ADMINISTRATIVE LAW

TABLE OF CONTENTS
Administrative Law...................................................................................1
The Executive (2-7) .................................................................................................3
Common Law Duty to give Reasons.......................................................................4
Statutory Duty to give reasons..............................................................................4
Freedom of Information.............................................................................5
Conclusive Certificates ............................................................................................9
Ombudsman.............................................................................................................9
Procedural Fairness (Natural Justice).......................................................................12
Judicial Review........................................................................................................22
Rationale ............................................................................................................22
Review under the Administrative Decisions ( Judicial Review) Act...........................23
..........................................................................................................................25
Remedies under Judicial Review..........................................................................25
Privative Clauses ...............................................................................................25
Institutional Distrust...........................................................................................25
Non-Justiciability v rare ...................................................................................26
Public / Private Distinction.................................................................................27
Time Extensions..................................................................................................27
Grounds for judicial Review......................................................................27
Considerations.......................................................................................................27
Relevant Considerations.....................................................................................27
Irrelevant Considerations...................................................................................28
Unreasonableness..................................................................................................28
No Evidence ...........................................................................................................30
Exceeding POWERS - Minister (Ultra Vires) AAT (jurisdictional error).....................31
Jurisdictional Error ...............................................................................................33
Jurisdictional Facts:.................................................................................................35
Delegation..............................................................................................................36
Dictation.................................................................................................................37
Self fettering Applying policy inflexibly.............................................................37
Bad Faith and Improper Purpose.............................................................................38
Unauthorised Decision Making.................................................................40
ADJR Act (8.2.1)......................................................................................................40
Source of Executive Power......................................................................................40
The presumption of regularity.................................................................................41
Statutory construction and public law.....................................................................41
Is the crown subject to statutory Law..................................................................42
REGULATIONS - s 48 Acts Interpretation Act ..........................................................43
Publishing requirements - Golden Brown v Hunt...............................................43
..........................................................................................................................44
Ultra Vires...........................................................................................................45
Guidelines .............................................................................................................46
Administrative Appeals Tribunal (AAT) Merits Review..............................46
Objectives of the AAT.............................................................................................46
Step 1 Jurisdiction of AAT.....................................................................................47
Standing.............................................................................................................47
Merits Review......................................................................................................48
Power and Discretion of original decision maker s43(1).......................................48
Evidence and Law before it.................................................................................48
Policy Considerations..........................................................................................49
Delegated Legislation.............................................................................................50
Checks on Power ................................................................................................50
THE EXECUTIVE (2-7)
= The relationship between the principle components of the executive.
~ CROWN >- head of executive arm of the government
~ CABINET >- ministers deterD1ined by the gov to make governmental decisions
~EXECUTIVE COUNCIL .>- formal version of the cabinet
~ MINI STERS >- elected by the people but are ministers of the crown
~ GOVT DEPARTMENTS .>- specialised govt sections to address specific issues
~ PUBLIC SERVANTS >- Employed under Public Service Act, serve minister, implement
decisions
~ STATUTORY AUTHORITIES >- a body established by statute for management and
delegation
~ STATUTORY OFFICES >- like a body but with a single office holder
~ QANGOS >- quasi autonomous non government organisation. Public and private eg
RSPCA
~ CLUBS >- type of qango, sports/unions/professional associations which regulate
access to employment
~ LOCAL GOVT elected councils appointed as bodies corporate by Local Govt Acts
~ ADMINISTRATIVE TRIBUNALS Stat Authorities fulfil admin tasks of a quasi-judicial
nature
= Relationship is governed by a mixture of law and convention and politics
= Public Service and Bureaucracy are politically and functionally dependent on
Ministers and executive
= Statutory Authorities and Tribunals are both formally and informally independent
= Not always a strict separation though p 7
= Privatization of the bodies -de facto privatization of low level decision making and
contracting out.
REASONS_____________________________________________________________
COMMON LAW DUTY TO GIVE REASONS
(1) Osmond no Common law duty
==
= Could be forced to provide reasons through affidavit
- Spigelman Practice Note no 119.
BUT also Cypressvale v Retail Shop Leases Qld Court of Appeal
= suggested reasons where required but only lower court. So Osmond.
STATUTORY DUTY TO GIVE REASONS
(1) Applicability
a. s28 AAT applies if appeal to the AAT is allowed
b. s13 ADJR applies if decision is:
i. of an administrative nature
ii. made under an enactment
(if both s13 and s28 apply under s13(11)(a) of ADJR use s28 of AAT)
c. Any express requirements under the enactment
d. s25D of AIA provides content for unspecified detail of reasons in other
acts
e. Also briefly mention standing who can apply.
f. Does application for review need to be made? no just right to review
s28
= Para 15(2) (e) of Ombudsman Act authorises Ombudsman to take action
where he or she is of the opinion that reasons should have been given, but werent,
for a decision of a department or agency.
s13(5) - request made within 28 days or a reasonable time from receipt of
decision
s13(1) standing must be entitled to make application under s5 ie person
aggrieved
(2) Content (Yusuf) or s25D AIA
a. State all material findings
b. All material evidence on which findings were based
c. Reasons for the decision
= Materiality is determined by the original decision maker
(distinction in Yusuf between subjectively material and objectively
material HELD only subjectively material is required for adequate
reasons)
= Bad reasons, bias, discrimination etc do NOT constitute inadequacy of
reasons.
may however disclose jurisdiction errors due to findings exceeding its
authority or power (Yusuf), failure to take into account relevant
considerations etc
FREEDOM OF INFORMATION
No standing requirement s11: every person has a legally enforceable right
to obtain access to documents no need for a proprietary or any other interest
If the institutions of representative and responsible government are to operate
effectively and as the constitution intended, the business of government must be
examinable and the subject of scrutiny, debate and ultimate accountability of the
ballot box Aust Capital TV v Commonwealth No2,
= Re Eccleston & Department of Family & Community Services and Aboriginal and Islander
Affairs
(1) Applicability
a. Minister s35 NSW FOI. E
i. Ministerial Documents: document held by the minister relating
to the affairs of the agency and that is not an agency document
ss6 & 7 NSW FOI Act.
b. Tribunals/Agency (may have exemptions) s16 NSW FOI E
= s6 - govt departments, public authorities, local authorities,
public offices
i. s13-15 requires agencies to publish internal manuals, workings
and functions
c. Private Organisations E
(2) Type of document
State the type of document your after
eg documents relating to assessment or advice given in
response to Mr Xs application for .
(3) Exemptions
ADT has a discretion to release exemption documents s25(1), (3) FOI Act
1989(NSW)
Stands in the shoes of original decision maker who has this
discretion
Mangoplah Pastoral Co v Great Southern Energy [1999]
NSWADT
MAIN EXEMPTIONS (NSW) - see attachment
= Cabinet Documents (submissions, records, deliberations) c1
10yr limitation, doesnt apply to factual or statistical material
= Executive Council Documents (as above) c2
= Effecting law enforcement or public safety c4
= Effecting relations with other governments
= Personal affairs
= Business affairs trade secrets, info of commercial value c7
reverse FOI applies and third party interests must be
consulted
= Conduct of research which would be adversely affected c 8
= Internal Working Documents c 9
= Concerning operations of agencies contains PI component c 16
must be substantially and adversely impacted
MAIN EXEMPTIONS (COMMONWEALTH) see attachment
= National security s33
= State Relations s33A
= Cabinet Documents s34
= Executive Council Documents s35
= Internal Working Documents s36
= would it limit exchange of opinions, in frank manner
opinion, advise, recommendation obtained
consultation or deliberation
taken place in the course of , or for the purposes of
deliberative processes involved in the functions of an agency
or minister
AND
would be contrary to the public interest s36 (1) (a)
DOESNT include statistical or technical information or expert
opinions on scientific or technical matters subsection 6(a)
= Financial or property interests of the commonwealth s 38
= Operations of agencies s 40
prejudice the effectiveness of procedures or methods for the
conduct of tests, examinations or audits 1(a)
prejudice the attainment of the objects of particular test
examinations pr audits conducted 1(b)
substantial adverse effect on the management or assessment
of personnel 1(c)
substantial adverse effect on the proper and efficient conduct
of the operations 1(d)
AND
would be contrary to the public interest s 40 (2)
= Personal privacy s 41 see exceptions
= Business affairs s43
= Public Interest qualification:
= Re James and ANU
= Public interest in having examiners not being threatened by
disclosure of reputation v rights of individual as a PI see also
Re Burns and ANU.
applicants right to know is a public interest
= Harris v ABC
= Re Kamminga and ANU - access to referees reports
exemption s36, s40 prevent frank and open opinions failed
PI test
confidentiality s45 see page 109.
convention that they are given and received in
confidence
= Colakovski v Aust Telecommunications Corporation - Kirby
wanted access to taped telephone conversations
s41 unreasonable disclosure of personal information
= Right to correct information defined as personal information s4
if out of date, incomplete, incorrect or misleading s48.
N.B - if access is refused adequate reasons must be given s26
- right of review internally s53(1), then AAT s55 or Ombudsman s57.
Presumption of disclosure - Re Eccleston, Commissioner of Police v District Court of
NSW
= no general presumption but arguable.
CONCLUSIVE CERTIFICATES
= discretion to issue exemption certificates is reviewable
Shergold v Tanner
____________________________________________________________________________________
OMBUDSMAN
OTHER MEANS OF ACCESSING INFORMATION
= Ombudsman access information as well as just documents
Ministerial Exemption
= RELATES TO A MATTER OF ADMINISTRATION s5 p190
= Administration v Policy Booth, Glenister - distinction unclear
probably good
= Booth v Dillon = in practice still covers policy matters
= specific decision or act or specific failure to decide or act =
admin action
= Admin v Commercial decisions s6(12)
= no specific exclusion of comm decisions but power to
decline s6(12)
- not judicial or legislative either
= Glenister
= BY A DEPARTMENT OR PRESCRIBED AUTHORITY
= s5 - s3 exemptions
= Ministers but ministerial advisors
= public servants = employment issues hire/fire only
= some tribunals
= Courts
Powers and Procedures
= Complaint (written or oral) or on own motion
= Standing no specifics but Ombud can decline of interest is
insufficient
s6(1)(b)(ii)
=After complaint lodged Ombud does rest becomes the
complainant.
= Discretion to decline to investigate
= other right to cause of action in crt or tribunal s6(3)
(reasonable)
= 12 months old stale
= hasnt been taken up with agency first
= commercial activity of department or authority s6(12)
= Cant be made to pay costs cheap and easy avenue
= Wide powers to obtain information and docs
=Power is recommendatory only
= investigates rule of law, justice, discriminatory etcdoesnt
matter if still legal
= Political avenues question time in parliament
= ICAC
= Legal Proceedings Spigelman Practice Note No 119.
= Industry Ombudsman
PROCEDURAL FAIRNESS (NATURAL JUSTICE)
(0) Court
a. ADJR Act (See below)
i. Decision of administrative character
= Minister for industry and Commerce v Toohey
= classification of powers is not a sound basis for
review
= Subordinate legislation cant be challenged under ADJR
= could use JA Act s39(B)
ii. Made under an enactment
b. Judiciary Act
(1) Standing (identify what you are challenging)
= Standing for Judicial Review
a. Person Aggrieved
b. Special Interest
= Ogle v Strictland
= Priests and Hail Mary Case
= Sufficient standing due to role & job of
representing and protecting the church.
c. Commercial Interest
i. doesnt necessarily exclude Batemans Bay
ii. not necessarily enough Alphapharm Pty Limited v SmithKline
Beecham
= Object of applicant v Objects of Statute
= must relate to scope and purpose of the act
- private rights must be affected.
= or public right but with special damage peculiar to
himself from interference with that public right
Boyce v Paddington Borough Council
not just pecuniary damage, and doesnt have to be
unique
special interest - ACF
not a mere emotional or intellectual concern ACF v
Cth
must gain some advantage other than winning or righting a
wrong
= They were involved in writing EIS but still only had a
political intellectual interest no real effect on them at all
all depends on the case and the interests at hand
Robinson v Western Aust
Museum
= Onus v Alcoa has legitimate interest in protection of
relics & lands more than in ACF v Cth
affected to a greater degree or in significantly
different manner to member of public
= ACF (2) v Minister for Resources (1989)
= highlights a growing public perception of need
to protect the environment. ACF is there to
represent public interests
= ACF national conservation org & forests national
Estate
= North Coast Environment Council v Minister for
Resources (1994)397
= NC recognised as advisor and representative in
committees for environmental issues etc
= government funded standing as
responsible body
= regional or nation is no distinction w/
ACF
= Application must be within 28 days of the decision in writing, although
discretion to accept late applications (see below)
= assertion of public rights and public wrongs is job of A-G.
at a parties request ex relatione, or by own initiative ex officio.
= Batemans Bay Local Aboriginal Land Council v Ab Com Benefit Fund
p 391
Commercial interest isnt enough to disentitle you to standing
test for standing is enabling not restrictive
= Standing for the AAT
- s27 (1) person be affected by the decision
- s27(2) a organisation is affected by the decision if it relates to
a matter included in the objects or purposes of the organisation
= Standing for ADJR
= person aggrieved s5(1)
= not narrow (Tooheys)
at least as generous as standing to seek equitable remedies - Ogle
(2) Jurisdiction
(3) Procedural Fairness Duty to Afford
a. Is it excluded ?
= Explicit statutory provisions eg Migration Act
= Clear manifestation of contrary intention Kioa
i. Appeal to AAT usually excludes may not be enough
b. Rights, Interests FAI Insurance
There is a common law duty to act fairly, in sense of according procedural fairness, in
making of administrative decisions which affect rights, interests, and legitimate
expectations
Kioa v Minister for Immigration and Ethnic
Affairs
= Broad interpretation includes reputational interests Kioa
= personal liberty, status, preservation of livelihood,
proprietary
= Stronger case with legal rights and interest but not needed.
= Importance of interest at stake
= Interests indirectly affected maybe not Corio Bay and District Hospital v
Minister for Family Services
= direct and immediate way Kioa.
=Substantially different way applies to affect interests of public at large
= political decisions - no duty of PF Peko Wallsend,
= OShea
= general application affect people due to membership
of a class not there particulars.
= Minister for Arts, Heritage and Environment v Peko Wallsend
= cabinet decision non justiciable
c. Legitimate Expectations note Lam may be just for content
i. undertaking of hearing Quinn, Coughlan
Administrative behaviours/practices: CCSU
Undertakings by administrators: amnesty in Salemi v MIEA( no2)
= Clean record in Cole v Cunnigham
= policy statements as undertaking Haoucher v Minister for Imm
= policy stating he would follow recs of AAT didnt
= note: policy was tabled not simply de facto policy
= ratification of international conventions Teoh
= Lam (in Obiter) in general ratifications no LE
If proposed to make a decision inconsistent with legitimate expectation,
Procedural fairness requires that the persons effected should be given notice and
adequate opportunity of presenting a case against the taking of such a course
- Teoh
Effect on rights interests etc
= Large group not individual no PF
=Pensinsula Anglican Boys School
= Qld Medial v Blewett
Right to appeal curing the failure to give NJ Twist v Council of the
Municipality
of Randwick
= it was a de novo hearing (from the beginning) Hill v
Green
= but what happens if refused life of liberty
argue PF.
= if right is exercised! definitely no PF
= if not exercised depends on legislative intention
usually still duty to provide PF
= Courtney v Peters
Preliminary Decisions and investigations
= less likely to require PF
Re Minister for Imm and Multicultural Affairs; Ex
parte Miah
Level of Formality more formal more PF
= less formal right to appeal could be suffice
Failure to provide PF usually makes decision a nullity
(4) Content
a. undertaking of legitimate interests
b. Fair Hearing Rule
= Right to know matters considered by the decision
maker
= Bond v ABT (No2)
= need not be informed of the precise nature of matters which
the DM might take into account.
= Failure to provide adequate particulars: any stage in
proceeding
= courts reluctant to intervene on possible inadequate
putting on notice
= Romeo v
Asher
= more formal proceedings earlier intervention able
earlier.
= Duty to warn of adverse findings - administrator acts on
material prejudicial to person and they dont know
of its existence.
= even when they do but dont know of its
prejudicial nature
=Somaghi v MILGEA, Heshmati v MELGEA
= Public policy grounds for non disclosure Ansett v Minister for
Aviation
= would break confidentiality
= Rights arising out of administrative practices Hamilton v
MILGEA
= introduced and formalised uniform procedures must be
made available under normal circumstances
= Rights to make submissions in response
Form of submissions: = may have a right to oral
submissions, particularly with credibility issues
Chen v MIEA applicant for refugee status
Legal Representation (s73 requires ART to ensure
understanding of proceedings and have fullest
opportunities to have evidence etc heard)
1. ability to understand proceedings -
complexity
2. interests at stake
3. credibility of procedure
4. capacity to represent themselves w/o
reliance on rep
= Cairns v Jenkins
= Krystic age, grasp of English, educations
= Canellis right to rep doesnt necessarily
mean legal aid
= also doesnt extend to legal rep be provided to a
witness at trial/inquiry
Right to Cross examine ORourke v Miller
= no general right to cross-examine.
= look at circumstances, rules under which the
DM was acting, nature of inquiry here ad hoc
employment dismissal
Right to have all members of the tribunals consider
the issue
= where there is power of delegation, the decision
making body may look at the evidence and may make its
own finding or adopt the delegates finding as its own
without addressing the evidence or any summary of it
= Re Macquarie University; Ex
parte Ong
Breach of proper hearing = decision void
= not necessarily fatal but usually
= Stead v Govt Insurance Commission.
= Hamilton v MILGEA
c. Bias Rule (apprehended Bias, not actual)
- applies to judges only strictly speaking weakened for others
Whether circumstances are such as might give rise in the mind of a fair
minded and informed member of the public a reasonable apprehension
that the decision maker might not be impartial and unprejudiced
Johnson v Johnson
not fanciful Angliss Group
= Justice must be done and be seen to be done - objective
Enber no difference for pecuniary interests, (or interests of a son Mr Phillips
in Hot H)
Hot Holdings mechanical function irrelevant, also a peripheral
functions
- test as to a judge is different from that of a minister
Personal Connections:
Kaycliff- ABT chair unsuccessfully challenged no discussion
between parties
Koppen conciliator successfully challenged because of
statements about daughters
i. Prejudgment
1. of witnesss credibility
a. Lay - R v Watson, Ex parte Armstrong
= Said credit was a non-issue he wouldnt
believe either
b. Expert Vakauta v Kelly
c. Class of witness Ferati v MIM (refugee witness)
Note judge is allowed to express tentative views in a
clear provisional nature Johnson v Johnson
2. about matters in issue and preconceptions
a. Ex parte Angliss Group
open mind != empty mind (Bertard Russell,p474)
= is persuasion a genuine possibility?
Application to Administrators
= Century Metals v Yeomans
|____________|
_________________________________|
judge tribunal administrator
increasing strictness
Ministers meant to reflect public opinion, to be opinionated
= Minister for Immigration v Jia
-minister required to consider national interests
= Hot Holdings v Creasey
- McHugh focus must be on the nature of the
advisors interest, the part that person played in
the decision making process and the degree of
independence observed by the decision maker in
making the decision
N.B dissent (Kirby)
should again goes to public perception
- increase accountability
- - is there a general impression of bias?
ii. Discrimination
(5) Discretionary Factors
(6) Waiver
i. Did they object? required by Vakauta
ii. Why didnt they object?
iii. Where they in a position to object?
1. Hostile negotiations
a. Presumed rejection, prejudice
position/proceedings?
(7) cured prejudgment
a. statement qualified or withdrawn
but may involve ineradicable apprehension of prejudgment Johnson
(8) Necessity
a. No other decision maker available
i. To give effect to statutory intention that tribunal perform its
assigned functions Laws v ABT (1990)
(9) Statutory Exemption
a. If expressly modified or excluded in statute (eg Migration Act actual
bias)
Remedies
b. Prerogative Writs
c. Constitutional Writs
d. Equitable Remedies
e. ADJR
f. Mandamus
g. Order of Review
h. Certiorari error of law on face of the record
i. Declaratory Remedies Golden Hunt v Brown
= real not hypothetical Jodex
= not final decision should usually revert back to tribunal
JUDICIAL REVIEW
= addresses legality of administrative action.
= Lawfulness of decision
= Did they have the power to make the decision?
= Ultra Vires - regs
= Did they follow proper procedures?
RATIONALE
= accountability
= keeping discretion within the bounds of the law
= Societal participation ensuring democratic representation
- identifies problem areas source of information
= Openness FOI, Reasons
= Honesty
= Consistency
= Rationality - reasonableness
= Impartiality bias rule, natural justice, disinterested
= Fairness
________________________________________________________________________
REVIEW UNDER THE ADMINISTRATIVE DECISIONS ( JUDICIAL REVIEW) ACT
= Standing for ADJR
= person aggrieved s5(1)
= not narrow (Tooheys)
at least as generous as standing to seek equitable remedies - Ogle
administrative character, made under an enactment s3
= administrative character :
= Minister for industry and Commerce v Tooheys Ltd p 338
Creation or formulation of new generalised rules = legislative
application of those general rules to particular cases = administrative
by-laws can be both address the content and character
A decision not to make a determination is an administrative decision
= SAT FM v ABC p 342
did it require notification in a gazette legislative (SAT FM v ABC)
public consultation, policy considerations, power to vary or amend
decision to promulgate a plan is not reviewable by AAT legislative
some are subject and others not others not administrative
Austral Fisheries
= Queensland Medical Laboratory v Blewett p 339
decisions made under an enactment of the parliament by a Minister
or his delegate under a statutory power may be legislative and direct
and immediate not incidental.
= Under and enactment:^
= ANU v Burns p343.
the power to dismiss was under the contract not the university
act.
can be both depending on inheritance
rights to review are additional to contractual rights etc
= a decision s5, conduct for the purpose of making a decision s6
Australian Broadcasting Tribunal v Bond p 349
= a decision which the statute requires or authorises
= not simply steps in determination it has finality
= acts done preparatory to the decision are not decisions
if essentially preliminary - ok
= substantive determination - you can or cant do X
finding of fact as a reviewable decision
= if statute requires or authorises the particular finding
= ordinarily findings and inferences no- merely steps
in determination
Aust Broadcasting Tribunal v Bond
Conduct (ABT v Bond)
= the way in which the proceedings were conducted
mainly procedural and not substantive in
character
= the process of decision making was
flawed
= inquiries preceding the making of the decision
an error of law in proceeding conduct precludes an
error of law in the decision itself
Chan Yee Kin v Minister for Immigration & Ethnic
Affairs
= or failure to perform a statutory duty s7
Decisions by the GG are not reviewable (AG (NT) v Minister for Aboriginal Affairs
)
nor decisions listed in schedule 1.
REMEDIES UNDER JUDICIAL REVIEW
= Common Law prerogative writs + equitable remedies
= Statutory order of review under ADJR
= Constitutional constitutional writs
PRIVATIVE CLAUSES
= s474 Migration Act
= Tries to exclude judicial review of executive action
= less scrutiny
= reduced costs and delays
= political aims and issues
= tribunal expertise
= generally refused to apply to errors which are jurisdictional
Plaintiff S157
= s 75 Constitution allows the HC to hear matters against officers of the
commonwealth
original jurisdiction
entrenched in the constitution and cant be overruled by govt.
INSTITUTIONAL DISTRUST
= subject to the rule of law.
= even the government is subject to the judiciary
= legal reasonableness v merits v fine line
NON-JUSTICIABILITY V RARE
= ousting p359
= too political
= courts ill equipped
= polycentric v high policy content
dissolving parliament
treaty making
declarations of war
= CCSU Case
= Decisions made under the prerogative are justiciable
= with exceptions based on subject matter
- too political
- war
- treaties
- national security
= Church Scientology Inc v Woodward
= lack of evidence doesnt make it non-justiciable
= judicial review of ASIO stuff despite evidentiary problems
= Kakadu World Heritage Listing
- too political
abos, mining .
= Re Ditford; Ex parte Deputy Commissioner of Taxation (NSW)
if excess is in relation to s61 of Constitution okay
not if merely just politically deficient or failing in conduct
= Peko-Wallsend even if you have standing matter must be justiciable
= Spy Catcher Case
how to correctly catch a spy
(1) pretend your dead
(2) that you fell on your head
(3) wait like bait and
(4) then raise your eyebrows one at a time
PUBLIC / PRIVATE DISTINCTION
= Datafin case - assignment
TIME EXTENSIONS
= Hunter Valley Developments v Cohen p 382
Must seek review within 28 days Lucic v Nolan
show an acceptable explanation for the delay and that it is fair and
equitable in the circumstances to extend the time Duff, Chapman v
Reilly
= what actions have they taken in the mean time have they rested on
their rights?
=did the defendant suffer prejudice in the delay?
GROUNDS FOR JUDICIAL REVIEW
CONSIDERATIONS
- ADJR s 5(1)e + 2(a)&(b)
RELEVANT CONSIDERATIONS
= something you are bound to do Sean Investments, Peko Wallsend
= matter of statutory interpretation
= expressly exhaustive or inclusive
= implication from subject matter, scope and purpose of Act
=decision is only set aside if failure to consider materially
affected decision
= sufficient weight given to relevant considerations is irrelevant
= may be of issue in unreasonableness
= applies to Minister but broad policy considerations may be relevant to
Ministerial discretion
IRRELEVANT CONSIDERATIONS
Consideration of Irrelevant matter
+ ADJR - 5(2)(a) - taking an irrelevant consideration into account in the exercise of a
power
- Must be expressly forbidden
- otherwise can still go to merits review Roberts v Hopwood
= Roberts v Hopwood - old school case about wages and cost of living
taking into consideration
Orthodox or thin view E
= Mason J in peko wallsend
= tick a box
= must simply deal with it
Khan E
= Gummow J
= proper, genuine & realistic consideration
UNREASONABLENESS
= ADJR s5(1)e + s5(2)g
= Eshetu group assignment
- Irrationality
= Bond decision can be valid not withstanding a flawed
reasoning process
see also Austral Fisheries/Bienke/Fuduche
- Discrimination rare
= Parramtta CC v Pestell inconsistent levy
= NSW Aboriginal LC v ATSIC-80% of funds for NT was held
discriminatory
= Sunshine Coast v Duncan guidelines not consistently applied
note under ground of abuse of power and breach of
s5(2)(j).
Treating people differently doesnt constitute discrimination if
they are differently situated Bristol-Meyers Squibb v Minister
for Health
- Disproportionality
= you must not use a steam hammer to crack a nut if a nut
cracker would do Lord Diplock at 584.
=means must be appropriate and necessary to obtain authorised
objective
= NSW v Macquarie Bank, SA v Tanner.
Bruce v Cole NSW CA doubted existence of independent
proportionality ground in respect of judicial review of
administrative action.
- Duty to Inquire
- see group assignment class 18.
NO EVIDENCE
Common Law Position
Fact finding is role of the decision maker
= Orthodox View
- If no evidence at all (0, zilch)
- Bond Mason
= Broader View ( not widely accepted )
- Insufficient evidence
- evidence must have some probative value
- not just a suspicion or speculation p 572
-Pochi Dean J - requirement stems from procedural fairness
Statutory Requirements
= s5(1)(h) + s5(3)(a)-(b) ADJR
Rajamanikkam:
= HELD: decision must be based on facts which do not exist
if 2 out of 8 are incorrect, decision is still okay.
FACTUAL ERROR OUTCOMES
Could equal
= error of law (Bond no evidence at all for factual
finding)
= inference not reasonably open on facts
= decision capricious Szelagowicz
= improper exercise of power s5(1)f & e
= common law stuff
Not an error of law is merely a wrong finding of fact
Waterford
OR unsound reasoning in reaching factual
conclusions
OR illogical inference of fact is not error of law
-Bond
= no evidence see above
= breach of consideration grounds
= Pashmforoosh
= finding of fact constitutes a decision reviewable
Taking into account facts found unreasonably or failing to take
into account facts a reasonable decision
maker would
= breach of procedural fairness
= decisions must be based on probative and
relevant material
= not mere speculation or suspicion
EXCEEDING POWERS - MINISTER (ULTRA VIRES) AAT (JURISDICTIONAL
ERROR)
ADJR ss 5/6(1)(e)
(1) Person aggrieved by a decision to which this Act applies may apply
in respect of any one or more of the following grounds:
(e) that the making of the decision was an improper exercise of the power
conferred by the enactment
ADJR Act s 5(2)
The reference in para (1)(e) to an improper exercise of a power inc:
(e) an exercise of a personal discretionary power at the direction or behest
of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy
without regard to the merits of the particular case;
Higher seniority of decision maker allows greater discretion
Allows expanded bureaucratic discretion to overcome uncertain choices
+ Re Drake and Minister for Immigration and Ethnic Affairs
The application of a stated policy ensures consistency and fairness [SG 151]
A policy must be lawful
Repository of discretion must
Exercise discretion, and
NOT fetter discretion by being dominated by
policy
= Statutory Interpretation
AIA 1901 (Cth) (Acts Interpretation Act)
15AA = a construction which would promote the underlying
purpose of the act is preferred
15AB = extrinsic materials can be used to find the meaning of
a provision
= Incidental power must complement not supplement the
primary power
= London County Council v AG trams != buses
must be necessary to fulfil the primary purpose
economics or convenience not good enough
= Kent v Johnson(CB 8.3.23C)
= Regulation doesnt allow prohibition Foley v Padle (CB 8.4.16)y,
Melb Corp v Barry
= Intentions to remove rights and freedoms must be unmistakeably
expressed in legislature
= Plaintiff S157 v Commonwealth
=Coco v R
= tap telephones necessitated trespass to install devices
BUT rights curtailed by trespass and specific legislative
purpose not expressed.
= Interpreted to minimise discrepancy between international and
domestic law
= Gleeson - = Plaintiff S157 v Commonwealth
Authorisation of a tax or penalty is needed to be clear and concise
= AG v Wilts United Dairies
= Legislation to control supply of food does not authorise
the levy of the payment of any money.
JURISDICTIONAL ERROR
+ Decisions arent decisions at all because they didnt have the power to make them
decisions are void and referred to as nullities
errors jurisdictional in nature or ultra vires
Certiorari is available for error of law on face of record
Equitable remedies injunction, declaration
available on any error of law jurisdictional or non jurisdiction
+ Non- jurisdictional error
error made in conduct of lawful jurisdiction
still valid unless on face of record
Craig inferior court errors presumed non-jurisdictional - DC- & Local Crt
Tribunals presumed jurisdictional errors
NB: largely pointless distinction
= ADJR all errors are reviewable s5, 6, 7 no distinction s5(1)(f)
ERROR OF LAW ON THE FACE OF RECORD Certiorari
Error of Law
= Distinction between error of law and error of fact.
FACT primary facts, material, judicial notice and knowledge of Decision
Maker
LAW Application of legal terms and standards to facts as found
= No universal test for distinguishing Agfa-Gavaert
ADOPTED Pozzalanic (1993)
= Ordinary or technical meaning of words = LAW
= Ordinary meaning or non technical meaning = FACT
= Meaning of technical legal term = LAW
= Construction of a term whose meaning is established (effect of
word) = LAW
= Whether facts fall within statute = LAW
BUT
When statute uses words according to ordinary meaning and
reasonably open on facts fall within words = FACT
= Whether a phrase is composite ie FACT or LAW it is LAW.
= all that is needed is that it be used differently to
ordinary speech
Record
= initiating documents, pleadings, formal order no transcripts,
exhibits, reasons
= Craig, s69 NSW Supreme Crt Act.
JURISDICTIONAL FACTS:
= courts will intervene
= Facts which are preconditions for the exercise of power
OR
= facts which in truth must exist before a decision maker can
validly act
= Approval of Minister requirement not jurisdictional error but
procedural
= ABC v Redmore p469
= No confinement of power merely procedural
= Project Blue Sky v Australian Broadcasting Authority
= An act done in breach of a condition regulating the exercise of a statutory
power is not necessarily invalid and of no effect. Whether it is depends on
whether there can be discerned a legislative purpose to invalidate any act that
fails to comply with the condition.
= look at language of statute
= subject matter and objects
= consequences for parties of holding void every act done in breach
Directory conditions procedural
Mandatory conditions jurisdictional error
= pointless classification
Errors in determination of jurisdictional facts are judicially reviewable on
evidence before it.
= Parisienne Basket Shoes v Whyte:
= Legislature can make jurisdiction contingent on
(1) actual existence of state of facts
(2) on decision makers opinion that facts exist
= DONT INFER (1) unless clearly expressed. Usually (2)
= Corporation of the City of Enfield v DAC assignment
DELEGATION
= Who can exercise a power?
Expressed Statutory repository
+
Delegate
+
Authorised Agents / Carltona Doctrine / alter ego theory
= OReilly
NOT IN READINGS
GJ Coles & Co v Retail Trade Industrial Tribunal p474
An Officer de facto is one who has the reputation of being the officer he
assumes to be, and yet is not a good officer in point of law.
It is not the act which declares the award invalid but the common law doctrine
that an act dependant on a mandatory condition is void if the condition is not
fulfilled. However the doctrine of de facto officer, when applicable prevents the
nullification of such an act.
Alter Ego Rule Carltona Doctrine
= The decision of an official of a minister is the decision of the minister
= Administrative Functions only OReilly v State Bank of Vic Commissioners
= also Metro Borough and Town Clerk of Lewisham v
Roberts
= legislative functions cant be entrusted to a subordinate.
= Was the action on behalf of X or was it Y using the powers of X.
DICTATION
= degree of outside influence Acting at the behest of outside bodies
= R v Anderson; Ex parte Ipec-Air Pty Ltd p 495
= acting other than in due exercise of discretion
= to hold valid a decision given at a political level instead of at the
permanent administrative level would be to contradict the
Regulations
=Anzett Transport Industries(Operations) v Commonwealth
= giving weight to government policy is not dictation.
SELF FETTERING APPLYING POLICY INFLEXIBLY
= ADJR s5(2)(f)
in exercise of discretionary power in accordance with a rule or policy
without regards to merits of particular case
=Green v Daniels Dole and school holidays case
= Drake
= policy must always be lawful
= Guidance is permissible and desirable
= Policy must never be so inflexible that decision maker refuses to
listen to an argument for exemption Khan v Minister for
Immigration
= Decision maker must give proper, genuine and realistic consideration
to merits of case and be ready in a proper case to depart
from any applicable policy Khan v Minister for Immigration
BAD FAITH AND IMPROPER PURPOSE
ADJR s 5(1)
Discretionary power must be exercised to achieve legislative purpose;
otherwise decision is ultra vires
explicit or implied purpose
purpose cant be private or illegitimate public purpose
levels of influence on decision maker if removed
Motivating Purpose test; Only the power which has been
conferred for that purpose can be used
Thompson v Randwick Council
Doesnt matter if ulterior purpose was to raise money for
legitimate purpose.
R v Toohey (Aboriginal Land Commissioner); Ex parte Northern
Land Council [9.2.12C]
Land zoning changed to prevent future aboriginal land
title claims not legitimate.
Schlieske v minister for immigration and ethnic affairs
[9.2.18C]
Improper purpose to use the migration at for extradition
it is not the purpose of the Migration Act to aid foreign
powers to bring fugitives to justice
Samrein v MWSD Board [9.2.17c]
but for test would the decision maker have reached
the same decision but for the irrelevant
consideration
= Mixed Purposes and Collective Decisions
= IW v City of Perth
Gummow J fatally flawed if one person
Toohey J But for
UNAUTHORISED DECISION MAKING
Governments require legal authority for action they undertake known as the principle
of legality
ADJR ACT (8.2.1)
5 Applications for review of decisions
(1)(b) that procedures that were required by law to be observed in connection with
the making of the decision were not observed;
(1)(c) that the person who purported to make the decision did not have jurisdiction to
make the decision;
(1) (d) that the decision was not authorized by the enactment in pursuance of which it
was purported to be made;
(1)(e) that the making of the decision was an improper exercise of the power
conferred by the enactment
(1)(f) that the decision involved an error of law, whether or not the error appears on
the record of the decision;
SOURCE OF EXECUTIVE POWER
Government is a legal person
It may sue or be sued, employ staff, conduct an enquiry, own and rent
property etc etc.
Known as prerogative power allows governments to enter treaties , declare war etc
not statutory
there are 3 constraints -Clough(1904) (CB 8.2.19)
1. It can be overridden by, and cannot be exercised inconsistently with statute
2. Executive power cannot justify a government act that would be actionable at
common law
3. executive power will not authorise action that is coercive, punitive, intrusive or
threatening see CB for case references
VARDALIS (2001)
Controversial (Tampa case)
Differing judgments
French J
o Extended Clough
o Coercive approach was legitimate under prerogative powers
o So executive could determine who could enter Australia
o Subsequent legislative change to support judgment
Contrast with Black CJ
o Stressed that such power needed to rely on statute but no statute here to
prevent arrival of unlawful citizens at peacetime
JARRATT (2005)
Involved traditional common law rule that executive could dismiss its servants
at its pleasure
Found no longer applicable under modern administrative law
Unlike Vardalis, the Court did not rely on old prerogative mechanisms
THE PRESUMPTION OF REGULARITY
omnia praesumuntur rite et solemniter esse acta all acts are presumed to have been
done rightly and regularly also known as the indoor management rule Royal British
Bank v Turquand (1856) (8.2.25
Rebuttable
onus falls in the party wishing to dispute the validity of an action or decision
Cubillo v Commonwealth (2000)
STATUTORY CONSTRUCTION AND PUBLIC LAW
Four Criteria
1. Common law and Statutory rules
2. Principles derived from legal policy
3. presumptions based in the nature of legislation
4. general linguistic canons applicable to any piece of prose
Literal approach or Purposive approach (CB 8.3.3)
refer Act Interp Act 15AA(1)
IS THE CROWN SUBJECT TO STATUTORY LAW
Basic presumption before Bropho and supported by Province of Bombay v Municipal
Corporation of Bombay was a presumption that the Crown was not bound by a statute
that affected it adversely. The crown being Gov. or GG and in some cases extending to
statutory bodies doing government business
Bropho v Western Australia (1990)
Section 17 of the Aboriginal Heritage Act 1972 of Western
Australia prohibited the destruction or damage of aboriginal
sites except with the consent of the responsible State
Minister. The Act did not expressly say whether it bound the
Crown, although the Act provided that it applied to "all
places" in Western Australia.
A stringent and rigid test for determining whether the general words of a
statute
bind the Crown is unacceptable at 218
for statutes passed after the judgement, the court will look at the whole
circumstance to see if the crown should be bound at 218
Minister if Immigration v Teoh (1995)
The HC held that when the executive ratified a covenant, at least when
concerned with, human rights, it was declaring to the outside world and the
Australian community that it was bound by the covenant.
the HC held that a decision maker was required to give some regard in its
decision making process
BUT there was criticism
the government introduced a bill Administrative Decisions (Effect of
International Instruments) Bill 1999 to override this
domestic legislation is presumed not to violate rules of international law
REGULATIONS - S 48 ACTS INTERPRETATION ACT
A regulation is a regulation if it is stated as a regulation s48
Was it published in the right gazette? ie NSW regulation in NSW gazette
If copies not available Statutory Rules Publication Act 1903 s 5(3)
reg doesnt take effect till they are made available
NOT void abanitio
= Internet as a place( see below)
PUBLISHING REQUIREMENTS - GOLDEN BROWN V HUNT
= Regulations are made when signed by GG.
= not operative till notice given
= operative when notice given or at a subsequent date
= Watson v Lees
= anterior dates must be expressly and intractably specified by
parliament
= becomes invalid if not tabled.
= Has ordinance been made with reasonable clarity
= s48(1)(c) Cth, s40(1) NSW tabled in both houses within 15 sitting
days.
= after which ceases effect if Cth s 48(3) Cth.
= NSW survive lack of tabling
= Thorpe v Minister of Aboriginal Affairs
= election rules valid within the 15 days
= Cth Parliament Research and Development Tax Concession
Scheme
2 years of laws and decisions invalid retrospectively
amended
= A disallowance motion can be laid within another 15 of tabling.
s48(4) Cth, s41(1) NSW
= if passed the legislation ceases to have effect
= or if not disposed of within 15 days also ceases effect
(Cth) s48(5)
if not then becomes void but is valid until.
ie void abinitio.
= Clearly and inexplicably state a place where it can be obtained
s12(2A)
= though the mail is not a place - Golden-Brown v Hunt
= is the internet a place? possibly address location
= stipulate addresses not just name of shop. GB v Hunt
= must be extremely clear and precise
making of ordinance(s) not suffice p 302
GB v Hunt
= Copies must be available and in stock on that day p 305
= presumption of regularity
= onus on the person to prove they were not available
Watson v Lees
if not it is inoperative not invalid
- Watson v Lee
- inoperative till notification s48 AIA
NSW must state the whole rule
Commonwealth - just state title and where copies can be obtained
ULTRA VIRES
= Outside scope of the act
1. Identify scope of parent legislation
2. Identify scope of subordinate law
3. Does (2) fit within (1). McEldowney v Forde
necessary or convenient to achieve the purpose of the act.
= the delegated legislation must be ancillary and incidental
= not widen the purposes of the act OR
= add a new or different means of carrying it out
= Shanahan v Scott
regulate or prohibit
= Paull v Munday p 440
emissions not source ie means not end result controlled
= Foley v Padley when a power to make by-laws is
conditioned upon the existence of an opinion, it is the existence
of the opinion and not its correctness which satisfies the
condition
opinion must be held, and must be reasonable.
= Melbourne Corp v Barry
= regulate doesnt include a power to prohibit
means v ends
= Where a power to make a subordinate law for a purpose, HC
adopts a proportionality approach
= South Australia v Tanner
Lawlor AAT can hear appeals from an ultra vires decision
Scrutiny Committees = Senate Standing Committee on Regs and
Ordinances (Cth)
= Regulation Review Committee (NSW)
= does it accord with statute
= trespass unduly on personal rights/liberties
= unduly make rights dependant on non
reviewable decisions
=contain matter more appropriate for primary
legislation
GUIDELINES
- Disallowable instruments s46(a) AIA
Does the power exist to publish guidelines ie delegated power?
- Dignans case.
Common Law duty to publish
Watson v Lee Mason J
ADMINISTRATIVE APPEALS TRIBUNAL (AAT) MERITS REVIEW
OBJECTIVES OF THE AAT
To ensure a review is fair, just, economical, informal and quick (AAT 2A)
33 (b)That proceedings are conducted with as little formality and technicality, and
with as much expedition (c) is not bound by rules of evidence but may inform itself on
any matter in such manner as it thinks appropriate.
The AAT has no general power to award cost, but there are limited exceptions s69B
The AAT does not exercise C/wealth judicial power, it exercise administrative or
executive power Drake v Minister for Immigration and Ethnic Affairs
STEP 1 JURISDICTION OF AAT
s 25 Any federal enactment decision can be reviewed by the AAT
Jurisdiction is strict
Provisions are construed strictly and if anything is required to be done prior to
attempting AAT review it must be done
Re Reynolds and the Defence Force Retirement and Death Benefits Authority
(2000)
o Required mediation before seeking ATT review in statute, plaintiff had
not sort mediation, therefore AAT refused application
Re Carey and Collector of Customs
o Where a provision is regarded as mandatory, it must be fulfilled prior to
a AAT hearing. the AAT will decline jurisdiction if it has not been fulfilled-
tick boxes on forms
1) Enactment
a) s3(1) - = Cth Act of Parl or instrument thereunder or Ordinance of External
territory (not ACT/NT)
2) Decision
a) What is a decision?
i) s3(3) includes
o Making or refusing to give an order
o giving or refusing to give a licence, consent etc
o retaining an article (FOI)
o Doing or refusing to do any act or thing
STANDING
= s27 (1) AAT Act interests affected by a decision
(2) organisation is affected if decision relates to matter in objects or
purposes.
= Application made within 28 days s29
MERITS REVIEW
= was the decision of the administrator correct or preferable?
= whole decision is looked at again fresh look at facts, law, policy
ARC Better Decision Report
Also Kerr report 1971
= improve quality and consistency of agency decisions
= provide assessable and responsive review mechanisms
= enhance openness and accountability of government
= Not bound by rules of evidence s 33(1)(c)
= little formality and technicality s33(1) (b)
= Application of procedural fairness ambush evidence
= APC v Hayes, Prica, Bessey
= Appeal to FC on question of law s44(1). note this isnt judicial review.
POWER AND DISCRETION OF ORIGINAL DECISION MAKER S43(1)
= Remake the decision
= Exercise same powers and discretions conferred on the primary decision
maker
= Brian Lawlor the AAT can still hear an appeal from a decision which was
ultra vires.
= if it was purported to be intra vires.
EVIDENCE AND LAW BEFORE IT.
= can look at fresh evidence, apply the current law (if changed), re-looks at
everything
= Drake v Minister for Immigration and Ethnic Affairs
Esber v Commonwealth
= conditional right under old law, satisfied conditions after law repealed
yet on appeal they used old law
Note strong dissent by Brennan J.
distinguished accrued rights and a granting of a current right.
POLICY CONSIDERATIONS
= Drake and Minister for Immigration and Ethnic Affairs (No. 2)
= Following policy fosters consistency
at cost of individualised justice
= accountability
= Policy must be consistent with the statute and allow ministers to take
into account relevant considerations and not force irrelevant
consideration
= There is no statutory duty for the minister or tribunal to follow policy
= there is Common Law obligation (Drake)
esp. if approved by parliament
can only follow lawful policy!

practice of applying lawful ministerial policy, unless there are cogent reasons
to the contrary. ie If it were shown that the application of ministerial policy
would work an injustice in a particular case
s12 injustice = balance between detriment suffered by those effected
and the benefit which might reasonably be expected to result
to the community at large or to particular individuals in the
community
all from Drake
DELEGATED LEGISLATION
1. Is it labelled as a regulation? s48 AIA Act 1901
=legislation made by an administrator under a power conferred to them under statute
= Dignan's Case (Victorian Stevedoring and General Contracting Co ply LId and Meakes v Dignan
(1931) 46CLR73
= delegates non potest delegare: the delegate must not delegate.
= Separation of Powers: Legislative power only to be exercised by the
legislature
= s 3 of the Transport Workers Act 1928 (Cth)
=Government would be impossible without delegation of law making
power
= 'The further removed the law-making authority is from continuous contact
with parliament' -ss51 & 52 per Evatt J.
= 'The greater the extent of law-making power conferred the less likely it is
that the enactment will be law w respect to any subject matter assigned to the
Corn Parliament.
Exceptions in times of war or national emergency or under
circumstances where essential to retain in some authority a continuous power
of alteration or amendment of regulations.
Separation of powers executives ability to make laws p 339
prerogatives
CHECKS ON POWER
=Senate Standing Committee
-checks from inappropriate provisions by reference to specified criteria initially
as Scrutiny of Bills secondly on Regulations and Ordinances
= Requirement of explanatory statement involving Ministers and other
department offices
=Tabling and Disallowances rules and publication rules
= Subordinate legislation will only be valid to the extent to which it is
authorized by governing statute
-thus limits usually made by construing empowering statutes.
The power to regulate and activity is not the same as the power to prohibit
= Foley v Padley, Paul v Munday