionary power creates an obligation on the decision-maker one way or the other. Thus, where a discretion is conferred in broad terms and is, therefore, relatively unconfined the factors which may be considered are similarly unconfined, unless ‘there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard’. Only if a consideration is expressly or impliedly ‘extraneous’ to the statute will it be classified as irrelevant. Courts have rejected the notion that statutory discretions can be completely ‘unfettered’. But although some considerations, such as matters of personal or ‘whimsical’ concern will always be extraneous to governmental administration, the broader the discretionary power the more difficult it will be to limit the range of permissible considerations. This is particularly so when the statute empowers administrators to make decisions in the ‘public interests’, or where the discretion is exercised by a politically accountable minister.

Whether or not a decision-maker may consider the political ramifications of the decision depends upon the statutory context. It is unlikely, however, that a minister’s decision would be stigmatised on account of acting in accordance with an election promise. It is also accepted that decision-makers are entitled to consider lawful government policy, but it is not permissible for a decision-maker to consider themselves bound to exercise discretionary powers in accordance with a policy or a promise (see 5.3.4). Ministers (and presumably other political accountable decision-makers) may sometimes even have regard to their own political fortunes when making decisions.

Statutes often expressly state that certain matters must be considered. Even where this is the case, however, the statute may impliedly require consideration of further matters. As already emphasised, it must be concluded that the decision-maker was bound to consider a particular matter. In Peko-Wallsend, the minister was bound to consider the detriment third parties would suffer before making a land grant under the Aboriginal land rights legislation. This was not simply because ‘detriment’ was ‘relevant’ in a generic sense but because the legislation required the Aboriginal Land Commissioner, who was required to make recommendations to the minister, to specifically ‘comment’ on the issue.

Where decision-makers are bound to consider a matter, it has been said that ‘nearly every statute’ posits that this is to be done ‘on the basis of the most current material available to the decision-maker’. It may be that there are exceptional circumstances in which a decision-

maker who is bound to consider a particular matter cannot properly do so unless further inquiries about the relevant facts are undertaken (see 5.2.4). On the other hand, there is a longstanding principle in administrative law which holds that a mere error of fact does not amount to an error of law. Although this principle requires qualification (see 5.4.3), it is reflected in cases which resist the conclusion that a ‘factor’ or ‘matter’ was not considered merely because a particular piece of relevant evidence was ignored. The crux of the issue is the ‘level of particularity’ with which relevant considerations are to be identified. Where relevant considerations are not expressly stated, there is considerable scope for judges to either allow or deny review by choosing whether to describe a relevant consideration in particular or general terms. If the relevant consideration is stated in very particular terms, it will be easier to conclude that failure to consider a piece of evidence directly related to the consideration and amounted to a failure to consider the matter. If, however, the relevant consideration is described in very general terms (eg ‘ the circumstances of an affected individual’) it may be easy to conclude that that general matter was considered even though a particular piece of evidence relevant to that matter was not. Thus, the more general the description of a relevant matter, the more difficult it may be to conclude that it was not considered.

That the application of the ‘considerations’ grounds can be influenced by judicial value judgments is illustrated even more vividly by the fact that, although principles have remained constant, there is no doubt that the results of some of the older cases would now be different. For instance, a 1947 case held that it was permissible to consider the opinion that Italians were not good farmers and the policy that ‘further aggregation’ of Italians in prime farming districts should not be encouraged.

In addition to establishing that the decision-maker was either bound to ignore or to consider a matter, applicants must also show that this obligation was, as a matter of fact, breached. The application of the considerations grounds of review requires proof that the decision-maker considered an irrelevant matter or failed to consider a relevant one. It has been said that a decision-maker can

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pick up and discard a red herring ‘so long as he does not allow it to affect his decision’. (If, however, the red herring is an allegation which is ‘credible, relevant and significant’, procedural fairness may require disclosure (5.2.2.3).) In Tickner v Chapman it was held that the minister’s consideration of a report which included over 400 submissions was not adequate, on the basis of evidence which demonstrated that his consideration could not possibly have involved ‘an active intellectual process’ directed at the material he was obliged to consider.

Related to the question of whether there is sufficient proof that a relevant matter has been considered are suggestions, in a number of cases, that the decision-maker must give relevant matters ‘real, genuine and realistic’ consideration.50 The orthodox approach is to insist that how much weight is given to a relevant consideration is a matter for the decision-maker, and the ‘real, genuine and realistic’ formula has been criticised on the basis that it invites merits review. The formula also cuts against the general principle that courts should not apply a ‘fine appellate tooth-comb’ to the reasons of administrators. On the other hand, the requirement to consider relevant matters will ring hollow if courts require nothing more than an assertion by decision-makers that relevant considerations were noted, even where it appears that those matters did not figure in the reasoning process at all.

A ‘considerations’ error will not justify a remedy if it is so insignificant that it ‘could not have materially affected the decision’. It appears that this ‘exception’ will not apply in cases where the error deprived an applicant of the possibility of a successful outcome – ie it will only apply if the error could not have had any bearing on the outcome. It is best viewed as an example of the court’s discretionary power to refuse relief (4.6).

50 Eg Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, 292; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 (Unreported, Rares J, 9 June 2006) [39].

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G. No evidence

On one view, expressed by a majority of the High Court of Australia (the 'High Court') in Australian Broadcasting Tribunal v Bond ('Bond'), sections 5(1)(h) and 5(3) do not constitute a definitive and exhaustive statement of the 'no evidence' ground of review for the purpose of section 5,51 it being suggested that there is still room for 'no evidence' to be argued under section 5(1)(f). However, in order to allow for such a harmonisation of the two grounds of review, error of law in section 5(1)(f) should be treated as embracing the 'no evidence' ground as it was accepted and applied in Australia before the enactment of the ADJR Act in 1977.52 The High Court in Bond53 did not seek to interfere withthe line of Federal Court of Australia cases under which findings of fact have been held reviewable for 'no evidence' under sections 5(1)(e), 5(2)(a) and 5(2)(b), provided the findings of fact constitute 'decisions' within the definition of justiciable administrative action under the ADJR Act.54

'No evidence' appears also to be available as a ground of review under sections 5(1)(j) and 5(1)(e) coupled with section 5(2)(g).6

The 'no evidence' ground in section 5(1)(h), as elucidated in section 5(3) expands the scope of the ground of review beyond that, but in accordance with the detailed requirements of section 5(3)(a) and 5(3)(b).7 Sections 5(1)(h) and 5 (3)(b) extend to a very limited degree the remedies available under section 5(1)(e) or 5(1)(f).: Szelagowicz v Stocker

The scope for review on the ground of 'no evidence' under section 5(3)(a) and 5(3)(b) overcomes to a limited extent and in a limited area the restrictions on the traditional 'no evidence' ground under section 5(1)(f).: Australian Broadcasting Tribunal v Bond

However, section 5(3) does limit severely the area of operation of 'no evidence' review under section 5(1)(h).: Australian Broadcasting Tribunal v Bond

The two sets of circumstances in section 5(3)(a) and 5(3)(b) are different and should be read with section 5(1)(h) in different ways.: Szelagowicz v Stocker

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Although it is routinely assumed that the common law ‘no evidence’ (or ‘no probative evidence’) ground of judicial review is well established, its precise status remains subject to uncertainties. One difficulty is that it is possible to explain the result in at least some of the key ‘no evidence’ cases on the basis that the non-existence of evidence to support a factual finding justified a conclusion that the decision-maker had misconceived their jurisdiction. Further, although it is often said that the making of findings of fact ‘in the absence of evidence is an error of law’, the reach of this principle is unclear. Does it apply to any finding of fact, or only to findings that pass a certain threshold of importance or which are central to the decision? The Full Federal Court has said that the ground is made out if there ‘is no evidence to support a finding which is a ‘critical step in its ultimate conclusion’. In a different formulation, two members of the High Court have recently suggested that the no evidence ground of review can only be established where the factual finding in question is a ‘jurisdictional fact’ – though it is likely

The ADJR Act (s 5(1)(h) allows review on the ground that ‘there was no evidence or other material to justify the making of the decision’. The Act further provides (s 5(3)) that this ground ‘shall not be taken to be made out unless –

51 Australian Broadcasting Tribunal v Bond52 Australian Broadcasting Tribunal v Bond53 Australian Broadcasting Tribunal v Bond54 Australian Broadcasting Tribunal v Bond

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

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

This is one of the few instances where the drafter of the ADJR Act intentionally departed from the common law. Unfortunately, however, the detailed description of the no evidence ground in s 5(3) has not resulted in a clearer understanding of the statutory form of the no evidence ground. Indeed, perhaps there are more uncertainties about its meaning than that of the common law version.

On one view, the requirements of ss 5(3)(a) and (b) are necessary but not sufficient elements of the no evidence ground of review. That is, even after an applicant establishes that their case falls within one of those paragraphs, there is an additional question as to whether it can be concluded that ‘there was no evidence or other material to justify the making of the decision’. The alternative view is that ss 5(3)(a) and (b) articulate the precise content of the ADJR Act’s version of the no evidence ground, ie all an applicant need do is bring their case within either paragraph. In Rajamanikkam, two High Court judges adopted the first view; two adopted the second; and there is a dispute as to which view was adopted by the fifth member of the Court in that case.55 In S20, McHugh and Gummow JJ were content to note (not very helpfully) that the scope of review for facts under the ADJR Act ‘may give rise to differences of opinion’ in the High Court.

Many of the details of the meaning of paragraphs (a) and (b) of s 5(3) also remain to be worked out. For example, the reasonableness standard in paragraph (a) – that there must be no evidence from which the decision-maker could be reasonably satisfied of a matter – has been noted but not subjected to extensive analysis. And while it seems that a matter ‘required by law’ is appropriately described as a ‘critical’ finding, the High Court has cast little light on what this means and whether or how it differs from the common law position.56 While the weight of authority appears to accept that the reference in paragraph (b) to a ‘particular fact’ means a fact which was ‘critical’ (in logic or law) to the making of the decision, the High Court has applied this standard in a very strict way. While it is normally said that a remedy should not be denied if there is any possibility that the decision-maker would have reached an alternative conclusion, it seems that a decision based on a finding of fact (even if a fact does not exist) will not be ‘critical’ to the decision if the same decision could have been made in any event. Thus, in Rajamanikkam, the fact that only two of the eight reasons given for disbelieving the applicant were based on facts which did not exist meant that it could not be concluded that the decision was based on those (non-existent) facts. It was not possible to say that the decision-maker would not have reached the same decision in any event. Thus, though many details remain unclear, it does not seem that the majority of the High Court is not minded to interpret the no evidence ground of review in the ADJR Act expansively.

55 Minister of Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222. Also compare Aronson, Dyer and Groves, n 42 above, 242 with SGFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 422 (Unreported, Von Doussa, O’Loughlin and Selway JJ, 18 December 2002)56 See Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, 233-4, 240.

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H. Wednesbury unreasonableness

As a ground of review unreasonableness has generally been understood in the United Kingdom as requiring ‘something overwhelming’ in order that it be established. The formula of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, requiring a decision so unreasonable no reasonable person could have reached it, has been described subsequently by Lord Diplock as requiring a decision which ‘looked at objectively [must be] so devoid of any plausible justification that no reasonable body of persons could have reached [it]’ (Bromley London Borough Council v Greater London Council [1983] 1 AC 768). This doctrine has come to be known as "Wednesbury" unreasonableness. A stricter formulation of Lord Diplock is that a decision is Wednesbury unreasonable if it is ‘so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’. In Australia, the latter formula has tended to be rejected in favour of the formula ‘devoid of any plausible justification’(e.g. Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 561 per Wilcox J). Decisions which are so unreasonable no reasonable administrator could have reached them have also sometimes been described as ‘perverse’. The High Court has refrained from identifying any one formula as being of more help than another (see in its most recent application of this ground of review. See Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; which involved an unreasonable conclusion that an applicant did not have refugee status within the meaning of the refugee Convention, given that there were objective and subjective grounds for a ‘well-founded fear of persecution’, a requirement which is met by there existing in the applicant a genuine fear founded on a real chance that he would be persecuted for one of the reasons stipulated in the Convention if he returned to the country of his nationality. Margaret Allars has proposed a 3 part categorisation of the cases on unreasonableness (Allars, Australian Administrative Law, Cases & Materials, Butterworths 1997, paras [9.8.8]-[9.8.12].). Allars' paradigms are: 1. Use of one head of power when another and clearly more appropriate head of power was available. The inappropriateness of a power to achieve an objective may be indicated by the fact that its exercise involves an invasion of fundamental rights, while the exercise of the alternative power available to achieve the objective does not involve such an invasion of rights. For example Laker Airways v Department of Trade [1977] 1 QB 643 , where the Crown had power either to revoke Laker's air designation or revoke its licence. The latter required a hearing but the former did not. 2. Unjustified discrimination, where a benefit or burden is distributed unequally amongst members of a class who are equally deserving. For example, Parramatta City Council v Pestell (1972) 128 CLR 305 (where a rate levy to finance footpaths, curbing, guttering and other local improvements was imposed on commercial land owners but not residential owners, even though both classes of owners were benefited by the improvements). 3. Gross lack of proportionality. Note the rejection of proportionality as a general ground of review (see earlier lecture notes on narrow ultra vires). For narrow ultra vires review, it appears that the lack of proportionality (between the purpose of a power and the means used to fulfil it) as previously applied in South Australia v Tanner (1989) 166 CLR 161 will only be available where the statutory purpose is actually expressed in the relevant Act. However, although lack of proportionality may not amount to narrow ultra vires except in those limited circumstances, it may nevertheless constitute the broad ultra vires ground of unreasonableness provided that the disproportionality is so excessive as to fit the Wednesbury formulation (so unreasonable that no reasonable decision-maker could have reached it). See Peverill v Backstrom (1994) 127 ALR 197. It may also be cogently argued

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that the "extended" no evidence ground in broad ultra vires (discussed later in these notes), whereby decisions have been held invalid for "no evidence" where there was at least some evidence having probative value but factual inferences (i.e. findings based on primary facts) were reached in such an irrational or illogical manner as to ground a finding of no evidence, are best explained as examples of Wednesbury unreasonableness for lack of proportionality. See later in these notes under the sub-heading "Review of findings of fact" and then under the heading "no evidence". One example of unreasonableness being applied in the context of lack of proportionality is Wheeler v Leicester City Council [1985] 1 AC 1054 where a council used its statutory power to manage a recreation ground to ban a football club from using the ground unless it promised not to participate in a rugby tour of South Africa, was Wednesbury unreasonable, and also ‘unfair’, invoking a broad notion of fairness resembling ‘substantial procedural fairness’.

Delegated law making - Although the exercise of delegated law making power is not reviewable under the ADJR Act (because it is not a "decision of an administrative character"), at general law such decisions are reviewable on the ground of unreasonableness. Regulations or other delegated legislation are unreasonable: if they are ‘partial or unequal in their operation as between different classes; if they [are] manifestly unjust; if they disclose bad faith; if they involve such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men’. The test of unreasonableness set out above, found in Kruse v Johnson [1898] 2 QB 91 at 99 , tends to be cited in cases of exercise of delegated law making power. In particular, the court may apply a test as to whether the delegated legislation is so oppressive or capricious that no reasonable mind could justify it.

Limited duty of inquiry The scope of review for Wednesbury unreasonableness has been extended in Australia by the development in Federal Court case law of a limited duty of inquiry of administrators. A failure to attempt to obtain information which it is obvious is readily available and which is centrally relevant to the decision to be made, will amount to a procedure so unreasonable no reasonable person would have so exercised the power. See Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 563 per Wilcox J. This duty is a limited one, the general and dominating principle being that it is not part of an administrator’s duty to make out an applicant’s case. However, the development of a limited duty associated with the Wednesbury unreasonableness ground of review now requires an administrator to make reasonable inquiry where the material before him or her contains an obvious omission or obscurity which needs to be resolved before a decision is made.

Review of findings of fact – undue weight

Courts do not interfere with the merits of administrative decision making, which includes choice of policy and making findings of fact, on the basis of Wednesbury unreasonableness. See Parramatta City Council v Pestell (1972) 128 CLR 305 at 323 per Menzies J. However, Wednesbury unreasonableness is of its nature a ground of review which may be established on account of a failure to give adequate weight to a relevant consideration of great importance, or an undue weighting of a relevant factor of no great importance (see Peko at CLR 41). Unreasonableness is established only where the finding of fact is critical to the ultimate decision, rather than relating to a matter of peripheral importance (Luu v Renevier (1989) 91 ALR 39). Moreover, the finding of fact will not be reviewable separately from the "decision" (usually the final or operative decision). See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

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The High Court has held that the Wednesbury unreasonableness ground of review does not apply to grossly unreasonable fact-finding and the appropriate ground of review is whether the ultimate determination of the relevant tribunal or body was based on factual determinations which were illogical, irrational or lacking a basis in findings or inferences of facts supported on logical grounds: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002

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In 1948 in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, the English Court of Appeal rejected an argument that a condition (on a licence to operate a cinema) prohibiting the admittance of children under the age of 15 on Sundays was invalid. Although the validity of the condition was upheld, the Court accepted that administrative determinations could be ultra vires if they were unreasonable in the sense that the decision was ‘so unreasonable that no reasonable authority could ever have come to it’. The ADJR Act (ss 5(2)(g) and 6(2)(g)) test for unreasonableness adopts this same standard: decisions or conduct may be reviewed on the ground that ‘an exercise of power’ was ‘so unreasonable that no reasonable person could have so exercised the power’.

It has been concluded in a number of Australian cases that a decision-maker acted unreasonably in the Wednesbury sense (although often the affected decisions are also invalidated on the basis of some other, less controversial, ground of review). In one example, it was held that a decision to require a doctor to pay his entire medical income in satisfaction of a tax debt was unreasonable. Although the discretionary power was delegated in broad terms, the Court argued that this ‘extraordinary power’ carried with it a ‘special obligation’ to have sufficient regard to the justice of particular cases. If emphasis had been given to the difficult policy questions which arise in attempts by tax officials to combat tax avoidance by well-resourced tax payers adequately, a different conclusion about whether no reasonable decision-maker could have made the decision may have been open. In another case, a plan allocating quotas was invalidated because it was formulated on the basis of a statistical fallacy. That case also demonstrated that delegated legislation may be invalidated on the basis of unreasonableness though the courts are normally reluctant to do so given the broad range of policy considerations which arise in the context of making general rules.

Two features of the Wednesbury unreasonableness ground of review immediately stand out. First, the ground clearly requires the court to make judgments about the substantive correctness or merits of the decision. Although the test does not enable the court to substitute its view of what a reasonable authority should do, a determination about what no reasonable authority could do must be based on an assessment of arguments for and against the authority’s decision. Further, the test for unresonableness does not refer to any independent criteria to guide the making of these judgments (ie unreasonableness is defined in a circular way be reference to).

Second, the court in Wednesbury attempted to make it plain that the unreasonableness ground should be applied in a restrained or deferential manner to an unreasonable conclusion. As an independent ground of review, Wednesbury unreasonableness thus allows for the review of what are considered to be egregious errors or clearly wrong decisions in circumstances where no other ground of review is available. For this reason, Wednesbury unreasonableness has been said to operate as a ‘safety net’.

The above two features of Wednesbury unreasonableness inevitably lead to disputes over the intensity of review which is appropriate in particular cases: how serious must errors be before they will be caught in the unreasonableness safety net? The answer to this question will depend on at least two considerations. First, there is understandable pressure on judges to undertake a more searching analysis of the reasonableness of decisions which have a significant impact on important individual interests, or which undermime fundamental common law rights. As with all grounds of review, the subject matter and nature of the decision, the sort of interests affected and the seriousness of those effects will be important. Second, and more generally, it can be observed that the intensity of unreasonableness review is likely to wax and wane in accordance to with background judicial reliefs about the appropriateness and legitimacy of the application of any review grounds which necessarily involve a degree of merits review.

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The contemporary consensus among commentators is that the unreasonableness safety net is catching less than it once did. The evidence for this proposition includes increasing judicial comments suggesting that unreasonableness will be applied restrictively: for example, that it requires something exceptional,57 that it is ‘often unhelpful’ to discuss the legal consequences of unreasonableness in the abstract, and that ‘an unreasonable decision is one for which no logical basis can be discerned’.58 But the restrictive mood can also be gauged by the (probable) holding in S20 (see 5.3.3) that Wednesbury unreasonableness only applies to ‘discretionary’ decisions, and thus has no application in cases where the alleged unreasonableness is based on fact-finding errors or where the decision-maker is under a ‘duty’ to exercise a power.59 If the rationale of Wednesbury unreasonableness is to act as a safety net to catch egregious errors in administrative decision-making, this restriction makes little sense.

One possible reason for thinking that a decision could not have been reached by a reasonable decision-maker is that it imposes burdens which are out of all proportion to the objectives which are legitimately pursued by the exercise of the power. It is clear that gross disproportionality ‘often lies behind a conclusion that a decision is unreasonable’. It is also ‘tolerably clear’ that delegated legislation may be invalidated (as being ultra vires) if it is not reasonably proportional to the authorised purposes.60 Nonetheless, Australian courts have been reluctant to adopt the language of proportionality in relation to the review of administrative discretions generally – ie to conceptualise proportionality as an independent ground of review (see further below, 5.4.6).

57 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 473 [100].58 See, eg, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 640-1.59 We criticised the court’s simplistic approach to the distinction between discretions and duties (5.3.7). Compare McHugh and Gummow JJ’s acceptance of the proposition that Wednesbury unreasonableness applies only to discretionary decisions, to Kirby J’s more equivocal position: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 76 [73] (McHugh and Gummow JJ), 90 [142] (Kirby J).60 See Vanstone v Clark (2005) 147 FCR 299, 337-8 for a helpful review of the cases. Sometimes it is argued that the reasonable proportionality test only applies in relation to delegated law-making powers which are ‘purposive’ as opposed non-purposive limits (ie powers granted to make rules or regulations with respect to particular subject-matters or areas). Given that judicial review routinely involves courts implying statutory powers which may then be used to structure the exercise of discretion (5.3.2), the importance of this distinction in this context is unclear.

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I. Irrational fact-finding

A parallel trend (to covert intrusion into the merits) has been the development of an "extended" no evidence ground, whereby findings for which there was at least some primary evidence have nevertheless been held unlawful for "no evidence" because the finding was reached by such an irrational, illogical, capricious or perverse reasoning process as to rob the finding of an evidentiary basis having any probative value. Examples include Minister for Immigration & Ethnic Affairs v Pochi (1980) ALD 139 (where Deane J classified an "extended" no evidence finding as an aspect of natural justice); and Mahon v Air New Zealand [1984] AC 808 (where Lord Diplock also saw "no evidence" as an aspect of natural justice): Lord Diplock explained the rule in the following terms: "What is required by the (no evidence) rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory." The latter part of this formulation is the "extended" no evidence doctrine. This lecturer's view is that "extended" no evidence should not properly be regarded as an aspect of denial of natural justice/procedural fairness, because conceptually natural justice is concerned with procedural fairness whereas "extended" no evidence is in essence a judgment as to the substantive unfairness of a decision/finding of fact made on the basis of little or no evidence and by a badly flawed reasoning process. Furthermore, the High Court has held that, at least for ADJR review purposes, "extended" no evidence is not to be regarded as an error of law, and is not within the specific "no evidence" ground in section 5(1)(h) and 5(3) (see ABT v Bond (1990) 170 CLR 321 per Mason CJ). On the other hand, it appears that it may in appropriate cases be regarded as an aspect of unreasonableness or relevant/irrelevant considerations (see Bond at CLR 358). For a fascinating and challenging analysis of the abuse of power grounds (and what I have referred to as 'extended no evidence' in particular) see Geoff Airo-Farulla, 'Rationality and Judicial Review of Administrative Action' - (2000) 24 Melbourne University Law Review 543. Irrational fact-finding might be classified as an instance of making a decision on the basis of no evidence having any probative value, or as making a decision based on an irrelevant consideration (one arrived at by an irrational reasoning process). More likely irrational fact-finding will be classified as an example of Wednesbury unreasonableness. Fairly obviously, judicial review of (allegedly) irrational fact-finding by a court or tribunal (or even by an administrator) runs the risk of degenerating into thinly disguised merits review. As Lord Brightman said in Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518: "Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely." Similarly, in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 , Gleeson CJ and McHugh J said (at para 40): "Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence." Their Honours stressed that review for irrational fact-finding would require" 'something overwhelming' such that it means that a decision was one that no reasonable body could have come to."

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It appears that irrational fact-finding is subject to judicial review in appropriate (i.e. extreme) circumstances where the reasoning can be characterised as unreasonable in a Wednesbury sense. That is, irrational fact-finding is a ground for judicial review, but only where the factual finding simply could not have been reached by any rational reasoning process. One might expect judges to be very cautious in finding such errors, given the potential challenge to the legality/merits distinction (and separation of powers) posed by allowing Wednesbury unreasonableness to be deployed in this way.

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In the context of delimiting the concept of ‘error of law’ (see 5.4.3.3), it has long been held that neither insufficiency of evidence nor a mere incorrect finding of fact amounts to an error of law – even if the factual finding is perverse. There have always been limited exceptions to this proposition – such as where the existence of the fact is a precondition to the existence of jurisdiction (ie a ‘jurisdictional fact’), where there is literally no supporting evidence, and where factual deficiencies support an inference that the decision-maker has applied the wrong legal test. We return to these issues below (5.4.3). More controversial have been attempts to re-describe what looks like an error of fact, as a breach of one of the reasoning process grounds of judicial review. For example, it may be possible that an error of fact will amount to one of the considerations grounds of review. To be plausible, this argument must assume that the ‘matter’ which must be ignored or considered can be described as being the incorrect or correct understanding of a particular fact.

Perhaps a more significant threat to the traditional principle about fact review is to be found in the High Court’s decision in Applicant S20/2002, though the judgment is so riven with ambiguity that disputes over its meaning were inevitable. Some commentators and courts have read the case as introducing a new, discrete ground of review for decisions which are ‘illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds’. The Federal Court, however, has not been convinced that the High Court intended, in S20, to overturn a line of well-established authority that ‘illogical reasoning does not of itself constitute an error of law or jurisdictional error.61

61 NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (Unreported, Tamberlin, Emmett and Weinberg JJ, 31 October 2003) [29], which has been accepted as correct by the Full Court in a number of cases. There are some suggestions of disquiet about this approach, eg, SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 (Unreported, Madgwick J, 27 July 2005) [71].

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11. FAILURE TO PROPERLY EXERCISE A POWER

J. failure to perform a statutory duty

The failure to perform a statutory duty is a ground for judicial review at common law.

DutyThe duty may be imposed by statute, prerogative, common law or contract.

At common law the duty may be a duty to make a decision, to make a decision properly, to take action to implement a decision or to take any other form of action.

MisperformanceMisperformance of a duty is not of itself a failure to perform a duty, unless the misperformance can be categorised as a constructive failure to perform the duty (Bott’s case).

Time limits on dutyA duty has time limits which may be express or implied.

The question is whether the duty still exists at the end of the time limit. The duty will only be susceptible to an order of the court if the duty still exists after the time limit has expired.

See Acts Interpretation Act 1901 (Cth) s 33(1)

All duties have an implied time limit that they will be performed within reasonable time.

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K. unlawful sub-delegation

(xvii) Express and implied power to delegate

The maxim delegatus non potest delegare expresses the principle that in the absence of express power to do so, a decision-maker has no power to delegate a discretionary power to another decision-maker. However, where there is express power in the statute to delegate, the principle does not apply. Where a power is expressly conferred to delegate ‘either generally or as otherwise provided by the instrument of delegation’ the decision-maker has power to delegate either the whole of the relevant power or some specifically limited part of that power. See Singh v Minister for Immigration, Local Government and Ethnic Affairs (1989) 90 ALR 397 at 402.

However, a power is normally one indivisible power which necessarily includes the power to decide that an application will not be granted, there being no separate power to refuse to grant it.: Singh v Minister for Immigration, Local Government and Ethnic Affairs

While a statutory authority may be required to pay regard to the policy of another authority as one relevant consideration it is bound to take into account, it should not abrogate its own statutory function, delegating it to the other authority.: Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd

The maxim delegatus non potest delegare does not of itself assist in determining the question whether power to delegate may be implied, the question appears still to depend to some extent on classification of the power in question as administrative or legislative in nature (although courts have tended to shy away from distinguishing between cases on the basis of such classification of powers in recent years).: Dainford Ltd v Smith (1985) 155 CLR 342

An instrument which delegates power or part of it should not be construed loosely: Perpetual Trustee Co (Canberra) Ltd v Cmr for Australian Capital Territory Revenue

Wrong assumption of powerThere is a general principle that an act purporting to be done under one statutory power may be supported under another statutory power.: Lockwood v Commonwealth

Thus, a wrong assumption by a decision-maker as to the source of the power exercised, including the source of a power to authorise another officer to make a decision, is not fatal to the valid exercise of power if it is properly sourced in another statutory provision.: Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission

The instrument of authorisation is not invalidated by the incorrect statement in the recital of the source of the power or by an incorrect assumption about that source.: Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission

However, there are limits to the general principle. For example, the exercise of the other source of power may depend upon the fulfilment of a condition precedent which has not occurred, or the relevant considerations applying to the exercise of the other source of power may be materially different, with the result that the source of power cannot be relied upon.: Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission

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A delegated law-maker who confers power which includes power to make judgments involving the exercise of discretion, may not only improperly delegate the discretionary power but also exercise the delegated law making power so that it is uncertain in its operation.: Racecourse Co-op Sugar Assn Ltd v A-G (Qld) (1979) 142 CLR 460

(xviii) Power of an administrative nature

The principle prohibiting delegation in the absence of express authority is not applied strictly where the power is of an administrative nature. At the very least, in the absence of an express or implied power to delegate the task of making a decision, one may imply the power to make inquiries and findings of fact and convey these to the actual decision-maker. See Taylor v Public Service Board (NSW) (1976) 137 CLR 208; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 369-70. However, although a power to delegate preliminary information-gathering aspects of an administrative power is readily implied, the courts are slightly stricter about implying a power to delegate the substantive decision-making power conferred by Parliament. Nevertheless, it has been said that the powers exercised by a minister, local council or other administrator may be so multifarious that they could never be personally attended to and so the power to delegate is implied. See Carltona Ltd v Cmrs of Works [1943] 2 All ER 560., where regulations gave inter alia the Commissioners for Works a power to take possession of land during wartime. The power was in fact exercised by a single Commissioner, although the regulations did not expressly authorise delegation to him (as opposed to exercise of the power by the Commissioners as a body). Lord Greene MR explained: " In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of Requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter…. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them; O’Reilly v Cmrs of the State Bank of Victoria (1983) 153 CLR 1. In determining whether there is an implied power to delegate, the court pays regard to the nature, scope and objects of the empowering statute, the character of the particular power which it is argued may be delegated, the exigencies of the occasions upon which it is exercised, and other relevant considerations. The presence of an express statutory power of delegation does not exclude the implication of an additional power to delegate". (see O'Reilly; Peko above). This doctrine has come to be known as the Carltona principle. It was originally propounded in relation to the position of a Minister, and therefore relied to an extent on the Minister's broad policy discretions and democratic accountability via the responsible government doctrine. However, it was held in Australia to be equally applicable to a University Senate delegating its disciplinary powers to faculty committees and individual academics (Ex parte Forster; Re the University of Sydney [1963] SR (NSW) 723). It was also held that the Tax Commissioner had an implied power of delegation to more junior officers of what was in effect a statutory power to issue subpoenas to taxpayers, notwithstanding that there was an unexercised express power to delegate to such officers in the legislation (O’Reilly v Cmrs of the State Bank of Victoria (1983) 153 CLR 1).

(xix) Power of an administrative nature - alter ego doctrine

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Parallel with the notion of implied power to delegate is the principle that when a government minister is entrusted with the administration of a government department the minister may ‘act through’ authorised officers of the department. The notion that departmental officers may be ‘authorised’ rather than delegates of the minister is known as the alter ego principle (see Carltona above at 563). Even where there is an express statutory power of delegation, as a matter of construction of the empowering statute a court may conclude that the decision-maker may act through an authorised agent other than a delegate. The distinction between an agent through whom the statutorily empowered decision-maker acts, under the alter ego doctrine, and a delegate of that decision-maker, depends upon the actual transference of power. In each case there is a valid exercise of power. But the agent remains an agent of the superior officer, acting on behalf of, and in the name of, that person. A delegate, on the other hand, is a transferee of the power of the delegator, and may validly exercise that power in his or her own name. Nevertheless, in some cases, it has been held that the power is so important that it must on a proper construction of the statute be exercised by the minister personally (e.g. Peko), unlike those powers falling within the category where administrative necessity indicates it is impractical for the minister to act otherwise than through authorised officers (e.g. O'Reilly).

(xx) Power of a legislative nature

The broad law making powers of a legislature, to make laws for the peace, order and good government of a State, may not be delegated (see Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73). However, the Parliament may authorise a delegated law maker to make delegated legislation regulating or prohibiting a certain activity. Sub-delegation of the power may be valid if that is expressly contemplated in the empowering statute. However, in relation to implied power of an administrator vested with delegated law making power to delegate that power, the maxim delegatus non potest delegare is applied more strictly than in the case of the exercise of power of an administrative nature. In the absence of express power to do so, where the entire delegated law making power is in turn delegated to another decision-maker, it is exercised invalidly by that decision-maker. See Hawke’s Bay Raw Milk Producers Co-op Co Ltd v New Zealand Milk Board [1961] NZLR 218. The formula in accordance with which the delegated legislation is to be made must be certain and objective in the sense that anyone who applies the formula mechanically would reach the same conclusion, without there being any element of estimation, prediction or conjecture. See Racecourse Co-op Sugar Assn Ltd v A-G (Qld) (1979) 142 CLR 460.

(xxi) Power of a judicial nature

Action by an administrator which is of a judicial nature may be delegated where there is express power to do so. However, a court is unlikely to imply a power to delegate the decision making function where the power is of an essentially judicial nature, such as a power of a disciplinary nature.

(xxii) Retrospective validation

An administrator cannot validate retrospectively a decision which is invalid because of an absence of power to delegate the decision-making power: Legal & General Insurance of Australia Ltd v Board of Fire Cmrs of New South Wales

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The purpose of this ground of review is to ensure that powers legally conferred on a particular decision-maker are exercised personally, and not by some other body or person. It facilitates efforts to hold decision-makers accountable for their actions, and prevents bureaucratic buck-passing. Unauthorised delegation is not specifically mentioned in the ADJR Act, though it clearly is an instance of the ground that ‘the person who purported to make the decision did not have jurisdiction to make the decision’ or simply the ground that the decision was not ‘authorised by the enactment’.62

The rule against delegation is best understood as a statutory presumption. As such, it can be expressly rebutted by statute. Indeed, modern statutes routinely give decision-makers express power to delegate their powers.63 Where this is so, powers must be delegated in accordance with any statutory requirements. Express powers to delegate some powers do not necessarily exclude an implied power to delegate others, but the usual presumption is that the powers not expressly delegated must be exercised personally.

The presumption that statutory powers cannot be delegated can sometimes appear unrealistic and out of touch with the realities of public administration. Although many powers are reposed in ministers or high-level bureaucrats, it is unrealistic to believe such decision-makers could give their personal attention to the plethora of statutory functions conferred on them. The law has (at least partially) responded to this problem in two ways. First, in most circumstances it is permissible for decision-makers to rely on administrative assistance. A minister may thus rely on a memorandum or briefing note which summarises the issues and make recommendations, even though she has an obligation to make the decision personally. Where a decision-maker does rely on a briefing note, however, the note must accurately identify all mandatory relevant considerations. The line between permissible assistance and assistance which undermines the obligation on the decision-maker to consider matters personally can be controversial. In Tickner v Chapman, the minister was required to consider all representations attached to a report. It was accepted that the minister could rely on his staff to sort the representations into categories, to put the representations in a ‘common form’, and to summarise technical material. However, some representations were incapable of effective summary (eg photographs) and ‘nothing short of personal reading…’ would constitute proper consideration’ of them.

The second response to the practical problems which may arise if the presumption against delegation is applied strictly, is that it is sometimes possible, as a matter of statutory interpretation, to conclude that the ‘principal’ (ie the statutory holder of the power) may act through an authorised ‘agent’. This sounds like an implied delegation, but the legal position of an ‘agent’ is subtly different from that of a ‘delegate’. Where a person acts as a delegate, the power is exercised in their own name, and independently of the principal; where a person acts as an authorised agent, they act on behalf of the principal, and in law their decision is that of the principal.

The principles determining when a decision-maker may be allowed to act through an agent are ‘not entirely satisfactory’. The classic justification for implying that a minister may act through an agent, articulated in Carltona Ltd v Commissioner of Works, is that it would be impossible for ministers to personally attend to all of their statutory functions and that, in any event, ministers remain accountable to the parliament for any errors in judgment. In Australian law, however, the ‘Carltona principle’ has been interpreted so that its application is limited neither to ministers nor to decision-makers who are directly accountable to the parliament. This suggests that the ‘administrative necessity’ argument will sometimes be sufficient to justify the implication that parliament could not have intended a decision-maker to exercise all of their powers personally.

In O’Reily v Commissioners of State Bank of Victoria, the High Court decided that the Commissioner of Taxation (or a Deputy Commissioner) may act through authorised agents, despite the fact that the Commissioner had a formal power to delegate his powers to a wide range of departmental officials. In the circumstances of the case, the Commissioner had delegated his powers to issue an investigation notice to his Deputy Commissioners, but the challenged notice had been issued by an officer authorised to act on the behalf of one of the Deputy Commisioners. The High Court upheld the validity of the notice, principally to preserve ‘administrative order and efficiency’. In a

62 Which are recognised in the ADJR Act: see ss 5(1)(c) and (d); s 6(1)(c) and (d).63 Interpretation Acts typically contain provisions relevant to understanding express powers of delegation : see, eg, Acts Interpretation Act 1901 (Cth), ss 34AA, 34 AB and 34 A.

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persuasive dissent, Mason J pointed to the fact that the Commissioner could have formally delegated the powers (if that was, indeed,

Finally, it is worth noting that the idea of agency in administrative law focuses on whether the statute allows a person to act on the decision-maker’s behalf, whereas in private law the concept of agency is directed at the issue of when it is ‘appropriate to fix civil liabilities on principals for actions they themselves might have taken’. For this reason, although the terminology is now well entrenched, it might have been preferable to avoid use of the term ‘agency’ in attempts to avoid unrealistic applications of the presumption against delegation.

The nature of the opinion required had not been understood. In short, the orthodox Australian approach to the review of state-of-mind powers is that the normal grounds of review (including the reasoning process grounds) apply.

Recently, however, the High Court has held that there were the existence of a particular state of mind in a statutory precondition to the discharge of a statutory duty (as in the above migration example), not all the normal grounds of review should apply. In particular, it was said that the Wednesbury unreasonableness ground (5.4.4) has no application because it only applies to discretionary powers, and a statutory obligation to act only if the decision-maker is satisfied of a particular matter is not a discretionary power.64 This is a difficult thought for two reasons. First, it implies that a sharp distinction can be drawn between a discretionary power and a duty, although these concepts are better situated on a continuum. It is, for example, unrealistic to think that a duty to grant a refugee visa if satisfied that a person has a well-founded fear of persecution (or to deny a visa if not so satisfied), does not give the decision-maker a significant degree of choice. Although the statute expresses the power as a duty, it is an imprecise one and judicial review does not enable the courts to substitute their own opinion about whether the duty arises.

Second, there are many cases which do appear to indicate that a decision-maker’s state of satisfaction may be reviewed on the basis that ‘the decision reached was so unreasonable that no reasonable authority could properly have arrived at it’,65 or where the opinion could not have been ‘formed by a reasonable man who correctly understands the meaning of the law under which he acts’. This sort of standard is, at the very least, a close parallel to that of Wednesbury unreasonableness (see 5.4.4).

The theory behind the development of the concept of jurisdiction was simple: jurisdictional errors relate to the question of whether the decision-maker has the legal-authority to make a decision, whereas a non-jurisdictional error is made in the course of exercising jurisdiction already established. In other words, ‘jurisdictional questions…related to the scope of the decision-maker’s power to decide’ – not to questions which ‘arose in the exercise of an admitted decision-making power’.66 In this way, the theory of jurisdiction functioned to allocate decision-making powers between particular decision-makers. Giving the tribunal the power to exercise the power of reinstatement? The reality is that many statutes give little explicit guidance as to whether giving a correct answer to a particular question is a precondition to the very existence of the power to make the decision.

The difficulty inherent in finding stable criteria by which courts can clearly distinguish between preconditions to the exercise of a power and the actual exercise of the power was a contributing factor to the ultimate rejection of the distinction between jurisdictional and non-jurisdictional errors of law in England, with the consequence being that a decision may be retrospectively invalidated whenever it is affected by an ‘error of law’. But the demise of the spatial-temporal approach to jurisdiction in English administrative law should also be understood in the context of a broader trend, namely, the increasing willingness of the courts to take a more proactive or ‘activist’ role in judicial review. Over time, the conclusion was reached that the traditional theory of jurisdiction unduly limited the courts’ powers, especially in relation to the control of administrative (as opposed to judicial) decision-makers. In relation to administrative decision-makers, then this trend led to an extension of the category of legal errors having the consequence that affected decisions would be invalid.

64 See Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59.65 Buck v Bavone (1976) 135 CLR 110, 118.66 G Airo-Farulla, ‘Rationality and Judicial Review of Administrative Action’ (2000) 24 Melbourne University Law Review 543, 551. The ADJR Act’s grounds of review include ‘that the person who purported to make the decision did not have jurisdiction to make the decision’ (s 5(1)(c)) and ‘that the decision was not authorised by the enactment in pursuance of which it was purported to be made’ (s 5(1)(d)).

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Despite the urgings of some Australian judges, the High Court has not followed the English lead. The Court’s refusal to abolish the distinction between jurisdictional and non-jurisdictional errors need to be understood in the context of s (75)v of the Constitution. As we have seen, the High Court has held that the Constitution’s incorporation of the writ-based common law remedial model of judicial review means that the constitutional writs of mandamus and prohibition are only available for ‘jurisdictional error’ (4.5.3). At least to this extent, the High Court has concluded that Australian administrative law is stuck with the concept of ‘jurisdiction’. However, the retention of the distinction between jurisdictional and non-jurisdictional errors has not exempted Australian law from the broader trend towards more intrusive standards of judicial review. Whereas in England the extension of review standards was achieved by the demise of the concept of jurisdiction as the central limiting device for review, in Australia a similar extension has been achieved by the expansion of the concept of jurisdiction so that the category of errors which may qualify as jurisdictional errors has been significantly enlarged. This expansion has been most dramatic in relation to administrative (as opposed to judicial) decision-makers, and it is now clear that jurisdictional error can occur not just in relation to preliminary questions, but also in the process of determining the merits of an issue.

The morning starting point for any discussion of jurisdictional error in Australia is the High Court’s decision in Craig v South Australia.67 The High Court rejected the argument that an order to stay a criminal trial involved a jurisdictional error because the ‘inferior court’ judge had not properly understood the legal test to be applied. Any error was, it said, within jurisdiction.

The High Court’s decision in Craig placed considerable emphasis on the fact that the decision-maker was an ‘inferior court’ as opposed to an ‘administrative tribunal’ (or, presumably, any other administrative official). It was held, as a general rule, that the concept of jurisdictional error should be defined more narrowly in the case of inferior courts than in the case of administrative tribunals and decision-makers. Whereas the ordinary jurisdiction of a court encompasses the ‘authority to decide questions of law’ (and therefore to answer questions of law wrongly), presumptively at least, the Court argued that administrative tribunals lack this authority. In part, this presumption was justified because inferior courts are staffed by legally trained officials, whereas administrative tribunals may not be. It was also said that, whereas inferior courts are plugged into the ‘ordinary hierarchical judicial structure’, tribunals are not. But while both of these factors are true in some cases, these are false in others. Some tribunals, such as the Commonwealth Administrative Appeals Tribunal (8.4), have judges as members; and the decisions of many tribunals are subject to appeals to courts on questions of law. Perhaps for this reason the High Court indicated that its analysis should not be taken as applicable to what it called ‘anomalous courts or tribunals’ which do not fit the standard profile. Arguably, the Court was on firmer ground when it pointed out that the constitutional separation of judicial power prevents Commonwealth tribunals from authoritatively deciding questions of law. Even here, however, the differences between inferior courts and administrative tribunals may be overstated, as tribunals must decide legal questions and the answers given are binding until challenged by appeal or by judicial review.

For all of these reasons, there is a trend in the cases applying Craig to treat the distinction between inferior courts and tribunals as a starting assumption which may be overridden, particularly in relation to state tribunals where the strict constitutional requirements relating to the separation of judicial and administrative powers at the Commonwealth level do not apply (8.2.1). On this approach, the critical issue in determining whether or not to apply the narrow conception of jurisdictional error (normally applicable to inferior courts), or the broad conception (normally applicable to administrative tribunals), is one of ‘function and purpose, not nomenclature’. That is, if an administrative tribunal is ‘anomalous’ – in the sense that it is analogous to an inferior court and authorised to determine questions of law – the fact it is called ‘tribunal’ should not be determinative.

Where a narrow approach to jurisdictional error is taken (typically in relation to inferior courts), the High Court explained that jurisdictional boundaries are defined by the preconditions for the existence of authority to decide a matter or by any clear limits on functions or powers. For example, a jurisdictional error is involved where an inferior court the jurisdiction of which is limited to civil matters purports to hear and determine a criminal charge. An inferior court will also exceed jurisdiction where an essential precondition (such as the existence of a fact or state of satisfaction), has not been fulfilled or where a particular matter must be considered or ignored ‘as a pre-condition of the existence of any authority to make a decision’. Finally, the High Court held that an inferior court will ‘fall into 67 Craig v State of South Australia (1995) 184 CLR 163.

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jurisdictional error’ if it misconstrues the statute or other instrument which confers its jurisdiction and ‘thereby misconceives the nature of the function which it is performing or the extent of its powers’; though it was conceded that in such cases, the line between jurisdictional and non-jurisdictional errors of law ‘may be particularly difficult to discern’. This is because whenever an administrative decision-maker misconstrues the law to be applied (thereby considering a wrong question), it may be argued that this amounts to misconceiving the nature of its functions or the extent of its powers. Thus, the High Court left unresolved the question, which has long dogged the theory of jurisdiction, as opposed to being a matter to be determined in the course of exercising an established jurisdiction. Even on the narrow approach to jurisdiction, the courts have a considerable degree of discretion about how errors are categorised.

When a broader approach to jurisdictional error is appropriate (typically for administrative tribunals and other administrative officials), jurisdiction will be exceeded where the decision is affected by ‘an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion’. Thus, wherever the law to be applied is misconstrued, jurisdictional error will likely result. Moreover, as amplified by later cases, it is clear that jurisdictional errors may be made by breaching grounds of review related to reasoning processes. Breach of the considerations ground of review can clearly amount to a jurisdictional error, and there is no principled reason for excluding other sorts of reasoning process errors. It is also clear that breach of procedural fairness obligations does, and breach of statutory procedure may, amount to jurisdictional error.

The ADJR Act. Despite this, recent decisions of the Federal Court have attempted to circumscribe the meaning of question of law more tightly, so that at least some of the grounds of review arguable in an ADJR Act application may not be arguable in a s44 appeal.68 If confirmed, this development may result in legal challenges to AAT decisions failing simply on account of having been pleaded incorrectly in the Federal Court.

‘Error of law’ (even if not apparent on the face of the record) is also listed as a discrete ground of review in the ADJR Act (ss 5(1)(f); s 6 (1)(f)). In most circumstances, it has not been necessary for the courts to consider the relationship between the error of law ground and other grounds of review. The ADJR Act states that a decision must involve an error of law, which means that the error must be ‘material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been different’. (A similar requirement applies to non-jurisdictional error of law on the face of the record at common law.) ‘There is no error of law simply in making a wrong finding of fact’.

Despite this orthodoxy, judges understandably show unease when faced with clear factual errors, and it is perhaps unsurprising to discover that there are qualifications to the basic rule. We have already seen that errors of fact can sometimes ground an argument that a decision-maker failed to consider a relevant matter or considered an irrelevant one, though the courts often draw a distinction between errors about mere pieces of evidence and the more general concept of ‘matters’ which must be considered (5.3.1). It may also be that fact-finding processes can be reviewed on account of serious irrationality or illogicality, though the jurisprudence on this point remains under-developed (5.3.3). If a factual error is made as a result of an incorrect question being asked, or the application of wrong test, then ‘the fact that the symptom of the problem is a factual error will not gainsay the proposition that there has been a failure to attend to the jurisdictional task’. That is, where the evidence appears inadequate, it may be a short step to the conclusion that the decision-maker has misconceived its jurisdiction or powers (and thereby committed a jurisdictional error). But the assumed line between mere (albeit serious) factual error and jurisdictional error is often easier to state than apply.

In addition to errors of fact being used as part of an argument to make out one of the other grounds of review, there are two general exceptions to the rule that factual error is not reviewable: the review of ‘jurisdictional facts’, and the ‘no evidence’ ground of review.

68 See Comcare v Etheridge (2006) 149 FCR 522, 530. Branson J has even doubted the correctness of a decision of the Full Federal Court (Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28) which held that a denial of procedural fairness can be raised on appeal under s 44(1) of the ATT Act: Brown v Repatriation Commission [2006] FCA 914 (Unreported, Branson J, 19 July 2006).

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L. Unlawful application of policy

It is a desirable thing for a Minister, department or agency to have administrative policies: it enhances consistency of decision-making, and thus fairness. In Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 the then AAT President, Brennan J held that having a guiding policy was not only permissible but desirable in the interest of promoting administrative consistency and fairness. It was appropriate for the AAT on merits review to apply such a policy (although not to regard itself as bound to do so) unless a clear reason was shown why it ought not to apply the policy. Similarly for a departmental primary decision-maker. Note rule of law ramifications. ‘Proper, genuine and realistic consideration of merits’ - In requiring administrators to have regard to the merits in applying policy, the principle does not require that each particular case be given extensive and particular attention. Rather, the principle requires that administrators not shut their ears to an applicant who wishes to make representations about the particular circumstances of the case, nor refuse to listen to anyone with something new to say. See British Oxygen Co Ltd v Minister of Technology [1971] AC 610 at 625 per Lord Reid. Where, for example, a person applies for a benefit and is turned away by being told that the application will not be considered, the policy may be both ultra vires in the narrow sense (if the person is actually eligible under statute for the benefit) and also be applied inflexibly, without regard to the merits of the case. See Green v Daniels (1977) 13 ALR 1.

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When parliament confers a discretionary power, the courts have insisted that ‘such a power must be exercised on each occasion in the light of the circumstances at that time’. The future exercise of a discretionary power cannot be fettered. This no-fetter principle does not preclude administrative decision-makers developing policies (non-statutory rules) to guide the exercise of discretionary powers. The principle does, however, mean these policies must not remove the discretion or be applied inflexibly (ie in a blanket fashion). Thus in British Oxygen Co Ltd v Minister of Technology, it was said that even where a decision-maker has a large number of similar applications to process, they must always be willing to listen to ‘anyone with something new to say’, ie to be ready to make exceptions or waive their policy if that is justified in the circumstances of particular cases.

Logic of the no-fettering principle entails that decision-makers must be free to depart from previously announced policies or earlier representations about how discretionary powers will be exercised. Where a person has detrimentally relied on a government representation, this general point is sometimes made by saying that the principles of estoppel do not apply in relation to the exercise of public powers. This is just a fancy way of stating that the fact that a person has relied to their detriment on government promises or advice does not prevent the government exercising its statutory powers inconsistently with its earlier representations as to how its powers would be exercised. Some discussions of estoppel in Australia have left open the possibility that it may have a limited operation in public law cases. But these dicta are not easily reconciled with the High Court’s obvious disapproval of English cases which appear to enable the substantive protection of some ‘legitimate expectations’.

The strict application of the logic of the no-fettering principle can obviously come at the price of unfairness to individuals who, it may be thought, are at least in some circumstances entitled to take the government at its word. However, although non-statutory rules are not legally binding, they are not without legal consequence. Significantly, failure to consider applicable policy will amount to a failure to consider a relevant consideration. It is also the case that a hearing may be required if a decision-maker purposes to depart from previous policy or a prior representation (see 5.2.2.4).

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M. Acting under dictation

In general, a decision-maker must exercise an independent discretion, rather than simply carry out instructions of other decision-makers. Deferring to the instructions or view of another decision-maker is sufficient to constitute infringement of the principle prohibiting acting under dictation. Deference to a policy of another decision-maker, even in the absence of duress or pressure to defer, is sufficient if it amounts to a complete failure to exercise independent discretion. See H Lavender & Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231. Where a minister possesses a statutory power to give directions but does not exercise that power, a court is less inclined to conclude that the administrator, potentially subject to direction, has acted under dictation by making a decision likely to be accepted by the minister. See Bread Manufacturers of New South Wales v Evans (1994) 180 CLR 404. Although the rule prohibiting acting under dictation precludes complete deference to the policy of another decision-maker, it does not mean that another decision-maker’s policy cannot be a relevant consideration which the administrator may or indeed is bound to take into account.

A number of factors affect the extent to which a government policy which is a relevant consideration may be determinative of the decision: Bread Manufacturers of New South Wales v Evans• the particular statutory function; • the nature of the question to be decided; • the character of the tribunal and the general drift of the statutory provisions in so far as they bear on the relationship between the tribunal and the responsible minister; and • the nature of the views expressed on behalf of the government.

Duty of senior public servantsWhere a statutory power is conferred upon a departmental secretary or director general, government policy is clearly a relevant consideration which that person is bound to take into account in exercising the statutory power. See R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54. Different views have been taken, however, as to the extent to which such a decision-maker is free to depart from government policy. On one view a departmental secretary or director-general (for instance the Director-General of Aviation) has a duty to carry out communicated government policy and would not be properly guided by any other consideration. A similar view is that, depending upon the importance and sensitivity of the government policy, a head of department may have a duty simply to apply it. A slightly different view is that it would not be wrong for such a decision-maker to give conclusive weight to government policy. On a very different view the principle prohibiting acting under dictation applies with only minor modification to decisions made at such a senior departmental level, in relation to matters involving high government policy. On this view Parliament, by conferring the statutory power upon a departmental decision-maker, has indicated an intention that the decision is not to be made at a purely political level, unlike where the power is conferred on a minister. Unfortunately each of the High Court Justices in cases such as Ipec-Air and Ansett expresses quite different (and often contradictory) views about when and on what basis a senior public servant can regard himself as bound by government policy. In general terms, it appears that the Court will more often than not be inclined to uphold the validity of a decision of a senior public servant applying "high" government policy. This might be regarded as an example of the courts paying deference to the separation of powers doctrine, and recognising that the responsible government doctrine suggests courts should

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not interfere in matters of high policy. The remedy of an aggrieved person in such cases is at the ballot box.

text

The no-fettering principle also has the consequence of preventing decision-makers from exercising their discretionary powers on the say so of someone else. Like an inflexible application of a policy, doing someone else’s bidding disables decision-makers from considering the merits of a case. The gist of the ‘dictation’ ground of review is a requirement that the decision-maker ensure that their own reasoning processes are not overwhelmed by the views of another person. As it is put in the ADJR Act (ss 5(2)(e) and 6(2)(e)), a personal discretionary power must not be exercised at ‘the direction or behest of another person’. As the use, in the ADJR Act, of the world’s ‘behest’ indicates, the key issue is whether the exercise of a power was overwhelmed by the views of someone who is not authorised to exercise the power, not whether the outcome was ‘dictated’ in some literal sense.

Most difficulties involved in the application of the ‘dictation’ ground stem from the fact that, although administrative powers are typically conferred on particular persons or officers, those persons or officers are part of a broader bureaucratic hierarchy. One of the most difficult issues has been the extent to which a minister may influence the discretionary powers of officers for which he or she is ‘responsible’ in a political sense. On the one hand, there is a fact that parliament chose (presumably, for good reasons) to give a power to a particular officer. On the other hand, the principle of responsible government arguably rests on the assumption that ‘the departments of the executive government’, for which the minister takes responsibility, will be administered ‘in accordance with the directions and policy of the minister’.

Although these arguments have been raised in a number of High Court cases, the general issue remains unresolved and subject to conflicting approaches. This is understandable as both considerations noted above are based on valid and important public law principles (namely, parliamentary supremacy and ministerial responsibility). Inevitably, then, which principle is to prevail in a particular case will depend upon ‘the particular statutory function, the nature of the question to be decided, the character of the [decision-maker] and the general drift of the statutory provisions in so far as they bear on the relationship between the [decision-maker] and the responsible minister’. As is so often the case, the courts turn to an analysis of the general nature of the power and decision-maker to determine how a particular ground of review is to be applied in a particular case. For example, the more independence from political control a decision-maker is given, the more rigorously the rule against dictation will be applied.

Many modern statutes give ministers express powers to issue ‘directions’ to administrative decision-makers. Sometimes these powers overcome any suggestion that a decision-maker has ‘acted under dictation’. However, the extent to which such powers rebut the common law presumption against dictation is often in dispute. In some cases, powers to give directions have been interpreted as allowing only for general policy guidelines. If the statute allows only for directions of a general nature, then the decision-maker must not apply the ‘direction’ inflexibly, ie they must not allow the direction to overwhelm their own exercise of the discretion. Alternatively, a direction will not be authorised by such a statute if it attempts to determine outcomes of particular cases. The language in which a power to give ‘directions’ is expressed does not always determine whether directions may be specific, or are limited to general matters. In one case, quite specific directions were allowed despite the fact that the statutory power required the making of ‘guidelines’.

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N. fettering discretionary power

Fettering a discretionary power is a failure to have complied with an obligation to retain and exercise a free and unfettered discretion

A public authority with a discretionary power must exercise the discretion itself, and not at the behest of another: Roncarelli v Duplessis

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O. Estoppel

At common law the scope for raising an estoppel1 against an administrator, hence precluding the administrator from denying a representation in later legal proceedings, has been limited by the principle that an administrator's discretion to act inthe public interest in the future should not be fettered: South Australia v O'Shea (1987) 163 CLR 378

However, this principle has no place in administrative law judicial review.

The courts take the view that Parliament has conferred power on an administrator which must be exercised for the purpose and within the scope of the statute. The decision-maker must make her decision on its merits and consistent with the statutory purpose, scope and object, irrespective of what prior or collateral agreements she may have made as to how that power would be exercised. For the courts to enforce an estoppel against an administrator to prevent him/her from breaching a promise made to an applicant would be to thwart the will of Parliament. See South Australia v O'Shea (1987) 163 CLR 378; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17; 93 ALR 1; 64 ALJR 327 per Mason CJ; Peninsula Anglican Boys' School v Ryan (1985) 69 ALR 555; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 92 ALR 93; Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568.

Also based on the no-fettering principle is the rule limiting the effectiveness of contracts entered into by administrators fettering their future exercise of statutory discretionary power. See Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54. In relation to representations, the rule developed that estoppel cannot be raised to prevent the performance of a statutory duty or to hinder the exercise of a statutory discretion. See Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416. The rule against estoppel in administrative law is often referred to as "Southend-on-Sea" principle. However, that rule has been qualified in some respects (see below).

Scope for exceptions to rule The principle that an estoppel cannot be raised to prevent the performance of a statutory duty, or to hinder the exercise of a statutory discretion, is subject to some exceptions which are uncertain in their authority and scope. The guiding factor is that the estoppel should not hinder the exercise of the discretion in the public interest, which is to be balanced against the harm to the individual who will suffer injustice by having acted upon the representation. See Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 18. Thus, in a case where the discretion of the executive, to change policy regarding the procedure for selecting magistrates, would have been fettered by a court order giving a form of substantive protection to a person having a legitimate expectation that the earlier selection procedure would be followed, the public interest in the administration of justice outweighed the interests of the individual applicant for the position. If an administrator has long followed a practice of waiving a procedural requirement, the administrator may be estopped from later relying upon the fact of non-compliance with the procedure, provided there is no inconsistency with statutory duty. See Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 at 115 per Gummow J. In Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 Mason J said:

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Public confidence in government dealings and contracts would be greatly disturbed if all contracts which affect public welfare or fetter future executive action were held not to be binding on the government or on public authorities. And it would be detrimental to the public interest to deny to the government or a public authority power to enter a valid contract merely because the contract affects the public welfare. Yet on the other hand the public interest requires that neither the government nor a public authority can by a contract disable itself or its officer from performing a statutory duty or from exercising a discretionary power conferred by or under a statute by binding itself or its officer not to perform the duty or to exercise the discretion in a particular way in the future. ... The decisions to which I have referred are all cases in which the contract or undertaking held to be invalid was one to which the repository of the power or discretion was a party. The contract or undertaking was therefore an anticipatory fetter by that person on his future exercise of the statutory power or discretion. At the same time because the contract or undertaking was not one authorized by the relevant legislation, or was incompatible with it, the contract or undertaking was invalid or ultra vires. Different considerations will apply when the contract is one to which the government is a party and the contract relates to the grant of a licence or privilege which under the law depends upon the exercise of a statutory discretion by an officer who is not a party to the contract. In these cases at least it has been suggested that the free and unfettered exercise of the discretion is sufficiently preserved if the validity of the contract is upheld, provided that it is enforceable only by way of action for damages and not by order or injunction. Such an outcome, it is said, would work a reasonable compromise between the desirability of recognizing the binding nature of contracts and the need to preserve the free and unfettered exercise of the discretion. The assumption which underlies this approach is that the contract is one which the government is authorized to make, that it is not expressly or impliedly prohibited by statute or, if you like, incompatible with the statute. The contract might, like the agreements in this case, be made with express statutory approval. In this event an undertaking that the discretion will be exercised in a particular way and a potential liability for damages for its breach, though they may or will cause the repository of the discretion to exercise it in the particular way promised, have statutory backing with the consequence that the contract stands on a more secure footing. Where statutory approval for the making of the contract exists and the contract contains an undertaking that the statutory power will be exercised in a particular way, there is no room for the notion that the undertaking is invalid on the ground that it is an anticipatory fetter on the exercise of a statutory discretion. The contract, assuming it to be within constitutional power, is valid and the undertaking is free from attack. There is in such a case the initial question: Does the statute which approves the making of the contract expressly or impliedly amend, for the purposes of the contract, the pre-existing law providing for the exercise of the discretion? The statute may impose on the repository of the discretion a duty to exercise it in conformity with the undertaking or it may leave him with a discretion to arrive at some other result. If it be the former, then the contracting party may be able to compel the government and the person in whom the discretion is vested, though it has been relevantly converted into a duty, to comply with the undertaking. If it be the latter, then the undertaking if it is enforceable will be enforceable by an action for damages only. In Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 Gummow J said: But what has been said above as to the role of estoppel in public law requires some qualifications in a particular class of case (of which it should be said at the outset of this section of these reasons, the present case is not one). In the exercise of powers derived from statute, a public authority may enter contracts or transfer property and will, in general, be subject to the ordinary private law rules dealing with contract, tort and property. In Australia, there is a consistent legal tradition to that effect, commencing with the entrepreneurial activities of the colonial governments. The consequences in public administration of those

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activities is one of the themes of Professor Finn's work, "Law and Government in Colonial Australia". After federation, those consequences further were manifested in the provisions of Part IX of the Judiciary Act 1903, including ss. 56 and 64. The subject is most recently discussed by Mr. Dennis Rose in his Paper, "The Government and Contract" in Finn Ed. "Essays on Contract", 1987. The limits that must be placed upon the effectiveness of contracts entered into by the donees of statutory discretionary powers, so that the contractual undertakings do not fetter the future exercise of that discretion, are discussed by Mason J. in Ansett Transport Industries (Operations) Pty. Ltd. v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54 at 73-77; see also at 113-114 per Aickin J. In Attorney-General (NSW) v Quin (1990) 170 CLR 1 Mason J said: What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion: see the observations of Lord Denning M.R. in Laker Airways v. Department of Trade (1977) QB 643, at p 707; but see also the criticism of this approach by Gummow J. in Kurtovic, at pp 121-122.

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12. JURISDICTIONAL ERROR

Jurisdictional error and error of law on the face of the record were traditionally grounds of review applying to inferior courts and to tribunals rather than to administrators generally, and although sections 5(1)(f) and 6(1)(f) of the ADJR Act have not yet been the subject of extensive judicial interpretation, it appears appropriate to discuss the common law principles relating to jurisdictional error and error of law on the face of the record in conjunction with the caselaw concerning these paragraphs.

P. Summary position in Australia

(xxiii) For tribunals - (and ordinary administrators):

All errors of law corresponding to broad ultra vires abuse of power grounds (as well as narrow ultra vires) are now jurisdictional errors. See Craig v South Australia (1995) 184 CLR 163. That includes Wednesbury unreasonableness. Craig is unclear about unreasonableness. But see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. Also see Abebe v Commonwealth (1999) 162 ALR 1 per Gaudron J at [114]-[116]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [123-[126].Tribunals can also fall into error by “misconceiving their function” or “asking the wrong question” (as in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473).

(xxiv) For inferior courts:

Only errors of law corresponding to narrow ultra vires (i.e. acting completely outside jurisdiction, or ignoring required procedures, are reviewable as jurisdictional errors. See Craig v South Australia (1995) 184 CLR 163. Broad ultra vires grounds are not available where the body under review is an inferior court (as in Craig). However, (as for tribunals) narrow ultra vires includes the error of “misconceiving function” or “asking the wrong question” (as in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473).

(xxv) For both courts and tribunals:

The distinction between jurisdictional and non-jurisdictional errors of law has not been abolished i.e. there are still some types of error of law that are non-jurisdictional (or “intra-jurisdictional” as Douglas and Jones call it) and therefore not judicially reviewable. See Abebe v Commonwealth (1999) 162 ALR 1; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.

Q. What are jurisdictional errors?

judicially reviewable errors committed by inferior courts and tribunals are usually referred to as "jurisdictional errors". Jurisdictional errors may be either jurisdictional errors of law or errors in finding a fact whose existence is a condition precedent to jurisdiction. These latter types of factual errors are usually referred to as the "jurisdictional fact" doctrine.

In addition, non-jurisdictional errors of law may be judicially reviewable in exceptional circumstances, where the error appears on the face of the record of the court or tribunal. Such errors are usually referred to as "errors of law on the face of the record". As we will see, after assiduous efforts by various judges to expand the scope of error of law on the face of the record (mostly by expanding the

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definition of "the record"), the High Court has now drastically curtailed the scope for review of non-jurisdictional errors of law.

an inferior court or tribunal does not have unchallengeable power to define the extent of its own jurisdiction. (See Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47

A tribunal which purports to review decisions which are not, on a proper construction of its empowering Act, within jurisdiction, makes a jurisdictional error (Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47). Clearly, a tribunal which bases its refusal to exercise jurisdiction upon a misconstruction of the very legislation which confers jurisdiction upon it, makes a jurisdictional error (Dickinson v Perrignon [1973] 1 NSWLR 72), and conversely, a tribunal which purports to exercise jurisdiction on an erroneously wide construction of its empowering Act also makes a jurisdictional error (Ex parte Wurth; Re Tully). As you can see, this type of error is essentially identical to narrow substantive ultra vires for ordinary administrative decision - makers.

A jurisdictional error may also occur on account of the non-fulfilment of a condition precedent to jurisdiction e.g. where the legislation empowers the tribunal to hear only matters arising in a particular geographical location (Bunbury v Fuller (1853) 9 Exch 111, or imposes a time limit (Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369), or requires service of a notice. (R v Thomas; Ex parte Sheldons Consolidated Pty Ltd [1982] VR 617). However, failure to comply with a procedural requirement as to time has sometimes been held to be a mere irregularity rather than non-compliance with a condition precedent to jurisdiction (David Jones (Aust) Pty Ltd v Araune (1981) 38 ALR 657). Rather obviously, this is essentially identical to the doctrine of narrow procedural ultra vires for ordinary administrative decision - makers. See Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 ([1998] HCA 28) for a discussion of the factors to be considered as to whether failure to comply with a procedural requirement will render a decision void for ultra vires/jurisdictional error.

ExamplesDenial of natural justice: Yes, for both tribunals and inferior courts Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.

After the decision in Plaintiff S157, the following errors have been held to constitute such a jurisdictional error (the list is not exhaustive): Xiang v Minister for Immigration and Multicultural and Indigenous Affairs(1) denial of legal representation; WABZ v Minister for Immigration and Multicultural and Indigenous Affairs(2) ostensible bias; Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs(3) actual bias; NAQS v Minister for Immigration and Multicultural and Indigenous Affairs(4) illogicality; Minister for Immigration and Citizenship v SZMDS(5) delay; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs and(6) failure to comply with procedural requirements.: Minister for Immigration and Citizenship v SZMDS

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(xxvi) Craig v SA

In 1995 the High Court of Australia in Craig v South Australia ('Craig's case')69 affirmed that the traditional doctrine continues to apply to inferior courts but held in obiter dicta that the Anisminic doctrine70 applied to tribunals.71

As a result, a tribunal makes a jurisdictional error if it makes an error of law by: (Craig v South Australia (1995) 184 CLR 163)(1) identifying a wrong issue;(2) asking itself the wrong question;(3) ignoring relevant material;(4) relying on irrelevant material; or(5) at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion.

It may be possible to characterise some of these errors as jurisdictional under the 'liberal version' of the traditional doctrine of jurisdictional error.

However, others, in particular failing to take into account relevant considerations and taking into account irrelevant considerations are errors which previously were regarded as nonjurisdictional.

Craig's case has therefore extended the scope of judicial review of tribunal decisions at common law.72

R. Non-jurisdictional errors of law

It is essential to the establishment of jurisdictional error as a ground of review that the error is one of law rather than of fact (leaving aside the jurisdictional fact doctrine). In addition, the error of law must be a jurisdictional error rather than a non-jurisdictional error. Non-jurisdictional errors of law may at general law be challenged under the ground of review called "error of law on the face of the record". This ground has been much reduced in importance since the High Court's decision in Craig v South Australia (1995) 184 CLR 163 (see below).

Non-jurisdictional (i.e. non-judicially reviewable unless on ther face of the record) errors under the traditional doctrine are errors of law made by a tribunal or inferior court in the course of exercising jurisdiction which it properly has. These may be errors in identifying or applying legal principles in the course of making a decision within the court or tribunal's jurisdiction (note the typical 3-stage decision-making process - fact-finding; rule-stating; applying the rules to the facts), or they may be errors that can be regarded as roughly equivalent to the broad ultra vires abuse of power grounds i.e. it would be "ultra vires" rather than "jurisdictional error" if the decision-maker was an administrator rather than a 69 Craig v South Australia (1995) 184 CLR 16370 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 14771 It is not always as easy to draw a distinction between courts and tribunals for the purposes of determining whether an error isjurisdictional at the State level, because the same strict separation of powers does not apply: Kirk v Industrial Relations Commission(2010) 239 CLR 53172 Not every error of law by a tribunal is a jurisdictional error: Coal and Allied Operations Pty Ltd v Australian Industrial RelationsCommission (2000) 203 CLR 194

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tribunal. Thus, errors such as failing to take into account relevant considerations, taking into account irrelevant considerations or acting unreasonably (i.e. errors of law made in the course of determining a question the court or tribunal has jurisdiction to entertain) were traditionally regarded as non-jurisdictional errors of law (and therefore not subject to judicial review) prior to the House of Lords decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, and its later acceptance in Australia (see below).

An error of law made by a tribunal in the construction of statutory provisions other than those which confer jurisdiction upon it, is in the traditional doctrine of jurisdictional error treated as a non-jurisdictional error of law. However, if a tribunal makes an error as to the proper construction of the statute investing it with jurisdiction, and as a result misunderstands the nature of the jurisdiction, or misconceives its duty, or applies a wrong test, there is a constructive failure to exercise jurisdiction. See R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242, 243; R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432.

S. The Anisminic doctrine

In Anisminic, several members of the majority of the House of Lords held that some categories of errors of law which had formerly been regarded as non-jurisdictional, were now to be regarded as errors which went to jurisdiction. These categories of errors of law include acting in bad faith; making a decision the tribunal has no power to make; failing to comply with the requirements of procedural fairness; misconstruing the empowering statute or delegated legislation so that the tribunal fails to deal with the question remitted to it and decides some question not remitted to it; refusing to take into account something the tribunal was required to take into account; or the tribunal's basing its decision on some matter which it had no right to take into account.

In summary, the errors which the Court now (following Anisminic) was prepared to classify as jurisdictional corresponded roughly with what would be regarded in an administrative decision-maker (not being a tribunal) as the broad ultra vires "abuse of power" grounds (see Susan Street's diagram in previous lecture notes). Note, however, that none of the judges in Anisminic mentioned the Wednesbury unreasonableness ground as being a jurisdictional error.

(xxvii) Anisminic in Australia

High Court nevertheless maintained (and still maintains) that there is a category of non-jurisdictional errors of law which may not be reviewed for jurisdictional error. See R v Gray; Ex parte Marsh (1985) 157 CLR 351 (Gibbs CJ, Wilson and Brennan JJ; Mason, Deane, and Dawson JJ dissenting); Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1

Then in Craig v South Australia (1995) 184 CLR 163 ("Craig"), the High Court unequivocally endorsed Anisminic, but only for ordinary administrators and "quasi-judicial tribunals":

• Where the body under judicial review is an inferior court (e.g. Local Court, Magistrates Court, District Court, County Court), only narrow ultra vires errors (and natural justice) are available review grounds.

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• Where the body under review is an ordinary administrator (Minister, department or agency etc) or "quasi-judicial tribunal" then all judicial review grounds (both narrow and broad ultra vires and natural justice) are presumptively available.

NB "Jurisdictional error" for tribunals includes Wednesbury unreasonableness. Craig itself is unclear about whether Wednesbury unreasonabless amounts to a jurisdictional error. But see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. Also see Abebe v Commonwealth (1999) 162 ALR 1 per Gaudron J at [114]-[116]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [123-[126].

Tribunals can also fall into error by “misconceiving their function” or “asking the wrong question” (as in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473).

(xxviii) Quasi-judicial tribunal

In Mann v O’Neill 191 CLR 204 the High Court, per Brennan CJ, Dawson, Toohey and Gaudron JJ, defined quasi-judicial proceedings as follows:

… proceedings of tribunals recognised by law and which act ‘in a manner similar to that in which a Court of justice acts’. Various considerations are relevant to the question whether proceedings are quasi-judicial. However, the overriding consideration is ‘whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern’.

The High Court referred with approval to Trapp v Mackie [1979] 1 WLR 377. It is clear from Trapp v Mackie that the question of whether a body is quasi-judicial concerns an examination of similarities between the conduct of that body and the conduct of a court of justice. In that case, the following points of similarity arose:

• the inquiry was set up under statutory authority;

• the inquiry was into a dispute between adverse parties of the kind that commonly would be decided by a court of justice;

• the inquiry was held in public;

• decisions as to the evidence to be called and arguments to be raised were left to the contending parties;

• witnesses were called by the parties and compellable to give evidence;

• oral evidence was given on oath;

• witnesses were subject to cross-examination by the adverse party;

• parties were entitled to be represented by solicitors;

• the decision of the tribunal was not final, but as a matter of practice, was simply approved by another body in making a final decision; and

• parties could be ordered to pay costs.

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Lord Diplock in Trapp v Mackie stressed that no one characteristic is decisive, but rather the effect of the similarities is cumulative. The line between quasi-judicial and purely administrative bodies is therefore one of degree.

(xxix) Distinction between error of fact and error of law

Both with regard to jurisdictional error and error of law on the face of the record as grounds of review, judicial review does not extend to review of errors of fact, with two exceptions.

The first exception is the jurisdictional fact doctrine, under which a tribunal may make a jurisdictional error in the course of making a finding of fact whose existence is a preliminary matter upon which jurisdiction depends. The making of inferences from primary facts to reach findings or conclusions of fact is a question of fact.: British Launderers' Research Assn v Borough of Hendon Rating Authority

The question of the meaning of an ordinary English word or phrase in a statutory provision is also a question of fact, which may be resolved by consulting a dictionary.: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126

The question of whether an expression is used in any other sense than that which it has in ordinary speech is a question of law,73 similarly, if the word is a technical legal term, which requires construction by reference to principles of law, then the question of its construction is a question of law.: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126

Nevertheless, the meaning of a term which can only be construed by the admission of expert evidence as to the use of the term in a particular area of human activity, is a question of fact.: Jedko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491

A question of law may arise in connection with the drawing of an inference from primary facts. It is accepted in Australia that an error of law occurs if an inference is drawn from a complete absence of evidence.: Hope v Council of the City of Bathurst

A complete absence of primary facts as a basis upon which an inference of fact may be reached occurs where the primary facts indicate that a situation falls within or outside a statutory description yet the decision-maker has made the contrary decision.: Hope v Council of the City of Bathurst

The second exception to the prohibition on review of a decision-maker's finding of fact is where the decision is irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002

This allows the court to review the fact-finding process undertaken to reach the decision.: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002

The position in Australia is thus still not as extended as that in the United Kingdom where there is some suggestion that a 'wrong factual basis' doctrine is developing and, should it become established, it would apparently be a new branch of the ultra vires doctrine, analogous to finding facts based upon no evidence or acting upon a misapprehension of law.: Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002

The fact and law distinction is important not only as a fundamental question at the base of review for jurisdictional error or error of law on the face on the record, but also in relation to the 'no evidence'

73 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389Page 89 of 203

ground of review at common law and under sections 5(1)(h) and 6(1)(h) of the (CTH) Administrative Decisions (Judicial Review) Act 1977.

Text

The jurisdictional fact and no evidence grounds of review are expectations to the general principle that an error of fact is not, of itself, a ground of judicial review. However, in any context where a court may review a decision or hear an appeal on the basis of an error of law (see 5.4.2), it is notoriously difficult to determine whether a particular error is properly characterised as one of law or fact. If a question is classified as one of law, the consequence is that the review or appeal court can determine the correct answer for itself. On the other hand, courts cannot correct errors of fact. Thus, what is at stake is the distribution of decision-making power as between administrators (and inferior courts) on the one hand, and reviewing and appeal courts on the other.

The analysis of whether a particular error is one of law or fact is normally broken down into three stages: fact finding, law-stating and law applying (ie application of law to the facts as found). It is very difficult for an error committed in finding primary facts to amount to an error of law – even findings which are perverse, or clearly against the weight of the evidence will not suffice. Having said that, the line between acting completely without evidence and acting ‘perversely’ will often be a matter of judgment, as what it means to say that a finding was reached on the basis of no evidence inevitably raises questions of whether the evidence which was before the decision-maker was relevant to any factual conclusions which bear legal consequences.

One might assume that the law-stating phase of decision-making – where the decision-maker identifies and interprets the legal norm or rule to be applied – should also be capable of a relatively simple treatment. Surely any error made in stating the legal norm to be applied is necessarily an error of law. The trouble with this assumption is that the courts have devised a number of strategies to qualify this basic proposition. Matters are further complicated because the qualifications are built on the introduction of distinctions which are easily manipulable. Perhaps the most popular way to qualify the idea that the qualification and interpretation of the law to be applied involves a question of law is the notion that where a statute uses an ‘ordinary’ term or a non-legal ‘technical’ term, the meaning of the term is a question of fact (though its original classification, as an ordinary, technical or legal term is a question of law). These categories are premised on the existence of a further distinction between the meaning of a term and the construction or effect given to a statutory term, because the meaning of a term (even if used in a ‘non-legal’ sense and thus a question of fact) can always be qualified by asking how the term is to be construed in the wider context of the statute (and this raises a question of law).

Although this elaborate analytical scheme continues to be invoked, its incoherence was laid bare by the High Court in Collector of Customs v Agfa-Gevaert Ltd, where the distinction between the meaning of a term and the construction or effect given to a statutory term was dismissed as ‘artificial, if not illusory’. As the Court argued, meaning and construction go hand in hand: it is not as if one precedes the other. This means that whenever a decision-maker identifies and interprets the law as incorporating an ordinary or technical term, this analysis necessarily involves a question of construction which raises an issue of law. The problems of applying the above distinctions are compounded where the statute uses a complex amalgam of ordinary, specialised and legal language. It is little wonder that commentators – even those who believe a defensible distinction between questions of law and fact can be maintained – have argued that the distinction between ordinary/technical and legal terms is unhelpful.

This brings us to the most problematic stage of the analysis: the question of whether the application of law to the facts raises a question of fact or law. One common approach relies on the distinction between ordinary and legal meanings (discussed above): although the question of whether the facts as found fall within the provision of a statutory enactment properly construed is generally a question of law, when a statute uses words according to their ordinary meaning it will – unless the conclusion is not reasonably open – be a question of fact. Such judicial attempts to have one’s cake and eat it too are understandable. On the one hand, the application of vague statutory language will

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often raise questions of ‘fact and facts gives rise to a question of law, the best that can be said is that: (i) where the court concludes that there is more than one reasonable answer to the question of whether the facts as found fall within or outside of a legal term, it will only intervene if an unreasonable answer is given, and (ii) where, alternatively, the court concludes that only one conclusion is open (ie that the facts necessarily fall within or outside a statutory or legal terms), it will correct any wrong answer given. What remains unexplained is when and why a court will conclude that only one answer is open or that there is more than one reasonable answer which may be given to the application question. According to the High Court, ‘an essential characteristic of the judicature is that it declares and enforces the law which determines the limits of the power conferred by statute upon administrative decision-makers’.74

74 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 153.Page 91 of 203

13. JURISDICTIONAL FACT DOCTRINE

Although judicial review is essentially concerned with errors of law rather than fact, another exception to that general proposition (in addition to the "no evidence" ground and the limited factual review unavoidably inherent in the Wednesbury unreasonableness ground) is that the court can and does review factual findings by an administrative tribunal where the body’s constituting legislation defines its very jurisdiction by the existence or non-existence of particular facts. This is called the "jurisdictional fact" doctrine.

The court will not only review the tribunal’s findings in relation to jurisdictional facts, but will permit fresh evidence to prove their existence or otherwise.

• R v Blakeley; Ex parte Assn of Architects, Engineers, Surveyors and Draughtsmen of Australia

(1950) 82 CLR 54

• R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100

• Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473

• Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297

• Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369

• Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577

Justice Gummow succinctly defined the jurisdictional fact doctrine in Eshetu starting at [127]:

Rather, this is a case where the legislature has made "some fact or event a condition upon which the existence of which the jurisdiction of a tribunal or court shall depend". The court or tribunal cannot give itself jurisdiction by erroneously deciding that the fact or event exists.

Gummow J also provides a useful list of case examples of jurisdictional fact determinations (see [132]-[137]).

(xxx) Subjective opinion

But note effect of “subjective opinion” words in the provision establishing the body’s jurisdiction the court can only review whether the opinion was “reasonably open”. See Melbourne Stevedoring.

But note the effect of “subjective opinion” words in the provision establishing the body’s jurisdiction. As Latham CJ explained in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd:

[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. ...

It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been

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formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.

However, this approach to "subjective opinion" qualifications does not mean that they are ineffective to partially insulate decisions on jurisdictional fact from successful judicial review. As Gummow J explains in Eshetu (at [137]):

[W]here the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.

Key cases

R v Gray; Ex parte Marsh (1985) 157 CLR 351

R v Blakeley; Ex parte Assn of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54

R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100

Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473

Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577

Text

The phrase ‘jurisdictional facts’ can be used in a number of ways, but we use the phrase to refer to situations where a decision-maker’s power is conditioned on the existence of a particular fact such that the making of a valid decision depends upon the existence of the fact. The crucial point to appreciate about jurisdictional facts is that the court can substitute its opinion, about their existence, for the opinion of the administrative decision-maker. (Although it is sometimes said that

A good recent example of the jurisdictional fact ground of review is Enfield v Development Assessment Commission. The issue was whether or not the Commission’s conclusion, that a particular development did not relate to a ‘special industry’ (ie one which was offensive or repugnant’ to others in the locality), was a factual finding the correctness of which was a condition of the existence of its powers to approve a development application without the consent of the relevant local council and the minister. Although the finding of fact that the development did not relate to a ‘special industry’ did not occur at the preliminary stage of the application process, the High Court concluded that it was nonetheless a jurisdictional fact and thus reviewable for correctness. The court emphasised the language of the

The lesson of Enfield is that whether a question of fact is jurisdictional is a question of statutory interpretation. A number of relevant factors have been identified in the cases. Where a power is

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conditioned on the existence of a fact, the determination of which involves broad, value-laden judgments, the fact is less likely to be classified as jurisdictional. And as with any statutory precondition, public inconvenience may lead a court to determine that a factual precondition is of a ‘directory’, as opposed to ‘mandatory’ nature (see 5.2.5.2). As was the case in Enfield, the most important factor in interpreting the statute is often a consideration of the importance of the factual determination in the overall decision-making scheme.

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14. ERROR OF LAW ON THE FACE OF THE RECORD

NB The full name of this review ground should be “non-jurisdictional error of law on the face of the record”. Non-jurisdictional errors of law (or intra-jurisdictional errors of law as Douglas and Jones call them) are normally not subject to judicial review. As the joint judgment in Craig v South Australia explained:

The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued,

be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error.

The same general proposition applies to quasi-judicial tribunals (although the scope for jurisdictional error there is much wider, because it includes all the broad ultra vires grounds - unlike inferior courts). However, the courts have long held that, where a legal error appears on the face of the record of the court or tribunal under review, that fact alone makes it judicially reviewable. If an error of law appears on the face of the record, we don't need to ask whether it is a "jurisdictional error". Sometimes errors on the face of the record are referred to as “patent errors”.

What is the record? Traditionally, "the record" for judicial review purposes was regarded as consisting of only the originating process and substantive decision or orders of the relevant court or tribunal. However, the scope of the record (and therefore the potential scope for judicial review intervention by activist judges) was seemingly widened by R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 and G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 (students won't be surprised to learn that those archetypally activist judges Lord Denning and Justice Kirby were the respective culprits) to include things like the transcript, written reasons for decision or even evidentiary exhibits!

Craig v South Australia (1995) 184 CLR 163, however, reinstated the traditional position and held that the record normally only includes the initiating process and recording of the substantive decision (e.g. “application dismissed”) i.e. normally the record does not include transcript or reasons (though note the minor qualification in Craig - see below). Also see Hockey v Yelland (1984) 157 CLR 124. Thus the net effect of Craig was to widen the scope of jurisdictional error but correspondingly to narrow the scope of non-jurisdictional error of law on the face of the record.

However, as the joint decision in Craig explained, there are some exceptional circumstances where parts of the reasons for decision or even the transcript might form part of the record, but only to a very limited extent:

The fact that the transcript of proceedings and reasons for decision do not, of themselves, constitute part of "the record" does not preclude incorporation of them by reference. That was recognized in Public Service Board of NSW v Osmond where Gibbs CJ, in a judgment which represented the judgment of the Court, referred to "the rule, well established at common law ... that reasons do not form part of the record, for the purposes of certiorari", and added the qualification "unless the tribunal chooses to incorporate them". As Gibbs CJ indicated, that qualification can be traced to the judgment of Denning LJ in R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw. It has also been accepted in other judgments in this Court. As so accepted, however, it should not be understood as

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having the effect that a merely introductory or incidental reference to the reasons for decision produces the consequence that the whole or part of the reasons somehow become part of both the formal order and "the record" of the particular court. As Mahoney JA has pointed out, such a result would mean the question of what constitutes "the record" would "be determined by accidents of whether particular words were used in the judgment of the body concerned". The qualification should be understood as referring only to so much of the reasons or transcript of proceedings as is referred to in the formal order in a way which brings about its incorporation as an integral part of that order and "the record". If, for example, the formal order incorporates undertakings given by a party "as set out in" a particular designated document or is said to be made "in terms of proposed orders set out in the reasons for judgment", the order and the record will incorporate only those parts of the particular document or the reasons for judgment which set out, qualify or otherwise affect the content of those undertakings or proposed orders. Conversely, a merely introductory or incidental reference will not suffice to incorporate, in either the formal order or the record, reasons given for making the formal order which do not in fact constitute part of it. Thus, for example, an introductory remark such as the phrase "for the reasons given" or the word "accordingly" will not, of itself, have the effect of incorporating the whole or any part of the reasons for decision in either the formal order or “the record”.

Key cases

Craig v SA

T. Error of law and the ADJR Act

The Administrative Decisions (Judicial Review) Act 1977 (Cth) Act draws no distinction between jurisdictional and non-jurisdictional error of law. Whether or not a legal error appears on the face of the record is also irrelevant. Section 5(1)(f) and section 6(1)(f) expressly provide that the review is available 'whether or not the error appears on the record of the decision'.

Thus the ADJR position roughly equates to the UK common law position achieved by Hull University Visitor and Boddington.

U. Legal effect of a jurisdictional error

The legal effect of the finding of a jurisdictional error affecting a decision of a court, tribunal or administrator was for some years a matter of confusion in Australia.

It has always been generally accepted that a non-jurisdictional error of law on the face of the record merely renders the decision in question "voidable" rather than void ab initio. The court has a discretion as to whether to quash the decision or (for example) merely grant declaratory relief or an injunction. This can be an important distinction, because if the decision is merely voidable then any vested rights acquired while the decision was on foot (before it was quashed by the court on judicial review) may remain enforceable, especially where parties altered their position in reliance on the legal position as it then was.

However, the position with jurisdictional error in Australia was more complicated until the High Court's decision in Craig. Some decisions held that the effect of a jurisdictional error was that the decision was void ab initio (i.e. as if it had never existed), while others adopted the 'half way house' position enunciated in the Privy Council's decision in Calvin v Carr [1980] AC 574 at 589-590:

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Their Lordships' opinion would be, if it became necessary to fix upon one or other of [the] expressions ['void' or 'voidable'], that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent.

In Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 the High Court decisively rejected the Calvin v Carr approach. As Gummow and Gaudron JJ explained:

In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as "void", "voidable", "invalid", "vitiated" or, even, as "nullities". To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made.

The High Court plumped decisively for the clearcut position that any jurisdictional error renders a decision void ab initio:

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

This approach also reflects the view of the House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 147, where Lord Reid famously observed that "there are no degrees of nullity".

The Court's decision in Bhardwaj laid the groundwork for its decision in the following year to reshape fairly radically its approach to privative or ouster clauses in Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476 by effectively adopting the Anisminic approach to construing them.

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15. PRIVATIVE OR OUSTER CLAUSES

Study guide

A privative or ouster clause is a provision in legislation which attempts to reduce or even exclude the jurisdiction of superior courts to review decisions made under the legislation in question. Typically courts give such clauses fairly limited effect, arguably at least in part due to rule of law considerations (though some suggest that it is part of an ongoing tension or power struggle between the courts and Parliament).

Types. There are numerous types of privative clause, including ones which restrict the range of review grounds available to a court on review, ones which tightly and non-reviewably restrict the time limitation period within which the decision must be challenged; and clauses that deem a decision to be "as if enacted" in the enabling legislation. We will not be specifically considering such privative clauses.

General formulation. One of the most common types of privative clause is the so-called "general privative clause", a typical example of which might read:

"No decision of X Tribunal shall be challenged, reviewed or called into question in any court whatsoever on any ground whatsoever".

Such formulations are typically used to protect the decisions of tribunals regarded by government as being especially politically sensitive e.g. decisions of the Australian Industrial Relations Commission or the Refugee Review Tribunal.

This sort of privative clause poses obvious challenges to law and judicial review. If Parliament confers a jurisdiction on a tribunal and defines its limits (as it must), how can such ostensible limits have any real and meaningful existence if no court has any power to review the tribunal to ensure that it is remaining with the boundaries of the statutory power conferred on it? Consequently, the courts have tended not to interpret such clauses literally (i.e. as effectively excluding their jurisdiction notwithstanding the seemingly plain legislative intent to that effect), but instead have attempted to strike a balance between honouring Parliament's evident intention to restrict the scope for judicial review of the tribunal in question on the one hand and, on the other, maintaining their overriding supervisory jurisdiction to ensure that the tribunal keeps broadly within the bounds of its statutory power.

Hickman. For many years the definitive test for the effect of a general privative clause was the approach laid out by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

The ‘Hickman’ 3 part test was/is that if:

• The tribunal's decision was a bona fide attempt to exercise its power;

• The decision relates to the subject matter of the legislation;

• The decision is reasonably capable of reference to the power given to the tribunal;

then the privative clause will be regarded as successfully protecting any legal error from judicial review. Otherwise such errors will not be protected from review.

Also see R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415; O'Toole v Charles David Pty Ltd (1991) 171 CLR 232.

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The Hickman test is said to be merely a particular example of application of ordinary statutory interpretation principles. It is also said by the High Court still to be sometimes relevant, although arguably it has largely been superseded (though not overruled) at least at federal level by Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476.

The effect of Plaintiff S157 is that a decision affected by jurisdictional error is simply a nullity (see Minister for Immigration & Ethnic Affairs v Bhardwaj (2002) 209 CLR 597), and therefore not a ‘decision’ at all, especially for the purposes of a typical general privative clause. Hence the privative clause does not protect the tribunal from judicial review for a jurisdictional error (which, as you will recall, includes both narrow and broad ultra vires grounds as well as natural justice), because the privative clause by its own wording specifies that a court must not review a ‘decision’ but says nothing about the availability of judicial review of something that was intended to be a decision but isn’t because it is vitiated by jurisdictional error.

However, a general privative clause will protect a tribunal from review for a non-jurisdictional error of law on the face of the record, because such an error (not being one going to jurisdiction) does not render the decision void per se but only voidable if the court on judicial review decides to declare it as such in its discretion. The decision remains valid unless and until set aside by the court, and the privative clause then operates to prevent the court from reviewing such an error.

The side benefit (so to speak) of such an approach is that the High Court is not completely ignoring the will of Parliament by interpreting a general privative clause in this way, because it is still giving some real area of operation to the privative clause. It protects against review for at least some errors, albeit ones that tend to occur very infrequently as a result of the High Court's narrowing of the definition of "the record" in Craig.

It's all a little bit like a ping pong match between Parliament and the courts!

Gleeson CJ explained the constitutional basis for the Court’s decision in Plaintiff S157 at [5] – [9]:

Section 75(v) of the Constitution confers upon this Court, as part of its original jurisdiction, jurisdiction in all matters in which a writ of mandamus, or prohibition, or an injunction, is sought against an officer of the Commonwealth. It secures a basic element of the rule of law. The jurisdiction of the Court to require officers of the Commonwealth to act within the law cannot be taken away by Parliament. Within the limits of its legislative capacity, which are themselves set by the Constitution, Parliament may enact the law to which officers of the Commonwealth must conform. If the law imposes a duty, mandamus may issue to compel performance of that duty. If the law confers power or jurisdiction, prohibition may issue to prevent excess of power or jurisdiction. An injunction may issue to restrain unlawful behaviour. Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed. But it cannot deprive this Court of its constitutional jurisdiction to enforce the law so enacted.

… In a federal nation, whose basic law is a Constitution that embodies a separation of legislative, executive, and judicial powers, there is a further issue that may be raised by a privative clause. It is beyond the capacity of the Parliament to confer upon an administrative tribunal the power to make an authoritative and conclusive decision as to the limits of its own jurisdiction, because that would involve an exercise of judicial power.

Question - But what would happen, for example, if the statute was worded slightly differently e.g.

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“No decision or purported decision shall be challenged …”? Clearly no such privative clause would be valid at federal level as a result of the High Court’s decision in Plaintiff S157. But what about the situation under State law? See below.

Text

Statutory clauses which purport to exclude the courts’ judicial review jurisdiction normally go by the name of ‘privative’ or ‘ouster’ clauses. (Given that merits review jurisdiction (see 8.5.1.2 is entirely a creature of statute – ie there is no inherent or constitutional source for jurisdiction to undertake review on the merits – the legislature can simply remove or fail to grant jurisdiction in relation to decisions it does not wish to be subject to merits review). Such clauses can be worded in a variety of ways, but are targeted directly at the courts’ jurisdiction to engage in judicial review. Out of an abundance of caution, legislatures often not

V. Federal Private Clauses

7.1.1 The General Approach

Section 75 (v) of the Constitution entrenches the High Court’s jurisdiction to issue prohibition, mandamus and injunctions against ‘officers of the Commonwealth’. However, in R v Hickman; Rx parte Fox and Clinton, the Court held that a privative clause which stated that the decisions of an industrial relations board ‘shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever’ was not constitutionally invalid, despite the fact that its terms appeared to be in direct conflict with the Constitution.

To achieve this outcome it was necessary to interpret the privative clause so that it meant something quite different from what is said. Dixon J’s ‘classic’ analysis began from the premise that parliament had, in effect, spoken with a forked tongue.

The outcome of the application of this reconciliation process in Hickman has sometimes been understood in this way: the privative clause worked to expand the jurisdiction or authority of the decision-maker beyond the express or implied limitations contained in the statute, so that the only enforceable limitations on the decision-maker’s powers were constituted by the so-called ‘Hickman provisos’. Accordingly, the privative clause did not mean that judicial review was ousted but the decisions would be treated as valid provided only that the decision-maker had made a ‘bona fide attempt to exercise its power, that the [decision] relate[d] to the subject matter of the legislation, and that [the decision was] reasonably capable of reference to the power given to the body’. It should also be noted that the actual result in Hickman indicated that the privative clause could not prevent review for breach of a fundamental jurisdictional requirement.

In the states there is no express constitutional protection on which courts can rely to preserve their jurisdiction, and the Hickman reconciliation approach works to preserve some scope for judicial review even in the face of a strongly worded privative clause (see further 7.2).

The ‘reconciliation approach’ has been accepted in many cases but must now be understood in light of the High Court’s important decision S157, which considered the Migration Act privative clause, which had been drafted in similar terms to that considered in Hickman (in the hope that it would be similarly interpreted). Although the

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privative clause survived a challenge to its constitutional validity, the court’s analysis reinterpreted the so-called ‘Hickman principle’, largely by placing considerably more emphasis on the constitutional significance of s 75(v).

Concluded that the privative clause was not directly inconsistent with s75(v)? The joint judgment began by arguing that before any issue of reconciling ‘inconsistent’ statutory provision needs to be confronted, it is first necessary to determine the protection a privative clause ‘purports to afford’. As the Migration Act privative clause applied only in relation to decisions made ‘under the Act’, it was concluded that a decision infected by jurisdictional error was not such a decision for the reason that a jurisdictional flawed decision is ‘regarded, in law, as no decision at all’. This interpretation of the scope of the privative clause was warranted both as a matter of ‘general principle’ and because a broader interpretation of the privative clause according to which it would also apply to decisions infected by jurisdictional error (ie ‘purported decisions’), would generate a direct conflict with s 75(v) and, therefore, render the privative clause constitutionally invalid. Properly interpreted, the privative clause did not purport to oust review in cases where ‘decisions’ were infected by a jurisdictional error. Thus, there was no constitutional problem as the constitutional writs of prohibition and mandamus are available only for jurisdictional error (4.5.3). (The court clearly accepted that privative clause could prevent the issue of certiorari for non-jurisdictional errors, though the position in relation to the ‘constitutional injunction’ remains uncertain, see 4.5.3) And as the alleged error in S157 was a denial of procedural fairness - a well established species of jurisdictional error – the privative clause did not protect the challenged decision from review.

Although this analysis saved the provision from constitutional invalidity, without more it also appears to deprive the privative clause of any meaningful role. Rather, and less clearly, it was said that properly understood the Hickman provisos are conditions which must be satisfied before the ‘protection’ which the private clause ‘purports to afford’ will be applicable.

Matters are even more complicated however. At the conclusion of the analysis of the Hickman line of cases, the joint judgment emphasised that ‘it may be that, by reference to the words of [privative clause], some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of the decision. That is, the ‘process of reconciliation’ of ‘an apparent conflict between the provisions which impose those requirements and the privative clause in question’ may turn what at first blush appears to be a ‘mandatory’ requirement into a ‘directory’ provision. But if the existence of a privative clause is relevant to categorising a statutory requirement as not being essential to the validity of a decision, it seems that the powers of the administrative decision-maker can be expanded by the privative clause. Thus, the reconciliation approach (as explained in the S157 joint judgment) may expand the powers of the decision-maker, but not necessarily so that the Hickman provisos become the jurisdictional limits. It thus seems clear enough that the privative clause has effectively been read out of the Migration Act.

However, it may be that not all federal privative clauses will be read into oblivion. One of the key messages of S157 is that the ‘Hickman principle’ (however understood) is a principle of statutory interpretation, with the consequence that there can be no general rule about the meaning or effect of privative clauses. Thus is has been suggested that where a statute specifies in detail requirements which must be met before a decision is taken (as is the case in the Migration Act), it is less likely that a general privative clause will lead to the conclusion that such requirements are not essential or ‘mandatory’ for the making of valid decisions. In such a context, the mixed

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messages sent by the parliament are likely to be resolved by holding that breach of the specific requirements renders a decision invalid despite the privative clause. If, on the other hand, ‘the exercise of statutory powers involves a significant discretionary element’, reconciliation between legal limitations on decision-making powers and a privative clause may be more likely to lead to a conclusion that compliance with a particular statutory requirement or administrative law norm is not an essential or mandatory element of a valid decision.

S157 made it clear that notion of ‘jurisdictional error’ can play two roles in the law of judicial review. The established usage, as we have seen (see 4.1.1), regulates the relationship between the courts and administrative decision-makers: judicial review remedies normally issue only if a decision-maker has made a jurisdictional error. In S157, jurisdictional error was also the key concept used to regulate the relationship between the High Court and the Commonwealth Parliament.

The joint judgment included a coda on ‘general principles’ which emphasised that the interpretation of the Migration Act privative clause had proceeded on the basis that s 75(v) introduced into the Constitution an ‘entrenched minimum provision of judicial review’, something which no privative clause could erode. The important purpose of s 75(v) is to secure the ‘rule of law’ by ‘assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them’. And parliament cannot deprive the Court of this ‘constitutional function’. As we have noted, however, in their long struggle to distinguish jurisdictional from non-jurisdictional questions (5.4.1), the courts have found it almost impossible to develop stable criteria on which to draw such a distinction. Of the rule of law, this will inevitably involve controversial value judgments. As we have indicated at various points in this book, exactly what the ‘rule of law’ means is vigorously contested.

The only way in which a legislature may seek to restrict judicial review. One option is simply to confer broad discretionary powers on administrators: for example, by conferring powers which may be exercised on the basis of subjective state-of-mind criteria (see 5.3.7). In general, the broader a discretion is, the more difficult it will normally be to argue that the reasoning process grounds of review have been breached, or that a decision is Wenesbury unreasonable. However, as we have seen, such discretionary powers are not unlimited and are in principle subject to review (see, eg, 5.3.7)

Moreover, the S157 joint judgment emphasised that parliament’s ability to diminish judicial review by purporting to give decision-makers extremely wide or ‘open-minded’ jurisdiction or powers is not unlimited. One explanation, contemplated in the joint judgment, is that a statute which confers an extremely broad discretion may not really be a ‘law’, because it would not exemplify the concept of a law ‘as a rule of conduct or a declaration as to power, right or duty’.

Another constitutional principle emphasised in the S157 joint judgment is that a Commonwealth law could not operate so as to allow a non-judicial decision-maker to determine conclusively the limits of its own jurisdiction, as this would be an exercise of the judicial power of the Commonwealth.

No validity clause. Another technique by which parliament may seek to minimise judicial review is the enactment of a ‘no-validity clause’. Such clauses state that a breach of a particular statutory requirement or an ‘administrative law norm’ (5.1) does not affect the validity of the decision (ie is not a jurisdictional error). In Project Blue Sky, the High Court held that the answer to the question of whether or not a breach of a

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statutory requirement results in retrospective invalidity is to be found by applying the ordinary methods of statutory interpretation (4.3). For example, it was accepted in Palme that an explicit no-invalidity clause, attached to a statutory requirement to give reasons, meant that breach of the requirement did not amount to an excess or denial of jurisdiction and thus that the constitutional writs were not available (see 5.2.5.2).

A broad no-invalidity clause – eg a clause which stated something like ‘breach of any statutory provision or any norm which would give rise to a common law ground of review does not affect the validity of a decision’ – might be thought to make impossible for the decision-maker to make a jurisdictional error. A clause of this breadth is, however, capable of being characterised as an attempt to confer entirely open-ended discretion, and thus would also run into the potential constitutional problems we have just discussed.

Although the extent of the constitutional minimum of judicial review remains to be clearly defined, it can be concluded that no-invalidity clauses loom as more significant threats to the maintenance of the High Court’s jurisdiction than do privative clauses aimed directly at the court’s jurisdiction or the conferral of very broad discretions. There is, of course, nothing intrinsically objectionable about time limits: it is reasonable to expect that at some point there will be ‘an end of litigation’. The only real issues concern the date on which the ‘limitation period’ begins, and the length of the period in which the application may be made. The former issue arose in Bodruddaza v Minister for Immigration and Multicultural Affairs, which involved a challenge to the constitutional validity of a time-limit provision in the Migration Act. The challenge section provided that the limitation period would begin to run on the ‘date of actual (as opposed to deemed) date of notification of the decision’ to the applicant. The High Court unanimously held the provision inconsistent with s 75(v) of the Constitution because, the justices said, ‘it subverts the constitutional purpose of the remedy provided by s 75(v)’. Ir S157 Callinan J took the view that the validity of a time-limit provision depended, in part, on the length of the specified period and on whether the Court was given a discretion to extend it.

W. Privative clauses under State law

As explained in the extract from the judgment of Gleeson CJ above, the Court’s decision in Plaintiff S157 was heavily based on the constitutional separation of powers and the fact that the High Court’s judicial review jurisdiction in section 75(v) of the Constitution is not removable by Parliament. However, what is the situation under State law, where there is no constitutionally entrenched separation of powers and the Supreme Court’s judicial review jurisdiction derives from the common law rather than either the Commonwealth Constitution or any State’s constitution? Could a State Parliament completely exclude judicial review of decisions of a particular agency or tribunal by enacting a privative clause reading e.g.: “No decision or purported decision shall be challenged …”? There are now privative clauses in numerous State laws (especially laws dealing with bikie gangs and organised crime) which expressly protect ‘purported’ decisions as well as legally valid ones. The addition of the word ‘purported’ is clearly intended to negative the reasoning in Plaintiff S157 that a general privative clause does not as a matter of interpretation protect a legally invalid decision (i.e. one tainted by jurisdictional error) because it is a nullity or no decision at all. In Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602, Gaudron and Gummow JJ said:

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The operation of a State privative clause is purely a matter of its proper meaning ascertained in its legislative context. However, privative clauses, whether in State or Commonwealth legislation, are construed "by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied". … However and provided the intention is clear, a privative clause in a valid State enactment may preclude review for errors of any kind. And if it does, the decision in question is entirely beyond review so long as it satisfies the Hickman principle.

The New South Wales Court of Appeal dealt with a privative clause in these terms (i.e. expressly encompassing a ‘purported’ decision) in Mitchforce Pty Ltd v Industrial Relations Commission of New South Wales (2003) 57 NSWLR 212. Spigelman CJ held:

The extension of the scope of s 179 beyond a “decision” to encompass a “purported decision” was intended to afford decisions of the Commission protection from jurisdictional error to a substantial degree. Nevertheless, this Court's supervisory jurisdiction is not wholly extinguished. Indeed, the submissions of the second opponents in this Court accepted that it had not been.

... Australian jurisprudence identifies a core content of supervisory jurisdiction which has come to be referred to as “the Hickman principle” (see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598). Both the second opponents and the Attorney General intervening accepted that s 179 did not impinge on the Hickman principle.

More recently, in Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180 Kirby and Heydon JJ both adopted a similar approach to Spigelman J in construing a privative clause expressed as protecting ‘purported’ as well as valid decisions. Such a clause will protect against all legal errors other than ones which breach the Hickman principle.

Since the Hickman principle is clearly more respectful of general privative clauses than the Plaintiff

S157 approach, it appeared that at State level parliaments could protect decisions of sensitive tribunals or agencies from judicial review more effectively than was achievable at federal level. However, this has now changed as a result of the High Court’s decision in Kirk v Industrial Relations Commission (2010) 84 ALJR 154. The Court held that state courts did not have the constitutional power to remove administrative law judicial review jurisdiction from their Supreme Courts. A State Supreme Court's judicial review (supervisory) jurisdiction is a fundamental aspect of a Supreme Court, which is a court that may be invested with the judicial power of the Commonwealth by virtue of section 71 of the Constitution. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ explained the underlying constitutional rationale at [98] - [100]:

The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, "with such exceptions and subject to such regulations as the Parliament prescribes", s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the "Federal Supreme Court" in which s 71 of the Constitution vests the judicial power of the Commonwealth.

There is but one common law of Australia. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental

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respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of "distorted positions". And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics.

This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.

Summary - Accordingly the situation with privative clauses at both federal and State level now appears to be effectively almost identical (although for slightly different constitutional reasons): The Commonwealth Parliament cannot remove the jurisdiction of the high court to judicially review executive action for jurisdictional error of law nor can a State Parliament remove the similar jurisdiction of its Supreme Court. Presumably the same is true for the Supreme Courts of the Commonwealth territories although that was not considered in Kirk.

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16. NATURAL JUSTICE

X. Hayley’s notes

Natural Justice / Procedural Fairness:Is a CL notion & traditionally has two limbs:3. A notice req in that those who are affected by the exercise of public powers should be aware of the info on

which the d-m might make an adverse finding;4. A hearing req allows those so affected to make reps respecting this info, to an impartial d-m before the

decision has been made.

More recently it is suggested that it also includes right to have a decision based on logically probative material; The right to reasons.

Does PF apply? This is a matter for legislature. There is a PRESUMPTION that NJ applies unless UNLESS CLEAR legislative intention to the contrary applies Kioa.

Often statutes are silent if NJ applies and hence need to draw implications from the statute and where 3 considerations are especially important and NJ is more likely to be accorded where:

1. The interest is important;2. The body exercising the power is quasi-judicial (ie tribunal) as opposed to political (ie minister).3. The decision has serious consequences.

TYPES OF SITUATIONS IN WHICH NJ APPLIES

1. UNDERTAKINGS OR ACTS BY AN ADMINISTRATOR (LEGITIMATE EXPECTATION)Where administrator gives undertaking s/t will be done, it must be done unless gives a hearing. This can arise as a result of a promise to an individual applicant or practice of a department.

Undertakings or legislative expectation can also occur by other actions of the executive, eg signing an international treaty.

Therefore it comes down to unfairness.

Houcher v DIMIA (1990)Policy said a minister would follow AAT decision, except in exceptional circumstances & the HC said his decisions to not follow AAT decision revoking deportation order on basis of character w/o a hearing was unlawful.

Teoh (1995) It was held a legitimate expectation was made by the fact that the govn ratified the UN Convention on the Rights of the Child, which said all actions affecting children, the best interests of the child is paramount. The applicant successfully appealed a denial to give him NJ b/c his wife – the mother of the child did not get hearing.

H/e 14 days afterwards the govn tabled a joint statement in parl expressly stating that entering into a treaty could not invoke expectation in an individual that the govn would carry it out.

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Lam v DIMIA (2003) Department cancelled applicants’ visa on basis of character without notifying the carers of his kids. Dept asked the applicant for their address & the applicant argued this created legitimate expectation that what was foreshadowed in letter would be done. Held that relevant test is not if the applicant is disappointed, but if there has been unfairness. This is seen as a watered down approach.

NAFF (2002) Where RRT was held to be wrong to not give right to respond to inconsistencies after promised would allow this; even though no stat right to accord a further hearing.

2. WHERE EMPLOYMENT & REPUTATIONAL INTERESTS ARE AT STAKE

There is a higher presumption of NJ where a person’s employment or reputational interests are at stake; Barratt v Howard (1999).

This is even when they arise from the outcome of investigations, the findings of which are included in government reports; Ainsworth v Criminal Justice Commission (1992) where report made critical findings of potential poker machine operator.

3. PRELIMINARY DECISIONS

If a d-m process has a number of stages then PF may apply at the preliminary stage, especially if findings will be made public and impact on important issues.

Laws v ABT (1990) ABT decided to conduct a hearing to consider action against Laws after it was decided that Laws breached standards that prohibit inciting hatred on the basis of race, after he criticized the government for spending on aboriginals. The decision to conduct the hearing attracted a lot of publicity.

CONSIDERATIONS THAT CAN REBUT THE PRESUMPTION AGAINST NJ

1. WHERE AN APPEAL IS PROVIDED FOR

The is especially where the appeal lies on the facts & law to a court: Twist v Randwick Coucil (1976)

This view is h/e losing favour, especially where the appeal is to a tribunal:DIMIA; ex parte Miah (2001) a number of considerations were listed by McHugh:

If a decision is final or preliminary; especially in substantive sense; Urgency or original decision; Whether appeal de novo or not; Nature of interest affected.

2. NATIONAL SECURITY & LAW ENFORCEMENT

If a hearing is prejudicial to national security, public safety, law enforcement then no need for a hearing.

Edelsten v FCT (1985): No need for notice of ATO application for order preventing departure.

Crech (1991) No need for a hearing before can exercise power of arrest.

3. SENIOR LEVEL AT WHICH DECISION IS MADE – CHALLENGING POLICY

If policy is set by cabinet or a minister, normally no hearing in r/s to this b/c this would be superfluous b/c the decisions of the government cannot be second guessed by courts.

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SA v O’Shea (1987) Cabinet decisions to not release on parole a child sex offender against decision of parole board b/c this balance is up to the government.

Minister for Arts v Peko-Wallsend (1987) Decision to include part of the Kakadu National Park for inclusion into the World Heritage list did not req NJ to company.

H/e, NB that cabinet decisions can be reviewed in rare cases – FAI Insurance.

CONTENT OF A HEARING

Where NJ is required, the content of a hearing that is necessary to discharge NJ varies considerably.

It can vary from a right to submit written submissions to a full blown court hearing – there is no one size fits all.

Minimum req of NJ is that an individual is entitled to be informed of info that is adverse to them & should have a chance to respond to this (often simply in writing) eg in Kioa. H/e often the right to be told of adverse material arises after the investigative phase of an inquiry (Bond), not before.

Often the content of a hearing is detailed in the govn legislation.Eg in the Migration Act it is prescribed that in the MRT& the RRT applicants are entitled to a hearing in which they can appear & can have an interpreter.At the discretion of the member, a legal rep is also able to attend & make submissions.

But many other admin processes are far less clear and it is necessary to revert to basic principles that have been developed by courts.

TYPES OF HEARINGSThere are many diff forms of hearings, they can include:

Written submissions only.

Oral hearings that include: Right to have an interpreter (nearly always); Right to have a lawyer either simply as an observer or s/t to make submissions; Right to cross examine witnesses. This is rare b/c it could extend the hearing too long.

RELEVANT CONSIDERATIONS

Courts have identified a no of consideration that dictate what form of hearing is necessary. The following will incline a court to hold that a more expansive type of hearing is necessary. Absence of these considerations, will incline a more modest hearing.

Where an imp interest is at stake (livelihood, migration, reputation & money). But still not always allowed to have a lawyer. If a lawyer is allowed but one cannot afford one, absence of legal aid does not negate NJ Canellis (1994).

Where a body itself is constituted by lawyers. Where the applicant is uneducated, not sophisticated & poor English Krstic (1998).

A breach normally means the decision is invalid.Where the right to NJ is breached, the decision will be invalid unless a hearing could not possibly have produced a diff result: NAFF v DIMIA.H/e courts are reluctant & slow to find that a hearing would not have possibly changed the outcomes.

DECISION MUST BE MADE BY AN INDEPENDENT PERSON – BIAS RULE

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Decisions that are tainted w- actual bias or perceived bias (apprehended or imputed) are invalid.

ACTUAL BIAS:This is hard to prove.DIMIA v Jia Legeng (2001) Here a minister criticized AAT for not accepting earlier rulings that the 2 applicants should be deported on basis of character. The minister then deported them on basis of national interest & HC held no bias by the minister.

TEST: It needs to be established that the d-m was partial & has prejudiced the matter & could not be swayed by evidence. This is a subjective test & requires proof of inappropriate motives & intentions of the d-m.

APPREHENDED BIAS:

The test for apprehended bias is set out by Deane J in Webb v R (1994):Whether in all circumstances a fair-minded lay observer w- knowledge of the material objective facts might entertain a reasonable apprehension that (the tribunal mem) might not bring an impartial & unprejudiced mind to resolution of the question in issue.

R v Commonwealth Conciliation & Arbitration Commission; Ex Parte Angliss Group (1969) – Though the subject of the reasonable suspicion need only be a possibility of bias, the reasonable apprehension must be “firmly established”.

What needs to be established is a reasonable suspicion that an unprejudiced mind might not be brought to the determination of the appellant’s case b/c of “preconceptions existing independently of the case” – Re JRL; Ex parte CJL (1986) b/c of prejudgment or predisposition – Ex parte Epeabaka.

IT IS HARD TO SUCCEED IN ESTABLISHING SUCH:In Laws v ABT it was held a reasonable observer is fair minded & has some knowledge of the circumstances of the case & the law. In this case, held that ABT was no biased even though it was defended defamation action against Laws – it was imp that if Laws won mems would not personally pay damages.

RRT v Epeabaka (2001) Where HC held that RRT mems who posted that some applicants lie was not biased.

The test for bias differs with the forum, with higher standards of apparent impartiality expected in certain forums higher for:

Courts, then Tribunals, then Ministers & other parties with a political role (Hot Holdings v Creasy)- here the HC held mining licenses

granted and ok despite the fact 2 remote administrators has related pecuniary interests.

It is permissible for judges & tribunals to make general comments about the subject matter being hears, so long as comments don’t illustrate a closed mind to the issue at hand, eg:Conciliation & Arbitration Commission, ex parte Anglis (1969) The president of the commission in previous cases invited unions to launch action for equal pay & despite this when they did, the HC held that they were no precluded from hearing the case.

ILLUSTRATIVE CASES ON NJ

FAI Insurance (1982) HCThe Vic govn in council under the Workers Comp Registration denied FAI’s application to renew approval to be an insurer b/c it didn’t set aside enough assets to meet potential claims.Previously, it has provided insurance for 20 yrs.

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HC held that his decision was made in denial/ breach of NJ, b/c Statute did not confer unfettered discretion, re: this decision b/c it has as a criteria the commitment &

financial position of the applicant; Right to earn a livelihood or purse a financially rewarding activity is important; Non-renewal is more important that failure to get initial approval b/c hurts more to lose s/t already

possessed, then never received it in the first place; NJ applies to corporations; NJ can apply regarding potentially high levels of govn decisions.

MIMA v EP Miah (2001) HC The comprehensive scheme in the Migration Act setting out procedural rights of visa applicants when applying to the dept did not defeat common law natural justice.

Miah was refused refugee visa by Dept & decision was based in part on bias of change in govn in Bangladesh since application lodged. Not given a chance to comment on this & missed RRT review date & HC agreed that the decision was invalid in any event b/c it breached NJ.

Issue was whether the words of the MA negated NJ? It was argued the MA was a code of NJ b/c: Subdivision AB said the Act was a code for dealing fairly & efficiently w-application. S 54 said can make decisions w/o giving an applicant chance to make submissions – oral or written. S 57 said a d-m must give opportunity to comment on infor. This is specifically about applicant & not

general info about class of persons. S 69 said decisions that didn’t comply w- these req’s isn’t necessarily wrong, just means that it might be

set aside by the RRT. This section also said that d-m doesn’t need to take any action except comply w- div AB. Explanatory memorandum expressly said that AB provides code for NJ to replace CL on NJ.

HELD:- Legislation was not effective in abolishing CL notions of NJ;

No clear words that it wanted to abolish NJ; AB is headed code for ‘dealing fairly’ hence assumes will operate fairly; AB does not purport to be exhaustive of what is necessary; Subject matter is vital (life or death) & implements Australian int obligations; Right of review does not necessarily mean no NJ at first instance.

MZWCL v MIMA (2006)

“The approval of torture was limited & particular. It dealt w- State-sanctioned torture for interrogative purposes w- the object of averting likely loss of life. It did not advocate more generally torture in its multifarious possible forms. And while it advocated the legalizing of torture within a narrow province, it acknowledged that the infliction of torture beyond that province would continue to involve a ‘violation of fundamental rights’”.

“For this bias rule to avail the appellant there must be such a connection b/c the views expressed in the article & the issues determined by the Tribunal mem in the appellant’s case as to firmly established that possibility of an operative preformed judgment in the determination of those issues. I do not consider there to be such a connection. The particular sub-species of torture with which the article was concerned was not in issue in the appellants case. There is nothing in the article to suggest that the authors’ condoned the infliction of torture beyond the discrete area that they would wish to privilege. They continue to accept that torture beyond that area would involve a violation of fundamental rights”.

Here a man was trying to not have Mirko hear his case due to his article on torture. It was found irrelevant as the issue had nothing to do w- the appellant’s case.

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Y. Topic 7 study guide

What is natural justice? The rules of natural justice have two parts: • The procedural fairness rules • The bias rule (reasonable apprehension of bias.

Both aspects of natural justice are based on the fundamental premise that any person potentially adversely affected by public administrative action is entitled to a fair hearing. That requires both a fair procedure and an impartial decision-maker.

Content of procedural fairness (Dealt with in the next lecture, but this is an overview so that you have some preliminary understanding of what is meant by "procedural fairness") • Adequate notice of potentially adverse decision affecting rights, interests or legitimate expectations; • Disclosure of adverse material that is credible, relevant and significant;

Other aspects of procedural fairness may vary depending on the nature of the administrative proceedings and the interests affected by them: • Oral hearing or just written submissions? • Right to call witnesses? • Right to cross-examine adverse witnesses? • Right to legal representation? • Interpreter?

The early cases (up to 1960's) The scope of the natural justice principle began to expand with the seminal case of Ridge v Baldwin [1964] AC 40. Prior to that case, there had been two lines of authority on natural justice. The earlier (and more liberal) 19th century approach was characterised by Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180, where it was said that " No man shall be deprived of his property by a public authority exercising statutory power without a hearing." However, although very widely expressed, it will be noted that the obligation to give natural justice only applied if there was (a) property rights; and (b) the exercise of statutory powers involved. In the first part of the 20th century, probably under the impact of a perceived need during wartime for governments to have broad emergency powers unfettered by onerous and time-consuming requirements to give natural justice to people adversely affected by decisions, the scope of natural justice came to be more narrowly defined. Thus, in Nakkuda Ali v Jayaratne [1951] AC 66 (also see R v Electricity Commissioners), the English courts held that natural justice is not implied when an administrator is exercising a power of an administrative nature, only when the power is of a judicial or quasi-judicial nature. Australia's High Court effectively adopted a similar restrictive approach to natural justice in Testro Brothers v Tait (1963) 109 CLR 353.

Then, in Ridge v Baldwin [1964] AC 40, the House of Lords decided that there was no requirement for a duty to act judicially before natural justice would be implied: all that was required was that the administrator had a duty to determine the rights of individuals (the case concerned a watch committee exercising power to dismiss constable on grounds stated in the statute). Thus natural justice applied to powers of an administrative nature as well as powers of a judicial or quasi-judicial nature. The English abolition of the old administrative/judicial power distinction for implication of natural justice was adopted in Australia in Durayappah v Fernando [1967] 2 AC 337 (Privy Council) and Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222 (High Court). From that time onwards, the

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scope for implication of a requirement of natural justice has been progressively expanded by a series of High Court decisions.

What rights or interests will attract implication of natural justice? Ridge v Baldwin [1964] AC 40 rejected need for “super-added” duty to act judicially. Durayappah v Fernando [1967] 2 AC 337 (Privy Council) adopted Ridge v Baldwin for Australia. Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222 found a duty to provide procedural fairness even where the interest affected was (arguably, at least as seen at that time) not proprietary (a taxi licence).

General fairness concept Some Anglosphere (though not Australian cases) in the late 1960s and early 1970s began to express the obligation to afford procedural fairness in wide and potentially all-embracing terms: that administrators had a general legal duty to act fairly. Re HK (An Infant) [1967] 2 QB 617 Furnell v Whangarei High Schools Board [1973] AC 660

Development of the "legitimate expectation" principle At around the same time as the "general duty of fairness" principles was developing (1969), Lord Denning “invented” a doctrine which was to transform and quite radically extend the range of circumstances in which courts would imply a duty to give natural justice: the legitimate expectation principle. In Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149, the concept of "legitimate expectation" was first introduced by Lord Denning. A legitimate expectation is an expectation which is reasonable, that a legal right or a legal liberty will not be interfered with, or will be received. E.g. expectation that a student's temporary student entry permit will be allowed to run for its term. Thus, natural justice will not only be implied where property rights are adversely affected, but also where a person has a "legitimate expectation" that a legal right or a legal liberty will not be interfered with. Halsbury’s Laws of Australia explains the legitimate expectation principle in the following terms: A legitimate expectation is recognised as an interest protected by procedural fairness. A legitimate expectation is something short of a legal right, namely a reasonable expectation that a legal right or liberty will be obtained, or renewed, or will not be unfairly withdrawn or cancelled without a hearing. The term ‘legitimate’ in ‘legitimate expectation’ means ‘reasonable’. Australia's High Court was initially unimpressed with the idea of "legitimate expectation". In Salemi v Mackellar (No. 2) (1977) 137 CLR 396 at 404 Barwick CJ doubted usefulness of the expression "legitimate expectation" (saying that it adds little if anything to the concept of a right). Brennan J and later McHugh J have subsequently also expressed doubts about the usefulness of the expression (but Mason J was very keen on it). (Salemi was a deportation case). However, later in the same year, in Heatley v Tasmanian Racing Commission (1977) 137 CLR 487 the High Court (Barwick CJ dissenting) adopted the "legitimate expectation" formulation (Heatley was a case of "warning off" a punter from a racecourse: no property or other right was involved, not even a revocable licence). Then in FAI Insurances v Winneke (1982) 151 CLR 342 the High Court held that a legitimate expectation arose in a case of an application for renewal of a licence (insurance licence).

Promises/representations as source of "legitimate expectation" A series of cases have held that promises or representations by administrators can give rise to a legitimate expectation i.e. a reasonable expectation that the promise will be kept.Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 Kioa v West (1985) 159 CLR 550 Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 Cole v Cunningham (1982) 151 CLR 342 Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648

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Of course, that doesn't give rise to a legally enforceable duty to keep the promise because, as we saw in an earlier lecture, that would amount to imposing a promissory estoppel which would be inconsistent with the administrator's statutory duty to make decisions strictly on their merits rather than in accordance with a promise. Thus, the effect of a promise on the rules of natural justice is merely that the administrator must give the affected person an opportunity to be heard as to why the promise should be kept (interests affected etc) before proceeding to ignore or dishonour the promise.

Promises or representations as source of procedural fairness - Australian cases In Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648 (yet another deportation case), there was an announced government policy that an AAT recommendation would only be overturned by the Minister in exceptional circumstances and on strong evidence (immigration decisions could be reviewed by the AAT at that time, but its decision was only recommendatory). The High Court held 3/2 that this together with permanent residency grounded a legitimate expectation and thus an entitlement to a hearing before departing from the AAT's recommendation . The case is also important for Deane J's statement :"Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making... and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances." Also note Toohey J's statement that legitimate expectation "does not depend upon the knowledge and state of mind of the individual concerned".

Minister for Immigration &Ethnic Affairs v Teoh (1995) 183 CLR 273 probably represents the high water mark of the legitimate expectation principle (Brennan J didn't sit). The majority held that a deportee had a legitimate expectation that the Minister's delegate would deal with him in accordance with UN Convention on the Rights of the Child, which required that interests of child must be given "primary importance". The Convention was not part of the domestic law of Australia. Teoh had 4 children. However, the majority also held that a legitimate expectation could exist independently of the applicant's knowledge of the existence of the Convention obligation said to give rise to the expectation!! (refer back to Toohey J in Haoucher). McHugh J gave a strong (and satisfying) dissent: • McHugh J expressed a degree of incredulity that an "expectation" could exist independently of knowledge of the existence of the promise that gave rise to it on the part of the applicant seeking to rely on that promise. • More importantly, His Honour disputed that an international treaty represented a promise or representation to the Australian people to the effect that the Executive Government would necessarily act in accordance with it (as the majority asserted). A treaty was simply a promise to the other signatory nation states that it would over time bring its laws and practice into conformity with the treaty obligations. • McHugh doubted the utility of the whole notion of "legitimate expectation" given the extent of its expansion on flimsy pretext.

The authority of Teoh was severely doubted (though not formally overruled) in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, with McHugh J prominent among the doubters.

Status of decision-maker The obligation to give procedural fairness applies irrespective of the status of the decision-maker. Thus, for example, it affects decisions vested in the governor or Governor-General. However, this may affect

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what remedy is sought, and it is also said that relief should preferably be sought against the Attorney-General where the statute specifies the Governor or Governor-General as the decision-maker (appropriate given the content of the responsible government doctrine). R v Toohey (Aboriginal Land Commissioner); ex parte Northern Land Council (1981) 151 CLR 170; FAI Insurances v Winneke (1982) 151 CLR 342

Later cases also made clear that it does not matter whether the power being exercised is statutory or prerogative: procedural fairness may still be implied. Thus in Minister for Arts, Heritage and Environment v Peko-Wallsend (1987) 15 FCR 274 the Full Federal Court held that natural justice could have applied to a common law prerogative-based decision (in relation to the World Heritage listing of Kakadu National Park) were it not for the fct that the nature of the decision was too inherently political (being take by Cabinet and relating to international treaties) and should therefore be regarded as non-justiciable. Nevertheless the Court emphasised that the fact that the basis of the decision-making power was the common law prerogative rather than statute did not of itself mean that the decision was necessarily non-justiciable nor that natural justice should not be implied.

What rights, interests etc. will attract procedural fairness? The modern Australian test for implication of duty to observe procedural fairness The modern test for implication of a duty to observe natural justice/procedural fairness is most comprehensively set out in Kioa v West (1985) 159 CLR 550. It was a criminal deportation case, but there were certainly no legal rights and no representation/ regular practice involved. However, the Minister took into account adverse material without disclosing it to the applicants. The High Court held that: • there was no longer a question of whether natural justice is implied (it is unless excluded by statute), but rather the question is what is its content in a given case; • " legitimate" does not mean the same as reasonable; • " procedural fairness" is to be preferred to "natural justice" (because it is less confusing and makes it clear that what the law protects is procedural rather than substantive fairness, the latter being a matter for the Executive under the separation of powers doctrine);

The following all attract an implication of procedural fairness: • legal rights; proprietary interests; financial interests; reputation ( Mason J at 582, Brennan J at 616-9, Deane J at 632); • status (Mason J at 582 & Dean J at 632); • personal liberty and preservation of livelihood (Mason J at 582). • a variety of interests"; "social interests" Brennan J at 617, 619.

The general test for implication of a duty to afford procedural fairness was expressed as follows: • Mason J drew distinction between decisions affecting citizens generally and those which affect an individual citizen's interests in a direct and immediate way (at 584); • Brennan J said that an exercise of power must be apt to affect the interest of the individual alone or affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interest of the public (at 619); • Deane J said that the administrator's exercise of power must affect an interest in the person's individual capacity (as distinct from as a member of the general public or a class of the general public).

Multi-stage administrative process

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The fact that natural justice applies does not mean that there will necessarily be a right to a hearing at every stage of a multi-stage administrative process. In State of South Australia v O'Shea (1987) 163 CLR 378 (a case involving an application for release on licence by a child molester detained on the ground of being incapable of exercising proper control of his sexual instincts!) the High Court held that the obligation to afford procedural fairness may be satisfied by a hearing before a body not having final decision making power (in this case the Parole Board which only made a recommendation), so that the actual decision maker (the Governor in Council) had no obligation to afford a further hearing (although it would be different if the actual decision maker took into account new material, or if no prior opportunity had been given to make submissions on penalty).

Affectation of reputation as source of procedural fairness Annetts v McCann (1990) 170 CLR 596 is a case which illustrates that an interest in protecting the reputation of a close relative may be enough to ground a legitimate expectation. The case involved an inquest into the death of 2 boys in the WA desert. The Coroner denied the boys' parents' counsel leave to make submissions. It was held that the familial relationship gave sufficient interest in the son's reputation. Thus they could make submissions on issues relevant to that, but not at large. Mason, Deane and McHugh JJ also approved Deane J's formulation in Haoucher i.e. general duty of fairness. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 involved a Queensland CJC report which reflected adversely on poker machine supplier. No opportunity had been given to controvert the adverse material before the report was finalised. The High Court held that Ainsworth had a right to defend his reputation, even though the report was only recommendatory and had no immediate adverse effect on any substantive rights or entitlements (disapproved Testro Bros v Tait (1963) 109 CLR 353). Mason CJ, Dawson, Toohey and Gaudron JJ said: "It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations".... Thus, what is decisive is the nature of the power, not the character of the proceedings which attend its exercise." Johns v Australian Securities Commission (1993) 178 CLR 408 is another case involving protection of reputation as a sufficient basis for implication of a duty to afford procedural fairness. The case involved an ASC examination under oath where there was no privilege against self-incrimination. The ASC released the transcript to a royal commission in circumstances which allowed them to be published. The High Court held that Johns was entitled to a hearing on whether public release should be allowed, because of Johns' clear interest in protecting his reputation. Brennan J discussed situations when procedural fairness might not require notice before release of transcript to another agency (e.g. when disclosure may prejudice sensitive investigations).

Summary of modern implication principles 3 main approaches in Australia: 1. Must find a right, interest or "legitimate expectation". The entitlement is a common law right - approach of Mason J. 2. Extended legal rights approach -- approach of Brennan J - places less emphasis on legitimate expectation. Entitlement to natural justice is an implication which arises as a matter of statutory interpretation, not as a matter of common law. 3. General duty of administrative fairness (ref earlier cases like Re HK: An Infant) - approach of Deane J in Haoucher, apparently approved by Mason CJ & McHugh J in Annetts v McCann.

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Z. Kioa v West – summary of Mason J’s judgment

The case presented for the appellants is that the relevant decisions of the Minister’s delegate were vitiated by failure to abide by the rules of natural justice and by a failure to have regard to relevant considerations.

However, the delegate and, it seems, the Department correctly recognized that, if they were first granted further temporary entry permits, they would have been eligible for the grant of permanent entry permits provided that “strong compassionate or humanitarian grounds” for the grant of such permits existed. Paragraph 23 of the submission to the delegate states that “having regard to the applicable policy” an application for further temporary permits would be unlikely to succeed. Paragraph 26 of the delegate’s statement of reasons sets out the grounds why he considered such permits would be refused and par. 28 states his conclusion that there were “no strong humanitarian or compassionate grounds” for the grant of permanent entry permits.

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v. Randwick Municipal Council (82); Salemi [No. 2] (83); Ratu (84); Heatley v. Tasmanian Racing and Gaming Commission (85); F.A.I Insurances Ltd. V. Winneke (86); Annamunthodo v. Oilfields Workers’ Trade Union (87). The reference to “right of interest” in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

The reference to “legitimate expectation” makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right of interest. Take, for example, an application for a renewal of licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi [No. 2] (88) Barwick C.J. expressed the view that the expression “legitimate expectation” adds title, if anything, to the concept of a right. However, later decisions demonstrate that the concept of “legitimate expectation” extends to expectation which go beyond enforceable legal rights provided that they are reasonably based: Heatley (89); F.A.I. (90); Attorney-General (Hong Kong) v. Ng Yuen Shiu (91). The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. In the view of some members of the Court in Salemi [No. 2] the “amnesty” constituted an example of such an undertaking. Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in F.A.I. (92) or from the existence of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v. Minister for the Civil Service (93). The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case.

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 the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn L.C. understood that this was the law when he spoke of the obligation to “fairly listed to both sides” being “a duty lying upon every one who decides anything”: Board of Education V. Rice (98). But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the actor decision which attracts the duty is an act or decision:

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“…which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a ‘policy’ or ‘political’ decision and is not subject to judicial review.”

(Salemi [No. 2] (99), per Jacobs J.)

In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercise fairly, i.e., in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.

Exercise of the discretionary power conferred by s. 18? It would be going too far to say that fairness requires that in all cases in which a deportation order is to be made notice should be given to the prohibited immigrant of the intention to make such an order and of the grounds upon which it is to be made. The plainly contemplates that in the ordinary course of events a deportation order will be made ex parte. And the prohibited immigrant may be a person who, intent upon remaining in Australia without lawful right or title, has evaded the authorities and will continue to do so. He may even be a person who has been required under s.31A to leave, but has declined to do so. To insist that he be notified of the intention to make a deportation order would serve only to facilitate evasion and frustrate the objects of the statute. These considerations accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter: In re H.K. (An Infant) (8).

The grounds on which it is to be refused. And if the refusal is to be attended by the making of a deportation order, the case for holding that procedural fairness requires that such an opportunity be given is unquestionably stronger.

Appellants complain, it seems to me that there are two matters only in respect of which fairness demands that the applicant should have the chance of replying. The first is the comment in par. 21 that had Mr. Kioa been genuine in his desire to seek a legitimate extension of his stay in Australia he might have sought a decision on his application “rather than change his address without apparently notifying the Department”. The second matter is that contained in par. 22, namely, the statement that Mr. Kioa’s concern for other Tongan illegal immigrants and his active involvement with other persons who were seeking to circumvent Australia’s immigration laws “must be a source of concern”. Although the statement of

A separate submission is made on behalf of Elvina Kioa. It is contended that she had a legitimate expectation as an Australian citizen that she would not be deprived of, or impeded, in her enjoyment of the day to day benefits and privileges of Australian citizenship and a legitimate expectation of continued residence in her country of citizenship with her family. The suggestion is that before a deportation order was made against her parents she should have been given an opportunity of presenting a case against the making of such an order. In my opinion the duty to act fairly does not extend so far. Certainly the making of a deportation order had consequences for her, but it would be quite unreal to suggest that as an infant ten-months-old she should have been given an opportunity of presenting a case beyond the case presented on behalf of her parents for an extension of their stay in Australia.

In the result I would allow the appeal and quash the deportation order on the ground that a breach of the rules of natural justice occurred in connection with the making of the decision.

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AA. Study guide 8

Qualifications to the implication test There are several paradigm situations where procedural fairness may be excluded, restricted or circumscribed.

Where the statute itself provides a hearing procedure or right of appeal In Kioa v West Brennan J said: "to determine whether the legislature's intention is to condition the exercise of a statutory power upon observances of the principles of natural justice -- the threshold question -- one must have regard to the text of a statute creating the power, the subject-matter of the statute, the interests which exercise of the power is apt to affect and the administrative framework created by the statute within which the power is to be exercised...- Also see Cooper v Wandsworth Board of Works (1893) 14 CBNS 180 for a similar formulation.

As observed earlier, the fact that natural justice applies does not mean that there will be a right to a hearing at every stage of a multi-stage administrative process. Brettingham-Moore v Municipality of St Leonards (1969) 121 CLR 509 sets out the general principle that the mere fact that a report is not self-executing or that a further administrator's discretion must be exercised before the report has any consequences, does not prevent implication of procedural fairness (similar to Ainsworth). The focus has shifted from whether interests are affected to whether procedural fairness is excluded or limited by legislative intention. The High Court held in this case that the statute provided that an aggrieved person could petition the Governor not to give effect to an adverse report from a municipal commission concerning local government. This statutory scheme satisfied the requirements of procedural fairness, and in any event it was not for the court to engraft an additional requirement where the Parliament had turned its mind to the issue of providing a hearing.

Twist v Randwick Municipal Council (1976) 136 CLR 106 involved a local council power to order demolition of dilapidated building. There was a right of appeal to the District Court. Twist did not appeal. Twist then sought judicial review on denial of natural justice. The High Court held that the legislature had provided for hearing by way of appeal. Because it was a full de novo hearing this satisfied requirements of procedural fairness. Barwick CJ said that legislative intention to exclude NJ must be "unambiguously clear".

Barwick CJ also said: "The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal... Marine Hull & Liability Insurance Co Ltd v Hurford (1986) 67 ALR 77 involved a Treasurer's direction to insurer under the Insurance Act , which was reviewable by the AAT. The Acting Treasurer gave a direction without notice or hearing prohibiting Marine Hull from issuing policies etc. The Full Federal Court held that whether a statutory right of appeal excludes rules of natural justice in making a primary decision, or provides that the appeal is the sole avenue of review if NJ denied, is a question of construction of each statute. Morling J cited Brennan J's dictum from Kioa: "The intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred". In this case natural justice was not excluded, but the availability of full merits review to AAT meant that this was the appropriate avenue for redress for denial of procedural fairness by the decision maker. Courtney v Peters (1990) 98 ALR 645 involved a widow's application for pension to Repatriation Commission. She was denied an opportunity to controvert adverse material (a letter from her doctor resiling from his earlier position on causation of non-Hodgkin's lymphoma). Lee J in the Federal Court held that procedural fairness was not excluded by availability of AAT merits review, nor should the appellant be forced to seek AAT review in order to get NJ. "The aim of the Act is to avoid involving

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the parties in unnecessary expense; not to see them embark upon a lengthy and costly journey to the AAT.

Calvin v Carr [1980] AC 574 involved an adverse finding against the part owner of a racehorse by stewards at Randwick Racecourse. He was denied any notice or hearing by stewards, but there was a full appeal hearing to the Club Committee with witnesses, examination and cross-examination. The Privy Council held that natural justice applied at first instance, but the later appeal (if a full rehearing) could "cure" the defect . This will not always be so, it depends on individual circumstances. Also the emphasis on urgency (races held every half hour or so, speedy decision required) may have influenced the Court's decision on interpreting the particular disciplinary regime.

Also see Cooper v Wandsworth Board of Works; FAI Insurances v Winneke ; Commissioner of Police v Tanos (1958) 98 CLR 383; State of SA v O'Shea.

McHugh J's summary In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 McHugh J identified a set of factors that must be weighed to determine whether the availability of an appeal will be regarded as circumscribing or excluding a right to judicial review of the original decision for denial of procedural fairness: • Nature of the original decision: preliminary or final. • Original decision made in public or private. • Formalities required for original decision. • Urgency of original decision. • Nature of the appellate body - judicial, internal, "domestic". • Breadth of appeal - de novo or limited. • Nature of the interest and subject matter.

Decisions of a legislative nature Although note that for most purposes the High Court denies that it is useful to seek to categorise decisions of executive government bodies as either quasi-judicial, legislative or executive in nature. Many functions will have some aspects of more than one of these. Nevertheless, as a general rule people affected by regulations, rules or by-laws won’t be entitled to notice, consultation etc (unless the statute expressly requires this). This principle has an obvious pragmatic grounding: government would grind to a halt if rules and regulations couldn’t be made without consulting everyone who might be affected in advance.

Bates v Lord Hailsham [1972] 1 WLR 1373 sets out the basic principle that procedural fairness does not apply to the exercise of powers of a legislative nature, whether it is primary or delegated legislation. The commonsense reason for this rule is fairly obvious: if everyone affected by general rules and regulations had a right to a hearing before they were made, effective government would become impossible.

However, natural justice might sometimes apply. In Bread Manufacturers of NSW v Evans (1994) 180 CLR 404 Gibbs CJ said: "Equally, it does not seem to be useful to decide the question whether the rules of natural justice apply by deciding whether the power in question should be classified as executive or legislative. The distinction between powers of an executive and those of a legislative nature is a fine one and opinions may easily differ on the question". There is no reason for ruling out the implications of procedural fairness in relation to exercises of power of a legislative nature which single out individuals, by affecting their interest in a manner

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substantially different from the manner in which the interests of the public at large are affected. Nevertheless, Gibbs CJ (and Mason, Wilson and Aickin JJ) found that the particular statutory scheme excluded procedural fairness, because the Minister was given power by statute to consent to dispensing with the holding of an inquiry (into fixing the price of bread), and had done so.

National security In Council of Civil Service Unions v Minister for Civil Service (GCHQ case) [1985] A.C. 374, although the House of Lords held that placing a ban on staff at GCHQ from joining trade unions without a hearing was a denial of procedural fairness, it declined to grant relief because considerations of national security outweighed those of fairness. The Prime Minister had given evidence that prior consultation carried a real risk of disruption which was a threat to national security. The court accepted the opinion of the Prime Minister that there was such a risk, without looking behind it! The assessment of the risk to national security was one for the government and not for the court, which was ill-equipped to inquire further into such a question.

In a somewhat more limited form, Australia's High Court has also accepted that national security considerations might sometimes limit or exclude the implication of procedural fairness. Thus, in Coutts v Commonwealth (1985) 157 CLR 91 a RAAF flight lieutenant was compulsorily retired on medical grounds. Regulations provided that an officer shall hold his or her appointment during pleasure. Wilson J. said: "although at common law public policy required all servants of the Crown to hold their offices during the pleasure of the Crown without distinction between those engaged in civil service and those engaged in military service... statutory provisions now reflect the greatly changed conceptions of what public policy requires in relation to the two services, resulting in greater statutory regulation of the former and a virtual disappearance in many sections of the civil service of the Crown's right to dismiss at pleasure. On the other hand, the disposition and membership of the armed services remains very much within the discretion of the Crown:

"The members of the Forces are under a discipline that the others (civil servants) are not: they have duties and obligations more stern than theirs: and rights and privileges that they cannot claim".

Urgency/emergency In Marine Hull & Liability Insurance Co Ltd v Hurford the Federal Court noted that some powers (e.g. to destroy dangerous animals; quarantine persons with infectious diseases; forcibly enter premises at time of fire or natural disaster) by their very nature exclude procedural fairness. In Commissioner of Police v Tanos it was noted that procedural fairness may be implied in relation to some exercises of a power but not others, where there is a situation of urgency. In Kioa v West, according to Brennan J's view (at CLR 615), procedural fairness may always be implied in relation to a power, but urgency may result in its content being reduced to nothing in a particular case i.e. Brennan tends to see natural justice as a matter of content rather than implication (and legal rights rather than legitimate expectations). Also see Heatley v Tasmanian Racing Commission. Even when a decision is made without notice because of urgency, the court may find that procedural fairness requires that the order be a short-term measure for the protection of the public interest, and require that a hearing be afforded before an order with long-term consequences is made.

Employment

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Sometimes the common law implies natural justice in an employment situation and sometimes it doesn't. In Ridge v Baldwin [1964] A.C. 40, Lord Reid identified 3 categories: • master/servant (i.e. private contract)- no common law duty to give procedural fairness; • Dismissal from an office held at pleasure- no common law duty to give procedural fairness ; • Dismissal from an office where there must be something against the person to warrant dismissal i.e. dismissal only for cause- procedural fairness is implied.

Ridge v Baldwin itself was in Lord Reid's third category, because the statute only empowered the watch committee to dismiss a constable where he was negligent in the discharge of his duty or unfit for duty. Although private master/servant employment does not attract natural justice at common law, duties to give procedural fairness have been imposed by statute, especially Workplace Relations Act (but note numerous express exclusions e.g. executive employees; probationary employees; casual employees; fixed term contracts etc). At common law, public service employment is at pleasure. See Public Service Board of NSW v Osmond (1986) 159 CLR 657. However, public service statutes have conferred extensive rights of procedural fairness, so that the common law principle is for most purposes irrelevant (though not with many forms of senior executive service contracts, which seek to take at least the termination of employment outside the ambit of public service statutes and make it a matter of private contract).

But see Malloch v Aberdeen Corporation [1971] 1 WLR 1578: an anomalous case- said to be in Lord Reid's third category even though statute described position as "at pleasure". It was said that it was necessary to look at other incidents of employment set out in statute, regulations, code or agreement. However, employment by a public authority does not of itself inject the necessary public element: it must be found in special status or protective provisions: R v East Berkshire Health Authority; Ex parte Walsh [1985] QB 152. This area may become increasingly important given increasing reliance on fixed term contract employment in the public sector together with the exclusion of such employment from the protection of Workplace Relations Act wrongful termination provisions. Note Coutts v Commonwealth - dismissal from armed services for cause may not attract procedural fairness because of national security considerations. Also note the recent litigation surrounding the (ultimately successful) dismissal of the Secretary of the Commonwealth Department of Defence.

The Fair Work Act 2009 (Cth) (Cth) (and predecessor legislation back to the early 1990s) confers a statutory right to natural justice prior to dismissal, applying to most private and public employment situations. Commonwealth and State public sector legislation also contains detailed disciplinary procedures including rights to hearing, appeal etc. Note there are exemptions from coverage for casual and probationary employees and high salary earners. Note also that this is just by way of background information; it is an aspect of employment law not administrative law, and as such is not examinable.

Also see Public Service Board of NSW v Osmond (1986) 159 CLR 657 (no common law right to reasons for decision) and Barratt v Howard (2000) 170 ALR 529, in which it was held that a right to procedural fairness may not be much practical use in some cases, especially to very senior public servants where the Minister's "loss of confidence" in the employee/officer will be a sufficient reason for dismissal. The senior public servant will still be entitled to notice of the Minister's concern and an opportunity to be heard in relation to it, but in practice how does one counter a "loss of confidence" the basis for which is not required to be made any more specific than that?!

What does fairness require? Introduction

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Now that we have examined when natural justice will be implied, we will look at what procedures will actually be required to satisfy the requirements i.e. what is the content of natural justice in a given situation? Again, the general test is set out in Kioa v West, where Mason J said : "What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting". (at 584)

Brennan J said: "Rather, the intention to be implied when the statute is silent is that the observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred. Accepting that the content of the principles of natural justice can be reduced to nothingness by the circumstances in which a power is exercised, a presumption that observance of those principles conditions the exercise of the power is not necessarily excluded at least where, in the generality of cases in which the power is to be exercised, those principles would have a substantial content".

Particular aspects of natural justice that frequently arise for consideration in the cases include those dealt with in the following pages following.

Notice/Disclosure of adverse material Reasonable prior notice of proceedings apt to affect a person's rights, interests or legitimate expectations is the minimum and universal requirement of natural justice. But what is a reasonable period may vary depending on the circumstances of the case and the statutory framework, scope and purpose.

Notice requires notification of the substance (but not necessarily every last detail) of any allegations against the applicant/person affected.

See Kanda v Government of Malaya [1962] AC 322 at 337-8. Where procedural fairness is implied, then generally material adverse to a party ought to be disclosed to that party to allow him to controvert it before a decision is reached. Prior notice that a decision adversely affecting interests is to be made is the minimum content of procedural fairness. In the absence of sufficient particulars of the allegation and the grounds upon which it is based, it is not possible to understand the nature and ambit of the allegation so as to prepare a response to it. Provision of particulars of the allegations also assists in defining the issues.

Also see Re Macquarie University; Ex parte Ong (1989) 17 NSWLR 113. A head of school whose conduct was the subject of investigation by a committee of the university council was entitled to notice of a new set of allegations regarding his competence, notwithstanding the fact that he had declined to attend the committee's hearings in relation to the first set of allegations concerning his failure to cooperate with the vice-chancellor.

The content of the advice as to the charge varies depending upon the nature of the inquiry. Where an administrative tribunal hears a disciplinary charge of specific wrongdoing then the right to particulars is the same as in ordinary litigation. The precise acts or omissions relied upon to establish the charge must be specified rather than a reference made to the generic nature of the matters charged, or simply providing prior to the hearing a bundle of documents to be tendered in evidence.

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In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889 it was held that disclosure of material would generally be required when it was potentially adverse to the applicant and could be regarded as "credible, relevant and significant", and the decision-maker was proposing to take it into account.

Investigative tribunals and the position with notice and disclosure In investigative decision-making, the need for confidentiality of the extent and sources of the tribunal's evidence may indicate that the description of the nature of the charge be attenuated, in order that the investigation be conducted efficiently. The tribunal may not have to "quote chapter and verse" of allegations, though it must let the affected person know what is troubling them/know the substance of allegations/have an outline of the charge.

Where there is a general inquiry/investigation into a particular topic without precise allegations as to conduct, there need not be particulars (since there is no specific allegation or charge). See Bond v ABT (No 2) (1988) 84 A.L.R. 646. Particulars would be both impractical and potentially embarrassing to the proper conduct of such an inquiry. Such an inquiry is not inter partes litigation, and the Tribunal must follow the evidence where it leads. The duty of the Tribunal is limited to ensuring that persons affected are made aware of the material placed before it, and which is relevant to the exercise of any power in a manner adverse to their interests, together with a full opportunity to put to the Tribunal additional material considered helpful in persuading the Tribunal against the exercise of such a power. However, fairness requires that the Tribunal identify issues and relevant powers, at appropriate points as the investigation develops, so that the person affected understands the nature of the inquiry and the issues being investigated. In NCSC v. News Corporation Ltd (1984) 156 CLR 296 NCSC had power to conduct an investigation where it had reason to suspect that a person had committed an offence under the Companies Act 1981. It gave notice to News that it proposed holding a hearing for the purpose of investigating suspected offences by News in relation to its acquisition of shares in TNT. News applied for a statement of the circumstances which gave rise to the suspicion of an offence, and directions that it was entitled to be present with its legal representatives throughout the whole of the hearing, to cross-examine witnesses and call evidence in reply. NCSC refused the application. The High Court held that procedural fairness did not require the Commission to proceed as if it were conducting a trial in a court of law (Gibbs CJ at 314). However, if the Commission proposed to publish findings adverse to or critical of any person it should, after forming its views and before publishing the report, disclose to the person the information adverse to him, afford the person an opportunity to be heard, to be legally represented, to call evidence and to cross-examine witnesses called by the Commission and to be provided with a transcript of the evidence. However, procedural fairness did not require that the person affected have the right to be present, legally represented and to present evidence and cross-examine throughout the Commission's investigation. It would frustrate the purpose of the investigation if the suspect could "look over the shoulder" of the investigator all the time to see how the inquiry was going" (per Mason, Wilson and Dawson JJ at 323). "An investigative body should not be required to reveal its hand prematurely, thereby alerting the suspect and closing off sources of inquiry" Generally the need for confidentiality does not exclude procedural fairness, but only reduces its content. Many tribunals have express powers to conduct their proceedings in private or to suppress evidence and much will depend upon the construction of the empowering statute. Mahon v. Air New Zealand [1984] AC 808 provides a further illustration of how the principles of natural justice operate in an investigative setting where there are no specific charges/allegations against any particular person. In the hearings of a royal commission, an unanticipated piece of evidence may suggest that it is worth exploring a new line of investigation which may lead only to a dead end or may lead to the discovery of other facts which throw fresh light on the subject of the inquiry. Procedural fairness requires that a person participating in the inquiry who will be adversely affected by the finding,

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should not be "left in the dark" as to the risk of the finding being made and deprived of an opportunity to adduce additional material which might deter the decision-maker from making the finding. Thus a finding that there had been a conspiracy between management and staff of Air New Zealand to cover up the true causes of the Mt Erebus air disaster was quashed by the Privy Council.

Can the hearing or investigatory function be delegated or must it be performed personally by the statutory repository? See Re Macquarie University; Ex parte Ong. Also note previous lecture notes on the broad ultra vires doctrine of unlawful delegation (Carltona principle etc), and narrow ultra vires cases such as Norvill v Chapman (Hindmarsh island Bridge case), where the Full Federal Court held that the Minister's function of considering and deciding on claims under Aboriginal heritage legislation was personal to the Minister and could not be delegated (even to an eminent academic constitutional lawyer like Professor Cheryl Saunders). Similarly, in Peko-Wallsend v Minister for Aboriginal Affairs it was held that the Minister's power to decide matters of detriment to other landholders etc in relation to Aboriginal land claims under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was so centrally important to the scheme of the Act that it could not be delegated to a departmental officer. For natural justice purposes, procedural fairness does not require that the administrator having the power to make the substantive decision as to a person's rights, interests or legitimate expectations must actually personally perform every aspect of the decision-making process. Thus, a board exercising power to close a house unfit for human habitation does not have to give an oral hearing itself but may, following its normal procedures, allow an inspector to hold a public inquiry and submit the notes of proceedings and a report to the Board: Local Government Board v Arlidge [1915] AC 120. A tribunal which has express power to delegate the power to find facts may adopt its delegate's findings of fact without considering the evidence or a summary of it, provided it reaches a conclusion itself: see Re Macquarie University; Ex parte Ong and Taylor v Public Service Board (NSW) (1976) 137 CLR 208.

Does procedural fairness require an oral hearing or will an opportunity to make written submissions be sufficient? See Heatley v. Tasmanian Racing & Gaming Commission (1977) 137 CLR 487. Procedural fairness did not require that a hearing before a warning off notice was given must be oral. However, Aickin J held that an oral hearing might be necessary if the Commission could not resolve inconsistencies between its information and written submissions from the person who received the notice (at 516). Whether the hearing should be oral or only written depends upon the circumstances of the case and it is difficult to set down general principles. Where a person is not facing a charge and where there are no witnesses, and the issues are simple factual ones rather than legal issues then an oral hearing is generally not required: White v Ryde Municipal Council [1977] 2 NSWLR. 909 at 924. However, where there is conflicting evidence and findings of relative weight and credit are required, an oral hearing will generally be the only way the matter can be satisfactorily resolved. An entitlement or otherwise to an oral hearing may also depend on the scope, object and purpose of the legislation and the nature of the affected interests in each case. In Chen v Minister for Immigration and Ethnic Affairs (1993) 45 FCR 384, French J indicated that natural justice was more likely to require an oral hearing where the credibility of the applicant was a significant issue, although practical exigencies in “high volume” areas (like refugee/protection visa applications) militate against a rigid principle.

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Sometimes though not often. It depends on the scope, object and purpose of the statute, the nature of the interests affected and the personal attributes/abilities of the applicant. See Cains v. Jenkins (1979) 28 ALR 219. Also see Krstic v Telecom (1988) 20 FCR 486; NSW v. Canellis (1994) 181 CLR 309. In Krstic, Woodward J said: A person with a tertiary qualification and a normal amount of self-confidence should require no representation or assistance. But even that person might ask to have a friend present, for reassurance and, perhaps, consultation at times. A tribunal such as that in the present case would, in my view, be well advised to grant such a request, unless there was good reason for rejecting it. At the other end of the scale, a person having a low standard of education, and perhaps some difficulty with the English language, who is lacking in self-confidence, may be quite incapable of adequate self-representation, and only able to put a case through a friend or union representative - or, if these are not available, a lawyer. Such an application should clearly be granted. Cains v. Jenkins (1979) 28 ALR 219 involved a Union committee -suspension hearing against secretary (anti-communist statements during union election campaign). Committee condemned him and purported to dismiss him, but then backed off and decided to hold a hearing. Cains was refused leave to have a law clerk present as an adviser. The Court said: "Whether a deaf mute or a migrant with no English should have representation is a question that could have a different answer to the same question about Queen's Counsel. On the authorities there is no absolute right to representation even where livelihood is at stake. But that is not to say that in all cases a tribunal can refuse it with impunity. The seriousness of the matter and the complexity of the issues, factual or legal, maybe such that refusal would offend natural justice principles". Also see NSW v. Canellis (1994) 181 CLR 309. The case involved a judicial inquiry concerning doubts and questions concerning the guilt of one Andrew Kalajzich of involvement in the murder of his wife. A witness before the inquiry sought to have the inquiry stayed until he was provided with legal representation at public expense (cf Dietrich v The Queen (1992) 177 CLR 292). The High Court declined to extend the Dietrich principle any further than persons being tried for serious crimes. Canellis had a right (or rather a liberty in Hohfeldian terms) to be legally represented, but not to have a lawyer provided at public expense.

Similar principles apply to whether procedural fairness requires provision of an interpreter.

What about a right to interpreter? Similar principles apply as with legal representation (Canellis; Krstic; Cains v Jenkins etc).

Is an accused person in administrative proceedings entitled to have them conducted in accordance with the principles/rules of evidence? Certainly that will not be the case if the statute expressly provides that the tribunal is not bound by the rules of evidence (as may often be the case). Nevertheless, a decision must always be based on probative evidence not mere suspicion - see ABT v. Bond (1990) 170 CLR 321. Also see Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33. Also see R v War Pensions Entitlement Appeal Tribunal and Another; Ex Parte Bott (1933) 50 CLR 228 per Evatt J: Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, "bound by any rules of evidence." Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial

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justice." The position of an appellant has been specially protected by the Legislature, and he should not be placed in a position where he is effectually prevented from conducting his appeal. Evatt J was in the minority in the result in Bott, but the principle or cautionary note he laid down has been cited with approval many times since.

Is the accused person entitled to cross-examine adverse witnesses? O'Rourke v. Miller (1985) 156 CLR 342 involved the dismissal of a police officer from employment for using obscene and insulting language, acting aggressively and generally in a drunken manner. Constable sought opportunity to cross-examine the woman who had made the allegations, but Deputy Commissioner did not provide the opportunity.. After citing some cases where a denial of a right to cross-examination had been treated as a breach of natural justice, the Court said: "Those were cases in which there was a hearing before a tribunal which refused to allow the cross-examination of persons who in the one case had given evidence and in the other had made hearsay statements and the decisions depended, as all cases of this kind do, on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal was acting and the subject-matter being dealt with: see Russell v Duke of Norfolk [1949] 1 All ER 109 at 118. Even when there is a hearing before a tribunal it does not follow that a person affected necessarily has a right to cross-examine witnesses.... Natural justice does not require the application of fixed or technical rules; it requires fairness in all the circumstances". Compare this with NCSC v. News Corporation Ltd, where it was held that there was a right to cross-examination once specific adverse allegations had arisen.Sometimes, but note that the rules of natural justice mandate fairness to all parties. See O'Rourke v. Miller (1985) 156 CLR 342. Thus, although evidence whose probative weight inherently depends on the credit/credibility of a witness, some form of cross-examination may be a necessary element. But see Hall v University of New South Wales [2003] NSWSC 669. Also see NCSC v. News Corporation Ltd (1984) 156 CLR 296 for application of the principles in an investigatory/inquisitorial situation.

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17. BIAS RULE

Study guide 9

Introduction The bias rule of procedural fairness (the second part of natural justice principles) is based upon the principle that justice should not only be done, but should manifestly be seen to be done. It requires that there be no reasonable apprehension on the part of a fair-minded person that the decision-maker has prejudged the matter for decision. The Latin maxim nemo debet esse judex in propria causa (no one may be judge in his own cause) explains the origin of the principle, but it has mostly come to be applied in Australia in situations of bias (or rather apprehended bias) on the part of a judge, tribunal or administrative decision-maker in a considerably wider range of situations than the maxim suggests.

Pecuniary/direct interest A decision-maker infringes the bias rule if he or she has a pecuniary interest in the outcome of the exercise of power. This is an aspect of actual bias. Thus in Dimes v. Grand Junction Canal (1852) 3 HLC 759, the Lord Chancellor of England owned shares in the defendant canal company which was seeking an injunction to restrain a property owner from barricading its canal where it ran across the owner's property. The House of Lords quashed his decision granting the injunction by reason of bias. Also see R v Bow Street Magistrate Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272 in relation to non-pecuniary direct interest. The UK approach is that any direct interest in the subject matter of the litigation results in automatic disqualification (and invalidity in the absence of disqualification). The decision-maker will clearly be acting as judge in his own cause where he has a pecuniary interest in the outcome of the exercise of power. A decision will be set aside if only one of the persons adjudicating is disqualified for having a direct pecuniary interest (R v Hendon Rural District Council; Ex parte Chorley [1933] 2 KB 696). However, there is Australian authority that a resolution passed by a council is not invalidated by the fact that a councillor with a pecuniary interest has taken part in the discussion and voted, provided the resolution has a clear majority in its favour when that councillor's vote is invalidated (see Attorney-General (Vic) v City of Knox [1979] VR 513). However, Australia's High Court decision re-interprets the Dimes pecuniary interest ground. In Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group (2000) 176 ALR 644 the High Court considered whether a reasonable apprehension of bias arose where a judge had a small pecuniary interest in the subject matter of litigation. In Ebner the trial judge disclosed a contingent interest under a family trust in shares in a publicly listed bank. He declined an application that he disqualify himself. He found that there was no real pecuniary interest involved. In Clenae the trial judge inherited a shareholding in a bank involved in litigation before him between the date the trial concluded and the date on which he gave judgment. The trial judge did not disclose the inheritance. The Victorian Court of Appeal concluded that this judge was not disqualified by bias and also held that the doctrine of necessity (see below) compelled him to proceed to deliver judgment. The High Court dismissed the appeal by the dissatisfied litigant in both cases. The Court generally held that because of the small scale of the shareholding a reasonable apprehension of bias was not established. Whatever the outcome of the litigation, it would not affect the share price, and so the judge did not really have a pecuniary interest in the outcome. The Court disagreed on the application of the doctrine of necessity with Gaudron J dissenting from the holding of the majority (which held that unavailability of a key witness and extreme inconvenience to the parties could amount to "necessity" sufficient to permit a judge to continue in a matter notwithstanding a reasonable apprehension of bias). The Court also held that insofar as Dimes was said to establish a doctrine of automatic disqualification because of interest it should not be followed: the Dimes principle was more properly seen

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within the reasonable apprehension of bias ground (which is the preferred Australian approach) rather than as an instance of actual bias. Also see Hot Holdings v Creasy (2002) 210 CLR 438.

Reasonable apprehension of bias - general principles 3 main situations: 1. Personal relationship or association with party or counsel 2. Accuser taking part in adjudication 3. Prejudgment of the issue

However note that the case law is also replete with statements that judicial decision-makers at least should take a robust attitude towards assertions of bias by one side or the other in litigation, and should only accede to a demand for disqualification when clearly made out (otherwise such demands might routinely be made as a tactical exercise in “judge shopping”). Similarly, the case law suggests that broader latitude is given to Ministerial decision-makers in relation to bias claims (dealt with at the end of this study guide).

The general principles Where there is no actual bias involved, a breach of the bias rule may nevertheless occur if there is an outward appearance of bias. The principle is again based upon the view that it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The test is whether a suspicion may reasonably be engendered in the minds of those who come before the decision-maker or in the minds of the public, that a member of the decision making body may not bring to it a fair and unprejudiced mind. See R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Livesey v New South Wales Bar Assn (1983) 151 CLR 288. The test is applied in the light of the circumstances of the case, the nature of the jurisdiction of the decision-maker and relevant statutory provisions being taken into account in ascertaining the role of the public interest in relation to the reasonable apprehension of prejudgment. It will rarely be possible to establish actual bias, so that reasonable apprehension of bias is usually the more appropriate ground to pursue. The test is an objective one: is whether the circumstances are such as to give a fair minded and informed observer a reasonable apprehension of a lack of impartiality on the part of the juror. See Webb v R (1994) 181 CLR 41. The general principle and some particular aspects of it are well summarised in the following extract from Johnson v Johnson (2000) 174 ALR 655 per Gleeson CJ, Gaudron, Gummow, McHugh and Hayne JJ at paras 11-13 (where the Court rejected an argument that a reasonable apprehension had arisen by virtue of the judge in a family law case indicating that he intended deciding where the truth lay by looking at the extrinsic evidence rather what either of the parties themselves said): "It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".

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Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them."

1. Personal relationship or association with party or counsel In R v. Cavitt; ex parte Rosenfield (1985) 33 NTR 29, the first respondent was an acting magistrate, but was merely on leave without pay from his position as a prosecutor with the NT Department of Law. An accused person objected to the hearing by the first respondent of summary criminal proceedings against him and applied for a writ of prohibition. Nader J. held that the test of whether a fair-minded person would reasonably suspect the first respondent of bias must be answered in the affirmative, because of his perceived continuing attachment to his office of Crown prosecutor and its possible influence on him. The question here was not actual bias but, rather, the suspicion of it in the minds of persons with no knowledge of the first respondent's personal qualities: This is not a case of actual bias. It is appropriate here to say that the complete integrity of the first respondent is not in question. As a Judge of this Court I have had his assistance as counsel on many occasions, and, as far as I am concerned, his personal integrity is beyond question. Sadly Nader J's impression was not entirely accurate, as not long afterwards Cavitt was discovered indecently exposing himself at East Point near Darwin, charged and convicted of an offence, resigned from the bench and left Darwin suddenly. In Kartinyeri v The Commonwealth (1998) 195 CLR 337, Callinan J initially declined to disqualify himself from sitting on the basis that, although he had provided advice on the very issue before the Court (namely the scope of the race power in section 51(26) of the Constitution), the advice had been provided to a bipartisan Parliamentary Committee (and not to the Minister or the Commonwealth itself) and the issue did not involve any questions of contested facts or the credibility of witnesses or parties. However, Callinan J was later forced to disqualify himself when it emerged that the advice had in fact been provided direct to the Minister for the specific purpose of an earlier stage of the very litigation before the High Court. Nevertheless, the following passage from Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 87-88 per Brennan, Gaudron and McHugh JJ sums up the proper approach to such issues: "A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a

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proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination." The House of Lords decision in R v Bow Street Magistrate Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272 is also an example of this ground. Lord Hoffman (a Law Lord who had sat on the case which had originally held that former Chilean dictator General Pinochet could be extradited to face charges of abusing human rights) was an unpaid director of a charity arm of Amnesty International. he House of Lords held that the relationship between the charity (Amnesty International Charity Ltd) and Amnesty International itself was such that Lord Hoffman could be considered to have an interest in the proceedings to which Amnesty International was a party. Although not pecuniary, Lord Hoffman’s interest was held to violate the bias rule. However, note that the English rule is different from the Australian position (see discussion in Ebner). The British test relies on a "suspicion" of bias i.e. it is a subjective test, whereas the Australian test is an objective one ("reasonable apprehension of bias").

2. Accuser taking part in adjudication In Stollery v. Greyhound Racing Control Board (1972) 128 CLR 509 a greyhound owner sent nomination forms to Smith in an envelope also containing $200 (bribe?). Smith laid a complaint with Greyhound Racing Control Board. Smith made a report to the Board, and sat in on all of its deliberations, but did not participate in them. The High Court found that there was a reasonable apprehension of bias. Barwick CJ said:

"In my opinion, the reasonable inference to be drawn by the reasonable bystander in that situation was that Mr. Smith was in a position to participate in the Board's deliberations and at least to influence the result of those deliberations adversely to the appellant. The existence of the reasonable inference, in my opinion, is sufficient warrant for concluding that, in a matter in which the Board was bound to act in a judicial manner, natural justice was denied." Also see Re Macquarie University ; Ex parte Ong (1989) 17 NSWLR 113, where the Vice-Chancellor (effectively the accuser/prosecutor) constructively took place in the adjudication by writing privately to University Council/Senate members, drawing new allegations to their attention and urging them to deal with Ong.

3. Prejudgment of the issue Clearly, a reasonable apprehension of bias will arise where a reasonable bystander might conclude that the tribunal or decision-maker has prejudged the issue to be determined/has a closed mind. Thus,in Re Maurice; ex parte AG (NT) (1987) 17 FCR 422; 73 ALR 123 Maurice J. made inflammatory comments about the bona fides (or rather lack of same) of the Northern Territory government in the context of an Aboriginal land claim hearing, immediately before a Northern Territory election campaign. In all the circumstances, and particularly because relevant issues in the land claim were likely to require him to make findings in relation to the credit of the Northern Territory government, there was a reasonable apprehension of bias. Also see Livesey v The New South Wales Bar Association (1983) 151 CLR 288 , where 2 judges hearing an application to strike off a barrister for professional misconduct had not only found in an earlier case that Livesey had actively and knowingly participated in a corrupt scheme or conspiratorial arrangement, but had also found Livesey's key defence witness -Wendy Bacon - to be an untruthful witness. The High Court found that these facts gave rise to a reasonable apprehension of bias.

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Also see Koppen v Commissioner for Community Relations (1986) 67 ALR 215, in which a conciliation commissioner's children had been barred on a seemingly racist basis from the very Cairns nightclub being accused of exactly such exclusionary practices in the Racial Discrimination Act proceedings she was attempting to conciliate. Also see Keating v Morris; Leck v Morris [2005] QSC 243 - the 'Dr Death' (Dr Jayant Patel) Royal Commission Case, which we will cover in a tutorial on this topic. Note that an opinion/prejudgment expressed by the spouse of a decision-maker/judge will not usually be sufficient to raise a reasonable apprehension of bias about the decision-maker herself. See Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310. Contrast prejudgment with mere expression of a tentative view However, the expression of a tentative view of a matter (even if fairly strongly expressed) will not of itself give rise to a reasonable apprehension of bias. See the above extract from Johnson v Johnson (2000) 174 ALR 655. Sometimes the tentative view may be quite robustly expressed, so that the dividing line between prejudgment and robust expression of a tentative view might be hard to distinguish. Vakauta v Kelly (1989) 167 CLR 568 is another example of quite strong tentative views being put by the judge (Hunt J concerning the tendency of insurance company medical witnesses to favour the defendant) not giving rise to a reasonable apprehension of bias. (which also illustrates the proposition that an entitlement to seek review on the basis of reasonable apprehension of bias may be waived if prompt express objection is not taken to the allegedly objectionable behaviour when it occurs): The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses, who are regularly called to give evidence on behalf of particular classes of plaintiffs (e.g. members of a particular trade union), are likely to be less sceptical of a plaintiff's claims and less optimistic in their prognosis of the extent of future recovery than are other medical witnesses who are regularly called to give evidence on behalf of particular classes of defendants (e.g. those whose liability is covered by a particular insurer). If it were so infringed, the administration of justice in personal injuries cases would be all but impossible. In that regard, both necessity and common sense require that a distinction be drawn between the case where a judge has some preconceived views about the expertise or reliability of the professional opinions of an expert medical witness and the case where a judge has preconceived views about the credit or trustworthiness of a non-expert witness "whose evidence is of significance on ... a question of fact" which "constitutes a live and significant issue" in the case (see Livesey v. New South Wales Bar Association (1983) 151 CLR 288, at p 300)."

Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 also illustrates the point that even a quite strong expression of tentative opinion will usually not be enough to establish a reasonable apprehension of bias by way of prejudgment (and still less actual bias, given that 'reasonable apprehension ...' is not an available judicial review ground in the Federal Court from migration decisions). In Jia, the Minister had expressed the view (both in correspondence and a radio interview) that he did not "believe you are of good character if you've committed significant criminal offences involving penal servitude". As Gleeson CJ and Gummow J observed (at paras 72-74): "The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. ... The satisfaction specified in s 501(2) relates to whether the person is of good character at the time of the decision. Such a satisfaction may be formed having regard to the person's past criminal conduct. It is common ground that character means disposition rather than reputation, and that considerations such as the seriousness of the past criminal conduct, the time that has elapsed since it was committed, and the

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possibility of rehabilitation, may be relevant and, in some cases, important. Even so, where a Minister is given the function of deciding whether, having regard to past criminal conduct, a person is not of good character, in the ordinary case the fact of a conviction, or a number of convictions, the nature of the offence or offences, and the severity of the punishment imposed, will be the most reliable guide to a proper decision." Thus, the Minister remained capable of giving proper consideration to the question of whether either appellant was of 'good character' for the purpose of the criminal deportation provisions of the Migration Act (one appellant had committed a violent rape of his former de facto partner, while the other was a New Zealander who had become involved in a drunken brawl in Katherine and had bashed several Aborigines with a bat and then deliberately run over 3 others in his vehicle, killing one of them).

General exceptions to the bias rule Waiver Vakauta v Kelly (1989) 167 CLR 568 is also an example of another important principle, namely that a right to raise an objection of reasonable apprehension of bias may be held to have been impliedly waived if the objection is not taken promptly after the facts giving rise to the objection become known (extract from Toohey J at para 16-17: "There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. That is not to say that the litigant in such a position must expressly call upon the judge to withdraw from the case. It may be enough that counsel make clear that objection is taken to what the judge has said, by reason of the way in which the remarks will be viewed. It will then be for the judge to determine what course to adopt, in particular whether to stand down from the case. For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension. But, as Dawson J. noted in Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342, at p 372, suspicion of bias based on preconceptions existing independently of the case "may well be ineradicable". In that situation there will be no option but to ask the judge to disqualify himself. In any event objection must be taken: see Re McCrory; Ex parte Rivett, at p 6. It was not taken in the present case. In the result, when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased." However note that in Vakauta Hunt J repeated his blatantly prejudiced remarks about the GIO witnesses in his judgment, thereby giving GIO the opportunity to take the bias point despite the fact that it had not objected when the remarks were first made.

The doctrine of "necessity" In addition to waiver, a further exception to the bias rule is the so-called doctrine of "necessity". "Necessity" may arise when: • the particular statutory scheme gives rise to an inevitable, inherent prejudgment (as in Rauber - see below); • no judge, tribunal member is available to hear the matter because all are tainted by apprehension of bias (which would have been the case in Laws - see below - if the High Court had held the facts gave rise to a reasonable apprehension); • if a key witness is unavailable, or if the expense of re-conducting the hearing makes it prohibitive to do so (see Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group (2000) 176 ALR 644 considered above).

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In Builders Registration Board v. Rauber (1983) 47 ALR 55 the Builders' Registration Board had disciplinary power to suspend or cancel the registration of a builder it found negligent or incompetent in performing building work, and also power to recover from a builder under a compulsory insurance scheme an amount for loss caused by defects in house construction. The High Court held that there was a reasonable apprehension of bias on the part of the Board in proceeding to exercise its disciplinary power against a builder when it had already exercised the power to recover against him under the insurance scheme, but by reason of the doctrine of necessity the Board's proceedings were not void. The Board had only eight members and a quorum of five was necessary in an insurance decision. If all five were disqualified, the board would be precluded from exercising its disciplinary power. The principles of procedural fairness are implied by the common law and cannot prevent the exercise of a power where the legislature intends a power to be exercised in particular circumstances. Laws v. Australian Broadcasting Tribunal (1990) 170 CLR 70 (yes it is John Laws himself!) illustrates the proposition that a finding of reasonable apprehension of bias against some members of a Tribunal does not necessarily taint the entire tribunal with bias. The High Court held that there is no general doctrine of "institutional bias". But Mason CJ and Brennan J. went on to say that: "in any event, even if, contrary to the view which we have expressed, there be a case for holding that a reasonable apprehension of bias attaches to all the members of the Tribunal, the operation of the rule of necessity would ensure that the Tribunal is not disabled from performing its statutory functions. The rule of necessity permits a member of a court who has some interest in the subject-matter of the litigation to sit in a case when no judge without such an interest is available to sit..."

Qualifications for ordinary administrators and Ministers The bias rules are applied less rigorously to ordinary administrators (as compared with courts and quasi-judicial tribunals): Century Metals and Mining NL v Yeomans (1989) 100 ALR 383 And even less rigorously for Ministers (due to policy/political role): Minister for Immigration, Local Government & Ethnic Affairs v Mok Gek Buoy (1994) 127 ALR 223 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507.

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BB. Law Society – Brief (Robert Lindsay)

(xxxi) THE HISTORY OF NATURAL LAW

Procedural fairness has its origin in natural law, Aristotle, in discussing natural law, observed that the laws of nature are immutable and have the same validity everywhere “as fire burns both here and in the Persia”.

Cicero characterised it as:

“…the law which was never written and which we were never taught, which we never learned by reading, but which was drawn from nature herself, in which we have never been instructed, but for which we were made, which was never created by man’s institutions, but which is in born in us”.

St Thomas Aquinas saw it as eternal law, which man can apprehend with unaided reason but which, because it flows from God’s reason and not man’s, cannot be created or changed by man.

Seneca spoke of the principle that a man must be heard before he is condemned. St John records Nicodemus as saying to the Pharisees, who sent officers to apprehend Jesus, “does our law judge any man before it hears him?”.

In more modern times, natural law principles have been reflected in various written constitutions, inspired by the natural law principles that the philosophers Locke, Rousseau and Paine espoused. The audi alteram partem rule (the rule that the other party should be heard) and the principle that no man should be judge in his own cause which is derived from Roman Law are invoked by way of judicial control of administrative and judicial functions.

(xxxii) PROCEDURAL FAIRNESS IN ADMINISTRATIVE LAW

Lord Diplock has described the rules of natural justice as a legal doctrine meaning “…no more that the duty to act fairly…” Since the House of Lords decision in 1964 in Ridge v Baldwin, procedural fairness is no longer restricted by distinctions between “judicial” and “administrative” functions or between rights and privileges. In administrative law, natural justice is a well-defined concept which initially comprised essentially two fundamental rules of fair procedure: that a person may not be judge in his/her own cause; and that a person’s defence must always be fairly heard. There has been some expansion of the application of “fairness” in recent times. These rules apply to administrative power and sometimes, also, to powers created by contract. A decision which offends against these principles of natural justice is a nullity.

(xxxiii) THE SOURCE OF POWER TO CORRECT PROCEDURAL FAIRNESS:STATUTE OR COMMON LAW?

Within the Australian constitutional context there remains a difference of view as to the source of power for procedural unfairness, though there is considerable overlap.

Sir Anthony Mason has pointed to the difference in the exercise of judicial review. On the view that the foundation is to be found in the common law, it has been framed that, unless Parliament clearly intends otherwise, the common law will require decision-makers to apply the principles of good administration as developed by the judges in making their decisions.

The other view, which is currently prevalent, is that statutory ultra vibes is the foundation, and unless Parliament clearly indicates otherwise, it is presumed to intend that decision-makers must apply the principles of good administration drawn from the common law as developed by the judges in making

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their decisions. There is the presumption that in the event of ambiguous legislation it is not intended that common law rights should be invaded.

(xxxiv) THE APPLICATION OF PROCEDURAL UNFAIRNESS

The rapid development of procedural unfairness can be seen in the migration cases. As late as 1977, the High Court rules in R v Mackellar; ex parte Ratu that the Minister, in ordering deportation of a Tongan, who had overstayed a visitor’s visa, was not required to observe the principles of natural justice. However, in 1985, Kioa v West effectively reversed the Mackellar decision. Mr. Kioa was providing pastoral support to other illegal immigrants and an internal immigration department memorandum said:

“Mr. Kioa’s alleged concern for other Tongan illegal immigrants in Australia and his active involvement with other persons who are seeking to circumvent Australia’s laws must be a source of concern”.

It was held that the remarks were extremely prejudicial and the failure to give Mr Kioa a chance to respond to them gave rise to a breach of natural justice. In 1990, the High Court ruled that the Minister was obliged by the rules of natural justice to provide a hearing to Mr Haoucher before rejecting a recommendation of the Administrative Appeals Tribunal that he be not deported.

In 2000, an application was made under s(75)v of the Constitution for a constitutional writ against the Commonwealth. Mr Aala was denied natural justice in that a tribunal had indicated that it had before it earlier tribunal and court papers when, through an inadvertent oversight, the tribunal did not have four handwritten documents provided by Mr Aala at an earlier stage to the Federal Court. In failing to have regard to the documents, the decision-maker deprived the applicant of a chance to answer by evidence and in argument adverse inferences that were relevant to credibility. Gaudron and Gummow JJ said:

“…if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness the officer exceeds jurisdiction…”

Procedural unfairness may take other forms. In Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S120 of 2002, the comments of McHugh and Gummow JJ can be viewed as accepting that, where a Tribunal makes findings which are “illogical, irrational, or lacking a basis in findings or inferences of fact supported on logical grounds”, this may result in jurisdictional error, though this would not be so where there is some evidence, albeit such evidence being regarded as insufficient, for the Tribunal to arrive at its adverse conclusion.

The principle expressed in Applicant S120 has similar features to the English Court of Appeal decision in Associated Provincial Picture Houses Limited v Wednesbury Corporation, which held that a exercise of a discretion will be invalid if the result is “so absurd that no sensible person could ever dream that it lay within power”. In Australia, Wednesbury unreasonableness will only be entertained if it can be said that the tribunal’s unreasonableness is such that it should be regarded by a tribunal as exceeding its jurisdiction. It is only the unreasonableness of the Wednesbury kind and not simply “unreasonableness”, that can found intervention.(xxxv) APPLICATION OF NATURAL JUSTICE PRINCIPLES TO DISCIPLINARY

BODIES

Much of the High Court authority is directed to migration cases, yet the doctrine may range far wider, including matters such as university disciplinary committees that report to a council senate; departmental committees that report to a minister of chief executive officer; and conduct by medical, accounting and other professional bodies, provided such bodies are governed by statutory regulation.

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These authorities almost invariably have their own internal rules which govern the procedures to be followed; the modes of proof and, in some cases, how far legal or other representation will be permitted. Questions sometimes arise as to whether the hearing is to be conducted orally or in writing, how far cross-examination will be permitted; and where legal representation is not allowed, whether those who face the disciplinary process can resort to legal advice.

As Brennan J said in Quin, judicial review is not a free-standing right of review to correct administrative error and, as a public law doctrine, a statutory or regulatory foundation for its operation has ordinarily to be found.

(xxxvi) JURISDICTIONAL ERROR

As has been seen, procedural unfairness is anchored in Australia in the wider principle of jurisdictional error. In Craig v South Australia it was said by the High Court that an administrative tribunal (as distinct from a court):

“…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion and the Tribunal’s exercise or the purported exercise of power is thereby affected, it exceeds its authority or powers”.

These factors were not intended as an exhaustive list of jurisdictional errors. However, every failure by a tribunal to have regard to relevant considerations or to disregard irrelevant considerations does not necessarily amount to jurisdictional error. Judicial review is based on the existence of an error of law because, traditionally, judicial review has not been available simply to correct an error of fact. Conversely, jurisdictional facts are subject to judicial review because an error as to jurisdictional fact is considered to be an error of law. The absence of evidence to support a finding of fact gives rise to a question of law, though insufficient evidence has not generally been regarded as grounds for review in Australia.

(xxxvii) JUDICIAL REVIEW REMEDIES

Jurisdictional error is central to the operation of remedies for judicial review in the High Court, where jurisdiction is to be found in ss75(iii) and 75(v), although neither is a source of substantive rights, except in so far as the grounds of jurisdiction necessarily recognises the principles of general law, according to which the jurisdiction to grant the remedies is exercised.

The Federal Court’s jurisdiction is derived from the Administrative Decisions (Judicial Review) 1977 Act (Cth) (ADJR Act) and from s39B(1) of the Judiciary Act 1903 (Cth). The other source of Federal Court jurisdiction is to be found under s39B(1A) which confers jurisdiction arising under any laws made by the Parliament.The Administrative Appeals Tribunal Act 1975 provides that where an enactment states that applications may be made to the tribunal for review of decisions made in the exercise of powers conferred by a particular enactment, or the review of decisions made in an exercise of powers conferred by another enactment, then review may lie to that tribunal.

In summary, therefore, there are remedies by way of a writ of mandamus, prohibition and injunction vested in the High Court under s75(v) of the Constitution where sought against an officer of the Commonwealth, and similar powers are given to both the Federal Court and the Federal Magistrates Court in regard to those remedies. All these courts also have power to give remedies of certiorari and declarations in habeas corpus where these are associated with one of the nominated remedies. The High Court has powers under the Judiciary Act to give broad remedies when its jurisdiction is invoked under s75(iii) of the Constitution. The Federal Court has power to make orders and issue writs under s23 of the Federal Court of Australia Act 1976.

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The Supreme Courts of each state receive the supervisory jurisdiction of the English Courts and, therefore, do not face same constitutional restraints as Federal Courts and the High Court.

It has been observed that a broader application of judicial scrutiny has been impeded in Australia by the restriction, contained in the ADJR Act, confining decisions subject to review to those decisions that are brought “under enactment”. With the privatisation of many activities previously performed in the public sector, the courts now face the need to develop principles as to which bodies are amenable to judicial review.

(xxxviii) LEGITIMATE EXPECTATION IN DECISION-MAKING

Legitimate expectation as a form of procedural fairness has long been recognised in administrative law. In Schmidt v Secretary of State for Home Affairs, Denning MR used the expression to apply to a migrant’s right to make representation to a decision-maker where his permit was to be cancelled before its expiry date.

In Heatley v Tasmanian Racing and Gaming Commission, the expectation on the part of members of the public was that they would continue to receive the customary permission to go onto racecourses upon the payment of a stated fee to the racecourse owner. If members of the public present themselves at the gate of a football ground, a racecourse, or a dog racing track and tender the stated entrance fee, upon receiving permission to enter they then have what is properly called the right against all the world to remain there for the duration of the relevant event.

It was said in Attorney-General (NSW) v Quin by Brennan J that expectation is seen merely as indicating “the factors and kind of factors which are relevant to any consideration of what are the things which must be done or afforded” to accord procedural fairness to an applicant for the exercise of administrative power.

In Teoh v Minister for Immigration and Ethnic Affairs, the legitimate expectation was of a more controversial issue. A majority in the High Court held that the best interests of the children would be a primary consideration in decisions affecting children, based upon the wording of an article in the Convention on the Rights of the Child. In stating that a convention could assist in the proper construction of a statute in which the language is ambiguous, the majority was merely adopting what had previously been said in Lim v Minister of Immigration, but Mason CJ and Deane J said such a convention could also guide the development of the common law. Conversely, a legitimate expectation does not bind the decision-maker. Mason CJ and Deane J stated that:

“Legitimate expectations are not to be equated with the rules or principles of law…the existence of legitimate expectation does not control the decision-maker to act in a particular way. That is the difference between a legitimate expectation and a binding rule of law.”

Nonetheless, their Honours said that an unincorporated treaty or convention was “not to be dismissed as any platitudinous or ineffectual act” and procedural fairness required that such a legitimate expectation should be considered by the decision-maker. This had not been the view of the primary judge, French J (as he then was), nor of McHugh J, who dissented in Teoh.

Eight years later, the High Court granted leave in Re Minister for Immigration and Multicultural Affairs; ex parte Lam, by which time McHugh J was the only surviving sitting member of the High Court judges who had heard Teoh. Lam may be seen as standing for three principal propositions. Firstly, that legitimate expectation is not a free-standing administrative doctrine, but simply an aspect of procedural fairness. McHugh and Gummow JJ said:

“…the notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in a particular case”.

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Secondly, there is a requirement for an expectation or, at least, there is a basis for a reasonable inference that an expectation is being created. Teoh himself would have had no expectation. Prior to Teoh, no one had reason to suppose a general ratification of an incorporated treaty would give rise to an expectation. On the other hand, it was conceded that it was not merely those expectations for which there was a natural conscious appreciation that a benefit or privilege was to be conferred and that the applicant had turned his mind to the matter, that would be considered.

Thirdly, the Lam decision reiterated previous Australian case law, which held that the concept of legitimate expectations is directed to procedure and not the outcome. To put it another way, expectation is with the decision-making process and not the decision itself. Legitimate expectation as a facet of procedural fairness is precisely that: procedural fairness and not a source of substantive rights.

One cannot help but suspect that special leave was granted in Lam’s case to enable review of Teoh’s case following the departure of the three members of the High Court who formed the majority in Teoh. Lam’s argument for special leave was scarcely a strong one. McHugh and Gummow JJ stated that the law of Australia should be as that expressed by McHugh J in his dissenting Teoh judgment, at least in so far as there is no need for any distinct doctrine of legitimate expectation. It is only where natural justice conditions the exercise of legitimate expectation that it has any role to play.

…procedural fairness is no longer restricted by distinctions between ‘judicial’ and ‘administrative’ functions or between rights and privileges.

(xxxix) PROCEDURAL FAIRNESS AS AGAINST SUBSTANTIVE PROTECTION: THE ENGLISH POSITION

It can be seen that, given the current composition of the High Court, a trend in Australia towards substantive protection is unlikely. The past views about the limits of procedural fairness held by the current Chief Justice, Justice Gummow and Justice Hayne have been openly declared. The constitutional separation of powers and, most notably, Lam’s case, militate against a development towards substantive protection. This attitude also has implications for any development of public law estoppel, abuse of power and proportionality as doctrines likely to be accepted in Australia.

In R v Inland Revenue Commissioners: ex parte Preston, Lord Templeman had placed “abuse of power” in conjunction with breach of the rules of natural justice as remedies for judicial review. In R v Secretary of State for Education and Employment; ex parte Begbie, Laws LJ had spoken of “abuse of power” as the rationale for the general principles of public law.(xl)PRIVATE LAW ESTOPPEL

In R v East Sussex County Council; ex parte Reprotech (Pebsham) Ltd, Lord Hoffman, in a speech concurred in by the other Law Lords, said:

“There is, of course, an analogy between a private law estoppel and the public law concept of the legitimate expectation created by a public authority, the denial of which may amount to an abuse of power. But it is no more than an analogy because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote…it seems to me that in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet”.

As Sir Anthony Mason points out, these remarks indicate how the substantive protection of legitimate expectations has occupied the space in public law which is occupied in private law by estoppel.

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In England, the common law requires that a legitimate expectation be considered by the decision-maker; the effect should be given to the expectation unless there are legal reasons for not doing so; and that, if effect is not given to the expectation, fairness requires the decision-maker to give reasons for the conclusion. If there are policy considerations which militate against giving effect to the expectation, the decision-maker must make the decision in the light of the legitimate expectation, and failure to do so will vitiate the decision. In R v London Borough of Newham and Bibi, the Housing Authority made a promise to the applicants that it would provide legally secure housing accommodation within 18 months. The Authority did not honour its promise. The English Court of Appeal held that, in coming to its decision, the Authority failed to take account of the legitimate expectation and that, therefore, the decision was vitiated. The Court declined to make the decision itself, but it was for the Authority to consider the matter afresh. The Court made a declaration that the Authority was under a duty to consider the applications for suitable housing on the basis that the applicants had a legitimate expectation that they would be provided by the Authority with suitable accommodation in a secure tenancy.

Legitimate expectation has some common features with estoppel. In both England and Australia estoppel has been held not to apply in public law. Estoppel depends upon an unambiguous representation which has induced an assumption by the applicant, and the applicant has reasonably acted in reliance upon it. Where there is evidence that the applicant would rely upon the representation which the administrator has departed from, the Courts have held in private cases that it would be unconscionable to permit the administrator to depart from the assumption. It can be seen, therefore, that estoppel may form a substantive protection.

In Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic, Gummow J dismissed the concept of unfairness in a substantive sense, though French CJ speaking extrajudicially allowed that estoppels applying in public law are not foreclosed by current authority.

(xli) THE POTENTIAL FOR DEVELOPMENT OF SUBSTANTIVE PROTECTION IN AUSTRALIAN ADMINISTRATIVE LAW: NEVER SAY NEVER

Since retiring, Sir Anthony Mason, writing extra-judicially, has said:

“If, however, one accepts that a legitimate expectation is a legal concept which is entitled protection, it is in principle unsatisfactory to restrict protection to procedural protection and to stop short of substantive protection. There are other justifications for extending judicial review to substantive protection. It is important, as a matter of good administration and integrity in government, that government and public authorities should be held to their promises and representations, excluding, presumably, election promises and representations upon which, ironically, electros are not expected to rely. Further, substantive protection, provided that the decision is ultimately left to the decision-maker, does not result in the court imposing its solution to the decision-maker.

It is the perceived constraints flowing from the Australian separation of powers doctrine and the ultra vires doctrine that has meant that in Scotland, England, Canada and New Zealand more thorough going review is undertaken than in Australia.

Perhaps this constraints upon administrative action in Australia are more perceived than actual. After all, the Commonwealth Constitution is itself a document founded upon the common law and gives expression to common law principles. One of the common law’s most ancient principles is that of natural justice, the early history of which is adumbrated at the beginning of this paper. The common law, of which natural justice is part, informs the exercise of judicial power under the Constitution. Recently French CJ cited the comments of Mason CJ, Dawson and McHugh JJ in Leeth v The Commonwealth, where any attempt by the legislature to cause a court to act contrary to natural justice would be to impose a non-judicial requirement inconsistent with the exercise of judicial power. On 23 June 2010 in Saeed v Minister for Immigration and Citizenship 2010 HCA 203, in a joint judgment, the

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High Court decided s51A of the Migration Act 1958 (Cth) did not apply to an offshore applicant and, therefore, the Court did not determine the further argument as to whether s51A, which stated the section was an exhaustive statement of natural justice “in relation to the matters it deals with” was an impermissible direction to the Court undermining the exercise of judicial power under Chapter III of the Constitution.

The required observance by administrative decision-makers of the principles of natural justice, breach of which can render their decisions ultra vires, ought not to be seen as an invasion of the administrative function by courts if the judicial intervention extends beyond procedural to substantive rights, as it does already in Britain. After all, Wednesbury’s unreasonableness, to which Australian courts have given at least partial acceptance, has some similar features to proportionality. Proportionality requires the reviewing court to assess the balance which the decision-maker has struck, and may require consideration of the relative weight given to different factors and has now gained acceptance in Britain. In R v Secretary of State the Home Department ex parte Daly, the House of Lords applied proportionality where prison policy required all persons to be absent from their cells while searches, which extended to their legal correspondence, were carried out. It was held that to do so interfered with the prisoners’ common law entitlement to legal professional privilege. It was considered that the interference went beyond any legitimate need to protect the public interest.

Substantive protection can surely be given effect within an evolving definition of what constitutes intra and ultra vires action, without incurring the accusation that the courts are invading an administrative decision-maker’s discretionary powers for such powers are required to be exercised within suitable evolving common law boundaries.

Robert Lindsay is a barrister at Sir Clifford Grant Chambers in Perth. This article is based on a paper presented at a Legalwise Seminar in Perth, 25 March 2010. The full paper is published in the Australian Institute of Administrative Law Forum Issue 63 (September 2010).

CC. The rules of procedural fairness [Text]

There are two basic ‘rules’. The ‘rule against bias’ requires that decision-makers neither be, nor appear to be, biased. Thus a person should neither be, nor appear to be, judge in their own cause. The ‘fair hearing rule’ requires that a person who may be adversely affected by a decision be given an opportunity to ‘put their case’ prior to the decision being made.

There are some difficulties in categorising the ‘actual’ bias rule as a procedural norm. Actual bias is available only if the decision-maker’s mind is closed and not open to persuasion. Thus the error involved does not concern the conduct of any hearing, but is directly focused on the decision-maker’s reasoning processes. For this reason, it makes better conceptual sense to classify actual bias cases as raising issues related to ‘reasoning process’ error (see 5.3), such as failure to consider a relevant consideration, taking account of an irrelevant consideration, acting for an improper purpose, or the inflexible application of policy.75 In contrast, the rule against ‘apparent’ bias is broadly about how the proceedings have been conducted – that is, whether anything said or done has given rise to a reasonable apprehension of bias. To the extent that it is outward appearances that matter, not facts about how the decision-maker reasoned, the rule against apparent bias has a stronger case for categorisation as imposing a procedural norm.

(xlii) The fair hearing rule

75 There may be strategic reasons for framing the argument in terms of actual bias as courts are loathe to remit decisions invalidated for actual bias to the original (ie biased) decision-maker.

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In response to concerns that administrative processes may become ‘over-judicialised’, the courts have looked for ways to limit the reach of the fair hearing rule. For a long period, the rule only applied to decision-makers obliged to ‘act judicially’, and to decisions which affected legal rights. Kioa v West changed the focus of the law. Although the ‘threshold question’ (ie whether the rule applies) is of continuing relevance (5.2.2.1), it is equally clear that the ‘content question’ (5.2.2.3) (ie what the rules requires in the circumstances of a particular case), is the ‘critical question in most cases’.

(xliii)When does the fair hearing rule apply? The ‘threshold’ question

Mason J is widely credited with the ‘leading judgment’ in Kioa, through Brennan J’s judgment has also been extensively cited. In any event, the judgments can be read in such a way that little of practical importance separates them.

According to Mason J, and administrative decision which affects an individual’s ‘rights, interests or legitimate expectations’ will attract a ‘common law duty’ to accord procedural fairness. This duty is subject to two clear limitations. The first of these is obvious: as a common law duty it is ‘subject…to the clear manifestation of a contrary statutory intention’. Second, the duty arises only if the individual’s rights, interests or legitimate expectations are affected in ‘a direct and immediate way’.

Mason J’s reference to ‘legitimate expectation’ signalled an intention to adopt an expansive approach to the scope of application of the fair hearing rule. Prior to Kioa, the concept of legitimate expectation had been developed as a way to expand the interests protected by procedural fairness beyond a narrow conception of ‘legal rights’. Although the phrase ‘legitimate expectation’ has not been used consistently, the basic idea is that some expectations (in Australia, these are said to be ‘reasonable’ expectations), should not be disappointed without first giving an affected person a hearing. Understood this way, a legitimate expectation is a particular sort of interest which is protected by the rules of procedural fairness. For example, a legitimate expectation may arise where a representation has been made. Such representations may take a number of forms; for example, specific undertakings, policy statements and of course of consistent conduct, have all been held to give rise to a legitimate expectation. A person may have a legitimate expectation where they seek the renewal of some benefit (eg a license) in circumstances where they have no right to succeed but something more than a mere hope of success.76

It is not, however, necessary to explore the precise meaning of legitimate expectation by examining such examples in further detail. This is because recent cases have made it clear that the hearing rule now applies decisions adversely affecting such a wide variety of ‘interests’ that the notion of legitimate expectation is redundant.77 As McHugh and Gummow JJ concluded in Lam, ‘the national development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative decisions’.78 In essence, this conclusion accepts the logic of Brennan J’s approach in Kioa to the question of which interests are protected by procedural fairness. Brennan J argued that ‘it ill accords with modern legislative intention to restrict the application of the presumption [of procedural fairness] to statutory powers which affect only’ the sorts of interests the common law has traditionally protected, such as liberty, property and reputation. For this reason, it is not the kind of interest that matters (ie whether it can be characterised as a right or legitimate expectation or whatever), but the manner in which an individual’s interests are ‘apt to be affected that is important’. 79 If an individual is apt to be affected in a way ‘substantially different’ from the ‘public at large’, the individual is entitled to a fair hearing.

Though it may be accepted that the concept of legitimate expectation no longer plays a meaningful role in answering the threshold question, it may nonetheless have a continuing role in the determination of ‘the practical content of the requirements of fairness in a particular case’ (see further 5.2.2.4).

76 See, eg, FAI Insurances Ltd v Winneke (1982) 151 CLR 34277 For one example of an expansive approach to the nature of ‘interests’ protected by procedural fairness, see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (see 4.5.1.1).78 Re Minister for Immigration and Multicultural Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 27 (McHugh and Gummow J) quoting Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273, 311-12 (McHugh J). Callinan J also endorses the same passage from Teoh: 48-9. Cf 123 (Gleeson CJ) and 37-6 (Hayne J) who are less clear about the redundancy of the notion of legitimate expectation in the context of the threshold test.79 Kioa V West (1985) 159 CLR 550, 619.

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These developments have led some to the question whether the ‘threshold question’ has become redundant. However, although it is useful to start from the proposition that the ‘rules of procedural fairness are presumptively applicable’ to administrative actions, it must also be accepted that this general presumption is subject to statutory abrogation (5.2.2.2) and only applies in relation to decisions which are apt to affect individual interests in a direct and immediate way.

What does it mean to say that a decision is apt to affect individual interests in a ‘direct and immediate’ way or (as Brennan J put it) a way ‘substantially different’ from the manner in which the ‘public at large’ is affected? Brennan J held that a person is affected in a substantially different way if ‘relevant considerations’ (see 5.3.1) relate to the individual. Mason J gave the examples of the imposition of a rate or a general charge for services as decisions which would not affect individuals in a direct or immediate way. One reason often given for not imposing procedural fairness obligations in relation to decisions affecting the public or a section of it in an undifferentiated way is that it would not be feasible or practical for all persons affected by such legislative decisions to be heard. This is why the hearing rule does not apply to the process of making delegated legislation.80 A possible response to such pragmatic objections to the imposition of procedural fairness is that the courts could develop a duty to ‘consult’, inviting participation without requiring individual hearings.

(xliv) Statutory exclusion of the hearing rule

In theory, parliament may exclude procedural fairness obligations. In practice, establishing their exclusion may be difficult.

The fundamental importance attributed to a fair hearing means that ‘plain words of necessary intendment’ are required to exclude procedural fairness obligations;81 ‘indirect references, uncertain inferences or equivocal considerations’ will not be sufficient. This presumption is an instance of the broader principle that courts will not ‘impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and ambiguous language’.82 Although the possibility that a statute may impliedly (as opposed to expressly) exclude procedural fairness has not been precluded, the presumption is very difficult to dislodge especially where important individual interests are affected.

Miah provides an interesting case study. It was argued that amendments to the Migration Act 1958 (Cth) evinced an intention to exclude the hearing rule. The amendments specified statutory procedures (which were designated as a ‘code’ of procedure), in considerable detail. The explanatory memorandum left little doubt that the purpose of the Bill introducing the amendments was to replace ‘the uncodified principles of natural justice with clear and fixed procedures which are drawn from those principles’. According to the dissent of Glesson CJ and Hayne J, the cumulative effect of these factors, along with a statutory right of appeal (merits review), manifested a legislative intention to ‘prescribe comprehensively’ for the fair hearing rule (thus excluding the imposition of additional common law obligations).

The majority judges offered a number of counter-arguments. The fact that the statutory procedures were labelled a ‘code’ was not determinative. The silence of the code on the rule against bias made the conclusion that all aspects of common law procedural fairness were excluded unlikely. Nor, it was argued, should the express inclusion of some procedures in the ‘code’ indicate that all other procedural rules were excluded - particularly since the statutory procedures included ‘permissive or facultative’ provisions which allowed the decision-maker to seek further information. Although it was conceded that a statutory right to appeal may ‘exclude or limit the rules of natural justice’, this was highly unlikely ‘if an applicant’s life or liberty’ was put at risk by a decision.

The judicial resistance to statutory attempts to exclude procedural fairness obligations (evidenced in Miah) needs to be considered in light of the acceptance that the statutory context is an important determinant of the content of those obligations in particular cases. What obligations are imposed on decision-makers ‘depends to a large extent on construction of the statute’, and this, in turn, reflects ‘the nature of the inquiry, the subject matter, and the rules under which the decision-

80 See G J Craven, ‘Legislative Action by Subordinate Authorities and the Requirement of a Fair hearing’ (1988) 16 Melbourne University Law Review 569, 570.81 Annetts v McCann (1990) 170 CLR 596, 598.82 Plaintiff S157 c Commonwealth (2003) 211CLR 476, 492

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maker is acting’. Courts can thus ensure that statutory objectives are not frustrated by excessive procedural safeguards without denying the applicability of the rules of procedural fairness.

The decision in Miah left unanswered many questions about how the Migration Act’s ‘highly prescriptive code of procedures’ would be applied. An underlying concern has been that the common law’s flexibility in determining the content of the hearing rule may be lost where detailed statutory procedures are preferred. This possibility is well illustrated by SAAP, where the High Court held that breach of a statutory rule that required disclosure of certain information in writing was a ‘jurisdictional error’. This meant that non-compliance with the requirement would invalidate the decision, regardless of whether any unfairness could be established. In SAAP, the relevant information was not disclosed in writing but it had been orally disclosed. For this reason, the trial judge concluded that there had, in the circumstances of the case, been a fair opportunity to comment on the information. Given that the introduction of procedural ‘codes’ into the Migration Act was intended to replace ‘the uncodified principles of natural justice with clear and fixed procedures which are drawn from those principles’, it is, no doubt, an unexpected result that the statutory procedures may, in some cases, turn out to be more onerous than the common law!

Our case study would not be complete without mention of further amendments to the Migration Act designed to overturn the result of Miah. Each of the Migation Act’s procedural ‘codes’ was prefaced with a statement that the code constituted ‘an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters…dealt with’. Although the Full Federal Court has concluded that ‘exhaustive statement’ provisions are effective to ‘exclude the common law natural justice hearing rule’, it will by now come as no surprise to learn that the correctness of this view has been the subject of a spirited debate in the Federal Court.83 The argument for the conclusion that the common law is not completely excluded by the amendment begins by emphasising that the purported exclusion of the hearing rule is qualified by the words ‘in relation to the matters [the ‘code’] deals with’. Surely, it is argued, these words would be ‘otiose’ if the hearing rule was excluded in its entirety. Further, the general principle that it takes ‘plain words of necessary intendment’ to exclude the requirements of procedural fairness is strongly reiterated.

(xlv) The content of the hearing rule

The presumptive applicability of the fair hearing rule to administrative decision-makers has sharpened judicial awareness of important differences between administrative and judicial decision-making processes. For example, in contrast to collecting evidence in a continuous hearing, administrative decision-makers often gather information over time and through a variety of methods which are not constrained by the rules of evidence. Administrative decision-makers also face different resource and institutional constraints from those faced by judges. But the classic doctrinal statements of the content of the fair hearing rule have not required modification: they have always emphasised the need for flexibility. ‘What is fair in a given situation depends upon the circumstances’ and cannot be subject to ‘any fixed body of rules’. The overarching inquiry is whether an affected person has had a fair opportunity to ‘put their case’. In most circumstances, this opportunity at least requires: adequate notice that an adverse decision may be made; disclosure of prejudicial allegations and sufficient details to enable a meaningful hearing on the critical issues arising for decision; the opportunity to make relevant submissions and adduce relevant evidence; and allowance of sufficient time to prepare for the hearing.

In determining what is required to enable an affected person to put their case adequately, the courts have identified a number of relevant factors, which are usually linked to an analysis of the statutory context in which a particular power is exercised. The importance of the nature of the decision-making process can be illustrated by a number of examples. The content of procedural fairness may be reduced because the decision is part of a decision-making process which ‘viewed in its entirety entails procedural fairness’. If the process of decision-making is characterised as ‘adversarial’, it is more likely that fairness will require the sort of procedures typically associated with

83 See, eg, SZBCF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1581 (Unreported, Black CJ, 1 November 2006) [12]-[18]. Some judges continue to argue – after Lay Lat – that the debate has not yet been authoritatively resolved: see Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480. Cf SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 (Unreported, Heerey J, 24 may 2006)

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courts, such as an oral hearing, legal representation, or the right to cross-examine witnesses. In determining the necessity of such procedures, reference is also made is issues such as the seriousness of the matter and the complexity of the legal and factual issues. Where decision-making processes are ‘inquisitorial’, it may be inappropriate to require premature disclosure of adverse information. In some cases, the nature of the decision-making process has raised issues about whether information provided in confidence should be disclosed. For example, in VEAL it was held that, although the substance of allegations contained in a confidential ‘dob in’ letter must be disclosed, fairness did not require the disclosure of the author’s identity. The requirements of fairness were moulded to recognise the importance of decision-makers having access to information supplied by ‘informers’. In general, the courts have felt more comfortable imposing procedures where administrative decision-making bears some resemblance to their own modus operandi. This explains the reluctance of judges to impose a duty to consult – an obligation often imposed by statute, but foreign to the judicial mode of decision-making.

The nature of the power being exercised (ie the subject matter of the power, the width of a discretion, the identity of the decision-maker, the likely consequences of a decision and so on), is also often emphasised by courts in determining the content of a fair hearing. For example, the need for urgent decision-making may reduce (perhaps, even to ‘nothingness’) the requirements of procedural fairness. Indeed, in some cases, the specific subject matter of a power may indicate that notice of the case to be met is not required – for example, prior notice of a deportation decision may not be required if a prohibited immigrant is deliberately seeking to evade the authorities. On the other hand, decisions which have serious effects on individual interests are more likely to be rigorously reviewed.

The variety of decisions which are now subject to the hearing rule (see 5.2.2.1) suggests that a level of deference is probably inevitable. However, even proponents of deference acknowledge that the prevailing view is that the question of what procedural fairness requires is ultimately for the reviewing court to determine. It may also be that the High Court’s recent unanimous decision in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs counts against the acceptance of any general theory of deference.

VEAL concerned the extent of obligations to disclose prejudicial allegations. The Refugee Review Tribunal received a highly prejudicial ‘dob-in’ letter but was unable to test its contents as its author had requested it be kept confidential. The tribunal decided not to disclose the letter on the basis that, in reaching its decision, it did not give it any weight. (In its reasons, the tribunal expressly disavowed any reliance). The tribunal thus made a deliberate and considered judgment about what a fair hearing required in the circumstances of the case. Arguably, this view was not unreasonable.

The High Court had a different view about what fairness required. Prior to VEAL it had been established that an adverse allegation must be disclosed only if it is ‘credible, relevant and significant’. As procedural fairness is about procedures rather than outcomes, the Court held that the ‘credibility, relevance and significance’ of any adverse information must be judged before the ultimate decision is reached. Thus, it was beside the point that the tribunal purported to ignored the letter as the allegations were clearly relevant to the veracity of the applicant’s claim for asylum and could not be dismissed as completely lacking in credibility. The necessity to disclose adverse allegations ‘is not based on answering a casual question as to whether the material did in fact play a part in influencing the decision.

Thus although the general case for deference is a strong one, it may be that deference makes more sense in certain decision-making contexts than others. It may also be that the successive attempts by the legislature to limit judicial involvement in the review of migration decisions has undermined the conditions of mutual respect on which any normative theory of reference must rely.

No question of deference can arise when the procedural unfairness arises through no fault of the decision-maker. Although the courts have shield away from finding procedural unfairness where it arises because an affected person relies on the advice of another (eg, their representative or lawyer), ‘unfairness can occur without any personal fault on the part of the decision-maker’. For example, it has been held that unfairness may arise where an oral hearing is compromised because the person being heard is under extreme distress of the influence of drugs, even though the decision-maker is not aware of the circumstances. In SZFDE, the High Court held that the fraudulent behavior of a person purporting to be a migration agent and lawyer, which caused the appellant to decline an invitation to appear before a tribunal, undermined the efficacy of ‘critical’ statutory provisions intended to provide

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exhaustively for the common law hearing rule. Because the fraud disabled the tribunal from exercising its mandatory statutory functions, the Court concluded that the state of affairs could be described as not merely a fraud to the appellant, but also a fraud ‘on’ the tribunal. In such a situation, the imposition of procedural fairness cannot possibly affect the behaviour of administrators. The purpose of invalidating the decision in these sorts of cases is arguably best understood in terms of the ‘legal’ (as opposed to ‘regulatory’) approach to administrative law (1.3) - which involves addressing particular grievances and upholding certain values, regardless of whether doing so has some sort of impact or effect on decision-making.

(xlvi) Content and legitimate expectations

We noted earlier that the concept of legitimate expectations may sometimes have a role in determining the content of a fair hearing. A controversial example is Teoh, where the High Court held that ratification of a treaty grounded a legitimate expectation of government compliance with the treaty, absent statutory or executive indications to the contrary. This legitimate expectation had consequences for what a fair hearing required in cases where the government proposed to depart from its obligations under a ratified treaty. In particular, fairness required that, prior to the making of the decision, an affected person be given a hearing on the issue of whether the legitimate expectation should be honoured. Teoh has been the subject of much political and legal debate.84

The most substantial criticism of the reasoning in Teoh resurfaced recently in Lam’s case. McHugh and Gummow JJ questioned the consistency, on the other hand, of denying that international obligations, which are not enacted into domestic law, were relevant considerations which must be taken into account (see 5.3.1), while, on the other hand, requiring a hearing before departing from those obligations. To the extent that a hearing on whether international obligations should be honored is tantamount to a rule that these obligations must be considered, it was also suggested that the effect of Teoh is to allow the executive (through the ratification of a treaty) to modify the nature of its statutory powers. Callinan J concluded that this elevates ‘the executive above the parliament’. Although Lam did not formally overrule the central holding in Teoh, it left it teetering on the verge of extinction.

It needs to be emphasised, however, that in Lam the High Court did not object to the notion that some ‘legitimate expectations’ may affect the content of procedural fairness. If, for example, a decision-maker tells an affected person that they will ‘hear further argument upon a certain point, and then delivers a decision without doing so it may be easy to demonstrate that unfairness in involved’. But the mere fact that a legitimate expectation is disappointed will not amount to a breach of the hearing rule if no unfairness or ‘practical injustice’ is occasioned. In Lam, the department’s failure to keep its promise to the applicant (to contact his children’s carers) did not breach the hearing rule because, on the facts of the case, the failure did not deprive the applicant of any opportunity to advance his case.

Expectations which may affect the requirements of the hearing rule may be procedural (ie about the procedures to be followed) or substantive (ie about the substance of the decision to be made). It is very important to understand that the nature of the protection which may be given to either category of expectation is procedural, not substantive. At most, substantive or procedural expectations may be protected by a requirement that an affected person be heard prior to the taking of action inconsistent with the expectation. In the case of an expectation that a particular procedure will be followed, this means that the courts will not ‘enforce’ the actual expectation; they will require only those procedures that fairness demands in the circumstances. In some cases what fairness requires may

84 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. After Teoh the Attorney-General and Minister for Foreign Affairs issued a joint general statement attempting to negate the decision, though there have been doubts about the effectiveness of the statement: see for discussion Thanh Tra Lam v Minister for Immigration and Cultural Affairs (2006) 157 FCR 215, [28]-[31]. Legislative efforts to override the decision were introduced into the Commonwealth Parliament on a number of occasions but were not passed by the Senate. Cf Administrative Decisions (Effect of International Instruments) Act 1995 (SA).

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(xlvii) The rule against bias

Although it is sometimes assumed that the Kioa ‘threshold test’ also applies to the bias rule, the bias cases have not emphasised the qualification that interests must be affected in a ‘direct and immediate way’. Hearings cannot be extended to everyone affected by a general policy decision, but such practical impediments do not prevent decision-makers from complying with the rule against bias by acting and appearing to act with impartiality. There is thus no reason why the rule cannot be taken to apply to ‘the decisions of every public-office holder’. This breadth of application has meant that the rule’s requirements must be adapted to the circumstances of the case. Like the hearing rule, the bias rule can be excluded by statute.

Most cases concern apparent bias, as opposed to actual bias. This is partly because apparent bias does not require an applicant to establish the actual state of mind or attitude of decision-makers whereas actual bias is established only where the decision-maker can be shown to have had a closed mind and was not open to persuasion. Thus, where a decision-maker is actually biased it is highly likely that some other ground of review, such as improper purpose, failure to consider relevant considerations, or inflexible application of policy, could more easily be established.

The test for apparent bias is whether an informed and ‘fair-minded lay observer might reasonably apprehend’ that the decision-maker ‘might not bring an impartial mind’ to the decision to be made. The question to be asked is ‘one of possibility (real and not remote), not probability’. Clearly, there are many ways in which an impartial mind may appear to be lacking, including the making of derogatory or insulting statements, personal connections or contacts with interested persons, and prior involvement with the matter being determined. For a long time, any direct pecuniary (financial) interests in the outcome of a decision automatically disqualified a decision-maker. The basic test for apparent bias now applies even in relation to pecuniary interests. But if a decision-maker holds ‘a not insubstantial, direct, pecuniary or proprietary interest in the outcome of litigation’ this ‘will ordinarily result in disqualification’.

In cases where it is alleged that a fair-minded person would conclude that a decision-maker might have prejudged the outcome of a decision, courts have emphasised that an open mind need not be an empty one. A predisposition or tendency of mind does not of itself indicate that a decision-maker is unwilling to genuinely listen to argument. What it takes for a fair-minded observer to conclude that a matter has been prejudged needs to be considered in the context of the statute under which the decision is to be made, an inquiry which includes reference to the general nature of the decision-making processes and the identity of the decision-maker. Thus, in Jia, it was held that it would be wrong to apply standards of judicial ‘detachment’ to a minister who occupies a political office and who is accountable to the parliament and electorate. A minister is entitled to express, prior to making a decision in a particular case, views consonant with a lawful policy .

In Jia the gist of the complaint was that the minister’s general remarks about how his powers should be exercised had singled a particular case out for comment. The majority concluded that these comments, properly interpreted, would not have led a fair-minded observer to apprehend that the minister would not impartially decide the case which had been specifically mentioned. In dissent, Kirby J argued that this conclusion was based upon a ‘lawyer’s fine verbal analysis’ to the evidence, rather than the general impressions a reasonable person would bring to the task. This highlights a recurring and difficult question: what levels of knowledge about the circumstances of a particular case should be attributed to the fair-minded observer? By attributing detailed knowledge and analytical capacity to the fair-minded observer, judges are sometimes able to turn an initial apprehension of the real possibility of partiality on its head. For example, in one case, the High Court attributed to the fair-minded observer knowledge of the detailed legal rules of pleading. Of course, in the end, it is judges who must decide whether appearances of impartiality are so imperilled that a decision should not be invalidated.

Most government decisions are made in the context of a decision-making hierarchy and many involve various stages of decision-making. It is possible that an ultimate decision may be invalidated for apparent bias, not because the actual decision-maker was compromised, but because some other officer involved in the process of decision-making had an interest in the decision. In such cases, however, it is necessary to show how the alleged bias of an individual involved in the decision-making process can generate a reasonable apprehension of bias in relation to the ultimate decision made. The peripheral or mechanical involvement of an officer

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(xlviii) Extending the boundaries of procedural fairness

It is sometimes suggested that the obligations of procedural fairness extend beyond the requirements of a fair, unbiased hearing. Procedural fairness has been said to also require that findings of fact be based on ‘probative material and logical grounds’. There is no doubt that the instrumental value (and much of the intrinsic value) attributed to fair, unbiased hearings will be lost if the decision-maker bases the decision on findings which are not rationally or logically supported by the evidence. However, it probably makes more sense to treat any such errors as being related to reasoning processes rather than procedure. In any event, the effect of such errors remains the unclear (see 5.3.3).

In a few cases, decisions have been invalidated due to a failure to make further inquiries. The juristic basis of the duty to inquire has not, however, been clearly identified. Although it has been linked to procedural fairness requirements, it has also been concluded that it is part of a decision-maker’s obligation not to act unreasonably in the Wednesbury sense (see 5.4.4) and has sometimes been associated with the obligation to consider relevant matters (see 5.3.1). What is clear, however, is that any duty of inquiry is exceptional and limited. Normally, it is for any person entitled to a fair hearing to place all relevant information before the decision-maker; they cannot usually complain (even in relation to an ‘inquisitorial’ decision-maker) that independent inquiries were not made. There may, however, be special circumstances where a decision-maker is required to make further inquiries: for example, (1) where particular information within the knowledge of the decision-maker cannot be properly considered without further inquiries; (2) where the information on which the decision-maker relied was not up to date; and (3) where the absence of information before the decision-maker is the fault of government officers. Prasad v Minister for Immigration and Ethnic Affairs held, more generally, that a duty to inquire would only be imposed where (a) it would be unreasonable to proceed to a decision without seeking additional information in the circumstances; and (b) where additional information can be readily (ie reasonably) obtained.

The traditional view that the common law does not recognise any general duty on administrative decision-makers to give reasons for their decisions was surprisingly affirmed in Public Service Board (NSW) v Osmond. Although the High Court raised the possibility that there may be special cases where procedural fairness might require the provision of reasons for administrative decisions, the clear message was that the imposition of duties to provide reasons for administrative decisions was best left to the legislature. Two developments have ameliorated this position. First, since the enactment of s 28 of the AAT Act (which allows those who have a right to appeal to the tribunal to obtain a written statement of reasons setting out the material findings of fact and the reasons for the decision), there has been a proliferation of similar statutory entitlements in most Australian jurisdictions.

Second, there is increasing judicial willingness to recognise implied statutory obligations to give reasons in relation to particular statutory powers. Such an implication is more likely to be drawn if there is a right to appeal (which would typically be meaningless without a statement of reasons), and in circumstances where the decision-maker undertakes functions similar to those undertaken by judges. In England, it is well accepted that procedural fairness may impose an obligation to intuitive that explanation is required. Although Osmond did not foreclose the possibility that procedural fairness may require reasons in special circumstances, the nature of any exceptions remain largely unexplored. Any recognition of a common

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18. STANDING [FROM TEXT]

DD. Hayley’s notes

Standing deals w- the conditions that an individual seeking external review of a d-m process must satisfy in order to get their position before a tribunal or a court.

In the ADJR Act:To get standing, need to show that a person is ‘aggreived’ s 5(1) & this is effectively the same as the CL standing test.This is defined by a s3(4) as including reference to ‘a person whose interests are adversely affected’ by the decision or conduct.It is argued that the ADJR test is similar to special interests test at CL.

Administrative Appeals Tribunal Act 1975S 27: Allows people to apply if their ‘interests are affected’ by a decision to which appeal can be had to the AAT.

Traditional Test of Standing:Traditionally, courts took a narrow view in relation to standing – in order to for an individual to be heard, the decision had to impact on their property interests.

Current Test of Standing:

Australian Conservation Foundation v Cth (1980)HC:ACF tried to sue the Minister for a development area.Govn argued that ACF had no personal interest & had no standing, they were acting as busy bodies.HELD:

ACF did NOT have standing. TEST FOR STANDING: Individuals must have a special interest over & above that enjoyed by the general

public. The interest must be one that is special for the applicant such as that they would derive a greater

advantage from successfully reviewing the decision of suffer a greater detriment than the general population as a result of an adverse finding being allowed to stand.

The individual does not have to be the one who is directly affected by the decision in an individual sense – its enough if they are a member of a group whose mem’s are equally affected by the decision in ways that exceed members of the general population.

A special interest does not include ‘an intellectual or emotional concern’ & normally must be property, financial, social or political interest.

Standing can also include cultural & religious significance: Onus v Alcoa HC (1981) In this case the HC granted standing to two Abor plaintiffs challenging Alcoa’s alleged breach of the

Archeological & Abor relics Act 1972 by destroying abor artifacts on its property. P’s had standing no b/c their specific rights were violated, but b/c the ‘concern was important’ to them

& the ‘closeness they had w- the subject matter’. It was found that the relics had sig cultural & spiritual value – more so than greenies had for the enviro.

The P’s had a direct stake in the outcome of the proceedings – the applicants claimed that in common w- Abor ppl they were custodians of the relics according to their laws and customs.

THUS the greater awareness & appreciation of an interest, the more likely it will generate standing is violated if not allowed.

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ACF v Minister for Resources & in North Coast Environment Council v Minister of Resources: Both cases found that standing was accorded for the grant of a woodchip licence, b/c public perception of the need to protect the enviro had grown in awareness.

In the latter case, the enviro group was entitled to demand statement of reasons from the Minister under ADJR Act for decision to grant woodchip licence. The Court emphasized that it was imp that the group was long established; it has secured Cth funding for its activities & made numerous submissions to govn dept over yrs – thus it was regarded more than just a busy body & its interests more than merely intellectual or emotional.

AG Cannot Have their Decisions ReviewedBateman’s Bay – AG ensures public law is upheld. This means that if an instance of illegality becomes apparent such as a public office holder neglects to perform a legal duty – the decision is one that the AG deals w-. The AG’s decision to litigate is not reviewable.

H/e such law is not always consistent –In Right to Life v Health Dept NSW (1989)The relevant minister was going to authorise an abortion drug in Australia.The Theraputic Drugs Act provided drugs must be safe to enter & the minister said yes.It was held that the association was DENIED STANDING to challenge the licensing & importation of an abortion drug b/c the Act under which it was permitted was only concerned w- ensuring drugs were safe & of high quality.It was noted the right to lobby & influence public opinion does not correlate w- standing – the interest here was described as emotional & philosophical.

Alphafarm v SmithKine (1994)It was held that a drug Co’s commercial interest which was affected by a decision under the Therapeutic Goods Act was not sufficient to confer standing […unreadable text…] concerned w- protecting financial interests rather […unreadable text…] were safe.

SUMMARY OF HOW TO GET STANDING:

1. A person needs to show a special interest greater than other members of the public: Australian Conservation Foundation v Cth.

2. Courts must distinguish b/w busybodies who have only an intellectual or emotional interest in the outcome of the decision & those who have a demonstrable interest at stake: ACF.

3. Norm includes financial & property interests, unless relevant act has no regard at all to such interests: Alphafarm.

4. Can include social, religious & cultural interests but must be recognised as being important by the wider community: Onus.

5. Must be of a type that can be to a degree defining a person, for example such as the enviro: ACF.6. Must not be to review an AG decision: Bateman’s Bay.

Study guide

The private rights and public rights dichotomy "An early common lawyer would have some difficulty in comprehending the modern doctrine of standing, a doctrine basically created in the nineteenth century. Until the great pleading reforms in the middle of

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the nineteenth century abolished the forms of action, questions of standing could hardly arise in private law litigation. A plaintiff either came within the form of action or was outside it. However, in matters concerned with the issue of the prerogative writs of mandamus, prohibition and certiorari, support can be found in the cases for the proposition that the person applying for the writ had to have some interest in the remedy. In the case of mandamus, it may even have had to be a legal right. On the other hand, prohibition may have been obtainable by a stranger to the dispute (see lecture notes on remedies). However, it is equity, rather than the common law, from which much of the modern doctrine and many of the controversies concerning standing have arisen. Suits seeking equitable remedies to determine, restrain or enforce public rights and duties have played a major role in the development of the doctrine of standing. By the end of the nineteenth century, it was generally accepted that an ordinary member of the public had no general right to invoke the aid of the civil courts to enforce public law rights or duties." (Bateman's Bay Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 per McHugh J at [77]-[79]). As we will see in this lecture, the history of standing has been one of gradual extension or liberalisation of the scope for private individuals to enforce public interest rights. There is an obvious tension here with the doctrine of separation of powers. Traditionally, as we will see, only the Attorney-General had standing to invoke the Royal prerogative and challenge the legality of a government decision, unless a person's private rights were affected. The trend by courts, both in England and Australia, towards liberalisation of standing rules certainly enhances government accountability, but may also undermine legitimate and necessary executive powers. As McHugh J said in Bateman's Bay: "Moreover, any realistic analysis of law, politics and society must recognise that not every law on the statute books continues to have the support of the majority of members of the community or always serves the public interest. Laws that once had almost universal support in a community may now be supported only by a vocal and powerful minority. Yet to attempt to repeal them may be more socially divisive than to allow them to lie unenforced. Moreover, the interests of a society arguably are often furthered by not enforcing particular laws. ..." In judicial review at general law, where a prerogative remedy is sought, issues of standing may be inextricably linked with issues relating to the availability of the remedy. However, with the enactment of the ADJR Act, in which the test of standing appears distinct from the question of relief, tests of standing have tended to develop as a body of principles separate from those relating to remedies. These principles are concerned with the issue of access to the court. However, in Bateman's Bay, as we shall see, the High Court seems to be heralding a move towards increasing emphasis on the discretion whether to grant a remedy, and a reduced emphasis on technical rules of standing to regulate the 'floodgates' of access to judicial review.

Whilst the question of standing to seek judicial review is distinct from that of justiciability, both tests in practice operate to exclude access to the court. The court has a discretion to deal with the issue of standing as a preliminary issue (Robinson v Western Australian Museum (1977) 138 CLR 283).Apart from the standing test for seeking remedies at general law or under general procedure statutes, there is a variety of special statutory standing tests arising particularly in the context of specialist courts and regulation of the environment or trade practices. Standing may be accorded to a 'person aggrieved', or to 'any interested person', or to 'any person' (which effectively means anyone at all has standing - see Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591. The scope of these legislative standing tests depends upon construction of the particular statute and some are not necessarily as wide as the ADJR Act test ('person aggrieved').

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Note, however, that an applicant loses standing if his/her personal circumstances change so that they are no longer satisfy the relevant test (e.g. 'person aggrieved'), even though they originally had standing at the time the proceedings began i.e. standing is not an accrued right. See Transurban City Link Ltd v Allan (1999) 168 ALR 687.Moreover, recent Federal Court decisions have indicated a somewhat narrower approach to standing than might be suggested by some of the more general dicta in Bateman's Bay. See Transurban City Link Ltd v Allan (1999) 168 ALR 687 at 698:"The question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant. There will be a question of degree involved in many cases." Also see Maritime Union of Australia v Honourable John Anderson [2000] FCA 850 at [44] - [55].

Prerogative Remedies • R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Assn [1972] 2 QB 299 • R v Greater London Council; Ex parte Blackburn [1976] 3 All ER 184 • Cheatley v R (1972) 127 CLR 291 • Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 • Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 • Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473.

Historically, the tests for standing in respect of each of the prerogative writs (and equitable remedies) were different. Moreover, the rules for prerogative writs were often quite technical and rigid. Hence the tendency for litigants to prefer the more flexible equitable remedies wherever appropriate. The rules surrounding standing to seek prerogative relief (and indeed the rules generally surrounding prerogative writs) have been made progressively more flexible by the High Court, though it still maintains that there are some differences between the rules for prerogative relief and those applicable to equitable remedies. Prohibition - A person has standing to seek prohibition if that person was a party to the proceedings before the tribunal or inferior court against which prohibition is sought. However, a 'stranger', who is not a party to the proceedings, has standing only at the discretion of the court. However see Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Ltd (2000) 200 CLR 591 where various Justices indicate that “strangers” have standing to seek prohibition, habeas corpus and quo warranto. But stranger generally merely means someone who was not a party to the litigation/administrative proceedings under judicial review. Generally they must nevertheless be “persons aggrieved” i.e. arguably a similar test as for equitable remedies and ADJR (as to which see discussion below). Also see John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Prior to recent changes to the procedure and standing test for gaining judicial review in the United Kingdom the test of standing to seek prohibition and certiorari had already undergone liberalisation by the courts. Provided the person was not a 'mere busybody', any member of the public whose interests were affected had standing to seek these remedies in a case of a flagrant and serious breach of the law by a government authority which was continuing unchecked. See, for example, R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Assn [1972] 2 QB 299; R v Greater London Council; Ex parte Blackburn [1976] 3 All ER 184. However, tests applying in the United Kingdom are no longer safely relied upon in Australia (see Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 73). Australian courts have not adopted

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the English test and tend instead to use the test of whether the applicant has a 'special interest in the subject-matter of the action' or is a “person aggrieved” by the decision (again see later). Certiorari - A person aggrieved has standing ex debito justitiae, or as of right, to seek certiorari (see Cheatley v R (1972) 127 CLR 291). A person aggrieved is a person who has suffered damage greater than that suffered by ordinary members of the public. However, a stranger, who comes forward as a member of the general public with no particular interest in the matter, has standing only at the discretion of the court. Nevertheless, where there is a manifest want of jurisdiction, a stranger generally has standing. Mandamus - A person whose 'legal specific right' is affected has standing to seek mandamus to compel the administrator to decide, or decide again, according to law. This test of standing appears to be narrower than that for prohibition and certiorari. However, as in the case of those remedies, the standing test for mandamus underwent liberalisation in the United Kingdom through the development of the notion that only a person who was a 'busybody' in relation to the action should be excluded from seeking judicial review. A person who exercises a legal right to participate in a tribunal hearing has standing to seek mandamus in respect of the tribunal's proceedings. SeeSinclair v Mining Warden at Maryborough (1975) 132 CLR 473.Australian position – Although the High Court still maintains that there are, or at least may still be, differences between the rules for standing in relation to the various prerogative writs and the rules applicable to equitable relief, in practical terms the Australian Conservation Foundation case test of “special interest” (see below) has tended to emerge as an almost universal approach, in part because applicants will usually seek injunctive or declaratory relief at least in the alternative (because of their flexibility).

Injunctions and Declarations Suit by Attorney-General - As principal law enforcement officer of the Crown the Attorney-General has standing to seek an injunction or declaration to enforce a public right. See Cooney v Council of the Municipality of Ku-ring-gai (1963) 114 CLR 582. The Attorney-General may therefore seek judicial review of his or her own motion. Alternatively, a private individual may approach the Attorney-General and request the grant of a fiat for a relator action. If the Attorney-General refuses his or her fiat, or consent, that refusal is not a justiciable decision. See Gouriet v Union of Post Office Workers [1977] 3 All ER 70; Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 527. Standing of other persons - Persons other than the Attorney-General have standing to seek an injunction or declaration in 2 situations. The starting point of most discussions is the decision in Boyce v Paddington Borough Council [1903] 1 Ch 109. That case concerned proceedings commenced by a plaintiff for injunctive relief to which the Attorney-General was not a party. Buckley LJ at 114 said: "A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such that some private right of his is at the same time interfered with (eg where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right."

On the facts of the actual case Mr Boyce had no private right, but as the owner of a block of flats which abutted a public open space on which it was proposed to erect a hoarding which would block light to the flats, he suffered special damage as a result of the potential detrimental effect to the flats, damage that was over and above that which might be suffered by a member of the public at large.

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Most statutes enacted for the protection of public health, the environment or planning create public rights rather than private statutory rights of individuals. A court does not lightly infer that there is a legislative intention to confer a private right which would found standing. An individual must either obtain the fiat of the Attorney-General for a relator action or establish that he or she falls within the second limb in Boyce's case.

Special interest in subject matter of action The second limb in Boyce's case was modified as a result of the decision of the High Court in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 ('ACF case'). Gibbs J held that the formulation of the test by Buckley J in Boyce's case was misleading in several respects and that the test should be whether the plaintiff has a 'special interest in the subject matter of the action' (rather than being confined to 'special damage' which is obviously a narrower concept). A special interest was distinguished from a 'mere intellectual belief or concern', which did not found standing. Although a special interest need not amount to a legal right, it was not established by the Australian Conservation Foundation in the ACF case. The foundation was simply a group of people sharing a common concern for the environment! Since cases on standing are very varied and the existence of standing depends upon the subject-matter of the litigation and the nature of the relief sought, a special interest in one case may not be a special interest in another. A special interest in the subject matter of the action will be established by an individual whose financial or proprietary interests are affected by the administrative decision, even if those interests do not amount to legal rights (see ACF case). In Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, the High Court held that an interest of a spiritual or emotional nature may ground standing to seek an injunction. However, the special position of the aboriginals, who were the plaintiffs in the Onus case, in terms of aboriginal customary law, gave them standing where perhaps general environmental groups seek standing to restrain development in breach of environmental and planning legislation may in some cases have more difficulty in establishing a 'special interest'. Nevertheless, the question of whether an applicant will be held to have standing depends upon the particular facts of the case, the particular interest of the applicant and the legislative regime involved. In Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 the issue was whether a union had standing to challenge the decision of the respondent Minister to permit Sunday trading by granting certain certificates in effect exempting shops in the Central Business District of Adelaide from regulations prohibiting trading on Sundays. It was held, not surprisingly, that the Union did have standing. It represented members who were shop assistants employed in the Central Shopping District and had a special interest in the trading hours since alteration of them would necessarily affect the terms and conditions of employment of members of the Union. In reaching this conclusion Brennan, Dawson, Toohey, Gaudron and McHugh JJ applied the test derived from the ACF case and stated by Gibbs CJ in Onus at 558 in the following terms: "A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action." Their Honours commented upon this test briefly as follows: "The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest." In the ACF case, in which it had been held that the appellant had no interest to challenge a decision made under regulations affecting foreign exchange, Gibbs J explained what was meant by "special interest". His Honour said at 530: "... an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the

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satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs if his action fails." The fact that in the ACF case the conservation body opposed a resort development which depended upon the outcome of an application for exchange control approval did not suffice to give it standing to oppose the grant of approval. Had the ACF sought to challenge a decision more directly related to the development as, for example, happened in some later cases, such as North Coast Environment Council Inc v Minister for Natural Resources (1994) 55 FCR 492, the outcome may have been different. Note that this was a ADJR case (see below). As we will see, the courts have tended to adopt the equitable ACF “special interest” test for ADJR cases as well, even though the statutory formula is “person aggrieved”.

Adjoining landowners, unlike environmental groups, normally have standing to challenge planning decisions affecting neighbouring land (ACF case). Social and political interests may even ground standing (ACF case).

The standing of business competitors (or trade unions) • Helicopter Utilities Pty Ltd v Australian National Airlines Commission (1963) 80 WN (NSW) 48; • Australian Foremen Stevedores Assn v Crone (1989) 98 ALR 276 • Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 121 ALR 373; • Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 132 ALR 379; • Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552; • Allan v Development Allowance Authority (1998) 152 ALR 439 (on standing to seek AAT review, for which the test is “person whose interests are affected” – section 25, but as with ADJR the courts have also tended to adopt the ACF “special interest” test here as well); • Bateman's Bay Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247.

A competitor may have standing to challenge a decision affecting it commercially, though there is a real and unresolved question whether the existence of a “special interest” is all that is required to ground standing of a commercial competitor. Competitors would almost always have a “special interest” in the sense explained in the ACF case, but should competitors always have standing to challenge decisions which concern them only indirectly, in the sense that they may gain a commercial advantage or disadvantage depending on the outcome. Should competitors be freely able to exert commercial pressure by having effectively automatic standing? Different judges have taken opposing attitudes. See Bateman's Bay Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247. But compare Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 121 ALR 373, where a competitor was held not to have standing to challenge a decision made under the Therapeutic Goods Act 1989, and Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 132 ALR 379 where a competitor was held not to have standing under other legislative provisions concerning the licensing of chemist shops. In Bateman's Bay, McHugh J said (at [66]-[69]) that the distinction is that: "where breach of a public duty has only an indirect effect on a plaintiff's pecuniary interests the plaintiff has no standing. Thus in Helicopter Utilities Pty Ltd v Australian National Airlines Commission (1963) 80 WN (NSW) 48, the New South Wales Supreme Court denied standing to a plaintiff who sought to restrain the Australian National Airlines Commission from carrying out a contract on the ground that the contract had been accepted in preference to the plaintiff's tender and was beyond the Commission's powers. Jacobs J found that the plaintiff's commercial interest was not sufficiently direct to ground standing.

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In the crucial passage in his judgment (author's note - in Bateman's Bay at first instance), McLelland CJ in Eq adopted the reasoning of Jacobs J. McLelland CJ in Eq said that where a plaintiff's pecuniary interests were indirectly affected (1996) 92 LGERA 212 at 219): "it seems to me that in order to attract standing to sue, a plaintiff's 'special interest' must as a matter of principle be an interest of the general kind which the relevant public right was intended to safeguard or protect, or, where the 'special interest' consists in a vulnerability to 'special damage', the damage must be 'within the same class of damage as the public suffers as a whole' and not just 'any side effect of the infringement of the public right". Nevertheless, in Bateman’s Bay the majority Justices held that the respondent insurance company had standing to challenge decisions made in relation to the land council appellant’s funding and operations, and did not appear to regard the existence of “an interest of the general kind which the relevant public right was intended to safeguard” as a necessary element. Similarly, in Allan v Development Allowance Authority (1998) 152 ALR 439 the Full Federal Court did not see any need for any element additional to a “special interest” in an ACF sense (this was not a competitor case, but the judges discussed the reasoning in some of the earlier “competitor” cases). NB See especially the discussion of standing of business competitors in the article by Bruce Dyer listed under “Additional reading” at the beginning of this study guide, especially at pages 11-17.

A liberalised test of common law standing? In Bateman's Bay the first respondent to the appeal operated a contributory funeral benefit fund catering for members of the New South Wales Aboriginal community and was the trustee of a benefit fund for the community which had some 3000 members. The second respondent, which was related to the first respondent, operated a contributory life insurance business for members of the community. The appellants were, in effect, an Aboriginal land council. The appellants proposed to conduct a contributory funeral benefits fund. The respondents sought to challenge the power of the appellants to do so in circumstances where the Attorney-General of the State of New South Wales had declined to grant a fiat. It was held that the respondents had standing to seek injunctive relief to prevent apprehended economic loss as a consequence of the alleged ultra vires activities proposed to be undertaken by the appellants.

The leading judgment was delivered by Gaudron, Gummow and Kirby JJ. Their Honours pointed out that it was significant in analysing the question of standing where injunctive relief was sought to have regard to the considerations upon which equity intervenes in public law cases. The basis of this intervention is, importantly, to be found in the public interest in the maintenance of due administration (rather than necessarily in any 'special interest' on the part of the applicant) . In the course of the judgment, the formulation in Boyce came under some criticism from their Honours. In particular, Their Honours noted that the English doctrine was based on the independence of the Attorney-General in that country. This independence does not apply under Australia's system, where the Attorney-General is a member of Cabinet, so that the notion that he could necessarily be counted on to intervene to protect the public interest against a Cabinet colleague may be 'fanciful'. Thus there may be a need for liberalised rules for standing where the A-G refuses his fiat (or perhaps even where it is obvious that he will do so). Their Honours suggested that access to the courts might appropriately be governed by exercise of judicial discretion to refuse a remedy (especially an equitable remedy) rather than technical rules of standing. There is a clear suggestion that Their Honours agreed with the Australian Law Reform Commission in its review of standing rules 'Beyond the Door-Keeper',

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which recommended liberalisation of access/standing rules While referring with approval to the joint judgment of Brennan, Dawson, Toohey, Gaudron and McHugh inShop Distributive and Allied Employees Association, Their Honours noted the danger of adopting any precise formula as to what sufficed for a special interest in the subject matter of the proceedings, where to do so might unduly constrict the availability of equitable remedies to support the public interest in due administration.Nevertheless, the High Court has not subsequently moved to liberalise rules of standing in the manner envisaged by Gaudron, Gummow and Kirby JJ in Bateman’s Bay. Instead the view of McHugh J seems to have prevailed. That is, it is up to Parliament to address any need for reform of standing rules rather than the courts.

ADJR Act • Section 5 Administrative Decisions (Judicial Review) Act 1977 (Cth) • Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 • Australian Foremen Stevedores Assn v Crone (1989) 98 ALR 276 • Ogle v Strickland (1987) 71 ALR 41 • United States Tobacco Co v Minister for Consumer Affairs (1988) 82 ALR 509.

Test - Standing under the ADJR Act depends upon the applicant establishing that he or she is a 'person aggrieved'. The ADJR Act defines a 'person aggrieved' as a person whose interests are adversely affected by a decision or determination to which the ADJR Act applies. The test of standing therefore depends upon the decision being justiciable under the ADJR Act . See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The concepts of sanding and justiciability are closely related. There is also a standing test for joinder as a party to proceedings under theADJR Act. This is a test of 'person interested' (ADJR section 12).Liberal construction by court - The Federal Court has maintained consistently that, because the ADJR Act is remedial legislation, the expression 'person aggrieved' should not be given a narrow construction. Thus a person may be 'aggrieved' even where no legal right or interest of theirs is affected by the decision. A general test for determining whether interests are affected is that the person suffers, not just as any member of the public but as a person who suffers a grievance beyond what an ordinary member of the public suffers. However, if there is no clear and imminent danger to the interests of the applicant but only an indirect or fanciful danger, and the applicant will not gain something of significance if successful in the proceedings, the standing test is not satisfied. See Australian Foremen Stevedores Assn v Crone (1989) 98 ALR 276Types of interests - A grievance may arise from a decision which adversely affects business interests (Bateman's Bay -see earlier discussion). A person may be aggrieved if his or her rights against third parties are affected by the decision. A person whose employment, or posting as an employee, is affected may be a person aggrieved. See Ogle v Strickland (1987) 71 ALR 41 where a priest whose vocation it is to repel blasphemy was held to have standing under the ADJR Act to bring an action challenging a decision of the Censorship Board to allow the importation and registration of a film which might be offensive to those professing the Christian faith.A person who participated in tribunal proceedings as a party has standing to seek ADJR review of the tribunal's decision. See United States Tobacco Co v Minister for Consumer Affairs (1988) 82 ALR 509.

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Is there a difference between the ADJR and general law tests? In construing the expression 'person aggrieved' the Federal Court often refers to the test at general law for standing to seek an injunction or declaration. This test requires that the applicant have a special interest in the subject matter of the action (ACF case). In Ogle v Strickland, Wilcox J would have been prepared to find that a member of the community (not even a priest) who professed the Christian faith had standing to seek review of a decision of the Censorship Board to allow importation and registration of a film which challenged the fundamental precepts of that faith. In a more recent decision concerning the Australian Conservation Foundation, it was held that the Foundation had standing to seek review of a decision to permit logging of a forest. See Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70. Although the ACF had not been accorded standing by application of the test at general law in the earlier High Court decision (see earlier in notes), the court took note of changing community perceptions of the role of public interest groups. On this more liberal view an organisation whose objects and activities indicate that it has played a leading role in relation to the decision which is challenged and which appears to be recognised in terms of 'current community perceptions and values' may have standing to represent the public interest. However, a landowner whose property adjoined the area proposed for logging had no standing to challenge a decision which raised issues relating to the national estate rather than damage to private property. The Bateman's Bay case raises the intriguing possibility that the general law test may now be more liberal in some respects than the ADJR test. Gaudron, Gummow and Kirby JJ suggested that an applicant would not even necessarily need to be an 'aggrieved person' where they had sought the Attorney-General's fiat and it had been refused (or obviously would be). Bateman's Bay involved seeking prerogative remedies at general law, not under the ADJR Act (it was a challenge to a decision of a NSW State instrumentality, so ADJR was not available). Had it been a ADJR case, it would not have been open to the Court to grant standing to an applicant who was not an 'aggrieved person'. Nevertheless, the Court has not subsequently moved to further widen the tests for standing, either at common law or in equity.

Standing to be joined as party In addition to the 'person aggrieved' test for standing to initiate an ADJR challenge, a person may be joined as a party to proceedings if he/she is a 'person interested' (section 12). This test is construed similarly to the 'person aggrieved' test. Thus, as a result of a direction made by the Trade Practices Commission that the Australian Federation of Consumer Organisations was entitled to be present at a conference held under the Trade Practices Act 1974, AFCO had an interest different in kind from other members of the public, which was sufficient to support its standing to seek judicial review of the conduct of the conference. See United States Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79.

Conclusion As with general law tests for standing, there is an evident trend towards liberalisation of the ADJR standing tests. It appears that the prevailing High Court view is that access to the courts in public law matters may be more effectively controlled, and the competing public policy considerations more easily balanced, by exercise of judicial discretion as to whether to grant a remedy. Under the ADJR Act, the court has a quite broad discretion as to whether to grant relief, even where standing exists and a review ground has been established. The same is true of the equitable remedies of injunction and declaration, while the old common law prerogative writs are considerably less flexible, but nevertheless allow for some judicial discretion. This subject is dealt with in the final set of lecture notes on remedies in public law.

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EE. 6.1 Two Approaches To Standing

To be entitled to make a judicial review application, an applicant must establish that they have standing (locus standi). In other words, the rules of standing are about who may initiate judicial review proceedings.

There are at least two ways of thinking about the law of standing and the functions of standing rules. The first approach can be called the interest-based grievance model of standing (the ‘interest model’ for short). In this model the question of whether or not a particular applicant may initiate judicial review is determined by asking whether they personally have a legal right or an interest which has been adversely affected by the impugned administrative decision. In short, the question of standing is answered by reference to the interests of the applicant. This focus on the applicant’s interests reflects the view that the primary purpose of judicial review is the protection of individuals against the abuse of government power.

The second approach to the question of standing can be described as the ‘enforcement model’. In this approach, the applicant’s standing is determined by asking whether they are an appropriate person to enforce administrative law norms. In answering this question the court may have regard to the identity and qualifications of the applicant. Of course, one possible answer (or part of an answer) to the question of who should be allowed to initiate judicial review proceedings to enforce administrative law norms is, ‘those whose interests are affected by a decision’. For this reason, the answer, in the enforcement model, to the question of who may appropriately enforce the law cannot merely be based on the nature of the applicant’s interests in the subject matter of the decision. Unless (on the enforcement model) some applicants may be granted standing for reasons unrelated to their individual interests in the subject matter of the impugned decision, the distinction between the enforcement and interests models would collapse. Thus, the enforcement model recognises that the applicant’s identity or qualifications may, in at least some cases, be sufficient reason to grant standing even if their personal interests are not affected by the decision.

Both models of standing can be discerned in the law, as can be illustrated by reference to recent comments made by the High Court in Bodruddaza v Minister for Immigration and Multicultural Affairs. The court track changing understandings of judicial review by reference to three distinct phases in the historical development of the prerogative writs – in particular, the writ of prohibition (see also 2.1.4) . According to the High Court, the writs were originally developed as a means by which more powerful officials (the ‘Crown’) could control inferior government bodies by ensuring that they complied with the law. In this phase of its development, judicial review was conceived of primarily in terms of enforcement of compliance with the law by a particular class of administrative or government decision-makers.

But, the Court continued, ‘by the end of the nineteenth century’, prohibition ‘was seen as protective of the rights of the subject rather than as a safeguard of the prerogative’. Arguably, this change in the way prohibition was understood was part of a more general reconceptualisation of the purpose of judicial review in terms of the protection of individual interests against the abuse of administrative power. It is not surprising, therefore, that in this second phase of historical development we find standing being defined in terms of whether the applicant had suffered ‘special damage peculiar to himself’. In the third phase of development, the purposes of judicial review were again reconceptualised – this time in the context of the Australian Constitution. In this context, judicial review cannot be understood only by reference to its role in protecting individual rights and interest. This is because the purpose of s 75(v) also include policing the federal compact and ensuring that the courts are able to restrain officers of the Commonwealth from exceeding their jurisdiction. This broader

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‘rule of law’ purpose of judicial review explains the change in nomenclature from ‘prerogative’ to ‘constitutional’ writs (3.4.7.1). The Courts constitutional role in protecting the ‘rule of law’ (by ensuring that decision-makers respect jurisdictional limits of their powers) also helps explain why at least some High Court justices have recently indicated (6.2) their amenability to ‘open standing’ (ie a regime under which any person may enforce administrative law norms by making an application for judicial review: 6.4). Finally, the constitutional overlay on the purpose of judicial review in Australia may also be part of the explanation of why the High Court has held that the requirement of a ‘matter’ under s 75 (3.4.7.3) does not necessitate adoption of interest-based standing rules or prevent the legislature enacting an open standing regime.

Traces of both the interest and enforcement models of standing can also be seen in the rule that the Attorney-General may bring proceedings for declarations and injunctions to enforce administrative law norms: the Attorney-General always has standing to enforce public law norms. Clearly, this right is not based on the Attorney-General’s personal interest, but in the Attorney-General’s identity (as representative of the government) and qualifications (as ‘principal law officer of the Crown’). The right of the Attorney-General to enforce administrative law norms is premised on the view that, when no personal interests are interfered with, the ‘enforcement of the public law of a community is part of the political process’. The Attorney-General’s right to bring an action to enforce administrative law norms can thus be understood in terms of the administrative model of standing: the right is recognised in answer to the question of who should be allowed to initiate proceedings to enforce administrative law norms.

The Attorney-General can also give permission (‘fiat’) to another person to apply for judicial review in the Attorney-General’s name by way of a ‘relator action’. (If permission is granted to bring a relator action, the ‘relator’ (ie the real applicant) is usually responsible for the conduct of the proceedings and bear the costs, even though in theory the ‘Attorney-General has complete charge of the litigation at all times.) By this procedure, an individual who lacks a sufficient interest (standing) to apply for judicial review in their own name and right may nevertheless be able to initiate such proceedings. However, as the High Court has recently pointed out, citizens are unlikely to place much faith in the relator action given that the Attorney-General is a minister of the government and, for that reason, is unlikely to authorise legal actions which will cause the government embarrassment. Moreover, it is generally accepted that the Attorney-General’s decision to grant or withhold his or her permission is not reviewable because of the political (or ‘non-justiciable’) nature of such a decision. It is probably for such reasons that the relator action has atrophied as a means of enforcing administrative law norms. These facts may also partly explain why the law of standing has moved and is still moving in the direction of widening access to judicial review. The starting point of the modern Australian law of standing is the case of Australian Conservation Foundation v Commonwealth (‘ACF’), to which we now turn.

6.2 ACF and the Special Interest Test

Because the relator action plays very little role in the contemporary Australian law of standing, the central question is: what amounts to a sufficient interest to give a person standing to apply for judicial review in their own name? The core holding in ACF was that an applicant must show either that the decision interferes with their private law rights (such as property or contractual rights), or that they have a ‘special interest’ in the subject matter of the application.

In ACF the challenged decision had given the go ahead to a project to develop a tourist resort. No private law right of the Australian Conservation Foundation was affected by the decision; and so it needed to establish that it had a special interest in the subject matter of the

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decision. The High Court did not articulate a positive test to determine when a person will be recognised as having such an interest, but rather elaborated the concept of ‘special interest’ negatively: a special interest is more than a mere ‘intellectual or emotional concern’, no matter how intense or strong that concern may be. The applicant must be seeking more than ‘the satisfaction of righting a wrong, upholding a principle or winning a contest’. Although a special interest need not be unique to the applicant, interests shared with the public at large (or perhaps a significant section of it) are insufficient to establish standing. Applying these principles, the Court held that the ACF’s clear commitment to conservation did not give it a special interest in the preservation of the environment of the particular site slated for development. Its interest was essentially ideological.

The articulation of the law in ACF, and its application to the facts of the case, reflect the interest model of standing we outlined above (6.1). The basic reason for the refusal of standing was that the applicant was not seeking to remedy a personal grievance. Rather it was concerned to enforce the law so as to promote the cause of environmental protection, which provided its raison d’etre. This approach to standing is related to a view that the primary purpose of judicial review is the protection of individual interests against government abuse. According to this view, the courts do not have a more general role of enforcing administrative law norms (unless the Attorney-General effectively invites them to undertake the task by giving permission for a relator action). The implication of ACF is that ideological, intellectual and emotional interests and concerns should be vindicated through political, not legal, mechanisms of accountability.

The special interest test is a vague standard and capable of more or less expansive application. A common judicial strategy to justify outcomes which appear difficult to reconcile with the idea that an intellectual or emotional concern is insufficient to establish standing is to emphasise that whether an applicant has a special interest cannot be answered by reference to hard and fast rules but depends on contextual analysis of the facts of each case. For this reason, it is often observed that post-ACF cases demonstrate that the application of the special interest test involves a large degree of judicial discretion.

This is most clearly evidenced by the history of environmental litigation. Although standing was refused in the ACF case, this has not prevented environmental organisations with objectives similar to those of the Australian Conservation Foundation from successfully establishing standing in other cases. In concluding that environmental groups do sometimes have a special interest in the circumstances of particular cases, judges have emphasised factors such as the prior involvement of the organisation in the particular matter to which the application for review relates, the fact that the group is recognised and/or funded by the government, whether the group ‘represents’ a significant strand of public opinion, and the expertise of the organisation. The conceptual framework established by ACF forces such applicants to frame their case for access to the court in terms of the interest model. But typically, such groups are unable to show that they have a special personal interest of the sort contemplated by the interest model as traditionally understood. Factors such as an applicant’s commitment to a particular issue, their expertise in the subject matter of the decision and whether they have been recognised in some way by government, simply lack salience in that model. On the other hand, they can easily be understood as relevant to the enforcement model, which directly raise the question of whether or not an applicant’s qualifications and identity should entitle them to enforce administrative law norms.

It is arguable that in cases such as these the law has reached a tipping point: although the special interest test is purportedly applied, it is reinterpreted consistently with the enforcement model rather than the interest model of standing. Assessing an applicant’s interest in terms of their identity and qualifications does not involve applying the special interest test, but replaces it with criteria of a different sort. The courts, we might say, have

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shifted from thinking about standing in terms of protecting rights and interests to understanding it as defining who may enforce administrative law norms.

Of course, even in the enforcement model, individuals whose private law rights or special interests have been affected may initiate judicial review. But this model poses the further question of whether these are the only appropriate criteria for allowing someone to enforce administrative law forms or whether other characteristics may make a person a suitable enforcer of the law. The answers that courts have given to this question in terms of the identity and qualifications of applicants may not seem inappropriate, but they are likely to be controversial. For example, it might be argued that giving weight to whether or not an applicant has an established a track record of involvement in a particular subject matter, is acknowledged as an expert body, or has been recognised by government (eg through receiving funding), tends to entrench the status quo by privileging well-established groups who are already part of the relevant decision-making loop (or ‘policy network’). It might also be argued that ‘expert’ opinion relevant to the resolution of many contentious issues of social policy reflects not merely technical knowledge but also normative or political judgments. Arguments such as these alert us to the difficulty of the issues likely to confront courts in developing widely acceptable criteria to identify suitable enforcers of administrative law norms other than people whose rights or personal interests are affected.

The very complexity of the task suggest that once the interest model is left behind and replaced by the enforcement model, it may be difficult to resist calls from a regime of open standing, ie the rule that any person (subject, perhaps, to limited exceptions) may bring proceedings to enforce administrative law norms regardless of their identity or qualifications. In Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd, three members of the High Court suggested that the special interest test, despite its flexibility, results in ‘an unsatisfactory weighting of the scales in favour of defendant public bodies’, by requiring a plaintiff to do more than show ‘the abuse or threatened abuse of public administration’. 85 Although these comments do not explicitly jettison the special interest test, it was concluded that the test should be ‘construed as an enabling, not a restrictive’ requirement. Thus, although the special interest test continues to apply, some members of the Court appear to have sanctioned the sort of expansive applications witnessed in some post-ACF cases. These comments in Bateman’s Bay may also indicate willingness to embrace ‘open standing’ if and when the opportunity presents itself. Interestingly, the judges noted that any move to open standing would neither affect the court’s power to strike out vexations and frivolous claims nor its obligation to hear only justiciable controversies. Thus, in enforcing the rule of law under an open standing regime, it was emphasised that the courts: (a) would have available the ordinary means to prevent abuse of court processes; and (b) could rely on the principles of non-justiciability to avoid being drawn into disputes over ‘political’ or ‘polycentric’ issues.

Despite the fact that the ‘special interest’ test has been applied expansively in some contexts, there remain instances where a more restrictive approach has been taken. In cases where standing has been denied, emphasis has sometimes been placed on whether or not the applicant’s interest in the challenged decision is within the ‘zone of interests’ which the legislation was intended to protect. On this basis, an anti-abortion group was denied standing to challenge a decision made under legislation which was primarily concerned to ensure the provision of safe, high-quality drugs. 86 In other cases, applicants have been said to lack a special interest in decisions which benefit their commercial rivals, though the decisions on this question ‘exhibit mixed results’. Notably, in Bateman’s Bay, the High Court

85 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, 258, 261. See also n 10 above.86 Right To Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238; see also Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250.

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accepted that a business competitor could seek review of a decision favorable to a rival operating in the ‘same limited market’.87 6.3 Standing and Specific Remedies

In Bateman’s Bay, the High Court emphasised that the special interest test was stated and applied in ACF in the context of applications for injunctions and declarations and is distinct from the standing requirements in applications for (orders in the nature of) the prerogative writs. As McHugh J put it, ‘the doctrine of standing is a house of many rooms’. However, it is unclear how important remedy-specific differences in standing requirements will be practice. On the other hand, the High Court insists that ‘so-called’ strangers may have standing to seek prohibition and certiorari even though they lack ‘a relevant legal interest’. But on the other hand, it seems clear that the discretion to refuse such relief may be ‘greater’ or will be exercised more ‘frequently’ in cases where the applicant lacks such an interest.

It is difficult to think of good reasons why standing rules should differ according to the remedy sought. In this respect, it should be emphasised that the ADJR Act’s formula – that only ‘persons aggrieved’ can bring applications – has to all intents and purposes been applied consistently with the ‘special interest’ test. The requirement that a person be ‘aggrieved’ fits well within the interest model of standing as we have described it.

(xlix) Fairness in Australia

Australian judicial and academic perception of natural justice has been stifled by faithfulness to the test, enunciated by the Privy Council in Durayappah v. Fernando, for the implication of natural justice. The threefold test requires consideration of the nature of the property of the complainant affected by the decision, the circumstances in which the administrator is entitled to intervene and the sanctions the latter is entitled to impose. Any one or more of the factors may point to the implication of the rules of natural justice.

Whilst the fairness principle blossomed in the United Kingdom it made a poor start in Australia. The High Court decisions in Salemi v. Mackellar (No. 2) and R. v. Mackellar; ex. p. Ratu failed to appreciate the full impact of the principle or the accompanying wasting away of the Durayappah v. Fernando implication principle.

In Salemi (No. 2) the High Court by a statutory majority held that the rules of natural justice did not apply to the exercise of discretion of the Minister for Immigration and Ethnic Affairs to order the deportation of a person who was a prohibited immigrant under s. 18 of the Migration Act 1958 (Cth). Again in Ratu a majority of the High Court held that Natural Justice was not implied in relation to s. 18.

In Salemi (No. 2) Barwick, C. J. was prepared to use the expression fairness to describe the flexible content of natural justice once it was established that natural justice was implied. Gibbs, J., endorsing the Privy Council conception, in Furnell v. Whangarei High Schools Board, of natural justice as fair play in action, thought that the duty to act fairly simply flowed from the duty to observe natural justice. However, he then applied the implication test in the earlier Privy Council decision of Durayappah v. Fernando.

Barwick, C.J.’s deprecation in Salemi (No. 2) of the expression “legitimate expectation” as adding little if anything to the meaning of a legal right, was ignored by Murphy, and Aickin, JJ. In Heatley v. Tasmanian Racing and Gaming Commission, handed down a few months after Salemi (No. 87 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247. The actual holding in the case was framed cautiously: the questioned to be determined was said to be ‘standing in a case where the plaintiff seeks injunctive relief to prevent apprehended economic loss as a consequence of ultra vires activities by a statutory body using or enjoying recourse to public monies’.

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2). In Attorney-General of Hong Kong v. Ng Yuen Shiu Barwick, C.J.’s view was also disapproved by the Privy Council, which held that the word “legitimate “in the expression “legitimate expectation” means “reasonable”. In Kioa Gibbs, C.J. preferred the view of the Privy Council whilst Brennan, J. recognised and went beyond that view of the legitimate expectation. Nevertheless the combined effect of Barwick, C.J.’s restrictive interpretation of the legitimate expectation and Gibbs, J.’s adherence to the Durayappah implication test was a limping start to the principle of fairness in Australia.

By contrast, in the United Kingdom the duty to act fairly signalled the courts’ preparedness to require a broad spectrum of administrators to observe natural justice, whatever the depth of its content in particular circumstances. The concept of the legitimate expectation had to develop in tandem with that of fairness to permit this extension of natural justice to new fields of administrative decision-making. And the identification of a legitimate expectation began to overshadow the traditional implication test.

Apart from the minority judgments in Salemi (No. 2) and a bold and foresightful decision of the Federal Court in Cole v. Cunningham the fairness principle in Australia failed to make the quantum leap represented by the United Kingdom decisions in Liverpool Taxi and Ng Yuen Shiu, extending the ambit of the principle to require a hearing where an administrator had made an undertaking or followed a regular practice which the complainant could reasonably expect to be honoured. This stultification in the development of the principle can be traced to the judgment of Barwick, C.J. in Salemi (No. 2) in which Liverpool Taxi was described as a case turning upon the express undertaking made by the council rather than upon the implication of natural justice. That does not explain why each of the judges in Liverpool Taxi held that the administrator, in failing to give the association a hearing, was in breach of its duty to act fairly.

In 1985 in Kioa v. Minister for Immigration and Ethnic Affairs the High Court at last animated the duty to act fairly, or procedural fairness, as it tends to be described in Australia, possibly infusing it with more vigorous potential than it has realised so far in the United Kingdom.

Nine years after Salemi (No. 2) and Ratu, the High Court, Gibbs, C.J. dissenting, held that natural justice was implied where the Minister for Immigration and Ethnic Affairs exercised power to refuse to renew a temporary entry permit or to grant a permanent entry permit, and deported the immigrant.

Mr. and Mrs. Kioa were Tongan citizens who had outstayed their temporary entry permits to Australia although they had requested extensions and received no reply from the Department of Immigration. They had stayed on in order to work and send money back to Tonga to support their family which had suffered as a result of the cyclone in Tonga in 1982. The Kioas had a child whilst in Australia and by birth she was an Australian citizen.

The Minister’s delegate, exercising discretionary power under s. 18 of the Migration Act, ordered that the Kioas be deported. He took into account a departmental report which set out departmental policy but also contained allegations that the Kioas had changed their address without informing the Department and that Mr. Kioa’s active involvement with other persons seeking to circumvent Australia’s immigration laws must be a source of concern.

It was clear from the statement of reasons given by the Minister’s delegate for his decision, under s. 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth.), that given the current immigration policy, the delegate would have decided to deport the Kioas whether or not Mr. Kioa had been involved with persons seeking to circumvent Australia’s immigration law.

Since Salemi (No. 2) had been decided, legislative changes had been made of such significance that it was now open to the Court to imply natural justice in relation to the power. In particular, under the Administrative Decisions (Judicial Review) Act 1977 (Cth.) there was now a comprehensive system of judicial review of Commonwealth administrative decisions, including deportation orders, and a right of the applicant to a statement of the reasons for such decisions. Amendments to the Migration Act 1958 (Cth.) structured the discretion of the Minister relating to the grant of entry permits and strengthened the sanctions against prohibited non-citizens. By not providing the Kioas with an

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opportunity to respond to the material prejudicial to them in the departmental report, the Minister’s delegate had acted unfairly.

Important English decisions in which fairness required an administrator to honour an undertaking or conform to a regular practice which the applicant reasonably expected to be followed, were endorsed by some of the judges. But in their honest acceptance of the implications of procedural fairness, Mason, Brennan, and Deane, JJ. in one sense unfolded the principle more dramatically than any English decision has done so far. English courts still carefully consider whether a legal right or legitimate expectation is affected by the administrative decision, in order to determine whether fairness is implied. It was the expressed view of Mason, and Brennan, JJ. and the implicit view of Deane, J. that the critical question now will not be whether the rules of natural justice are implied. Procedural fairness will be a requirement borne by every administrator whose decision affects rights, interests and legitimate expectations, unless of course there is a strong manifestation of contrary statutory intention. The critical question is what does fairness require in the circumstances of the particular case. It is in answering this question, the question of the content of fairness, that the court will consider circumstances such as the nature of the inquiry, the subject matter and the rules under which the decision-maker is acting. Procedural fairness emphasises, more than the expression natural justice did, the flexibility in the content of the principle.

The High Court recognised that acceptance of the principle of procedural fairness imports a relaxation of the test for the implication of natural justice. Unlike the English courts, the High Court accepts the practical result of that relaxation: the concept of the legitimate expectation will no longer be necessary as a means for extending the range of administrative decision-making in relation to which natural justice is implied.

The Kioas did not appear to have a legitimate expectation, in terms of the doctrine developed in the English cases. Whilst their temporary entry permits were current the Kioas had a legal right to stay in Australia for the period specified. They also had a legitimate expectation that the permit would not be revoked before the period had expired. But Mr. and Mrs. Kioa’s permits had expired on 8 December 1981 and 31 March 1982 respectively, more than a year before Mr. Kioa was arrested.

In normal circumstances, once a permit has expired the situation is akin to the application cases - the immigrant is applying for a legal right to which he or she has no particular claim. There is no direct support in the English cases for the view that the grant of a temporary entry permit generates a legitimate expectation of a renewal of the permit. For a legitimate expectation to arise otherwise the expectation would have to be based on special facts such as some statement or undertaking by the administrator or a regular practice of granting renewals, which the applicant could reasonably expect to continue. But this was not such a case. No amnesty had been announced by the government as it had been in Salemi (No. 2), the factor accounting for Stephen, J.’s powerful dissent in that case.

However, there is English and Australian authority that a licensee seeking a renewal has a legitimate expectation of renewal. Commentators often approach analysis of expectation cases by grouping together licence cases, entry permit cases and so on, in the hope of introducing some order into the law. But it was to the licence cases and types of cases other than the entry permit ones that the High Court had to turn in Kioa.

In R v. Gaming Board of Great Britain; ex. p. Benaim and Khaida, Lord Denning, M.R. held that holders of a gaming licence had a legitimate expectation of gaining a licence under a new statutory scheme. The Australian authority is FAI Insurances Ltd. v. Winneke. An insurance company was held to have a legitimate expectation of having its licence to insure for workers compensation renewed or not refused without an opportunity for a hearing.

But do the Gaming Board Case and FAI Insurances leave open the argument for a legitimate expectation in a wider class of case? The cases concerned subject matter very different from that in Kioa. They were cases where a licence permitted a licence to carry on a business. The licences came up for renewal to provide the licensor with an opportunity to check whether the licensee was complying with the terms of the licence. If not disqualified, the licensee could expect a renewal. Barwick, C.J. acknowledged in Salemi (No. 2) that in such cases the grant of the licence may import a term that the

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interests of the licensee would be considered before a renewal was refused. Where it is clear from the circumstances that the licensee has not been given to understand that there is a possibility of non-renewal, non-renewal might cause the licensee a seriously upset in plans, economic loss and perhaps cast a slur on reputation.

But a temporary entry permit is not granted in circumstances which carry such an implication. The stay in the country is understood to be temporary and the permit fixes the period. Such circumstances are not comparable with those in the Gaming Board Case or FAI Insurances.

But why should a renewal of a licence to carry on a business or livelihood be categorised as an expectation case, but a renewal of a temporary entry permit be categorised as an application case? Some judges and commentators have taken the view that not only the nineteenth century concept of property, but also new forms of property (such as status), ought to enjoy the protection of natural justice. The courts had, after all, already forced reputation in with traditional proprietary and financial rights as an interest which ought to be protected by natural justice. The view is sensible and indeed irresistible and was heartily accepted by Mason, Deane, and Brennan, JJ. in Kioa.

However, once applications for renewals of licences, temporary entry permits and all administrative decision-making concerning status are accepted as affecting legitimate expectations and attracting procedural fairness, the distinction between the expectation and application categories breaks down. The extension of the duty to act fairly to decision-making affecting the new property has the logical implication that there is no longer any point in talk of legitimate expectations. It is sensible to stop searching for a legitimate expectation and to talk in terms of interests affected.

In Kioa the judges in the majority either paid lip service to the search for a legitimate expectation or abandoned it. According to Mason, J., in order for procedural fairness to apply, the administrative decision must affect rights, interests and expectations of the individual citizen in a direct and immediate way. A right or interest may relate to personal liberty, status, preservation of livelihood and reputation as well as proprietary rights and interests. A decision which only affects a person as a member of the public or a class of the public is not such a decision attracting fairness. Here we travel over the borderline into decisions described as policy or political decisions.

In finding there was a legitimate expectation, Mason, J., referred to In re H.K. (An Infant), FAI Insurances, the Gaming Board Case, Cole v. Cunningham and Daganayasi v. Minister of Immigration without discussing the fact that the circumstances attending the grant of a temporary entry permit are very different from those in the licence cases. Turning to the critical question of the content of procedural fairness in the circumstances of the case, the Kioas ought to have been given a hearing because of the presence of two factors. First, the application had been made in circumstances which where relevantly similar to those in which the earlier permit was granted. Second the decision-maker intended to reject the application on the ground of a consideration personal to the applicant on the basis of information obtained from another source with which the applicant had not been given an opportunity to deal.

Like Mason, J., Deane, J. also predicated the application of procedural fairness upon an administrative decision affecting a wider range of interests. He rounded them all up under the description

rights, interests, status or legitimate expectations of another in his individual capacity (as distinct from as a member of the general public or of a class of the general public).

Mason, and Deane, JJ.’s tentative steps away from the accepted requirement of finding a legal right or legitimate expectation was in need of further refinement. Restricting procedural fairness to administrative decisions affecting an individual in an individual capacity, rather than as a member of the public, would exclude the race-goer whom the High Court had held in 1977 to have a legitimate expectation as a member of the public of being admitted to a racecourse on payment of the required fee. Brennan, J. took up the challenge of devising a test for filtering out those administrative decisions

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which ought to remain firmly in the category of application cases, where procedural fairness is not implied.

His Honour clearly doubted whether on the facts of this case the administrative decision had affected a legitimate expectation as that notion is generally understood. There is, however, said Brennan, J., an infinite variety of social interests, which do not amount to legal rights but which are affected by the exercise of administrative discretion and which should be protected by natural justice. The expression “legitimate expectation” is simply an epithet for all these interests and is not a sure criterion for determining whether natural justice is implied.

With respect, apart from the confusing suggestion that a legitimate expectation is a state of mind, Brennan, J.’s approach is a logical one, supporting the breakdown of the distinction between application cases and expectation cases. What of Mason, Deane, JJ.’s limitation of the interest protected to those held not just as a member of the public or a class of the public? The limitation harks back to the approach of Jacobs, J., who, as a member of the minority in Salemi (No. 2), in discussing legitimate expectations said

Though the principles of natural justice extend to executive or administrative acts, it is necessary to bear in mind that the kind of act here referred to is the act which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a “policy” or “political” decision and is not subject to judicial review.

Brennan, J. said that there is a presumption that procedural fairness applies to a statutory power if its exercise affects the interests of an individual alone, or is apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. This test, intended to filter out policy decisions, made in the public interests, conjures up some of the tests for standing to seek remedies in public law. It was to this sphere that Brennan, J. turned.

At first blush this seems a logical move. In public law as in private law a complainant whose legal right is affected by a decision has standing to sue. But the courts have had to grapple with the issue of the grounds upon which a person whose legal rights are not affected should be permitted to bring an action to right a public wrong. The issue of criteria for establishing standing to seek remedies in public law is parallel to the issue of criteria for the implication of procedural fairness. In both contexts the court has a task of filtering out those numbers of the public whose interests are not appropriately or sufficiently affected by the administrative decision. It was his consideration of standing in an earlier case which inspired Jacobs, J.’s approach.

After mentioning the common law tests for standing to seek the remedies of certiorari and injunction, Brennan, J. applied the test for standing to seek an injunction, concluding that the Kioas did have a special interest in the subject matter of the application. On this test, the applicants would not only have standing to seek an injunction to restrain their deportation, but also be entitled to procedural fairness. Once standing at common law is established, then procedural fairness applies.

However, in his careful consideration of whether the legislature intended to exclude natural justice Brennan, J. displayed a reluctance to forget altogether the traditional test for the implication of natural justice. His Honour appears to be torn between two devices for screening out cases where procedural fairness ought not to be implied. Statutory construction could be maintained as a filter, a more searching process, requiring the drawing of inferences, than simply ascertaining legislative intention from the presence or absence of “express words of plain intendment” in the empowering legislation. The unfettered nature of the power and the sanction the decision-maker may impose are taken into account. The alternative is the filter to which abandonment of the expression “legitimate expectation” would impel Brennan, J.: the dissolution of the test for implication of natural justice into the test for standing at common law to seek a public law remedy.

The second filtering mechanism is a viable approach in the United Kingdom, where Order 53 of the Supreme Court Rules has introduced a simple procedure in public law, the application for judicial

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review, and a uniform standing test of a “sufficient interest”. A legitimate expectation has been held to amount to a sufficient interest.

But public law in Australia is still dogged by a multiplicity of remedies. If the test for the application of procedural fairness is merged with the test for standing is it to differ according to the remedy sought by the applicant? Also to be taken into consideration are the statutory standing rules under the Administrative Decisions (Judicial Review) Act 1977 (Cth.), which has introduced a simple procedure of an application for an order of review of Commonwealth administrative action. The test for standing is that the applicant be a “person aggrieved”. But the common law rules as to standing still apply to some public law disputes concerning Commonwealth administrative action, and the majority of disputes concerning State administrative action.

Perhaps Brennan, J. intended that one test be uniformly applied: whether the applicant has a special interest in the subject matter of the action. But then a court may have to apply different tests in one case. In Kioa itself standing was determined by application of the test under the Administrative Decisions (Judicial Review) Act. Should the implication of procedural justice then be determined by the common law rule for standing to seek an injunction?

A solution to these difficulties of consistency in the application of Brennan, J.’s proposal may be sought in implementation of the Law Reform Commission’s recommendation for a uniform standing rule to replace in general the common law rules. The test is markedly more liberal than the stricture of Mason, Deane, JJ. that for procedural fairness to apply the administrative decision must not solely affect a person as a member of the public or a class of the public. Any person is presumed to have standing to initiate public interest litigation unless the court finds he or she is thereby “merely meddling”. A personal stake in the litigation is sufficient to give standing and is usually shown merely by the individual’s having commenced the proceedings. A plaintiff who has no personal stake will only be excluded if his or her manner of presenting the issues in the litigation betrays a clear incapacity or unwillingness to represent the public interest adequately in conducting the case.

That the Commission’s test was not designed as a screening device for the application of procedural fairness is demonstrated by the last element of the test. The Commission’s objective, in formulating the standing test, was to ensure the legal issues of public significance may be brought before a court by a public-spirited citizen for resolution. That is an objective far removed from the purpose which standing rules traditionally served – to distinguish whether, amidst the class of individuals in the public affected by the administrative decision, the prospective litigant was affected in a special or peculiar way. Whilst that objective, of identifying some interest less than a private legal right which is affected by the administrative decision, is rapidly being discarded as standing rules are liberalised, it is the objective which Brennan, J. hopes to achieve by utilising standing rules in the context of procedural fairness.

It may be assumed that the public interest is involved in all disputed concerning administrative decision-making. But in some public law disputes, particularly those where denial of natural justice is alleged, the interests of the individual loom larger than the issue of the public interest. As Brennan, J. admitted, in adverting to the danger of the courts trespassing into the area of policy, which is to be decided upon by the administrator,

It is hard to place the unseen suffering of a large and innominate group against the evident suffering of a present litigant and the difficulty is enhanced by the court’s lack of familiarity with the considerations which the policy reflects.

A uniform criterion for extracting from the mass of public law disputes those in which the courts ought prima facie to interfere upon the ground of lack of procedural fairness is not found in the Commission’s recommended test for standing to initiate public interest litigation.

If standing rules do not provide an acceptable criterion for screening out cases to which procedural fairness ought not to apply, consider two further possible criteria. One is found in a distinction drawn by Lord Reid in Ridge v. Baldwin between a Minister’s decision relating solely to

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treatment of an individual and policy-making on a larger scale by the Minister, where the public interest is at stake even though the interests of individuals are also affected.

In the distinction there can be sensed the traditional objective of standing rules – to distinguish whether the litigant was affected in a special or peculiar way. After Ridge v. Baldwin it was no longer necessary to point to a case as being of the individual treatment type, or adjudicative, in order to show an administrator had a duty to act judicially and hence was bound by the rules of natural justice. However, given the flexible content of natural justice, adjudicative decision-making would demand a more exacting hearing procedure. Thus, what a Minister ought to do in considering objections to a motorway scheme may be very different from what a watch committee ought to do in considering whether to dismiss a chief constable.

Lord Reid’s distinction deserves consideration as a means of marking the borderline between expectation cases and application cases. The problem is that there is often an element of policy-making even in an adjudicative decision. Organisation theorists say that much administrative decision-making is incremental. Rather than policy being made on a large scale, as a rational choice between alternative values with their alternative consequences, policy is made in a piecemeal fashion in the course of case-by-case adjudication. Determining whether a case is characterised by “strong and compassionate or humanitarian grounds” requires the exercise of discretion. Departmental policy guidelines structuring and confining the administrator’s discretion cannot be applied mechanically. Departmental guidelines themselves contain vague and open-textured terms whose application requires an exercise of discretion, a discretion which may well be swept along by the media attention and political currents which surround many immigration cases and supply overwhelming policy considerations.

Finally, consideration might be given to the presence of a duty on the party of the administrator to give reasons for its decisions as a crucial criterion for the implication of procedural fairness. In Kioa Mason, and Wilson, JJ. and semble, Brennan, and Deane, JJ. found that the enactment, since Salemi (No. 2) and Ratu were decided, of s. 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth.), was an important new factor which indicated a legislative intention not to exclude procedural fairness. S. 13 requires certain administrators exercising power under Commonwealth enactments (including the Minister for Immigration and Ethnic Affairs exercising power under s. 18 of the Migration Act (Cth.)) to give reasons upon request for their decisions.

The applicability of s. 13 to an administrative decision is clearly not an acceptable criterion for defining the line between application cases and cases where procedural fairness applies. Administrators do not at common law have a duty to give reasons for their decisions, nor is such a duty an aspect of the rules of natural justice. Only one of the States has made statutory provision for a duty to give reasons. Even at the Commonwealth level s. 13 applies to only a sub-class of the decisions to which the new procedures of the Act apply.

S. 13 cannot provide a uniform criterion for the implication of procedural fairness and its applicability may not even be a reliable guide in a particular case.

Conclusion

In one sense the High Court in Kioa has demonstrated a vision beyond that of its English counterparts. The implication test for fairness has been relaxed and the continuing usefulness of the concept of the legitimate expectation questioned. Certainly some members of the High Court, in closely examining the legislative changes subsequent to Salemi (No. 2) and Ratu, still placed emphasis upon the nature of the administrative power, demonstrating a lingering attachment to the traditional approach to natural justice – to fairness writ small. But the judges were anxious to justify the departure from the view the Court had taken in the earlier cases. The thrust of the judgments of Mason, Brennan, and Deane, JJ. is that henceforth in Australia a procedural fairness is demanded of a much wider spectrum of administrative decision-makers, extending beyond those whose decisions affect legal rights and legitimate expectations.

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Those three of the four judges in the majority in Kioa, having clearly moved away from the implication test in Durayappah v. Fernando, were fundamentally concerned with the sorts of interests which ought to be protected by procedural fairness. Recourse to standing rules proposed by Brennan, J. does not promise a consistent criterion tailored to what might be expected to be the objective of an implication test. The implication test stated by Mason and Deane, JJ. cannot be founded upon Lord Reid’s distinction, which fails to cut through the vast blur of administrative decision-making in which policy-making and adjudication of individual cases are intertwined. Nor does the statutory duty to give reasons for decisions provide an acceptable test.

There is no obvious answer to the question how the implication test may be relaxed without blotting out completely the diminished category of application cases, where procedural fairness is not implied. What is required is a minimal test as to the justiciability of an issue. The application cases have provided the paradigm of the non-justiciable issue in natural justice. Yet even apart from the breaking down of the distinction between this category of cases and the expectation cases, this sphere of administrative decision-making is being eroded by checking by tribunals and courts of certain adjudicative decisions in order that policy objectives of government may be pursued. Still untouched, however, are decisions made at a high level of the executive, usually in the exercise of prerogative power, such as the dissolution of Parliament, the making of treaties, the grant of the Attorney-General’s fiat to a relator action, the grant of honours, the Attorney-General’s entry of a nolle prosequi.

Nevertheless it is arguable that no public law dispute is inherently non-justiciable. Justiciability substitutes for the discarded expectation/application distinction a test which provides no more guidance than does Lord Reid’s distinction. At best justiciability is a cluster concept. The justiciable public law dispute is distinguished from the non-justiciable one on the ground that it has the necessary and sufficient features to fall within the cloudy parameters of the concept. In the end justiciability is determined in the exercise of judicial discretion as the issue arises in hard cases.

Pushing the threshold for the implication of procedural fairness to the edges of the concept of justiciability is not however a useless exercise. It is worth arguing that the implication test has, with the development of procedural fairness, dissolved to such an extent. Fairness is then fairness writ large. The test will not often need to be applied. Usually we know a justiciable public law dispute when we see it. Kioa is an example. Indeed it is to be hoped that the High Court has now left behind it the need to dwell upon the formulation of the implication test. It will, if it is true that the critical question now is what is the content of fairness.

The advocated attrition of the implication test is, for a further reason, likely to occur naturally. If the High Court fully embraces fairness as it had developed in the English decisions the screening device of an implication test will in many cases be unnecessary. In the United Kingdom fairness has spanned more than one ground of review and has provided a vehicle for judicial reliance upon reasons drawn from the doctrine of estoppel. Whilst the courts formally reject estoppel as a ground of review in public law where it would prevent the performance of a statutory duty or hinder the exercise of a statutory discretion, “estoppel-type” considerations often incline the courts to conclude that the administrator has acted unfairly.

In such cases the importance of the implication test is much reduced, either because unfairness amounts to an abuse (for which no screening device is appropriate) or because the important factor is that it is to the applicant that the administrator has made an express or implied representation. In its ramifications for the administrator this is fairness writ large. The administrator will have blundered not just by deciding according to the wrong procedure but by deciding in excess of power. Or, the administrator will be required to honour an undertaking it has made provided that is consistent with its statutory duty. Fairness writ large may radically limit the administrator’s discretion, allowing the court to give recognition to the mutual expectations generated in the course of the administrator’s interaction with a citizen.

In immigration cases not unlike Kioa the administrator may act unfairly by failing to take into account relevant considerations or by taking into account irrelevant considerations, or by inflexibly

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applying a policy. Such unfairness may amount to an abuse of power. Writ larger, like this, fairness requires a hearing without the need for an implication test.

There is a remaining problem. It is all very well for procedural fairness to be implied. But that is of little use to the litigant if the content of fairness is minimal, perhaps already having been complied with by the administrator. There were suggestions in the judgments of Mason, and Brennan, JJ. in Kioa that in cases where the reason for deportation is that the person is a prohibited immigrant the content of fairness is nothing. The person is not even entitled to notice that a decision adversely affecting him or her is about to be made. In such circumstances, although the legal reasoning leading to the result is now different, the deportee is no better off than under the regime of Salemi (No. 2) and Ratu. As in GCHQ, policy considerations outweigh those of fairness: the object of the Migration Act ought not to be frustrated by requiring notice to be given which would facilitate the prohibited immigrant’s evading the authorities.

But would a Minister ever make a deportation decision solely on the ground that the person was a prohibited immigrant? Most prohibited immigrants enter Australia legally. Many will have requested a further temporary or a permanent entry permit prior to the deportation decision. Decision-making on either application in a typical case requires consideration of personal circumstances other than the immigrant’s status under the Migration Act.

Wilson, J., in considering the changes in the statutory scheme since Salemi (No. 2) and Ratu, conceded, somewhat reluctantly, that in view of certain of the provisions for grant of temporary and thence permanent entry permits, it was possible to discern a “relevance, albeit attentuated”, of strong compassionate or humanitarian grounds to the exercise of the Minister’s discretion to order deportation under s. 18. Mason, J. qualified his assessment of the content of fairness where a person is deported by reason of being prohibited immigrant. His Honour said that where the decision is proposed to be based upon some consideration beyond the mere fact of the person’s being a prohibited immigrant, and the further consideration is one which is personal to the applicant and with which he has not dealt in his application, the applicant is entitled to a hearing. Wilson, J. said that any submission or factor which contributes to or supports the delegate’s recommendation for deportation and which could prejudice the applicant’s case and which the applicant has not addressed in any submission he or she has made, will raise a requirement that it be put to the applicant.

Personal considerations of the applicant will often have been drawn to the attention of the Minister by the applicant in attempting to satisfy the Minister that he or she should be granted a temporary or permanent entry permit. The relevance or weight of such considerations will enter into the decision-making process of the delegate. The delegate may also make some inquiries independently of the information provided by the applicant. Kioa is certainly authority that any adverse information from other sources regarding personal considerations has to be put to the applicant so that he or she may comment upon or contravert it. If independent sources were always relied upon, there might then be no instances of the class of case where the Minister deports for the sole reason that the applicant is a prohibited immigrant. Fairness would require a hearing in every case.

But suppose no other source of information regarding personal considerations is placed before the Minister than what has been provided by the immigrant? Here it seems, the content of fairness is limited to the provision of the very occasion upon which that information was furnished by the applicant. If the applicant, not knowing the rules of the game he or she is playing with the administrator, presents his or her case in a poor light, the position is irretrievable. No further opportunity for a hearing need be offered and no further submission accepted.

But it is grossly paradoxical that the content of fairness is reduced by the administrator’s decision whether or not to investigate beyond the poor picture presented by an applicant. The content of fairness does hang upon the circumstances of the case, but is it contingent in this arbitrary sense?

Although some judges of the Federal Court would answer in the affirmative, I doubt whether Deane, J. would join them. In Kioa Deane, J. said that apart from cases of necessity where it is impracticable to extend to a prohibited immigrant an opportunity of being heard (say because he or she has gone into hiding) it is difficult to envisage a case in which the particular circumstances would

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indicate that fairness did not require a hearing to be afforded. Indeed his Honour took the view that even where the sole reason for deportation is that the person is a prohibited immigrant, that person should have the opportunity to raise particular matters, even just to challenge current government policy.

With respect, Deane, J.’s approach is to be preferred. The approach is sensitive to the principle of administrative law that an administrator who applies a policy inflexibly acts ultra vires. Whilst a Minister is entitled to adopt a policy of deporting simply for the reason that the person is a prohibited immigrant, the Minister must still consider each case on its merits. This means always being willing to listed to the applicant who has something new to say. Procedural fairness must, in its application in particular cases, mesh in with other principles of administrative law, as English decisions are now beginning to demonstrate.

The extension by the courts of procedural fairness to further fields of administrative decision-making, a process illustrated by Kioa, will not then be an empty gesture in many contexts, a right with no content. The cases were procedural fairness is outweighed by considerations of national security or the efficient operation of legislation regulating the composition of the Australian community, will be exceptional.

If, absent a clear legislative intention excluding natural justice, the critical question now is what is its content, then fairness will be writ large by the High Court. Litigation will not be futile, having an outcome which is, as it may have been in the case of the Kioas, “a very slender technical victory”, but will be of real utility to the complainant.

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19. REMEDIES

1. THE CONSTITUTIONAL WRITS

* Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

2. CERTIORARI

R v Northumberland Compensation Appeal Tribunal; Ex p Shaw [1952] 1 KB 338R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864Craig v State of South Australia (1995) 184 CLR 163Ainsworth v Criminal Justice Commission (1992) 175 CLR 564* Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149

3. PROHIBITION

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

4. MANDAMUS

Randall v Northcote Corporation (1910) 11 CLR 100R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389Commissioner of State Revenue (Vic) v Royal Insurance Aust Ltd (1994) 182 CLR 51

5. HABEAS CORPUS

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

6. INJUNCTION

Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582* Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247

7. DECLARATION

Dyson v Attorney-General [1911] 1 KB 410Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421* Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

9. DISCRETION OF COURT TO REFUSE RELIEF

Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (2001) 53 NSWLR 559

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Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 (14 July 2006)

FF.Certiorari and Prohibition

Certiorari and prohibition probably remain the two most important remedies in judicial review, although the simplicity and flexibility of the declaration certainly makes that remedy a very attractive one. Of course, for most federal decisions the choice will be ADJR review where there is a single flexible remedy: the "order of review". However, at State level (at least in States other than Victoria and New South Wales ADJR-like statutes are available) and for review in the High Court's original judicial review jurisdiction under section 75 (v) of the Constitution, the common law prerogative writs (or orders in the nature thereof) remain critically important.

(l) The nature of certiorari and prohibition

Certiorari is in essence a two part remedy. The first part is an order removing the official record of the impugned decision-maker into the superior court issuing the certiorari order. The second part is an order quashing the impugned decision, and the record thereof. That is, certiorari is used to wipe the slate clean.

Prohibition, on the other hand has a largely negative aspect. It prohibits the impugned decision-maker and those relying on the decision from doing something illegal which they are about to do, or from continuing on an illegal course of action already commenced. Accordingly, the main difference between certiorari and prohibition is in the timing of the application to the court.

Certiorari lies for any jurisdictional error, and also for non-jurisdictional errors of law appearing on the face of the record. Prohibition, on the other hand, lies only for actual or threatened excess of power, but is not available in respect of non-jurisdictional error of law on the face of the record. The reason why the writs are so confined was explained by Hayne J in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 (at para 159).

(li) The decision-maker must exercise public power

It is clear that public law remedies, including certiorari and prohibition, will only lie against bodies or persons exercising public power (as opposed to private power). Thus, Ministers or departments exercising powers of functions in relation to contractual matters were generally not be subject to correction by prerogative writ. Similarly, the distinction between public and private power has been critical in some dismissal or disciplinary decisions against public sector staff. A public or statutory body might have mixed functions, some private and some public.

(lii) Discretionary criteria for refusing certiorari and prohibition

The court usually has a discretion to refuse certiorari and prohibition, even though a substantive review ground has been established. However there has long been a debate as to whether the discretion always exists. There are many judgments saying that there is no discretion where the vitiating error is "manifest" (or apparent on the face of the record), and the applicant for the remedy is a person directly aggrieved. At least in the High Court's original jurisdiction, that question appears to have been resolved by Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 , where the court approved the following statement by Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185:

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"If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right [my emphasis - KAP], although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course."

GG. Mandamus -- orders to perform duties

The prerogative writ of mandamus is a judicial command addressed to and compelling the respondent to perform a public duty. The remedy is ancient and retains significant technicalities, so that other remedies especially declaration are usually more attractive. However, mandamus is still frequently granted in the High Court's original jurisdiction, pursuant to section 75 (v) of the Constitution (it is a remedy expressly granted to the High Court). Mandamus may be expected to become even more popular having regard to the High Court's decision in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 (16 November 2000), which significantly liberalised the criteria for grant of what are now to be referred to as "constitutional writs" (rather than "prerogative writs" where one is seeking relief under section 75 (v)).

(liii) Bodies or people to whom mandamus lies

Although one generally refers to the mandamus respondent as an "official, even a private person can be a respondent to the extent that they bear a public duty -- see e.g. Re O'Rourke (1986) 7 NSWR 64.

Unlike certiorari and prohibition, mandamus has never generally been regarded as limited to cases where the respondent's powers can be classified as "judicial" or "quasi-judicial". Thus, it seems that mandamus is available in respect of a magistrate's decision on whether to commit a defendant to stand trial, even though that decision might be immune from certiorari or prohibition.

(liv) The nature of the duties enforced by mandamus

Mandamus lies to compel performance of a public duty which is justiciable and unperformed. A power (discretion) is not a duty, and a statute which says "may" usually grants only a power. Mandamus is nevertheless frequently issued in context where the statute has said "may". Whilst "may" indicates a discretion, the repository of the discretionary power is usually under a duty at least to consider its exercise, where an appropriate request is made and may sometimes even be under a duty to exercise it in a particular way if there is no permissible reason indicating why should not do so. In the latter situation the discretion has effectively run out: the repository of a discretionary power cannot exercise or declined to exercise it on arbitrary or otherwise impermissible grounds.

(lv)The effect of mandamus

Generally speaking, mandamus consists of an order to do a positive act, rather than to desist from doing something (for which prohibition or injunction would be appropriate). Generally also, the relevant duty should not be of a continuing nature. Mandamus has no quashing effect -- if you need to quash a decision you should seek certiorari or exercise a statutory appeal right (if available).

(lvi) ADJR's equivalent of mandamus

Section 7 of the ADJR act provides:

"7. (1) Where --

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(a) a person has a duty to make a decision to which this Act applies;

(b) there is no law that prescribes a period within which the person is required to make that decision; and

(c) the person has failed to make that decision,

a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Court for an order of review in respect of the failure to make a decision on the ground that there has been unreasonable delay in making the decision."

Section 3 (1) defines "failure" to include "a refusal to make a decision". Query therefore whether the ADJR Act imports the common law mandamus requirement for a refusal to make a decision (as opposed to a mere "failure").

HH. Declarations

A declaratory order or judgment is simply a court's declaration or statement resolving a dispute as to the meaning or application of the law applicable to a situation in which the applicant has a sufficient interest. In a strictly technical sense, the order or judgment has almost no mandatory or restraining effect at all. The orthodox view is that whilst declarations are often accompanied by consequential relief ordering or restraining certain conduct, a mere declaration cannot be executed or enforced. Theoretically, a declaration neither commands nor restrains action.

It is the only remedy applicable to virtually all challenges to the legality of government decisions and conduct. Kirby J. said that the declaration's development "is one of the most important and beneficial adventures in the administration of justice during this century" -- see Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 at paragraph 89.

II. The discretion to refuse declaratory relief

Lockhart J. summarised the factors governing the discretion to refuse declaratory relief in Aussie Airlines Pty Ltd v Australian Airlines Limited (1996) 139 ALR 663 at 670-671:

"For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:

(a) The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies. The answer to the question must produce some real consequences for the parties.

(b) The applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen'; or if the Court's declaration will produce no foreseeable consequences for the parties.

(c) The party seeking declaratory relief must have a real interest to raise it.

(d) Generally there must be a proper contradictor.

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These other rules should in general be satisfied before the Court's discretion is exercised in favour of granting declaratory relief."

JJ. Injunctions

The courts will generally only grant an injunction in public law where a statute can be characterised as evincing an intention to grant private statutory rights. Courts are reluctant to grant an injunction to a private person to enforce purely public rights.

Moreover, some recent High Court dicta suggest that at least some Justices see a considerably broader and more flexible role for the injunction in public law. See, for example, Gaudron J. in Abebe v Commonwealth (1999) 197 CLR 510 at paras 104-105:

"As appears from Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd, equitable remedies have a continuing role in public and administrative law. And in those areas, 'equity has proceeded on the footing of the inadequacy (in particular the technicalities hedging the prerogative remedies) of the legal remedies otherwise available to vindicate the public interest in the maintenance of due administration.'

Given the potential for administrative decisions to impact on existing rights and interests, and, also, on important and valuable statutory rights to which the individual might otherwise be entitled, it may well be that an injunction will lie to prevent an officer of the Commonwealth from giving effect to an administrative decision based on error, even if that error is not jurisdictional error. ..."

Statements by various Justices in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 also suggest an emerging broader and more flexible view as to the availability of injunction in public law.

Assuming that it is available, the remedy of injunction offers numerous advantages over other remedies. First, being an equitable remedy it can, like declaration, be fashioned very flexibly to fit the justice of the situation: it is not hidebound by any of the technical restrictions of the prerogative writs. Secondly, it can be granted on an interim or interlocutory basis to restrain conduct pending the determination of the substantive issues in the proceedings.

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20. PEIRIS PAPER - PREROGATIVE REMEDIES

KK. Certiorari

The basic rule governing locus standi is that a person who has a particular grievance of his own is entitled to certiorari ex debito justitiae, while the grant of the remedy to a “stranger” is purely discretionary. 88

The essence of the reasoning reflected in this strand of judicial decisions is that an interest which devolves on an individual solely by virtue of his membership of a group or community is insufficient to support locus standi in the setting of certiorari. This restrictive a series of Australian decisions. Thus, a Tasmanian court, disallowing an application for certiorari by a bookmaker whose request for the renewal of his licence was refused, commented: “It is the case of a person seeking to obtain a privilege.”89 The view was expressed in another Tasmanian decision: “The fact that a man who has a driving license uses his car for the purpose of his business does not in any way give him a vested right to it. In each case there is an application for a privilege, and no question of a vested right arises.”90 In Australia, a distinction has been drawn expressly between an application for the issue of an original licence and an application for the renewal of an existing licence, the former being designated a privilege and the latter an accrued right.91

These decisions, it is submitted, are difficult to reconcile with the policy objectives of the law. The artificiality attendant on reasoning (iv) with regard to the burden of proof, the High Court of Australia has pointed out that the onus as to standing must be allocated to the applicant and that, in the event of an unresolved doubt, relief is necessarily withheld.92

In Australia, locus standi has been conceded to a Transport Commission in connection with a judicial order precluding subsequent suspension of a driver’s licence,93 to a landowner complaining of the establishment of a private hospital in the vicinity,94 a rival objecting to the grant of a licence to an omnibus company,95 an adjacent landowner adversely affected by the decision of a town and country planning authority96 and to an applicant who had been refused registration as an agent by a statutory board.97

Liberality of the prevailing view is exemplified by the willingness of an Australian court impliedly to recognise a “right” to consume liquor, protected by the prerogative remedies.98 The extended scope of standing in contemporary administrative law is entirely in accord with the policy foundations of certiorari which emphasise the pre-occupation of the court “ principally with public order. ”99 An

LL. Prohibition

The principles which regulate locus standi in relation to certiorari and prohibition substantially converge. In some incidental respects, however, the requirements as to standing are comparatively 88 R. v. Thames Magistrates’ Court, ex p. Greenbaum (1957) 55 L.G.R. 129.89 R. v. Betting Control Board [1948] Tas.S.R. 4, 11 (S.C. of Tasmanina).90 R. v. Oldham, ex. p. Registrar of Motor Vehicles [1966] Tas.S.R. 80, 84-85 (S.C. of Tasmania).91 Re Holden [1957] Tas. S.R. 16 (S.C. of Tasmania).92 Permament Trustee Co. of New South Wales v. Council of the Municipality of Campbelltown (1960) 105 C.L. R. 401 (H.C. of Australia).93 R. v. Solomon, ex. p. Transport Commission [1968] Tas. S.R. 430 (S.C. of Tasmania).94 R. v. The Corporation of the Town of Glenelg, ex p. Pier House Pty. Ltd. [1968] S.A.S.R. 246 (S.C. of South Australia).95 R. v. Public Vehicles Licensing Appeal Tribunal, ex p. Gray’s Transport Pty. Ltd. [1968] Tas.S.R. 191 (S.C. of Tasmania).96 R. v. Town and Country Planning Commissioner, ex. p. Scott [1970] Tas. S.R. 154, 182 S.C. of Tasmanian).97 R. v. Agents Board of the Australian Capital Territory, ex p. Greene (1970) 15 F.L.R. 306 (S.C. of A.C.T.)98 R. v. McArthur, ex. p. Cornish [1966] Tas.S.R. 157 (S.C. of Tasmania). 99 R. v. Fulham Rent Tribunal, ex p. Zerek [1951] 2 K.B. 1,11.

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liberal in the setting of prohibition. This may be ascribed to the availability a recurring element of the case law on prohibition is the importance of the legal consequences flowing from the distinction between patent and latent error in the order of action impugned. Where the defect is not apparent ex facie the proceedings, the availability of discretion to the court in granting prohibition is indisputable100 and a stranger, naturally, could expect less latitude than a participant in the relevant proceedings.101

The legal position applicable to cases of patent error may be expressed in one of three propositions, each of which has reliable judicial antecedents.

(i) Proof of patent error vitiating jurisdiction makes the grant of prohibition mandatory, irrespective of sufficiency of the interest demonstrated by the applicant in the decision or action. The Supreme Court of New Zealand has badly asserted that, in these circumstances, “It is not necessary that a plaintiff in prohibition should have any interest in the subject-matter.”102 It has been taken for granted,103 or expressly decided, in New Zealand104 and in Australian jurisdictions such as New South Wales,105 Queensland106 and South Australia107 that jurisdictional error apparent on the face of the record entitles even a stranger to prohibition ex debito justitiae. This view, reflected in the comment that a stranger may seek prohibition “as of right”108 in these cases, has been endorsed by the High Court of Australia.109

(ii) The countervailing opinion, underscoring the pivotal role of discretion in the conception of the remedy,110 insist that the jurisdiction is “in all cases discretionary.”111 The Court of Appeal of New Zealand has unequivocally declined to give its assent to the proposition that a stranger to proceedings before an inferior tribunal necessarily has the “right” to seek prohibition on the ground of want or excess of jurisdiction.112 Consistently with this view, an applicant

(iii) An intermediary position which incorporates elements of these competing views has been evolved by the courts of Australia. The essence of this compromise is that, although discretion is not wholly eroded by the manifest quality of the jurisdictional error, the gravity of the defect and the degree of its susceptibility to proof would be treated almost invariably as overriding the cogency of the grounds for refusal of the remedy in the exercise of discretion.113 In New South, the assumption has been made in Australia114 that the distinction drawn in a strand of judicial opinion between patent and latent error in relation to prohibition applies to certiorari as well. This

MM. Mandamus

Notwithstanding the assertion that the principles regulating locus standi in relation to the remedy of mandamus should be equiparated with the rules applicable to other prerogative orders,115 a more restrictive doctrine has governed applications for mandamus than for orders of certiorari and prohibition.116 The rationale sustaining the

100 Ex parte South Australian Brewing Co. Ltd. (1908) 8 S.R. (N.S.W.) 361 (S.C. of N.S.W.).101 R. v. Graziers’ Association of New South Wales (1956) 96 C.L.R. 317, 327 (H.C. of Australia). 102 Douglas v. Henri Koru Koru [1920] N.Z.L.R. 87,88 (S.C.).103 Solicitor-General v. Tokerau District Maori Land Board (1912-1913) 32 N.Z.L.R. 866, 867 (S.C.).104 Cutlen v. Howell (1898) 16 N.Z.L.R. 373, 378 (S.C.).105 Honnery v. Smith [1957] S.R. (N.S.W.) 598, 602-603 (S.C. of N.S.W.); cf. Ex parte Fraser (1899) 20 L.R.(N.S.W.) 67 (S.C. of N.S.W.).106 R. v. Knyvett (Cloncurry Licensing Magistrate) ex p. Webber [1929] Q.S.R. 16 (S.C. of Queensland).107 R. v. Licensing Court, ex rel. Marshall [1924] S.A.S.R. 421 (S.C. of S.A.)108 Ex parte Fitzgerald, Re Gordon (1945) 45 S.R.(N.S.W.) 182, 188 (S.C. of N.S.W.).109 The Master Retailers’ Association of N.S.W. Ltd. v. Shop Assistants’ Union of N.S.W. (1904) 2 C.L.R. 94 (H.C. of Australia); Yirrell v. Yirrell (1939) 62 C.L.R. 287 (H.C. of Australia). 110 R. v. Denbighshire Justices (1853) 17 J.P. 312.111 The Waterside Workers’ Federation of Australia v. Gilchrist, Watt and Sanderson Ltd. (1924) 34 C.L.R. 482, 519 (H.C. of Australia)-a certiorari case. 112 New Zealand Sheepowners’ Industrial Union of Employers v. Tyndall (1960) N.Z.L.R. 606, 618 (C.A.)113 Ex parte Thomas, re Arnold (1966) 2 N.S.W.R. 197, 199 (C.A.).114 Ex parte Wurth, re Tully [1955] S.R.(N.S.W.) 47 (S.C.)115 S. M. Thio, “Locus Standi in Relation to Mandamus” [1966] P.L. 133.

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The invocation of a strict test117 for standing in applications for mandamus is exemplified by insistence on a “legal right,”118 “a specific legal right”119 or “an ascertainable right.”120 Mandamus has been refused on the basis that the respondent owed no correlative legal duty to the applicant.121 Moreover, the probative burden has been imposed on the applicant to show that he is “in all respects clearly entitled,”122 i.e. “to have the thing sought by (him) done, and done in the manner and by the person sought to be coerced.”123

Nevertheless, a salient judicial trend towards liberalisation of the applicable rules has manifested itself throughout the Commonwealth in several ways:

(i) The content of the requisite “right” in the applicant has been flexibly construed. In contrast with previous decisions postulating legal rights124 and clearly excluding private equitable rights125 from the scope of mandamus, the concession has been made that an enforceable right is not necessary.126 The indispensable elements required by the law have received no precise definition.127

To pose as the crucial question whether, having regard to the need for effective action by administrative organs and functionaries as well as to the basic principle of subordination of administrative action to the rule of law, an adequate nexus between the illegality established and the applicant’s interest is demonstrable.128

(iii.) The transfer of emphasis from “right” to “interest” has been conducive to expansion of the rules governing standing. This development has taken the form either of recognising a legal right or a sufficient personal interest as alternative requirements of standing,129 or of accepting a substantial personal interest in performance as a means of establishing a legal right to the discharge of the duty.130 The former line of reasoning has proved less tortuous in to apply for mandamus to compel an official to proceed with a prosecution for fraudulently concealing assets,131 as does a mortgagee of the rates in circumstances where a municipality neglects to levy a rate for the current year.132

An interest superior to that of the whole community or a section of it is generally evident from the applicant’s participation in legal proceedings133 or from his initiative in securing the enactment of the relevant statutory provision.134 Clearly, a defendant in committal proceedings has locus standi to obtain mandamus.135 Apprehended damage to reputation is probably a permissible basis of standing.136

Court during the last 20 years.137 The liberal assumptions pervading modern Commonwealth decisions are exemplified by the Canadian approach that “The court does not weigh interest

116 R. v. Inland Revenue Commissioners, ex p. Federation of Self-Employed [1981] 2 W.L.R. 722, 735 (H.L.), per Lord Diplock.117 For examples of judicial recommendation of a strict test, see R. v. Commissioners of Customs and Excise, ex p. Cook [1970] 1 W.L.R. 450; R. v. Hereford Corporation, ex p. Harrower [1970] 1 W.L.R. 1424. 118 Water Conservation and Irrigation Commission v. Browning (1947) 74 C.L.R. 492, 499 (H.C. of Australia). 119 R. v. Registrar of Titles, ex p. Moss [1928] V.L.R. 411, 418-419 (S.C.); R. v. Russell, ex p. Beaverbrook Newspapers Ltd. [1968] 3 All E.R. 695.120 R. v. Commonwealth Court of Conciliation and Arbitration, ex p. Ellis (1954) C.L.R. 55, 64 (H.C. of Australia).121 R. v. Arndel (1906) 3 C.L.R. 557 (H.C. of Australia); R. v. Governor of South Australia (1907) 4 C.L.R. 1947 (H.C. of Australia); cf., for English law, R. v. Inland Revenue Commissioners, re Nathan (1884) 12 Q.B.D. 461. 122 Frankel v. City of Winnipeg (1912) 3 W.W.R. 405, 410 (S.C. of Manitoba). 123 Karavos v. Toronto and Gillies (1948) 3 D.L.R. 294, 297 (C.A. of Ontario); cf. Re Cambridge Leaseholders Ltd. v. City of Toronto (1973) 37 D.L.R. (3d) 43, 57-58 (Div.Ct. of Ontario). 124 Ex parte Napier (1852) 18 Q.B. 692; cf. R. v. Secretary of State for War [1891] 2 Q.B. 326. 125 R. v. Stafford (Marquis) (1790) 3 T.R. 646.126 R. v. Cotham [1898] 1 Q.B. 802; R. v. Manchester Corporation [1911] 1 K.B. 560.127 Cf. R. v. Keighley Union Guardians (1876) 40 J.P. 70. 128 Cf. R. v. Stepney Borough Council, ex p. John Walker & Sons Ltd. [1934] A.C. 365.129 R. v. Commissioners of Customs and Excise, ex p. Cook, supra. 130 Ex parte Northern Rivers Rutile Pty. Ltd., re Claye (1968) 89 W.N. (Pt. 1) (N.S.W.) 13 (S.C.).131 R. v. Windeyer (1847) 1 Legge 366. 132 Re Municipal District of Lambton (1899) 20 L.R. (N.S.W.) 375 (S.C.).133 R. v. Cotham [1898] 1 Q.B. 802. 134 R. v. Manchester Corporation [1911] 1 K.B. 560.135 Ex parte Donald, Re McMurray (1969) 1 N.S.W.R. 461 (S.C.)136 R. ex. rel. F.W. Woolworth Co. Ltd. and Slabick v. Labour Relations Board of Saskatchewan (1954) 4 D.L.R. 359 (C.A. of Saskatchewan). 137 Ibid. at p. 736, per Lord Diplock.

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scrupulously”138 and by the concession of locus standi in England to “any one of those offended or injured”139 or “ reasonably asserting a genuine grievance.”140 These developments, founded on a generous

NN. Declaratory proceedings

It is a fundamental principle of English law that public rights can be asserted only by the Attorney-General as representing the public.141 This exclusive right vested in the Attorney-General may be exercised either at the relation of an individual purporting to be aggrieved or ex mero motu. It is undesirable that the Attorney-General should proceedings] is the responsibility of the Attorney-General,”142 the distinction between private and public rights is tenuous in some contexts.143 Thus, notwithstanding that particular members of the certiorari, prohibition and mandamus. A declaration, by its very nature, is of no avail to a plaintiff not invested with legal rights which are capable of being declared.144 This principle would appear to be made in Commonwealth jurisdictions, notably Canada.145 The definition of locus standi by reference to “some interest by reason of the plaintiff’s legal rights being affected”146 has resulted in an adjacent land owner not being entitled to assail, in declaratory proceedings, an unauthorised planning permission147 and in a local authority devoid of proprietary interests in the relevant land not having competence to seek a declaration that the registration of claims to rights of common was ultra vires the governing legislation.148 It would seem, then, that “an immediate personal interest,”149 postulated in the declaratory context, is appreciably more restricted in scope than the criterion of “real merit”150 or an “objective of sufficient consequence,”151 as interpreted in the perspective of the prerogative remedies.

The requirement of “special damage”152 relevant to declaratory proceedings has been construed in Australia as not being confined to actual pecuniary loss,153 although a mere intellectual or emotional concern does not suffice.154 The test which has been applied generally in respect of declaratory relief is that of “special interest”155 involving the quality of being “peculiar affected.”156 The same notion is conveyed by judicial assertions that the plaintiff must be “more particularly affected”157 than other persons or injured “in a manner different from the public generally.”158 An authoritative Canadian

A strict approach to standing in declaratory actions has generally been adopted in Australia where a person claiming to be aggrieved by the rejection of his application for renewal of membership of an unincorporated association,159 a member of the public who had no interest except by virtue of his 138 R. ex rel. Connelly v. Publicover [1940] 4 D.L.R. 43, 46 (S.C. of Nova Scotia). 139 R. v. Greater London Council, ex p. Blackburn [1976] 1 W.L.R. 550, 559, per Lord Denning M.R. 140 Arsenal Football Club Ltd. v. Ende [1980] Q.B. 407, 425. 141 Gourlet v. Union of Post Office Workers [1978] A.C. 435; cf. London County Council v. Att.-Gen. [1902] A.C. 165; London Passenger Transport Board v. Moscrop [1942] A.C. 322. 142 Australian Conservation Foundation Incorporated v. Commonwealth of Australia [1979] A.L.R. 257 (H.C. of Australia). 143 See, e.g. Munnich v. Godstone R.D.C. [1966] 1 All E.R. 930. 144 H.W.R. Wade, Administrative Law (4th ed., 1977), p. 505. 145 Thorson v. Att.-Gen. of Canada (No. 2) (1974) 43 D.L.R. (3d) 1 (S.C. of Canada).146 J. F. Garner, “Locus Standi in Actions for a Declaration” (1968) 31 M.L.R. 512, 519.147 Gregory v. Camden London Borough Council [1966] 1 W.L.R. 899. 148 Thorne Rural District Council v. Bunting [1972] Ch. 470. A proprietary right has been deemed essential: Cameron v. Hogan (1934) 51 C.L.R. 358 (H.C. of Australia).149 de Smith, Judicial Review of Administrative Action (4th ed., 1980), p. 509.150 R. v. O’Sullivan, ex p. Clarke [1967] W.A.R. 168, 173, (S.C. of Western Australia).151 Ex parte Delaney, re Hay [1963] S.R.(N.S.W.) 137, 139 (S.C.)152 Hanson v. Radcliffe Urban District Council [1922] 2 Ch. 490. 153 Australian Conversation Foundation Incorporated v. Commonwealth of Australia [1979] A.L.R. 257, 268 (H.C. of Australia).154 Boyce v. Paddington Borough Council [1903] 1 Ch. 109; Thompson v. Council of the Municipality of Randwick (1953) 90 C.L.R. 499 (H.C. of Australia). 155 Robinson v. The Western Australian Museum (1977) 51 A.L.J.R. 806, 814 (H.C. of Australia). 156 Stockwell v. Southgate Corporation [1936] 2 All E.R. 1343, 1351. 157 Anderson v. Commonwealth (1932) 47 C.L.R. 50, 51 (H.C. of Australia). 158 Ansett Transport v. Air Express (1979) 25 A.L.R. 639, 646 (H.C. of Australia). 159 Pridmore V. Reid [1965] Tas.S.R. 177 (S.C.).

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citizenship in an agreement concluded between the Commonwealth of Australia and a State160 and a taxpayer alleging that a statutory board had exceeded its functions,161 have all been denied locus standi to obtain a declaration. In New

160 Anderson v. Commonwealth of Australia (1932) 47 C.L.R. 50, 52 (H.C. of Australia). 161 Logan Downs Pty. v. Federal Commissioner of Taxation (1965) 112 C.L.R. 177, 188 (H.C. of Australia).

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21. CASES

Case name and citation Key words Facts/Ratio/Principles Authority for [area of law]

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

As a result of the Suez Crisis some mining properties of the appellant Anisminic located in the Sinai peninsula were seized by the Egyptian government before November 1956. The appellants then sold the mining properties to an Egyptian government-owned organisation called TEDO in 1957.In 1959, a piece of subordinate legislation was passed under the Foreign Compensation Act 1950 to distribute compensation paid by the Egyptian government to the UK government with respect to British properties it had nationalised. The appellants claimed that they were eligible for compensation under this piece of subordinate legislation, which was determined by a tribunal (the respondents in this case) set up under the Foreign Compensation Act 1950.The tribunal, however, decided that the appellants were not eligible for compensation, because their "successors in title" (TEDO) did not have the British nationality as required under one of the provisions of the subordinate legislation.

Held: The meaning of successor in title as decided was an error of law. Further, the Commission had based its decision on a ground which it had no right to take into account.

Jurisdictional error

Attorney-General (NSW) v Quin (1990) 170 CLR 1(see also Haoucher)

In 1982 New South Wales Courts of Petty Sessions, which were constituted by stipendiary magistrates, were abolished by statute and replaced by Local Courts constituted by magistrates appointed by the Governor. All but five of the 100 former stipendiary magistrates who applied were appointed to the new courts in accordance with a policy under which they would be appointed unless they were considered unfit for judicial office. One who was not appointed obtained from the Supreme Court of New South Wales a declaration that the Attorney-General's decision not to recommend his appointment was void on the ground that he had not been afforded an opportunity to respond to allegations about his suitability. The Attorney-General then indicated that he would treat an application by the former stipendiary magistrate in the same way as those of any other applicants, namely on merit, save that the allegations the subject of the earlier case would not be taken into account unless he was given an opportunity to meet them. The former stipendiary magistrate commenced another action in which he contended that he was entitled to have his application reconsidered by the Attorney-General without reference to other applications made in the meantime.

PRINCIPLE: The executive cannot by representation or promise disable itself from performing a statutory duty; this includes the adoption of, or acting in accordance with, a new policy.

Held: The Attorney-General was not obliged to treat the plaintiff's application in the manner contended and in accordance with the policy pertaining at the time of the appointments of former stipendiary magistrates; (by Mason CJ) on the ground that to do so would require the court to compel the Attorney-General to depart from a method of appointing judicial officers which conformed to the relevant statute, was within the discretionary power of the Executive, and was calculated to advance the administration of justice; (by Brennan J) on the ground that to do so would impermissibly intrude into the merits of the advice to be tendered to the Governor; and (by Dawson J) on the ground that to do so would exceed the bounds of procedural fairness and intrude upon the policy which was

Natural justice – limits to fairness, estoppel

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otherwise left entirely to those entrusted with the responsibility of determining who was to be appointed a magistrate.

Argument: It was argued that Quin had a legitimate expectation to be appointed as 95 of his colleagues were and a failure to do this would be a breach of procedural fairness. However, this argument was not correct as this would require a substantive remedy.

Australian Conservation Foundation Inc v Commonwealth

Facts: The Australian Conservation Foundation (‘ACF’) attempted to bring an action to sue the Commonwealth, three Ministers of State of the Commonwealth, and the Reserve Bank of Australia in the original jurisdiction of the High Court of Australia. The basis of the action was challenging the validity of the decision to approve a proposal to establish and operate a tourist resort or, alternatively, to approve exchange control transactions in relation to the proposal. When ACF originally brought the action to the High Court, Aikin J struck out the statement of claim and dismissed the action for want of locus standi (standing). ACF then appealed this decision to the Full Court of the High Court. which was dismissed by Gibbs, Stephen and Mason JJ, with Murphy J dissenting.

The High Court ultimately dismissed ACF’s case, finding that ACF did not have standing to bring the action.

Standing

ACF v Minister for Resources Following the announcement of the Federal Government's decision to reissue a woodchip export licence to Harris-Daishowa on the South Coast of NSW, the EDO wrote to the Minister for Resources in January 1995 requesting written reasons for his decision under section 13 of the Administrative Decisions (Judicial Review) Act, 1977. The AD(JR) Act provides that a reasons should be provided within 28 days of receiving the request.

After the Minister failed to meet his promises to provide the reasons, the EDO commenced proceedings on behalf of the ACF in the Federal Court seeking orders that the Minister provide his reasons forthwith. On the first day that the matter came before the Court, the Minister agreed to provide the reasons and to pay ACF's costs of the proceedings.

Standing

Bateman's Bay Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247

Gaudron, Gummow and Kirby JJ suggested that the test for standing should be liberalised and that the “sufficient material interest” criterion should be construed as “an enabling, not a restrictive, procedural stipulation.” (at [50])• “It may well be appropriate to dispose of any question of standing to seek injunctive or other equitable relief by asking whether the proceedings should be dismissed because the right or interest of the plaintiff was insufficient to support a justiciable controversy, or should be stayed as otherwise oppressive, vexatious or an abuse of process. The plaintiff would be at peril of an adverse costs order if the action failed.” (Gaudron, Gummow and Kirby JJ at [39])• However, warns against adopting any precise formula for assessing standing if the consequence was to unduly constrict the availability of equitable remedies for the enforcement of public law (Gaudron, Gummow and Kirby JJ at [46])• “…where breach of a public duty has only an indirect effect on a plaintiff’s pecuniary interests the plaintiff has not standing… “ (McHugh J at [66])• “…a plaintiff’s ‘special interest’ must as a matter of principle be an interest of the general kind which the relevant public right was intended to safeguard or protect, or, where the ‘special interest’ consists in a vulnerability to ‘special damage’, the damage must be ‘within the same class of damage

Standing – business competitors

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as the public suffers as a whole and not just ‘any side effect of the infringement of the public right’” (McHugh J at [69] citing McLelland CJ in Eq (1996) 92 LGERA 212 at 219 at first instance with approval)

Bond v Australian Broadcasting Tribunal (No 2) (1988)

Facts: The ABT commenced inquires under statute into the commercial broadcasting licences held by a number of companies owned by Bond. It was an investigatory proceeding, that is, not bound by the rules of evidence. The companies requested particulars of the issues of the inquiry and they received a list of issues relating to the fitness of these companies to hold such licences. The Tribunal refused a further request that more particulars be given and that they could order witness and lead the evidence in chief. Bond and companies sought review under the ADJR Act, they eventually appealed to the High Court.

Principle: A party in an inquisitorial proceeding has a right to be informed of the nature of the inquiry and the issues being investigated, and if allegations have been made- the nature of those allegations- so as to not be ‘left in the dark’. Witnesses of the inquiry belong to the inquiry, and the applicant has no right to determine their ordering etc unless they are part of a case specifically put by them to the tribunal.

Held: WILCOX J:- The tribunal is bound by the rules of natural justice as its findings may adversely affect parties. (Kioa v West)- The inquiry is inquisitorial – it is an investigation by the tribunal into desirability of taking certain action. The court can only intervene where the tribunal has fallen or is likely to fall into legal error.- Bond argued that the inquiry turns adversarial once witnesses are brought, but the court rejected the idea of treating the proceedings like litigation. Firstly, the witnesses are not the parties’ witnesses, they are for the inquiry and the tribunal is bound to follow the evidence wherever it leads.- ‘Further and better particulars’ is an appropriate request for a criminal or civil trial, but not to committal proceedings or inquiries where the evidence is followed to wherever it leads and where before the inquiry it would be wrong for the decision makers to express tentative views about what they think the outcome of proceedings may be.- The duty of the tribunal is to ensure that the applicants are made aware of the material placed before the tribunal and which is relevant to the exercise of any power in a manner adverse to their interests.- If there are specific allegations being made then fairness would require the release of particulars of those allegations. If on the other hand it is a general inquiry, particulars would be impractical and ineffective.- Question: Does the failure to supply particulars result in the applicants being “left in the dark” about the type of findings and orders that may be made against them?- “A person potentially affected by the outcome of an inquiry is entitled to understand the nature of the inquiry and the issues being investigated; otherwise meaningful participation becomes impossible”. This understanding will be just the subject matter of the inquiry, framed in terms of issues and relevant powers, with no view as to the relevant facts or likely outcome. As the inquiry unfolds, it may be necessary to make further disclosures.- Other disclosures would be okay if the decision maker needs more information from the parties.- Whether left in the dark depends on the circumstances of the inquiry as a whole. Generally must know the nature of the inquiry or the risk faced.- No denial of procedural fairness in refusing to supply further and better particulars

Carltona Ltd v Commissioner of Works [1943] 2 All ER 560

P owed a manufacturing factory. Notified that it was in the national interest that possession be taken of its premises.

Ratio: In the administration of government in this country, the functions which are given to ministers

Alter ego rule

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are so multifarious that no minister could ever personally attend to them.Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577(see Keating v Morris)

comments made by trial judge - said cross-claimant's copyright claim "enigmatic" - engaged in protracted exchanges with cross-claimant - raised questions as to absence of records of certain transactions - cross-claimant claimed apprehended bias on part of judge - trial judge only intervened in order to understand evidence - cross-claimant adopted inconsistent positions in respect of facts - trial judge merely attempted to clarify issues - claim of apprehended bias not made out

Bias

Craig v South Australia (1995) 184 CLR 163

inferior court Facts: The District Court decided that in all the circumstances of the case, the effect of the majority judgments in this Court in Dietrich v The Queen 1992 was that the trial "should be adjourned, postponed or stayed until legal representation (was) available"

The Full Court ordered Certeorari.

Ratio: A court has jurisdiction to determine questions of law within its jurisdiction.at [15] Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error.Held: There was no error on the face of the record. Full Court’s decision set aside.

Jurisdictional error, error on the face of the record

Eber v Official Trustee in Bankruptcy (2000) 176 ALR 644

PRINCIPLE: Pecuniary interest alone will not equate to automatic disqualification. In the case of ownership of shares, it must be ascertained whether the outcome of the litigation could have an effect on the judge’s financial interest.

- There is no separate and free-standing rule of automatic disqualification for direct pecuniary or proprietary interest (as existed in Webb v Queen, R v Gough, HL in Pinochet (No 2); Dickason v Edwards) rejected because “in its possible application to relatively common situations, its meaning is unclear”: Ebner- Instead – need to apply the “reasonable apprehension test”- The circumstances that a judge has a “pecuniary interest” in the outcome will result in disqualification on the reasonable apprehension test.

Held: GLEESON CJ, McHUGH, GUMMOW, HAYNE JJ:- There is a fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal Bias, whether actual or apprehended connotes the absence of impartiality- In Webb v Queen, Deane J identified 4 distinct though overlapping categories of cases involving disqualification by reasons of appearance of bias interest, conduct, association and extraneous information [convenient frame of reference]- There is no justification for having different principles for interest and association- In each case ... the question must be how it is said that the existence of the “association” or “interest” might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits … the bare identification of an “association” will not suffice to answer the relevant

Bias

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question. [especially given that “ownership, direct or indirect, of shares in a corporation is but one possible form of association with, and potential interest in, a litigant or a case”]- In the practical application of the test of apprehended bias, financial conflicts of interest are likely to be of particular significance [often more concrete in nature than other interests, and when the primary facts are known, easier to identify / public perception that they are more insidious than other forms of interest in their likely effect upon impartiality]- The primary factual consideration [whether there was a realistic possibility that the outcome of the litigation would affect the value of the relevant judge’s shareholding in the bank] – was a relevant factual consideration and not the ultimate testNoted that the nature of the judge’s association with a litigant may be more complicated, as in Pinochet (No 2) and the possible effect of the outcome of a case upon the value of assets owned by a judge may be a matter of serious difficulty.- However, in the ordinary case where a judge owns shares in a listed company which is a party to, or is otherwise affected by, litigation, and there is no other suggested form of interest or association, the question whether there is a realistic possibility that the outcome of the litigation would affect the value of the shares will be a useful practical method of deciding whether a fair-minded observer might hold the relevant apprehension- If have a financial interest in the outcome, apprehension of bias rule will disqualify judge. But where it is that a clear outcome of a case would have no bearing on value of shares (court determines this on the facts) and there is no other suggested pecuniary interest, the judge will not be found to have a pecuniary interest.- Rejected the submission that there is a separate and free-standing rule of automatic disqualification which applies where a judge has a direct pecuniary interest, however small, in the outcome of the case over which the judge is presiding- Note: that the failure of the judge to disclose his acquisition of shares in the Bank was of no legal consequence his silence could not reasonably support an inference of want of impartiality

The content of the rules requiring a fair and unbiased hearing are immensely flexible and provide no sure guide to action. They do not require ‘court-like’ proceedings.

Fair hearings may be conducted on the papers, the person who decides does not always have to conduct the hearing, rules of evidence do not apply to administrative decision-makers, and refusal of cross-examination or legal representation is not as a general rule a denial of procedural fairness. It depends on what fairness requires in the particular circumstances.

FAI Insurances Ltd v Wineke (1982) 151 LR 342

FACTS: The Workers Compensation Act 1958 (Cic) Section 72(1)(a) provided for approval by the Governor in Council (GiC) of insurers for workers compensation liability, with GiC meaning the Governor with the advice of the Executive Council.The Workers Compensation Regulations 1975(Vic) Regulation 201 prohibited a company from carrying on any insurance business against workers compensation liability without having obtained approval of the GiC.Regulation 202(1) provided for approvals to be given on an annual basis. Regulation 202(2) provided that when granting any approval or renewal ‘regard shall be had to the commitments and financial position of the applicant and in the case of renewal to the observance of these regulation by the

Procedural fairness – hearing rule

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applicant.’FAI had done workers compensation in Victoria for twenty years. It applied for a renewal, and admitted when disclosing their financial positions, that they had failed to meet two criteria prescribed in the Minister’s statement. BUT, they submitted that they were illegal as it went beyond the provisions of Regulation 202(2). FAI requested that if they were not going to be renewed, that notice and an opportunity to make submissions and provide evidence be given on the issue. FAI was refused renewal on account of several financial concerns, and they were not given a hearing. FAI appealed.

Principle: Hearing rule; a statutory authority that has the power to affect a person’s rights is bound to hear him before exercising that power. This is especially pertinent where it is the renewal (vs. application) of a licence and where the loss of it affects earning capacity. The hearing function can be delegated to someone who does not make the final decision.

HELD:- The fundamental rule, the hearing rule, is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power. (Mason J)- The exercise of revoking a licence will attract the rules of natural justice, more so than an application for a licence at first instance. This is especially where the loss of the licence means a loss of a right to earn a livelihood or to carry on a financial rewarding activity.- The Governor in Council is still bound by the rules of natural justice even though it would be unlikely he would hold the hearing himself, his duty would extend to allowing the applicant adequate opportunity to present its case.- This opportunity can be given through delegation to a committee or the responsible Minister, who can consider submissions and report back.- It matters not that the person or persons to whom this function is delegated do not make the ultimate decision. (at 370-371)- The statute looks only to the Governor in Council to ensure that the application is dealt with fairly and justly. FAI won the appeal as it should have been given a chance to answer the matters raised by theMinister in his report.- Prior notice that a decision adversely affecting interest is to be made is the minimum content of procedural fairness.- Notice is required to understand the nature and ambit of the allegation so as to prepare a response.

Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648(see Also AG v Quin)

Facts: MIEA ordered the deportation of Haoucher under the Migration Act. On review, the AAT remitted the matter to the Minister for review recommending deportation be revoked. The MIEA did not accept the recommendation. Previously the MIEA had tabled a report to Parliament stating that recommendations of AAT should be overturned by the Minister in exceptional circumstances only (tantamount to a promise). Haoucher sought review of denial of procedural fairness in that the MIEA failed to give him a hearing before making the second decision.

NB: Distinguish Quin because it is a departure from policy, rather than a change of policy. Here, Haoucher should have a legitimate expectation for hearing (PF).

Legitimate expectations

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Held: DEANE J:- Legitimate expectation gives rise to an entitlement to procedural fairness.- There is a strong presumption that the legislature intends procedural fairness to apply and this is especially strong when “a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in a individual capacity”. The rationale for this depends on “ordinary notions of what is fair and just”.- The content of procedural fairness “does not call into play a body of rigid procedural rules”. Some cases will require a full personal hearing others will require something less.- Where a person has incurred the expense and trouble of going to a Tribunal “there will arise a new and distinct legitimate or reasonable expectation that the Minister will accept the findings and abide by the recommendation of that Tribunal. If that be so, then quite apart from the context provided by the published government policy” then procedural fairness may apply. But decided on narrower grounds.- “It is preferable to decide the appeal on the narrower ground propounded”, that is, the legitimate expectation occurred with respect to the government policy. As long as a departure is operative, a deportee can see the policy as the critical reference point and be given an opportunity to be heard about those exceptional circumstances.- Haoucher was entitled a hearing as to whether the recommendations should be overturned due to exceptional circumstances.

Hot Holdings v Creasy Several applications for an exploration licence under the Mining Act 1978 (WA) ("the Act") and two applications for a mining lease were lodged within less than one minute, each of them relating to substantially the same area. A mining warden concluded, under s 105A(3) of the Act, that there should be a ballot to determine priority between the various applicants for the form of mining tenement which each sought.Officers of the Minister's Department prepared a minute for the chief executive officer of the Department (the Director General) to place before the Minister. An officer who prepared the recommendation had a son who had shares in a company interested in the grant given by the minister. Furthermore, the person instructed to prepare the initial draft of the minute had shares in the same company. This information was not disclosed. The Minister approved the recommendations made in the minute.

The respondents successfully sought orders from the Supreme Court that the minister's decision was tainted by bias.

Held: (allowing the appeal)(1) Neither bias nor the reasonable apprehension of bias is to be inferred merely because a minister or an adviser has a pecuniary interest in the outcome of a decision made. A court can only infer bias after examining the nature of the pecuniary interest that the judge has and how the outcome of the case might effect that interest.(2) Officers who place information before decision-makers will often have an interest in the outcome, and it will not always be the case that the nature or extent of that interest will be fully revealed to the decision-maker. It is incorrect to think, as a general rule, that in every such case the decision must be thought to be legally infirm.(3) There may be occasion in which a decision-maker, such as a minister, may properly have

Bias

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regard to a wide range of considerations including effects upon the minister's continuance in office.It is incorrect to assume that in every case a decision-maker can act only if he or she has the same level of independence and security as a judge and, in that sense, has nothing to gain or lose from the decision made. What is to be expected of a judge in judicial proceedings will often be different from what is expected of a person making a purely administrative decision.

Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44

The applicant held the position of Deputy Commissioner of Police (NSW). The position was governed by the relevant statutory regime and a contract of service. In 2001 he was removed from that position. At first instance, the trial judge held that the applicant had been invalidly removed from office on the basis that he had not been accorded procedural fairness.

Held: (allowing the appeal; by the court)(1) (by Gleeson CJ; McHugh, Gummow and Hayne JJ agreeing; Callinan J agreeing; Heydon J agreeing) The applicant's removal from office was invalid.(2) (by Gleeson CJ) This case was not concerned with the pristine common law principle of the Crown's prerogative but with a statutory scheme of office-holding and employment that made substantial alterations to the common law.(3) (by McHugh, Gummow and Hayne JJ) The position of deputy commissioner was created by statute.(4) (by Gleeson CJ; McHugh, Gummow and Hayne JJ agreeing) Appointment and removal of the applicant occurred by force of the Police Act , not the contract.(5) (by Callinan J; Gleeson CJ agreeing; McHugh, Gummow and Hayne JJ agreeing; Heydon J agreeing) The Crown prerogative did not bear upon the case.(6) (by McHugh, Gummow and Hayne JJ) The power to remove was not exercisable at will because it was conditioned upon anterior steps by other parties; the making by the commissioner of a recommendation with the approval of the Minister.(7) (by Callinan J) The statutory removal procedure was quite different from a simple and unqualified dismissal by the Governor. Further, the obligations and rights in question were almost entirely the subject of detailed legislation, and accordingly, any presumption of the survival of a relevant Crown prerogative should not lightly be made.(8) (by Gleeson CJ) In the context of the procedures laid down for the removal of the applicant in s 51 — the requirement for the commissioner to make a recommendation to the Minister, the Minister's approval and the Governor-in-Council's decision — the issue was whether there was a legal requirement on the commissioner to hear the applicant prior to the recommendation going to the Governor-in-Council. Essentially, this was a question of statutory construction.(9) (by Gleeson CJ; McHugh, Gummow and Hayne JJ agreeing; Callinan J agreeing; Heydon J agreeing) As the power to remove the applicant prejudiced his rights and interests, the power was to be regulated by the rules of natural justice unless excluded by plain words of necessary intendment. No such words were present in s 51 or elsewhere in the Act.(10) (by McHugh, Gummow and Hayne JJ; Gleeson CJ agreeing; Heydon J agreeing) Though the content of the hearing rule may be diminished in, for example, cases of extreme urgency, this was not such a case.(11) (by Gleeson CJ; McHugh, Gummow and Hayne JJ agreeing) Contrary to the respondent’s submissions and the findings of the Court of Appeal, s 53 — relating to an officer's rights to

Natural justice

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compensation for removal and relevant caps on the quantity thereof — threw no light upon the question of what was required for valid removal. Section 53 only applied in the case of a valid removal.(12) (by McHugh, Gummow and Hayne JJ) The fact that s 51(1) provides for removal of an executive officer "at any time" is not, when read with the balance of the section, apt to unfetter that power of removal.(13) (by Heydon J) The words "at any time" , in s 51(1) , refer only to the power to remove and the time at which removal may be effected, not the procedure by which or the grounds on which a recommendation for removal should be made.

Held: (determining that the right to damages for breach of contract was available; by the court)(1) (by McHugh, Gummow and Hayne JJ; Gleeson CJ agreeing) The award of damages by the trial judge did not cut across the principle that, where there has been a denial of procedural fairness in the exercise of statutory or prerogative powers, the law does not recognise a cause of action for damages and confines the complainant to public law remedies.(2) (by McHugh, Gummow and Hayne JJ; Callinan J agreeing) The absence of a removal effective in law, of itself, said nothing as to the continued operation of the contract whereunder the applicant was remunerated.(3) (by McHugh, Gummow and Hayne JJ) Refusal to allow the applicant to perform his duties for the balance of his term and receive his remuneration was without justification and amounted to, or was "analogous to", wrongful dismissal.

Keating v Morris; Leck v Morris [2005] QSC 243

Messrs Keating and Leck were the Directors of Medical Services at the Hospital at times relevant to matters with which the Inquiry was concerned. Recognition of the Inquiry’s inquisitorial and reporting function and its powers allowed the Commissioner to take a more active, interventionary and robust role in ascertaining the facts and a less constrained role in reaching conclusions than applies in litigation. It does not however, dilute or diminish the expectation that an impartial and unprejudiced mind will be applied to the resolution of any question

Decision: The circumstances established by the accumulated weight of evidence would give rise, in the mind of a fair minded and informed member of the community, to a reasonable apprehension of lack of impartiality on the Commissioner’s part in dealing with issues relating to each of the applicants. Similar considerations arise with respect to persons in the position of an applicant.

Bias

Kioa v West (1985) 159 CLR 550 Mr and Mrs Kioa, who were both from Tonga, entered Australia on temporary entry permits in late 1981. When their permits expired they changed their address without informing authorities. Mr Kioa worked in Victoria until he was arrested as a prohibited immigrant in 1983. In the intervening period the Kioas had a daughter, who by virtue of her birth in Australia, was an Australian citizen. Mr Kioa explained that he overstayed his permit in order to earn money to send home to relatives who were suffering as a result of a cyclone in Tonga.

In October 1983, a delegate of the Minister for Immigration and Ethnic Affairs made a decision that the Kioas should be deported. In arriving at that decision the delegate took into account a departmental submission which, inter alia, submitted that Mr Kioa had been actively involved with people who were seeking to circumvent Australia’s immigration laws.

Procedural fairness

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The Kioas' principal argument was that the decision maker had failed to afford them procedural fairness in not disclosing and allowing an opportunity to respond to the adverse allegations made in the departmental submission.

Re Macquarie University; Ex parte Ong (1989) 17 NSWLR 113

Facts: A head of school whose conduct was the subject of investigation by a committee of the University Council was entitled to notice of a new set of allegations regarding his competence, notwithstanding the fact that he had declined to attend the committee's hearings in relation to the first set of allegations concerning his failure to cooperate with the Vice-Chancellor.

Principle: For procedural fairness there must be notice, identification of the issues, and person must have adequate time to prepare. A body is obliged to give to a person who might be adversely affected notice of a new set of allegations made against him even though he sought not to be heard on an earlier and different set of allegations.

Held:- Content of the notice depends on the nature of the inquiry. For example where there is a general inquiry as opposed to specific allegations.- Dr Ong did not know that the new allegations would be the subject of the committee’s report.- A denial of procedural fairness occurs even though the person affected had notice of the facts on Committee’s recommendation would have critical if not decisive influence on the council.- Entitled to have access to material and hearing- Distinguishable from O’Shea (political).- Original allegations that he failed to work properly with the Vice-Chancellor; but was not told that he was also being investigated on the basis of incompetence. Needed notice of these allegations to prepare.- NOTICE that there will be a committee to consider the issues - also adequate time to prepare is important.- A body is obliged to give to a person who might be adversely affected notice of a new set of allegations made against him even though he sought not to be heard on an earlier and different set of allegations. The person must also be given adequate time to prepare with respect to these allegations.- Cross reference; Vice Chancellor’s letter: by the writing of a letter and handing it to the committee on the day of sitting amounted to the accuser being present during the proceedings. This is a breach of procedural fairness.

Hearing rule

Re Minister for Immigration and Multicultural Affairs; Ex p Miah (2001)

Facts: An application for a protection visa was made by a national from Bangladesh and was rejected by the Minister’s delegate. The applicant’s father had been vocal in opposing fundamentalist groups in Pakistan and murdered, the applicant was also active in opposing fundamentalist groups (various violent acts and death threats). There had been threats to his life and attempts to assassinate him. He had also enraged people by marrying a Hindu woman (both received 101 lashes). He had been told to leave or else he would be killed. Miah then came to Australia to apply for a protection visa. Part of the application questioned whether the applicant could attain protection from the government if he returned. Miah asserted that these groups had ties to the government who would not protect him. Before the application was processed, there was an election in Bangladesh where a pro-independence party, which was said (in a United States government report) to be moderate and anti-fundamentalist,

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came to power. This new information was held by the delegate to demonstrate that the applicant’s fear of persecution was not well founded. The applicant was sent a letter saying he could appeal. He filled in the forms, but his solicitors misplaced them and the lodgement period expired. Further requests to waive the period were denied, so he retained new solicitors and commenced proceedings in the HCA’s original jurisdiction.The applicant claimed a breach of natural justice.

PRINCIPLE: Unless natural justice is excluded expressly, the common law holds that people should be given an opportunity to deal with adverse information that is “credible, relevant and significant to the decision to be made”. This includes non-personal information relating to changed political circumstances.

Here the material was new and decisive of the claim. Since in the application, it had been stated that this party was also allied with fundamentalists, the applicant could not have known it would be relied on as he would have seen it as irrelevant. That is, the need to highlight factors relied on when they are ‘not already obvious’. Right of appeal does not necessarily exclude procedural fairness.

Held: McHUGH J:The order for mandamus, prohibition and certiorari should be made absolute because the delegate was under a duty to offer the applicant an opportunity to respond to new material and failed to do so.Where a statute confers a power on a public official to affect a person’s rights, interests or expectations, natural justice applies unless excluded by “plain words of necessary intendment” Kioa.Here, looking at the absences of express words excluding natural justice, the subject matter of the act and its implementation of international obligations means that natural justice should be observed unless expressly excluded.

What does natural justice require here? Just because it is named a ‘code’ doesn’t mean it is an exhaustive list of how matters should be dealt with. The word ‘fairly’ in the title makes it hard to see how there is intent to exclude rules of natural justice.

The statement in the explanatory memorandum that it intends to replace uncodified principles of common law does not supersede the real meaning from the text of the statute.Information must be adverse. Where it is favourable or already known about, do not need to let the applicant comment, BUT, where the material is new and may influence the case, or where it concerns circumstances which have changed since the original application especially where there has been a considerable delay, or where applicant could not have reasonably expected the information to be used.Not requiring notice- non adverse country information, favourable information. But where delegate uses new information, especially where it concerns circumstances which have changed and information which was not used at time the application was made.Here material was new, decisive of the claim and therefore was a breach of natural justice as the applicant should have been notified.

Right to an appeal?

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Does not necessarily exclude natural justice (the requirement that a lower body provides a hearing).Factors influencing whether right to appeal excludes/limits natural justice are:Nature of the original decision: preliminary or final - If preliminary, less likely to attract natural justice, the closer it comes to being final, the more pertinent the natural justice considerations.Formalities required for original decision - Where there are no formal procedures or obligations to provide reasons, natural justice may be excluded by the right of appeal. Where there are more formal procedures in place natural justice is stronger.

Urgency of Original decision - see TwistNature of the appellate body, that is, judicial, internal, domestic - If appellate body is court, appeal more likely to exclude natural justice (Twist). Appellate bodies in same organisation as the decision maker are less likely to be independent, therefore natural justice must occur at all levels.Breadth of the appeal- de novo or limited- If de novo right, inference is that the legislature intended that natural justice be excluded or modified. NB: N/A here - depends on circumstances.Nature of the interest and subject matter - Nature of interest = personal safety; subjectmatter = international obligations. Both very important. Here, this outweighs the other considerations.Therefore Parliament did not intend to exclude natural justice. Here was a breach of natural justice because the delegate accepted the applicant's claims of his experience in Bangladesh, relied on new information that was acquired after the application which was decisive to the outcome. Delegate should have informed the applicant and given him an opportunity to respond.

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Comment by Minister that persons with serious criminal conviction could not be of good character

The first respondent was refused a Transitional (Permanent) Visa by a delegate of the Minister for Immigration and Multicultural Affairs on the grounds that he was not of good character. Considerable publicity was given to the first respondent's case, and the Minister made specific reference to it during a radio interview. He commented that in his view persons such as the first respondent, who had committed significant criminal offences involving penal servitude, were not of good character. The Minister indicated that he would give consideration to cancelling the visa on character grounds pursuant to the Migration Act 1958 Cth, ss 501 and 502 . Further, he reiterated his concerns over this issue in a letter sent to the President of the Tribunal, in which he expressed dissatisfaction with the number of convicted offenders being allowed to remain in Australia. In relation to the first respondent's case, the Minister commented that "[allowing] this to pass without condemnation would increase the threshold for decisions relating to character considerations". The second respondent had been a holder of a Special Category Visa that was subsequently cancelled by the Minister following the second respondent's conviction for several serious criminal offences. The second respondent appealed against the Minister's decision on the grounds of bias. He argued that as bias against persons convicted of serious crimes had been established in the case of the first respondent, the same state of mind could be attributed to the Minister when he made the decision to cancel the second respondent's visa. Held:(1) (by majority) The majority of the Full Court erred in construing the Minister's comments as reflecting a concluded and unalterable view of the law and its particular application to the first respondent's case. This ignored the fact that the Minister subsequently considered judicial decisions interpreting s 501 and had the benefit of a departmental memo explaining the orthodox approach to the meaning of s 501 . It also failed to take into account the fact that the Minister was an elected official

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and entitled to be open and forthright on matters pertaining to his portfolio. Furthermore, the Full Court was unjustified in drawing an adverse inference from the Minister's failure to give evidence before the primary judge. For these reasons, the finding of actual bias was in error.(2) (by majority) As there was no actual bias in relation to the first respondent, the second respondent was not entitled to have the Minister's decision set aside on the same ground.(3) (by majority) The Minister, in exercising his powers under ss 501 and 502 , is not required to avoid doing or saying anything that would create an appearance of a kind that, in the case of a judge, could lead to an apprehension of bias. The Minister was obliged to give genuine consideration to the issues raised by ss 501 and 502 , and to bring to bear on those issues a mind that was open to persuasion. Additionally, he was not required to avoid conducting himself in such a way as would expose a judge or quasi-judicial officer to a charge of apprehended bias. In the present case, no such charge could be justified.(4) (by majority) The powers conferred upon the Minister by ss 501 and 502 are not to be qualified by an unexpressed limitation to the effect that they may not be exercised in a case where the Tribunal has set aside a decision to cancel a visa, or set aside a deportation order made against a person, unless there has been some material change in circumstances. Nor does a decision by the Minister to invoke the powers given by ss 501 and 502 where he is dissatisfied with a previous decision by the Tribunal involve an abuse of power.

Minister for Immigration and Citizenship v SZJSS [2010] HCA 48

tribunal's use of expression "baseless tactic" - findings based on evidence

Did the tribunal’s use of the expression "baseless tactic" give rise to a reasonable apprehension of bias?

Held: Where the Refugee Review Tribunal uses the "baseless tactic" to describe one applicant’s argument, this did not provide any foundation for a finding of bias in circumstances where the tribunal’s factual findings were based on carefully considered evidence.

Bias

National Trust of Australia (NT) v Minister for Lands, Planning & Environment (1997) 7 NTLR 20

The plaintiff sought a declaration that the Minister's decision to allow demolition of the old Alice Springs jail site was ultra vires and void. The site was in an area previously declared a "heritage place" pursuant to the Heritage Conservation Act 1991 NT, s 26(1)(a) . Held: (in granting the declaration sought by the plaintiff) The plaintiff had, by the National Trust (NT) Act 1976 NT , a statutory duty to promote the preservation and maintenance of buildings and places of historic interest in the Northern Territory; it was largely financed by public monies; it was regarded by the government as being in a special position; it nominated a member upon the Heritage Advisory Council; it owned properties of this kind in the Territory; it had been consulted about the Alice Springs heritage area. It had something to lose in a real sense if the Minister had the power to permit the destruction of buildings in the Heritage area. This was sufficient to confer the necessary special interest and thereby the standing to bring this action.

Standing

North Coast Environment Council v Minister of Resources

The EDO acted for the North Coast Environment Council (NCEC) in proceedings brought against the Minister for Resources in relation to a three month export woodchip licence issued by the Minister in June 1994 to Sawmillers Exports Pty Limited. The NCEC sought reasons from the Minister under section 13 of the Administrative Decisions Judicial Review Act (ADJR Act) for his decision to issue the licence. Entitlement to reasons was dependant upon the NCEC showing that it was a "person

Standing

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aggrieved" within the meaning of the Act. The only issue raised by the proceedings was therefore whether the NCEC had standing to request reasons for the Minister's decision.

His Honour Mr Justice Sackville concluded that the NCEC had standing.Onus v Alcoa of Australia Ltd (1981) 149 CLR 27

“A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public” (Gibbs CJ at 36)• “At least the plaintiff must be able to show that success in the action would confer on him - albeit as a member of a class - a benefit or advantage greater than the benefit or advantage thereby conferred upon the ordinary member of the community; or alternatively that success in the action would relieve him of a detriment or disadvantage to which he would otherwise have been subject - albeit as a member of a class - to an extent greater than the ordinary member of the community.” (Brennan J at 76)• Cultural, spiritual and historical interests may suffice• The test involves in each case a curial assessment of the importance of the concern which a plaintiff has with the subject matter and of the closeness of the plaintiff’s relationship to that subject matter. Community values and beliefs will be relevant in this assessment. (Stephen J at [10])

Plaintiff S157 of 2002 v Commonwealth

Constitutional rationalseparation of powers (ie exercise of judicial power)rule of law75(v) is entrenched

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Facts: ABA was to perform its functions consistent with Australia’s international obligations which meant exercising its powers consistently with s 160 of the Broadcasting Services Act

Ratio: Section 160 was not a precondition to the exercise of the power, which indicated that a breach would not invalidate the decision. Further, if public inconvenience would result, that will suggest it was not intended to be invalid

Effect of jurisdictional error

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252

The appellant applied outside Australia for a skilled-independent visa (subclass 175), supporting her application with documents demonstrating that she had engaged in the relevant skilled employment for the previous 20 months. Australian immigration officers investigated the application and made discoveries which put the authenticity of the appellant's documents in doubt. The respondent Minister's delegate then informed the appellant that her application had been refused. The appellant sought judicial review of the delegate's decision, claiming that she had been denied the right to be heard in respect of the investigators' findings. Prerogative relief was refused at first instance and on appeal by the Full Court of the Federal Court of Australia, both courts relying on the holding in Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214, that the natural justice requirements relating to offshore visa applications were exhaustively stated in the Migration Act 1958 Cth, s 57, by operation of s 51A(1).

Held: (allowing the appeal; by the court)(1) Section 51A(1) provides that the relevant subdivision of the Act is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule "in relation to the matters it deals with." The "matters dealt with" in s 57 are confined by operation of s 57(3) to onshore visa

Hearing rule – whether displaced by statute

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applications.(2) Clear and unequivocal statutory language is required to oust the operation of the hearing rule. The rule of law presumes it highly improbable that Parliament would overthrow fundamental principles or depart from the general system of the law without expressing its intention with irresistible clearness.(3) The appellant's application was not governed by s 57. Accordingly, that section did not operate as an exhaustive statement of the hearing rule in the appellant's case: the ordinary principles of natural justice not having been displaced, the appellant was entitled to be heard regarding the authenticity of her supporting documents before a decision was made on her application.

Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552

A union has the same interest in the subject matter of the dispute as its individual members. In other words a union has standing because of the special interest of its individual members.

Sinclair v Mining Warden of Maryborough (1975) 132 CLR 473

mining lease, environment damage

A prospector lodged with a mining warden in Queensland applications for mining leases over some 1100 acres on Fraser Island. An objector, on his own behalf and on behalf of a body known as the Fraser Island Defence Organization, opposed the applications, on the ground that for environmental reasons it was not in the public interest that they be granted. At the hearing of the application and the objections before the warden it appeared that there were minerals under only 60 acres of the land covered by the applications. The objector adduced extensive expert evidence of the damage to the environment that mining was likely to cause. The warden recommended that the applications be granted. In the course of his decision he stated that the objector represented "the views of a section of the public" and that he was unable to conclude from the evidence that "the interest of the public as a whole" would be prejudicially affected by the grants. He further stated that unless it could be shown that it was against the public interest as a whole for the leases to be granted, the applicant was entitled to a recommendation that the leases be granted.

Held: The warden had failed to hear the applications and objections according to law; by the whole court on the ground that he had erred in holding that the limited interest of the objector rendered it impossible for him to conclude that any interest of the public would be prejudicially affected by the grant of the leases; and by Barwick CJ, Stephen, Gibbs and Murphy JJ on the further ground that the warden had failed to appreciate that, quite apart from any objections that might be made to an application, it was essential that there should be evidence that would warrant his recommendation, and that an applicant was not entitled to a recommendation merely through observing the formalities for application. Accordingly, a writ of mandamus should be granted directed to the warden.

No evidence, asking the wrong question

State of South Australia v O'Shea Held: MASON CJ:- Section 77a of the Criminal Law Consolidation Act 1935 (SA) allowed a place for the presentation of the offender’s case before the Board when it was considering whether it should make a recommendation for release.- Many cases of this legislative model which entail the holding of the inquiry by a body authorised to make a recommendation without conducting any further inquiry: eg Kiao v West- The hearing before the recommending body provides a sufficient opportunity for a party to present his case so that the decision-making process, viewed in its entirety, entails procedural fairness.

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WILSON AND TOOHEY JJ:- The Correctional Services Act expressly secures procedural fairness to Mr O’Shea in the course of the Board’s consideration of his case. But beyond that he is in the hands of the Government, which must accept political responsibility for his release.- Given the nature of this decision, it cannot be said that Mr O’Shea could have more than a hope that the Governor would be prepared to act on the recommendation of the Board. Hope, of itself, is not sufficient to ground an expectation that will attract legal consequences ….nature of decision was such that participation by Mr O’Shea was inappropriate.- In truth, Mr O’Shea will have had full and final opportunity to adduce material and make submissions on the question of his release on licence in the course of the hearing before the Board. The procedures simply do not permit a further opportunity at a later stage.NB: If the Minister had received additional material personal to Mr O’Shea which turned the scales against him, the Minister would be obliged to send the matter back to the Board so that the additional material could receive its consideration. In the end the decision of the Governor and his advisers will turn on whether, in light of the Board’s report, it is seen to be in the public interest to act on recommendation of the Board.Re Minister for Immigration and Multicultural Affairs; Ex p Miah (2001) 75 ALJR 889

- An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from “indirect references, uncertain inferences or equivocal considerations”. (Annetts v McCann) Nor is such intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice.- This means that even when the Minister provides an interpretation of the statute, courts still look at the text itself. (Lyster)

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

Appealing the Refugee Review Tribunal’s decision to affirm the refusal of a protection visa, the applicant argued that the tribunal had failed to accord him natural justice by failing to indicate that it did not accept his argument. The tribunal also failed to say anything to indicate that it had considered that the three specific grounds which the applicant argued before it were live issues, finding that they were implausible. At no time during the hearing did the tribunal indicate that it did not accept the applicant's argument, challenge what he said, or say anything to indicate that it considered that these three grounds were live issues, indeed, the critical factors upon which the decision was likely to turn.Held: (allowing the appeal) (by the court)(1) If the tribunal takes no step to identify some issue relevant to the application other than those that the delegate considered dispositive, and fails to inform the applicant, an applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review", pursuant to the Migration Act 1958 Cth, s 425(1).(2) Unless the tribunal identifies additional issues, it would ordinarily follow that the issues arising in relation to the decision under review would be those that the original decision-maker identified as determinative against the applicant.(3) In this case, two of the three reasons considered to be in issue by the tribunal were not relied upon by the delegate in refusing to grant the applicant a visa. The tribunal did not give the applicant notice of those reasons that, only in the application for review before it, had become live issues; nor was he given the opportunity to provide evidence in relation to them. Therefore, the tribunal failed to

Natural justice – hearing rule

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accord the applicant natural justice.White v Ryde Municipal Council [1977] 2 NSWLR 909

FACTS: The Council had for a long time received complaints about White’s smelly cats. The Local Government Act Section 289(e) empowered the council to ‘control and regulate the keeping of animals, in particular dogs, cats, pigs, pigeons and poultry.’ The Council’s health surveyor reported that White kept 20-30 cats, and on that basis, the Council’s General Purposes Building and Development Committee recommended the Council prohibit White keeping more than two cats at a time.Council adopted the recommendation and informed White that he could be fined for not complying and offered him an opportunity, within four days, to make oral or written representations as to why the resolution should not be given effect. The Committee refused White’s request for his legal representative to be present, so White addressed the Committee himself. The surveyor who made the inspection was at the hearing, but did not participate in deliberations. The Committee recommended the Council affirm its earlier resolution and they did so. A year later, White was convicted of non-compliance with the order and fined. He appealed.

PRINCIPLE: Municipal councils do not have to personally hear every case if there is a special committee in place to assist them and make recommendations. The decision maker must, however, have before him all of the relevant materials (evidence and submissions of those entitled to be heard).

HELD: REYNOLDS JA:- Procedural Fairness was implied.- “what will be sufficient to satisfy the requirement depends on the circs of the particular case, a well as upon the nature of the statutory power… the requirement of natural justice has a fluctuating content”- The general proposition is "he who decides must hear." - but in some situations decision maker sets up a specialist board to decide, this is ok so long as the board has all the evidence and representations before them.- The general proposition is not a universal requirement, it is to be understood in the sense that the decision maker must have before him the evidence and submissions of those entitled to be heard.- The decision making body need not hear and see the actual submissions in the hearing.- It is commonplace for councils’ to act on the recommendation of a specialist committee.- In this case normal procedure should not be abandoned and, in any case, it was probable the White would be more benefited from the committee conducting the hearing than the council. (at 923)- Question of legal representation; a simple factual matter meant there was no right to legal representation.- The decision-making authority (council) was appraised of all the relevant material to evaluate the recommendation and the force of the representations made by White.- Held the hearing was proper as it accorded with all notions of fairness.

Procedural fairness

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22. LATIN TERMS

a fortiori – for a stronger reason; all the more; much more so. "if you are wrong then, a fortiori, so am I"

a priori - relating to or derived by reasoning from self-evident propositions

ab initio – from the beginning. To describe contracts that are null and void (ie void ab initio).

Actio exteriora indicant interiora secreta - External actions show internal secrets.

Aequitas agit in personam - Equity acts upon the person.

Aequilas sequitier legem - Equity follows the law.

Ad idem – one of mind; to the same result (see also consensus ad idem)

Ad Infinitum - Describes an event apparently continuing without end

Ambigendi locus - Room for doubt.

Amicus Curiae - A friend of the Court

animus possidendi – intention to retain possession

Au fait - Acquainted with the facts; expert; proficient.

Bona fide – in good faith

Bona Vacantia - Denotes the absence of any known person entitled to the estate of a deceased person

caveat emptor – let the buyer beware

consensus ad idem – agreement to do the same thing; unequivocal acceptance of an unequivocal offer and no uncertain terms

Compos Mentis - Of sound mind

Contra - To the contrary

contra bonos mores – contrary to the accepted canons of decent behaviour; against good morals

Cujus est solum ejus est usque ad coelum, et ad inferos – whoever has the soil, also owns to the heavens above and to the centre beneath.

De die in diem - From day to day

de minimis non curat lex - The law does not concern itself with trifles

De novo - Starting afresh

Ex hypothesi - according to assumptions made : by hypothesis

Ex post facto - By reason of a subsequent act

ex turpi causa non oritur actio” - a trust created for a purpose or object which is “illegal, fraudulent or immoral” will be void (see generally Holman v Johnston)

Expressio unius est exclusio alterius

Express reference to one matter indicates other matters to be excluded

Where legislation includes provisions relating to similar matters in different terms

a deliberate intention to deal with them differently

Salemi v Min Immigration & Ethnic Affairs (No.2) (1977) 14 ALR 1, Tas v Cth & Vic (1904) 1 CLR 329, Rylands Brothers (Aust) Ltd v Morgan (1927) 27 SR (NSW) 161, Colquhoun v Brooks (1887)19 QBD 400 at 406

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Expressum facit cessare tacitum

Similar to expressio unius

Use where a particular procedure is designated to achieve something, other procedures are thereby excluded (See Anthony Horden and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529)

Id certum est quod certum reddi potest – that which is capable of being rendered certain is to be treated as certain

In futoro - In the future

In loco parentis - In place of the parent

In personam - Proceedings issued against or with reference to a specific person - an admiralty action in personam would be issued against the owner of a ship

In rem - Proceedings issued or directed against property as opposed to a specific person - an admiralty action in rem would be issued against the ship itself (right in rem: the contract in the bill of lading does not give a right in rem except in respect of such goods as were actually shipped on board the ship in question.)

Ignorantia Juris non excusat - Ignorance of the law is no excuse

inter alia – among other things

inter se - Among themselves.

inter vivos – between living persons

ipso facto – absolutely or actually

ipso jure – by the law itself

jus accrescendi – The right to survivorship which arises from a joint tenancy

jus accrescendi inter mercatores locum non habet, pro beneficio commercii - “The right of survivorship has no place amongst merchants, for the benefit of commerce”

jus accrescendi praefertur oneribus – the right of survivorship is preferred to encumberances (an encumberance is a proprietary right which limits the ways in which the owner may use or deal with the property)

jus tertii - A person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrongdoer, and cannot defend himself by shewing that there was title in some third person [a stranger]; for against a wrongdoer possession is a title: Jeffries v Great Western Railway Co

locus in quo – the place in which in relation to the law of easements, land over which a right has been granted.

locus poenitentiae – under this doctrine, it will be possible to recover the transferred property if the person has repented before the illegal purpose has been carried out and the property remains identifiable (Taylor v Bowers) and may be possible if the illegal purpose remains substantially unfulfilled (Symes v Hughes; Money v Money (No 2)).

nemo dat quod non habet – A person cannot assign a greater interest than the interest possessed.

non est factum - It is not his or her deed.

Non sequitur - An inconsistent statement, it does not follow

obiter dictum/dicta – statements of law not vital to the decision in the case

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Per curiam – a court in relation to its own decisions can declare because (i) overlooked relevant authority (ii) overlooked relevant statutory provision (iii) made a manifest slip or error. Justifies a court to depart from precedent of own making

per my et per tout – ‘for nothing and for all’. No joint tenant has any individual share, but that each has a right, with the other joint tenant, to the whole of the property.

plenum dominium – Absolute ownership

Prima facie - On the face of it

pro tanto – "only to that extent"; "so far, to that extent". A pro tanto reason has genuine weight, but may not be decisive whereas a prima facie reason appears to be a reason

Pro tanto quid retribuamus – "What shall we give in return for so much" (literally "Having received so much, what return shall we make")

punctum temporis – time that contract comes into force

quantum meruit – a claim to recover a sum as a quantum meruit for partial performance

Qui prior est tempore potior est jure – he who is first in time has the stronger case in law (ie priority in time of creation gives the better equity)

quid pro quo – one thing in exchange for another; something in exchange; a fair equivalent; valuable consideration

ratio(nes) decidendi – reason(s) for deciding. Binding on lower courts by the doctrine of precedent (Deakin v Webb (1904) 1 CLR 585)

Res judicata – if a dispute is judged by a court of competent jurisdiction, the judgment of the court is final and conclusive to the rights and duties of the parties involved. This constitutes an absolute bar to a subsequent suit for the same cause of action.

semble - It appears (used to indicate a principle or issue not definitively settled)

stare decisis – stand by the precedent; stand by the decision

sui generis – something of its own kind; unique

sui juris – legal capacity; a person who has attained majority (over 18 years) who has full legal capacity.

Tabula in naufragio - The doctrine that the owner of an equitable interest who has acquired that interest without notice of an earlier equitable interest can, by acquiring the legal estate, prevail over the earlier equitable interest. Provided the acquisition of the legal estate does not involve the holder of the legal estate in a breach of trust, the doctrine overcomes the rule that if the merits are equal, an earlier equity prevails over a later one.

tam pro dominio Rege quam pro se ipso - who sues on behalf of the king as well as himself

terra nullius – Uninhabited land. Absolute beneficial title to the land can only exist where the land is truly terra nullius.

trespass de ejectione firmae – action of ejectment for leasholders

Ultra Vires - An act that falls outside or beyond jurisdiction

vis-à-vis - a person or thing having the same function or characteristics as another;

face to face with: They were now vis-à-vis the most famous painting in the Louvre

in relation to; compared with: income vis-à-vis expenditures.

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