Lecture 1 - Administrative and Judicial Review

R v Toohey ex parte Northern Land Council (1981)

Facts
The Northern Lands Council made a native title claim in the Northern Territory on behalf
of an Aboriginal group. Several months after the claim was made, the town planning
regulations were changed so that the area subject to the native title claim was considered
a town (and thus ineligible for native hold). The Commissioner held that the land was
now no longer available to be claimed.
Legal Issues
Were the Governor-General and State Governors immune from judicial review?
Can improper purpose be attributed to the head of states use of discretionary powers?
Ruling
The Governor-General and the State Governors used to be considered immune from
common law judicial review. Improper purpose can now be attributed to the head of
state in the exercise of statutory powers, despite the makers vice-regal status.
Prerogative powers are reviewable to the extent that the issues are justiciable.
The fact that a power is exercised by a Minister or by the Executive Council is not in itself
sufficient to preclude judicial review.
Mason J: The modern view, now received doctrine, is that the classification of powers is
not a sound criterion for the operation of precise rules of law.
The statutory discretion is in so many instances readily susceptible to judicial review for
a variety of reasons. Its exercise very often affects the right of the citizen; there may be a
duty to exercise the discretion one way or another; the discretion may be precisely
limited in scope; it may be conferred for a specific or an ascertainable purpose; and it will
be exercisable by reference to criteria or considerations express or implied. [219]
There is, as the commentators have noted, a contrast between the readiness of the
courts to review a statutory discretion and their reluctance to review the prerogative. The
difference in approach is none the less soundly based. The statutory discretion is in so
many instances readily susceptible to judicial review for a variety of reasons. Its exercise
very often affects the right of the citizen; there may be a duty to exercise the discretion
one way or another; the discretion may be precisely limited in scope; it may be conferred
for a specific or an ascertainable purpose; and it will be exercisable by reference to
criteria or considerations express or implied. The prerogative powers lack some or all of
these characteristics. Moreover, they are in some instances by reason of their very nature
not susceptible of judicial review.

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Council of Civil Service Unions v Minister for Civil Service (1985)

Facts
The British Government under Margaret Thatcher made a policy that employees of the
Government Communications Headquarters (GCHQ) could not join any trade unions for
national security reasons. It was enforced as an exercise of the Royal Prerogative.
There was a great deal of publicity from the trade unions, but the Government would not
change the policy. The Government offered affected employees either: 1000 and
membership of a staff association, or dismissal.
The Council of Civil Service Unions sought judicial review of the decision. After several
appeals, the matter went before the House of Lords.
Legal Issues
Are executive prerogative powers subject to judicial review?
Ruling
The court further asserted its jurisdiction to a person exercising purely prerogative power.
So, the Royal Prerogative is generally subject to judicial review, similar statutory actions,
with exceptions for matters like national security.
The House of Lords held that the action was justified on the national security grounds.
The Court accepted the proposition that the controlling factor in considering whether a
particular exercise of prerogative power was subject to review was not its source but its
subject matter. Their Lordships distinguished between high policy (making war, dissolving
Parliament etc) and administrative decisions like refusing or granting a passport.
The decision was a significant break from the previous law, highlighting that judicial
review is dependent on the nature of the executive powers, not their source.
Lord Roskill: The right of the executive to do a lawful act affecting the rights of the
citizen, whether adversely or beneficially, is founded upon the giving to the executive of a
power enabling it to do that act. The giving of such a power usually carries with it legal
sanctions to enable that power if necessary to be enforced by the courts. In most cases
that power is derived from statute though in some cases, as indeed in the present case, it
may still be derived from the prerogative If the executive instead of acting under a
statutory power acts under a prerogative power and in particular a prerogative power
delegated to the respondent under article 4 of the Order in Council of 1982, so as to
affect the rights of the citizen, I am unable to see, subject to what I shall say later, that
there is any logical reason why the fact that the source of the power is the prerogative
and not statute should today deprive the citizen of that right of challenge to the manner
of its exercise which he would possess were the source of the power statutory.

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Minister Aboriginal Affairs v Peko-Wallsend (1986)

Facts
An area that was the subject of an Aboriginal native title claim, was also where mining
exploration was being performed by Peko-Wallsend. They had found uranium deposits
valued at $280m.
Peko-Wallsend submitted to the Commissioner that the report regarding the native title
claim understated the potential detriment to the companys mining interests. They
argued that the Minister had not taken the mining interests into account when deciding
to endorse the Commissioners recommendation that the land be granted.
Legal Issues
Is there an ongoing obligation to consider relevant matters?
Ruling
The High Court held that the Minister was bound to take the representations of the
mining company into account and had failed to consider a relevant matter.
Failure to take into account a relevant consideration can only be made out if decisionmaker fails to take account of a consideration which he is bound to take account of in
making the decision.
The Court accepted that it would be unreasonable to expect the Minister to read all the
relevant papers relating to the matter personally, but that if he relied on a summary
which was incorrect or does not draw attention to material facts, then the Minister will
have failed to take that material fact into account.
If the discretion is unconfined by the terms of the statute, the court will not find that the
decision-maker is bound to take account of a particular matter unless it is implied in the
subject matter, scope and purpose of the Act.
Ignorance of the facts does not protect a decision.
Mason J: there may be found in the subject-matter, scope and purpose of nearly every
statute conferring power to make an administrative decision an implication that the
decision is to be made on the basis of the most current material available to the decisionmaker.
Brennan J: A decision-maker who is bound to have regard to a particular matter is not
bound to bring to mind all the minutiae within his knowledge relating to the matter. The
facts to be brought to mind are the salient facts which give shape and substance to the
matter: the facts of such importance that, if they are not considered, it could not be said
that the matter has been properly considered.

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Minister for Arts, Heritage and Environment v Peko-Wallsend (1987)

Facts
Cabinet decided to nominate Kakadu for inclusion on the World Heritage List. PekoWallsend had no existing mining interests in the area, but the decision negatively
impacted future opportunities.
Peko-Wallsend challenged the validity of decision. In the Federal Court, it was held that
the decisions of Cabinet were non-justiciable. It was also found that there was adequate
opportunity to present their decision and had not been denied natural justice.
Legal Issues
Are Cabinet decisions justiciable or are they immune from review?
Was the decision a wholly unreasonable one?
Are their decision subject to the principle of natural justice? Had Peko-Wallsend Ltd been
afforded a fair hearing?
Ruling
The Federal Court of Australia found that the decision to nominate was made under the
prerogative and that such decisions may, in some circumstances, be open to judicial
review.
It was not an exercise of any statutory power, but was exercise of a prerogrative power.
The Cabinet is not specifically referred to in the Constitution, so it can be said that
sanctions which bind it to act are political ones, so it would be innappropriate for the
court to consider what Cabinet does. All members of the Court agreed that the
respondents had been given adequate opportunity to put their case, through their
various communications with the individual Ministers.
Wilcox J took the view that the decision was not justiciable, as it had not deprived or
altered any mining rights of Peko-Wallsend. The mining company had no legitimate
expectation of natural justice, as the decision had no effect on current mining interests,
only on potential, future ones.
Wilcox J: It is not enough that the subject decision might create a climate conducise to a
subsequent decision adverse to the interests or expectations of some person.
Bowen CJ: [The decision] involved complex policy questions relating to the environment,
the rights of Aboriginals, mining and the impact on Australia's economic position of
allowing or not allowing mining as well as matters affecting private interests such as
those of the respondents.
The appeal was allowed.

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Shi v Migration Agents Reg. Authority (2008)

Facts
The Migration Agents Reg. Authority (MARA) cancelled Shis registration and repeatedly
refused to renew it, finding him to not be a fit and proper person to give immigration
assistance. The decisions were stayed, so Shi was able to continue as a migration agent,
under supervision. MARA had found 98 breaches of the Code of Conduct under the
Migration Act.
Shi applied to the AAT for review of the cancellation decision. The AAT only found 51
breaches to be established, and was not satisfied that the Shi was not a fit and proper
person, setting aside a cancellation decision and replacing it with a caution. In doing so,
they took account of new evidence of Shis conduct.
MARA appealed to the Federal Court of Australia on the grounds that the AAT could not
take into account new evidence and won, then Shi appealed to the High Court.
Legal Issues
Did the AAT make an error of law by asking whether, at the time the AAT made its
decision in September 2005, Shi was shown not to be a person of integrity or was not a fit
and proper person to give immigration assistance?
In other words, can the AAT take into account new evidence that was not before the
original decision-maker?
Ruling
The High Court held that the AAT is not restricted to considering evidence of the facts and
circumstances as they existed at the time of MARAs decision, but were entitled to take
account of fresh evidence.
The AAT was empowered to exercise all the powers and discretions conferred on MARA
by the Migration Act. The nature of the tribunal gives the AAT the power to make
decisions on the merits: it extends beyond a review of legal error and the reasons for the
decision, it makes the most correct and preferable decision.
It is for the AAT to reach its own decision based on new, additional or different material,
given that it is a de novo hearing. It is a feature of good public administration to have
regard to the most current information available.
It was also held that the AAT was entitled to impose the conditions it did when cautioning
Mr Shi and to lift the caution.

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Drake v Minister for Immigration and Ethnic Affairs (1979)

Facts
The case was an appeal from an AAT decision, affirming the deportation of a US citizen,
Mr Drake, who had been convicted of drug-related offences. The Minister for
Immigration and Ethnic Affairs made an order to deport Drake under s 12 of the
Migration Act 1958 (Cth).
Legal Issues
Should the Tribunal decide on the facts before it or before the primary decision-maker at
the time?
Can Tribunals consider government policy in making decisions?
Ruling
The Tribunal must consider the facts that have been brought before it, including any new
evidence or items that were not considered.
The propriety of applying policy should be assessed in each case. Brennan J argued that
the Tribunal should only consider policy that has been lawfully applied and only depart
from policy cautiously and sparingly when there is a good reason for doing so.
Bowen CJ and Deane J: Many tribunals whose functions are purely administrative are
under a duty to act judicially, that is to say, with judicial detachment and fairness.
The question for the determination of the Tribunal is not whether the decision which the
decision-maker made was the correct or preferable one on the material before him. The
question for determination of the Tribunal is whether that decision was the correct or
preferable one on the material before the Tribunal.
Ordinarily, however, an administrative officer charged with the exercise of discretionary
power will be entitled, in the absence of specifically defined criteria or considerations, to
take into account government policy The Minister was entitled to be guided by any
general relevant government policy which was not inconsistent with the provisions or the
objects of the Migration Act.
In a matter such as the present where it was permissible for the decision-maker to take
relevant government policy into account in making his decision, but where the Tribunal is
not under a statutory duty to regard itself as being bound by that policy, the Tribunal is
entitled to treat such government policy as a relevant factor in the determination of an
application for review of that decision.

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South Australia v OShea (1987)

Facts
A parole board recommended that a sex offender be released from prison. They did not
have the power to make the decision, they could only make recommendation to Cabinet.
The parole board had conducted a hearing involving legal, mental and criminological
experts. The Cabinet chose not to follow the recommendations of the parole board.
OShea challenged the Cabinets decision in High Court, arguing that he should have been
given the opportunity to respond to Cabinets concerns.
Legal Issues
Was Cabinet obliged to adopt the decision of the parole board?
Were the rules of procedures fairness breached by not allowing OShea a rehearing?
Ruling
It was held that the Cabinet is a political organ and had weighed up the decision. OShea
had been heard once and did not enjoy a reasonable expectation of a rehearing.
The political nature of the Cabinet and Governor was a relevant factor.
Cabinet was charged with weighing up the considerations which extended beyond just
the recommendations of the parole board.
Where a decision-maker is a high-level official, such as the Governor or a Minister, a
hearing process may be delegated to a responsible Minister or appropriate departmental
officer.
If a decision-making process has multiple stages, procedural fairness will be satisfied if,
when viewed as a whole, the process may be characterised as fair. The Governor in
Council is amenable to judicial review, and vesting of a statutory decision-making power
in the Governor is not in and of itself sufficient to exclude an obligation to proceed fairly,
nor is it sufficient to exclude conditions or limitations on the scope and exercise of the
power of a kind that would exist were the power to be exercised by a Minister.

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Re Sullivan & Department of Transport (1978)

Facts
Sullivan was an experienced army pilot. He suffered from a psychotic illness and the
doctors (on the basis of partially incorrect information) reported that he should not fly
aircraft. He was later refused a licence to fly by the Commonwealth Department of
Transport on the grounds of the severe psychotic event which he failed to disclose on an
appropriate form.
Representing himself, Sullivan took the matter before the AAT. Sullivan asked for
evidence from a Dr Evans, but the doctor had not been summonsed and Sullivan did not
request an adjournment. The Tribunal found that the appellant had failed to meet the
medical standards required and affirmed the Departments decision not to renew his
licences. The Tribunal made only brief reference to the question of a conditional licence.
Legal Issues
Was there a breach of procedural fairness by failing to call upon the doctor for evidence?
Did the Tribunal fail to consider a relevant circumstance (option of a conditional licence)?
Ruling
The Court set aside the decision of the Tribunal on the grounds that it had either failed to
take account of a relevant circumstance or had failed to provide procedural fairness by
giving the applicant an opportunity to call evidence from a particular doctor.
It was held that the doctors evidence would have been important to the reasonable
presentation of the case, particularly on the questions of the conditional licence. The
Tribunal had failed to give adequate analysis to the relevant evidence and material
factors on the question of a conditional licence. The proceedings miscarried by failing to
deal with a matter which arose for determination and which it purported to determine.
Deane J: Circumstances may, of course, arise in which a statutory tribunal, in the proper
performance of its functions, will be obliged to raise issues which the parties do not wish
to dispute and to interfere, either by giving guidance or an adverse ruling, with the
manner in which a particular party wishes to present her case. Ordinarily, however, in the
absence of a request for assistance or guidance by a party who is appearing in person, a
tribunal under a duty to act judicially should be conscious of the fact that undue
interference in the matter in which a party conducts her case may, no matter who well
intentioned, be counter-productive and indeed, even overawe and distract a party
appearing in person to the extent that it leads to a failure to extend her an adequate
opportunity to present her case.
The Tribunal then had the rehearing, which affirmed the original Tribunal decision that he
was not fit to fly, and certainly not to be in charge of commercial airliners as he sought.

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Re Pochi & Minister for Immigration and Ethnic Affairs (1979)

Facts
Pochi was an Australian resident of 20 years with a family here, who originated from Italy.
He applied for citizenship and was approved, but was not notified and did not take his
oath of allegiance. He reapplied for citizenship a year later but did not get to the approval
stage.
Two months later, he was arrested for the supply of marijuana and was sentenced to two
year imprisonment. One year into his sentence, the Minister ordered his deportation.
Pochi appealed to the AAT for review.
Legal Issues
Were the attempts to obtain citizenship relevant to the deportation decision?
Was the criminal conviction a consideration in the deportation decision?
Ruling
It was held that attempts to obtain citizenship are relevant to the decision whether or not
to deport an individual.
The validity of a criminal conviction which enlivens the power to deport is not susceptible
of challenge before the Tribunal. However, the Minister and the Tribunal should consider
not only the conduct for which the alien was convicted, but the whole of his conduct and
circumstances. It must be shown that deportation is in the best interests of Australia.
The burden of proof of facts justifying deportation should be borne by the Minister.
Except in special cases, the decision-maker must be reasonably satisfied of the
occurrence or existence of those facts.
The Tribunal is not restricted to evidence which is legally admissible but may have regard
to any evidence which is logically probative, including circumstantial and hearsay
evidence, though it should always be mindful of the rules of evidence and their rationale.
If an applicant is not given a full opportunity to deal with confidential information adverse
to his interests, the probative force of that information must be particularly cogent if it is
to be acted upon.
The evidence in Pochis case did not warrant a positive finding that he was involved as an
entrepreneur in commerce of marijuana. Mere suspicion, even with ample grounds, is not
sufficient.
The evidence did not show that the deportation of Pochi, a husband and father of an
Australian family, would be in the best interests of Australia. The deportation order
should be revoked accordingly.

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Australian Communist Party v Commonwealth (1951)

Facts
The Communist Party was opposing WWII. After several attempts to ban the party, the
then-Prime Minister Menzies brought the Communist Party Dissolution Bill before
Parliament, which relied on the Constitutional defence power and executive power. After
much debate, the bill was passed and given Royal Assent. The Act also gave the executive
the power to dissolve other associations beyond the Communist Party.
An action was brought to challenge the validity of the Act. The case was largely about
Constitutional powers and the validity of the Act.
At that time, the grounds for challenging administrative action existing at common law
and were not yet codified.
Legal Issues
Was the Act in breach of the rule of law and separation of powers?
Ruling
Parliament could not be permitted to judge the extent of its own power that is, the
stream cannot rise above the source analogy of Fullagar J. It would be inconsistent with
the separation of powers doctrine in the Australian Constitution.
The Constitution assumes the rule of law. By attempting to define the extent of their own
power, the executive had acted inconsistently with the rule of law.
The Communist Part Dissolution Act 1950 (Cth) was invalidated, so there were no legal
grounds for the executive actions of dissolving the Communist Party and other
associations.
Fullagar J: It should be observed at this stage that nothing depends on the justice or
injustice of the law in question. If the language of an Act of Parliament is clear, its merits
and demerits are alike beside the point. It is the law, and that is all. Such a law as the
Communist Party Dissolution Act could clearly be passed by the Parliament of the United
Kingdom or of any of the Australian States. It is only because the legislative power of the
Commonwealth Parliament is limited by an instrument emanating from a superior
authority that it arises in the case of the Commonwealth Parliament.
A power to make laws with respect to lighthouses does not authorise the making of a
law with respect to anything which is, in the opinion of the law-maker, a lighthouse.

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Australian Capital Television v Commonwealth (1992)

Facts
Amendments to the Broadcasting Act 1942 (Cth) were made in 1992 which restricted
political advertising during election campaigns.
The provisions also required an allotment of free time to political advertisements. The
free time was divided between parties on the basis of their representation in Parliament,
and leaving 5% open to other parties. The intention was to limit corruption and prevent
political donors from exerting undue influence on the electorate.
The Government sought to avoid a situation whereby only the very rich can participate in
the political process.
Legal Issues
Were the amendments in breach of the system of representative government?
Ruling
The provisions were found to be invalid.
The High Court recognised the existence of an implied freedom to discuss political and
governmental matters, commonly known as the implied freedom of political
communication. Legislation that is otherwise within power may be invalid to the extent
that it contravenes the freedom. People must be able to freely discuss and criticise their
elected representatives in order to cast informed votes in elections. The freedom was
found to have been implied by the Constitution, sections: 7, 24, 30, 41, 128.
Discussion of the concepts of representative government and responsible government.
These principles are fundamental to administrative law. It was held by Mason CJ,
Brennan, Deane, Toohey and Gaudron JJ that the right to free political communication
was indispensable to a system of responsible government as laid out in the Constitution.
It was noted that the absence of a Bill of Rights in the Constitution was because the
founding fathers saw the system of representative government as ample means of
protecting individual rights. The provisions undermining representative government were
thus not permitted in the Constitution.
McHugh J: [H]aving regard to the conceptions of representative government, Parliament
has no right to prefer one form of lawful electoral communication over another. It is for
the electors and the candidates to choose which forms of otherwise lawful
communication they prefer to use to disseminate political information, ideas and
argument. Their choices are a matter of private, not public, interest. Their choices are
outside the zone of governmental control.

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Nationwide News v Wills (1992)

Facts
A provision of the Industrial Relations Act 1988 (Cth) prescribed that it was an offence to
make statements calculated to bring the Industrial Relations Commission into disrepute.
Nationwide News published an article which, it was argued, contravened the provision.
The validity of the section and the Constitutional basis for the legislation were challenged
before the High Court.
Legal Issues
Was the law proportionate to the head of power in the Constitution s 51(xxxv)?
Ruling
The High Court found that the provisions were not validly enacted, on the basis of the
freedom of political communication. Discussion of the concepts of representative
government and responsible government. These principles are fundamental to
administrative law.
The issue of proportionality looks at whether there is a reasonable relationship between
the means and the end: that is, purposive powers. It was held by the Court that the
protection of the Industrial Relations Commission was so disproportionate that it stood
outside the incidental scope of the Constitutional power. The s 51(xxxv) power did not
protect the Commission from justifiable, fair and reasonable criticism, as it is an
important instrument of government.
Brennan J: A court will interpret laws of the Parliament in the light of a presumption that
the Parliament does not intend to abrogate human rights and fundamental freedoms...
but the court cannot deny the validity of an exercise of a legislative power expressly
granted merely on the ground that the law abrogates human rights and fundamental
freedoms or trenches upon political rights which, in the courts opinion, should be
preserved. A function of that kind may be conferred on a court exercising a jurisdiction to
review judicially laws enacted under a Constitution containing a Bill of Rights, but our
Constitution does not contain a Bill of Rights.
Deane and Toohey JJ held that there are three main doctrines of government which
underlie the Constitution:
1. The doctrine proscribing a Federal system of government
2. Separation of powers
3. Representative government
The third doctrine encompasses the idea of responsible government. The people of the
Commonwealth would be unable to responsibly discharge and exercise the powers of
government control which the Constitution reserves to them if each person was an island,
unable to communicate with any other person.

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Re Faulkner and Comcare (2007)

Facts
The AAT had to determine whether to re-instate the applicants application for review so
that he could but his entire case before the Tribunal. The application had been dismissed
after the applicant and his legal representative failed to appear.
The solicitor was no longer acting on behalf of Faulkner and had failed to notify the
Tribunal in time. However, Faulkner had also failed to lodge his appeal in time.
Legal Issues
Notice provisions and time limits.
Ruling
The Tribunal considered the Evidence Act 1995 (Cth) and the Acts Interpretation Act to
determine that Faulkner had in fact sent his appeal within the 28-day timeframe allowed.
The issue of reinstating the appeal was considered based on whether it was appropriate
to do so in the circumstances.
Despite the delays caused by the applicant, it was noted that Faulkner had spent some
time in hospital and so relied heavily on the former solicitor. Since the solicitor had failed
to properly notify all the parties that he was no longer acting for the applicant, the
Tribunal decided to reinstate the application for review and give Faulkner another
opportunity to present his case.
Hunt: The Tribunal aims to reach the correct and preferable decision on the basis of the
materials before it and often is said to stand in the shoes of the original decision-maker
and consider all the evidence again and from the beginning.

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