Administrative Law past papers (2014)

Ouster clause

FC
On a regular basis, parliaments often attempt to prevent or limit judicial review of
administrative decision, by using a variety of ouster clauses.

 In the current scenario section 27(4) does not permit the court to review a decision
made by Minister for Building in that his decision is ‘final and conclusive’.

The courts will only allow the application of ouster clauses where the words of the legislation
are clear, explicit and comprehensive (Hockey v Yelland).

 In this case, the clause is clearly explicit in its intention to prevent any sort of judicial
review.

In respect to the case of Adebe v Commonwealth (1999), the court held that as the
Commonwealth parliament established the federal court by legislation, they could
subsequently limit it’s jurisdiction without infringing on the constitutions judicial power.

 Therefore, in relation to the federal court, its jurisdiction has validly been ousted.

Optional: However, in Hockey v Yelland the court determined that the words

 ‘final and conclusive’ and

 ‘shall have no right to have any of those matters heard and determined by a
magistrate or by way of appeal, by any court or judicial tribunal’

behaved to prevent a further hearing but did not prevent an inquiry into whether the
determination was reached in accordance with the law. As such, the Federal Court will not be
able hear the matter however; they may still inquire into whether the determination was
reached in accordance with the law.

HCA
Yet, in respect to the High Court, the ouster clause (______s______) cannot oust its
jurisdiction. This is the case as the High Courts original jurisdiction is entrenched through
s75(v) of the constitution, which includes writs of prohibition and mandamus (Hockey v
Yelland). Nevertheless in Plaintiff S157/2002 the HCA held that a section in an act would be
invalidated if it attempted to oust the jurisdiction of the HCA under section 75.

 Hence through observing the facts, it must be interpreted whether s27(4) attempted to
oust the HCA’s jurisdiction.

The courts within Plaintiff S157/2002 held that “if there is an opposition between the
constitution and any such provision, it should be resolved by adopting an interpretation that
is fairly open and consistent with the constitution”.

 Valid: Therefore through applying this, the courts will most likely interpret s27(4) in
favour of not ousting the HCA’s jurisdiction, which is similar to Plaintiff
s157/2002. This is the case as an inconsistent provision, should be resolved by

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 adopting an interpretation consistent with the constitution, which is one that s27(4)
did not attempt to oust the HCA jurisdiction.
 Not Valid: Therefore through applying this, even though Plaintiff S157/2002 held
that the clause did not attempt to oust the jurisdiction of the HCA, this view is not
evident in this case. The reason for this revolves around the wording _______, which
indicates that there is an express assertion that no one can bring an action in any
court. Thus the ouster clause will be deemed to be invalid.

Nevertheless, the PLAINTIFF can still bring an action under the HCA, as it’s jurisdiction
can never be ousted.

Which Courts have Jurisdiction to hear the case? (2marks)

Jurisdiction:

Generally the Federal Court will have jurisdiction under s5-8 of the ADJR Act to hear any
matter made under Commonwealth Legislation. This is supported by s39B(1)/(1)(A)(c) of the
judiciary Act, which extends the FC’s original jurisdiction to any matter. However, since the
jurisdiction of the Federal Court is ousted this will not apply.

The High Court of Australia will have original jurisdiction under s75(iii) and (v) of the
constitution to hear the matter, as the ADJR does not apply to the HCA. In saying this
pursuant to Section 44 of the Judiciary Act the High Court can still remit cases to the Federal
Court if they choose to, giving them the jurisdiction under s75 of the Constitution.

Whether he has standing and his challenge would be justiciable (2 marks)

Standing:

In order for _______ to have standing he must show a sufficient connection or special interest
in the case (ACF v Cth). Under the ADJR Act ‘a person who is aggrieved by a decision’
may have standing to seek judicial review. Furthermore in Ogle v Strickland; Right to Life
Association v Secretary, ________, through a curial assessment, will have to demonstrate
that he suffered damage more than the rest of society.

 In this case Jim is a licensed builder and therefore cancelling his license will provide
significant economic hardship and would result in the loss of his job and income and
therefore he would evidently be regarded as a ‘person aggrieved’ as Jim’s license is
of high importance with the particular subject matter.

Justiciability:

In regards to justiciability the court in Aye v Minister for Immigration and Citizenship
summarized the current position stating that ‘a number of subject areas have been regarded
as falling outside the scope of judicial review. Among them treaty making, recognition of the
government of a foreign state and of the boundaries of a foreign state (Attorney General v
Heinemann), declaring war, conducting foreign policy, negotiations with two countries
(Hicks v Ruddock) and decisions relating to national security (Church of Scientology v
Woodward).

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  It is evident in this case that none of these exceptions apply to justiciability, and
therefore as the decision is not excluded under-non-justiciable exemptions it is
justiciable.

In Re Ditfort it was held that there is no strict “political questions “ doctrine forbidding the
courts from reviewing sensitive political question.

 As such even though this is a strict political question, it is still justiciable.

Whether Regulations A and B are valid (6 mark)

Delegated Legislation:

In respect to the Regulations, these are considered legislative Instruments under s5 of

the Legislative Instruments Act 2003 (Cth) as they are of legislative character and
were made in the exercise of a power delegated by the parliament.

 It is of legislative character as it determines the law and imposes an obligation;

in respect to ________
 Exercise of a power: This power was conferred under the __________ Act.

In order to determine whether the Regulations are valid, it must be established

whether they fall within the power of the parent Act, and whether the decision was
authorised by the delegated legislation.

In determining whether the delegated legislation fell outside the parent act we may
view ultra vires grounds (Lockhart J – Re Minister v Austral Fisheries).

Option 1: UNCERTAINTY:

Regulation A:

As per the decision in Re Minister for Primary Industries and Energy v Austral
Fisheries Pty Ltd (1993), it can be seen that to allow the power of the Act to extend
so far as to create regulations which are uncertain and unfettered in their scope would
be unreasonable, and therefore impermissible.

 (Apply facts, discuss the power conferred and link it to the regulation it
provided. E.g. The power under (c) lead to Provision A)

In this context, provide can be defined as to specify or stipulate a requirement. The

issue is whether or not Regulation (_____) is too uncertain to be considered as
specifying a requirement that would satisfy a conclusion that the Regulation is
authorised under the Act.

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  Apply Facts

In Racecourse Cooperative v Attorney General the court stated that a regulation which
did not provide a certain or objective standard would be invalid as they are too
discretionary and lacking in terms of setting objective standards.

 Apply facts

 Regulation A would be invalid due to uncertainty (Re Minister for Primary

Industries and Energy v Austral Fisheries Pty Ltd (1993).

Regulation B:

 Apply facts for the 2nd regulation (The same test will be applied for Regulation
A): The definition of prescribes in this context, is to direct or confine within
bounds.
 There is more scope for the Minister to act by virtue of the more flexible
definition of ‘prescribe’
 (Materials of the highest Quality): These terms can be understood by reference
to industry standards and other external information on what is highest quality
and environmentally compatible at the time. As this is permissible under s
15AB(1) of the AIA, which allows extrinsic material to be used, more
likely that Reg B will be valid.

OPTION 2: SUB-DELEGATION:

Dixon J in King Gee held that it should not be too discretionary and lacking in terms
of setting objective standards. Thus where it fails at this requirement, X will be
deemed to have behaved within scope and not against any provisions.

An additional issue arises in relation to whether A could further sub-delegate in

relation to an already sub-delegated power. In the case of Hawke Bay Raw Milk
Product, it is evident that the GG having delegated power to set the prices of raw
milk could not make a further regulation authorising another to do this.

 Hence this is a further issue within the scenario as both provisions have the
minister by-passing his accountability by allowing the sporting associations to
adopt disciplinary procedures at their discretion as well as the dosages and
pharmaceutical substances. As such it is a breach of the delegation rule, as this
should have come from the Minister who was actually appointed this task.

Whether the Minister has exceeded her powers in terms of relevant and irrelevant
considerations, improper purpose and unreasonableness (9 makers)

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Relevant and Irrelevant Considerations

In Roberts v Hopwood the court stated that the test for relevant and irrelevant
consideration is a dual one including both a positive requirement to take into account all
relevant considerations and a negative command not to take account irrelevant matters.
As such, failure to comply with either requirement would cause it to be ultra vires
Padfield v minister for agriculture).

It was further stated that where the legislation is silent as to the irrelevant
considerations they must be implied from an examination of the legislation as a whole.

In having regards to the relevant and irrelevant matters Pekko-Wallsend; Murphyore

Inc v Commonwealth stated that the factors a decision maker is bound to consider is to
be determined by implications of the subject matter, scope and purpose of the act.

 In this case there does not appear to be any facts that would demonstrate a
failure to take into account a relevant consideration.

However, it may be shown that the minister had taken into account irrelevant
considerations.

 There is nothing to suggest that the act made it necessary for the Minister to
consider PERSON X’s political viewpoint when arriving at his decision. This can
be viewed as an irrelevant consideration as it does not fall within any of the
aforementioned relevant considerations. (Roberts v Hopwood).

As such taking into account irrelevant considerations is a ground for review

(Gwandaland Summerland).

Improper purpose

Administrative decision must be designed to achieve a purpose of object authorized by

the empowering legislation and will be invalidated where the powers are used for an
improper purpose Sydney Municipal Council v Campbell.

Further as stated in (R v Toohey) a Court can look beyond the words of a regulation to
examine relevant documents to determine the purpose for which the regulation was
made.

 (What is the purpose for the regulation?)

 In this case the claim of improper purpose will be on the basis that the decision
to cancel Jim’s license is on the basis of his political beliefs, rather than the actual
issues of construction being done.
 Based on the limited facts of this scenario it appears that this has influenced the
decision by the Minister based on her explicit disclosure of Jim’s political beliefs.

Additionally in Thompson v Randwick Municipal Council the HCA has determined that
the purposes for which power is conferred is a question of statutory interpretation and
only needs to be a substantial purpose rather than the sole purpose.

 Further, as stated above the reason for cancelling the license to be classified as
improper must be a substantial rather than the sole purpose, which is evident in
this scenario.

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  Therefore it would be deemed as an improper purpose and A has grounds for
review.

Unreasonableness

In Associated Provincial Picture Houses v Wednesbury Corporation the test of

unreasonableness is one that is so absurd that no reasonable decision maker, acting
according to the law, could have thought it lay in the powers of the authority. In essence
an unreasonable decision is one for which no logical basis can be discerned (Minister
for Immigration and Multicultrual Affairs v Eshetu). Further McHugh J in this case
emphasises that the courts should “proceed with caution” not to “trespass” into review
on the merits.

Based on these principles, it is highly unlikely this claim will succeed.

 Fallen in the scope of A and B. Through this, it is automatically taken outside the
narrow scope of Wednesbury’s unreasonableness.

As such it can be witnessed that the Wednesbury test is exceedingly difficult to satisfy.

Uncertainty:

As per the decision in Re Minister for Primary Industries and Energy v Austral
Fisheries Pty Ltd (1993), it can be seen that to allow the power of the Act to extend
so far as to create regulations which are uncertain and unfettered in their scope would
be unreasonable, and therefore impermissible.

In Racecourse Cooperative v Attorney General the court stated that a regulation which
did not provide a certain or objective standard would be invalid as they are too
discretionary and lacking in terms of setting objective standards.

Dixon J in King Gee held that it should not be too discretionary and lacking in terms
of setting objective standards. Thus where it fails at this requirement, X will be
deemed to have behaved within scope and not against any provisions.

It must be proportionate to the law and must relate directly to the cause (Vanstone v
Clarke)

Whether Jim has been denied procedural fairness, either because he was given no
fair hearing or the Minister was politically prejudiced against him (10 marks)

Procedural Fairness

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Through witnessing Kioa v West [1985], procedural fairness was interpreted as a
flexible obligation to adopt procedures, where the statutory power must be exercised
not only fairly, though in accordance with both individual rights and statutory
requirements.

In determining how procedural fairness applies, there are two inter-related questions
that must be answered. Firstly does the duty to observe procedural fairness exist? Such
that has it been impliedly or expressly afforded without any exceptions. Secondly, what
is the content under the duty in this instance?

Duty of Procedural Fairness Exists (choose 1):

 Impliedly provided: Within the scenario there does not appear to be any
exclusion or specific mention under the legislation of procedural fairness,
therefore, in reference to FAI Insurance Ltd v Winneke, procedural fairness can
be implied on the basis of ‘legitimate expectations’. This is further supported by
Kioa v Minister which outlined that it is implied unless a clear manifestation
exists.
 There are ‘no clear manifestations of a contrary intention to dispense
with the principles of natural justice.
 There appears to only be a restriction on specific aspects of procedural
fairness such as the right to an oral hearing with legal representations.
This does not exclude PF as it is only affecting those specific parts of it.

 Expressly Provided: Where legislation specifically includes procedural fairness,

this issue is beyond doubt (AG Canada v Inuit Tapirisat of Canada). If the
legislation provides for PF, ADJR Act 1977 s73 requires the tribunal to abide by
PF. Hence as it is specifically expressed it must be provided.

 If excluded: In the Commissioner of Police v Tanos (1958), the HC stated

that any legislative intention to exclude the principles of natural justice had to
be very clear. Where legislation specifically excludes procedural fairness, this
issue is beyond doubt (AG Canada v Inuit Tapirisat of Canada).

Content under the Duty:

Nevertheless, (Kioa) held that natural justice requirements must be observed where a
decision maker makes a decision under a statute authorising the making of an
administrative decision. This is directly relevant where it affects the rights, interests
status or legitimate expectations of another in their individual capacity.

Hearing Rule:

The requirements of a fair hearing will be dependent upon the circumstances (Kioa v
West), and will be determined by reading the common law tradition of natural justice
in light of the relevant legislation.

There is no automatic right to a full hearing and it was held in Chen v Minister for
Immigration (1993) that courts should be reluctant to impose detailed rules of
practice for procedural fairness.

In Barratt v Howard (No 2) [1999], it was held that an oral hearing may be diluted

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and the making of a written submission was sufficient. The courts will observe the
volume of applications and whether hearings would present a better evaluation of the
facts (Li Shi Ping case).

 Hence in relation to this case PERSON X should be entitled to written

submissions based on the seriousness of the decision being made. Particularly
in relation to cases pertaining to APPLY FACTS.

Further, there is no absolute right to legal representation, even where livelihood is at

stake (Cains v Jenkins (1979)). However, it appears more likely that written
submissions will be considered fair.

Limited notice:

In Guiseppe v Registrar of Aboriginal Corporations (2007), it was held that one day
notice was not sufficient, no matter the perceived urgency. Whilst this case was
decided on the grounds of ultra vires, it still demonstrates the inadequacy of a one day
period.

Urgency: As per Commissioner of Police v Tanos the principle to require

urgent action will only apply to the use of such powers where the situation is
actually urgent.

As a result there has been a breach of procedural fairness, and he may be entitled to a
remedy.

BIAS:

An additional ground for breach of procedural fairness is the existence of bias. This
would behave to undermine the decision presented by the decision maker. Yet, it is not
essential to illustrate actual bias, as the observance of perceived bias would be sufficient
(Jia Legeng). This is the case as actual bias is very difficult to prove on the fact that it
must be shown that “the decision maker was not amenable to persuasion by any
evidence” (Gamathige v Minister; Jia Legeng (2001)). Whereas for perceived it just
must be shown that a reasonable observer would perceive bias (Jia Legeng).

 Political position/ direct opposition of the minister. Also strengthened by the

minister making reference to this issue to X.

Even though the courts give ministers a greater leeway (Hot holdings v Creasy) (due
to the nature of their decisions and political implications), it still must be a reflection
of the Government policy (Gwandalan Summerland v Minister). Furthermore it is
important to observe the time interval from when the comments were made (Ex Parte
Epeabake).

 Apply Facts

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The remedies that are available to either (1) prevent the Minister from
proceeding in this manner to cancel his licence, or (2) quash .a decision by the
Minister to cancel his licence (7 marks).

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Generally, it would be relevant to view the statutory remedies under the ADJR Act, yet in
this case it will not be applicable as the federal court jurisdiction has been ousted. Yet
remedies will still be available in the High Court under s75, as the HC cannot be ousted.

The HCA in Ex Parte Aala, ruled that it had the jurisdiction to grant all forms of
prerogative relief including common law and equitable remedies.

The general test in R v Electricity established that where a public body has legal
authority to determine questions affecting the rights of subjects, and a duty to act
judicially, they would be subject to the controlling jurisdiction if they exceed their
powers.

 Apply facts

(1) Prevent the Minister from proceeding in this manner to cancel his licence

Prohibition:
The first remedy PERSON X may seek to prevent the minister from proceeding in this
manner would be a prohibition, which applies to a final decision. This remedy seeks to
compel a decision-maker to desist from undertaking an unlawful act ‘restrain another
from usurping or exceeding jurisdiction’ (Ex Parte Aala). This is issued for excess of
jurisdiction, including breach of procedural fairness (Re Refugee Review; Ex Parte
Aala).

It must be satisfied that PERSON X will have standing as a ‘person aggrieved’ (R v

Justice of Surrey).
 Apply facts

Injunction:
As a result X should seek the common law remedy of injunction to restrain the
cancelling of his license. This is available against a decision maker irrespective of
whether they are bound by PF (Bateman’s Bay). Yet it must be noted that injunctions
cannot be used to quash decisions and only have limited scope in instructing officials.
The three elements include: there must be ‘a real and theoretical question’ (Forster),
PERSON X must have a special interest (ACF) and the issue is not futile.

 Apply facts

(2) Quash a decision by the Minister to cancel his license

Mandamus will not be an appropriate remedy as no public duty is being sought to be

compelled.

Certiorari
Hence the first appropriate remedy to quash an irregular decision will be certiorari. This
orders the Decision maker to desist from undertaking an unlawful act or one exercised
in excess of jurisdiction. It will be issued for fraud, failure to observe procedural
fairness, error of law on the face of the record or jurisdictional error (Craig v South
Australia; R v Electricity).

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  As illustrated above, there has been an error of law by the Minister acting ultra
vires and through breaching PF. As such certiorari would be an available
remedy.
 Just in case: Plaintiff s157/2002 v Cth held that a denial of procedural
fairness amounts to a jurisdictional error.

Declaration:
Alternatively, X can seek a declaration. A declaration cannot establish a substantive
position in favour of the applicant, only the quashing of a previous decision (Minister
for Immigration v Gao). It is a conclusive statement by the court of their pre-existing
rights (Dyson v AG). As this is an equitable remedy the HC has almost unlimited judicial
discretion (Groome v Tasmania) and its not restricted to jurisdictional errors (Project
Blue Sky v ABA).

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