Admin 5

A s h v i n R a m g o o l a m P a g e | 1

Facts/Law distinction The facts/law distinction is due to the

separation of powers: Marbury v Madison: Constitutionally,

only courts can ultimately determine Qs of law.

Courts have no expertise in finding Qs of fact Executive determines Qs of fact.

The facts/law distinction is important because it determines what Courts can review, and therefore what decisions the administrator must get correct.

Merits review of Qs of fact & law In merits review of an admin decision, the

tribunal stands in the shoes of the original decision-maker & re-decides both Qs of law & fact: The true meaning of the relevant

statutory provision (Q of law); The relevant facts, including primary

facts & secondary conclusions of facts (Q of fact);

How the interpreted statute applies to those facts (can be Q of law/fact).

Since a tribunal is an Executive body: Its determination of Qs of law is not final

& conclusive. It will freely replace the original

decision-maker’s judgement on Qs of fact.

Judicial review of Qs of law In judicial review of an admin decision, the

Court readily substitute their opinions on Qs of law. Examples of Qs of law: Was the correct statutory test applied?

(statutory interpretation) Was the procedure fair? Was the decision-maker within its

power? Did the decision-maker exercise its

power reasonably?

Judicial review of Qs of Fact Courts generally cannot review Qs of fact.

Why? Determinations of Q of fact are merit outcomes The Court will show considerable deference to an administrative determination of fact,

and will challenge it only in extreme cases.

Only 3 ways a Court can review/determine Qs of fact: Courts can directly review facts that are

essential preconditions to the administrator’s power/jurisdiction (ie. jurisdictional facts). Why? Courts must review

jurisdictional facts in order to determine the legal question of whether the administrator had power to act.

Court can determine facts that relate to the process by which the original decision was made. Why? If a ground of review is

argued, Courts often must determine additional facts that relate to the process by which the original decision was made.

Courts can indirectly review substantive conclusions of fact that are unreasonable or based on no evidence .

What constitutes Qs of fact & Qs of law?

Questions of fact Questions of Primary Fact: who did what,

where & when? Questions of Secondary Fact: what

inferences may be drawn from primary facts?

What is the meaning of ordinary words in a statute?

Questions of law Do the facts (as found) fall within/outside

the statutory limits? What is the meaning of legal words in a

statute?

Questions of Fact/Law in Statutory interpretation Overall statutory interpretation is a question

of law (eg. whether the word is used in a technical legal sense, or an ordinary English language sense). Word is defined in the statute, or is

given a specific legal meaning in a previous judicial decision technical.

A d m i n i s t r a t i ve L a w


Overall statutory context indicate that a specific legal meaning is intended technical.

If the word is used in a technical legal sense, its meaning [& application to the facts] is a question of law.

If the word is used in an ordinary English language sense, its meaning [& application to the facts] is a question of fact. But if the administrator gave an ordinary

word a meaning to that is unreasonable (ie. a meaning so unreasonable that no reasonable administrator could have supposed such a meaning to have been intended by Parliament) an error of law.

So, courts will not interfere with an administrator’s reasonable interpretation of an ordinary word (even though they might not agree with the administrator’s particular interpretation).

Reason why meaning & application of ordinary words are Qs of fact & therefore usually unreviewable? Practicality: If the meaning of every

single statutory phrase is classified as a question of law, the potential for judicial intervention would be enormous.

Intent of Parliament.

Preconditions to Existence & Exercise of Power As a matter of statutory interpretation,

statutes may contain certain preconditions to power: Factual preconditions (“jurisdictional

facts”): The statute requires certain facts to exist in order for the power to exist. Ground of review = show the

jurisdictional facts did not exist at the time.

Procedural preconditions: The statute requires certain procedures to be carried out prior to the exercise of power. Ground of review = show the

procedures have not been carried out.

Subjective preconditions: The statute makes the existence of the power

dependent on the administrator’s subjective opinion that certain facts exist. [Ground of review =

unreasonableness only.] Distinguish preconditions to power from

requirements during exercise of power.

Jurisdictional facts To make a fact jurisdictional, the Act must

do 2 things: 1) it must condition the power on the

fact’s existence (“objectivity”); and 2) it must condition the validity of the

decision-maker’s act upon that existence (“essentiality”).

Factors on whether a particular question of fact is jurisdictional (& therefore reviewable by courts): Statutory language makes the fact a

precondition, not a mere procedure jurisdictional. Project Blue Sky: Language used

assumes that power already exists not jurisdictional.

Enfield v DAC: Provision directly stipulates that the fact is a precondition jurisdictional.

ABT v Bond: Statute required administrator to decide a fact (fitness) before the power to revoke flows jurisdictional.

Project Blue Sky v ABA: Fact was a procedure not jurisdictional.

Objective language v Subjective language: Objective language supports the conclusion that the fact is jurisdictional (Enfield v DAC). Act’s factual requirements are

drafted subjectively in some places, and objectively in others.

AHC v MIM: A power of “consideration” was objective.

The fact is pivotal /central to the design of the statutory scheme jurisdictional. Enfield v DAC: Whether “special

industry” or “general industry” was a choice between 2 different regulatory schemes jurisdictional.



Statute provides detailed public consultation & consideration procedures not jurisdictional (AHC v MIM).

Inconvenience of making admin decisions conditional upon a court’s view of the facts not jurisdictional. Project Blue Sky v ABA: Invalidity

would seriously inconvenience people who relied not jurisdictional.

Facts that incorporate strong value judgement not jurisdictional. AHC v MIM: Whether a place had

“aesthetic/historic/scientific/social significance, or other special value” was a political & value-laden question [better decided by admin] not reviewable by court not jurisdictional.

Enfield: Whether a development is special/general industry (ie. how smelly it is) is assessable by expert witnesses jurisdictional. Distinguish from AHC because there, expert witnesses can’t decide whether the place was aesthetic etc.

Whether the facts exist has a strong impact on common law rights & liberties jurisdictional.

Criticism of court’s review of jurisdictional facts: If a fact is jurisdictional, it’s the court’s

(not admin’s) opinion of the fact’s existence that counts. But is the court any better at finding whether these facts exist? No!

Effect of non-compliance with statutory requirements Project Blue Sky v ABA: Non-compliance with

procedures will not necessarily lead to invalidity of a decision. Whether there is invalidity depends on statutory interpretation. If there is no invalidity, people who

relied on the unlawful decision can get injunctions against the regulator.

Factors indicating intent of invalidity: Statutory language makes the fact an

essential preliminary?

Subject matter is determinate & rule-like?

Consequences of invalidity?

CASES

Project Blue Sky v Australian Broadcasting AuthorityValidity of legal error. *Broadcasting Services Act:

S 122: ABA must determine standards to be observed by broadcasting licensees.

S 160(d): The ABA is to perform its functions consistently with Australia’s international obligations.

*ABA determined (pursuant to s 122) a Standard which contained cl 9: Australian programs must comprise at least 50% of broadcasts.

*Trade Protocol: Australia should give NZ programs access rights in its market no less favourable than Aust programs.

*NZ companies argued that the making of the Standard was inconsistent with the Protocol.

S 122, when read with s 160(d), is intended to have a legal meaning: it gives the ABA power to determine Standards only to the extent that they are consistent with s 160.

Did the making of the Standard breach s 160? The Standard, by giving Australian programs

at least 50% of broadcasting time, makes it harder for New Zealand programs to compete NZ programs have less favourable access rights than Aust programs cl 9 is inconsistent with the Protocol breach of s 160(d).

Was the Standard invalid? Principle: Whether an act done in breach of

a condition regulating the exercise of a statutory power is invalid, depends on legislative purpose.

Factors why the Standard in breach was not intended to be invalid: Language: S 160 assumes that the ABA

already has power it regulates the exercise of functions already conferred on the ABA, rather than imposes essential preliminaries to the exercise of its functions.



Subject matter: Many international conventions & agreements are expressed in indeterminate language (eg. described as goals rather than rules). Also, the obligations here did not have a rule-like character (ie. could not be easily identified & applied). Rather, they were matters of policy.

Consequences: Invalidity of acts done in breach of s 160 is likely to result in (1) much inconvenience to members of the public who have acted in reliance on the ABA’s conduct; (2) Licensees having difficulty in ascertaining whether the ABA was acting consistently with obligations imposed by s 160; and (3) loss of investor confidence.

But an act done in breach of s 160 is unlawful. So a person with sufficient interest can sue to obtain an injunction restraining action based on the ABA’s unlawful action. [This means that all the people who

acted in reliance on the Standard are safe. But the unlawful Standard cannot be relied on in future.]

Evaluation This is a Green Light decision, because it

considered the impact on the administrator. The remedy was sensitively handled. Even though the admin’s decision was unlawful, it was not invalid if Parliament did not intend it to be.

Australian Heritage Commission v MIMJurisdictional fact. *Australian Heritage Commission Act:

s 23(1): “Where the Commission considers that a place not in the Register should be recorded as part of the national estate, it shall enter that place in the Register [subject to ss 23 & 25]”.

s 23(2): AHC must not do so unless a public notice of its intention to do so was given, and due consideration was given to any objections that were received.

s 4(1): The “national estate” consists of places that have aesthetic/historic/scientific/social significance, or other special value for

future generations & present community.

*AHC decided to enter an area of land in the Register, pursuant to s 23.

*Q of fact = “Whether the place is a “national estate”. Issue = is this a jurisdictional fact?

“Whether the place is a national estate” is a non-jurisdictional Q of fact, because: The detailed public consultation &

consideration mechanism suggests that Parliament did not intend the AHC’s decision to record a place to be subject to judicial review – provided the AHC conducts itself in accordance with the law. [Courts don’t undertake the public

consultation procedure not equipped to decide it.]

[Also, the political value judgement in s 4 is best decided by the Commission non-jurisdictional fact]

Corporation of the City of Enfield v Development Assessment CommissionJurisdictional fact. *ss 32 & 33 Development Act forbids

development unless the DAC grants consent. *s 35(3)(a): A “special industry”

development must not be granted consent, unless the Council concurred & DAC gave public notice.

*DAC determined that the proposed development was “general industry” rather than “special industry” s 35(3)(a) did not apply DAC decided to give consent without public notice.

*On appeal, Debelle decided on expert evidence that the development was “special industry” s 33(3)(a) applied DAC exceeded its powers by acting without Council’s consent.

*But Full Court the Q of fact was non-jurisdictional.

*Q of fact = “Whether the development is special/general industry”. Issue = is this a jurisdictional fact?

“Whether the development is special/general industry” is a reviewable jurisdictional Q of fact, because:



The fact is central/critical to the statutory scheme. How the consent power [s 35(3)] works will depend on this fact. It is the turning point that leads to 2 different statutory schemes: If general industry, not many

procedures for consent DAC can consent.

If special industry, totally different & more onerous procedures for consent Council can veto DAC’s consent, and need public notice.

The fact is phrased in objective language.

The fact is phrased as a precondition that prohibits s 35(3) consent without Council concurrence [“[special industry] must not be granted”].

If the court is in doubt upon a particular factual matter, it would be open to the court to resolve that doubt by giving weight to any determination upon it by the Commission.

Hope v Council of City of BathurstQuestion of law or fact?; Unreasonableness. *H’s land was used to regularly agist other

people’s cattle, there were fences & troughs, and 90% of the land was pasture improved. H advertised for agistment.

*s 118(1) defined “rural land” (in which lower rates applied) to mean land used for “carrying on the business” of grazing.

*Land & Valuation Court decided that H had no “business” lower rates did not apply. [Note: this is not a jurisdictional fact,

because power does not depend on it; it is merely a step along the way to deciding the rate.]

*Issue = Is the meaning of “business” a question of fact/law?

Principles 1) Whether the facts fall within the statutory

provisions properly construed [ie. overall statutory interpretation], is a question of law. SO: Whether a word is used in a technical legal sense or an ordinary sense, is a question of law.

2) The meaning of an ordinary word is a question of fact. [The meaning of a legal word is a question of law.]

3) Whether the material before the court reasonably admits of different conclusions as to whether the facts fall within the ordinary meaning of the words as so determined, is a question of law.

4) If different conclusions are reasonably possible, the decision of which is the correct conclusion, is a question of fact [to be decided by the administrator]. [Courts cannot change it.]

[5) Whether the facts fall inside the conclusion(s) reasonably possible, is a question of law]

Application “business” in Act has an ordinary meaning. It

denotes activities done for the purpose of profit on a continuous & repetitive basis. This is a question of fact.

H’s activities would amount to a “business” under any reasonable ordinary meaning of “business” that the decision-maker uses It was unreasonable for the primary judge to conclude that there was no “business”, as all the essential characteristics required of a business were present: Transactions were entered into on a

continuous & repetitive basis, for the purpose of making profit.

The appellant sought customers by advertising.

The land was put to its best potential use, the pastures were improved, and facilities including fences were provided for use.

Sharp Corp v Collector of CustomsQuestion of fact or law? *Sharp imported toner kits, which had

components classifiable under 2 different tariff headings.

*r 3 of General Rules for Interpretation: When composite goods are classifiable under 2 or more headings: (b) Classify them as the component

which gives them their “essential character”.

(c) If no “essential character”, then classify mechanically.

*AAT decided that no component gave the Kit an “essential character”, because the components serve different functions



AAT applied r 3(c) mechanically AAT classified the Kit under the heading that had higher tariffs.

*Collector appealed to the Federal Court under s 44(1) AAT.

*Issue = Is meaning of “essential character” a Q of law?

AAT’s classification of the toner & other components under different headings is a reasonable finding of fact.

Principle When words are used in their ordinary

English sense, then (1) the meaning of those words, and (2) whether the facts fall within the meaning (there being a different conclusion reasonably open), are ordinarily questions of fact for the administrative decision-maker.

Decision “essential character” is a well-known

expression that has an ordinary meaning whether the Kit has an essential character, and what that essential character is, is a Q of fact [determined by the AAT].

The AAT’s conclusion of fact was reasonable.


Documents

Admin 5