LWB335 ADMINISTRATIVE LAW

21 June 20108:30 am

S408

I J UDICIAL REVIEW 1. General Principles2. Prerequisites 3. Standing4. Grounds

a. Natural Justiceb. Procedures Required to be Followedc. Jurisdictional Errord. Not Authorised by Enactmente. Improper Exercise of Power

i. Relevant Considerationsii. Irrelevant Considerations

iii. Purpose other than intendediv. Bad Faithv. Personal Discretion at behest of another

vi. Under rule or policy without regard to meritsvii. Unreasonableness & Irrationality

viii. Uncertaintyix. Abuse of Power

f. Error of Lawg. Fraudh. No Evidencei. Otherwise Contrary to Lawj. Failure to Make a Decision

5. Remedies

II MERITS REVIEW & MISCELLANEOUS 6. Administrative Appeals Tribunal

a. Historyb. Structurec. Jurisdictiond. Standinge. Noticef. Procedureg. Settlementh. Hearing Powersi. Decision-making Powersj. Appeals

7. The Ombudsman8. Freedom of Information9. Crown Immunity

General Principles

Administrative law = system which deals with the remedies and procedures developed, in regards to the actions of government agencies, and their decisions regulates the interaction between the individual and the state Historically , it was designed to allow for the decisions of travelling judges to be reviewed Constitutional law approaches issues of all three branches of government, powers, duties and functions of

each ↔ administrative law which involves legality of executive government action 5 basic areas

1. judicial review – reviews the legality of the decision2. merits review – remakes the decision (AAT)3. internal review provided by the statute (not in this course)4. FOI (not in this course)5. ombudsman (not in this course)

Systems of judicial reviewJurisdiction of courts to judicially review

High Court— the original jurisdiction (Constitution and Judicial Review): s75(v) Constitution; Plaintiff s157/2002 v Commonwealth (2003) 211 CLR 476

75 Original jurisdiction of High CourtIn all matters: (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;the High Court shall have original jurisdiction

Federal Court—original jurisdiction: s39B Judiciary Act 1903 (Cth)o Except prosecution for offence against Cth law: s39B(1B) (→ SC)o Except prosecution for offence in State/Territory Ct: s39B(1C)

Statutory judicial reviewFederal: Administrative Decisions (Judicial Review) Act 1978 (Cth) (reform designed to create simplified method of judicial review)

Act sought to be reviewed done under federal statute or by federal official → action in federal courts minor judicial review has been conferred on the Federal Magistrate’s Court

Queensland: Judicial Review Act 1991 (Qld) (substantially the same lines as the federal AD(JR) Act—enacted after Fitzgerald inquiry)

action in Queensland Supreme Court

Common law judicial review Common Law judicial review: Part 5 Judicial Review Act 1991 (Qld) (streamlined the process) Federal Court also has general law power of judicial review (under s39B of the Judiciary Act 1903),

o High Court of Australia does have original jurisdiction also (under s75(v) of the Commonwealth Constitution)

Federal Magistrate’s Court is invested with jurisdiction to deal with minor JR matter by Federal Magistrates Act 1999 (Cth)

State Supreme Courts (inc Qld) has power to judicially review: originally invested with jurisdiction of the superior courts of record from the UK which had general law power to JR

Pre-requisites to Statutory JR

Decision/act of the executive must be a “decision to which this Act applies”: s5 ADJR Act (Cth); s20, JR Act (Qld) or “conduct” leading up to such a decision (s6 ADJR, s21 JR)

Justiciabilityo Public Power

Invoking Jurisdiction under Statute (ADJR | Pt 3 JR): Decision to which this act applieso a “decision” (s5 ADJR | s20 JR) or “conduct” (s6 ADJR | s21 JR)o Of an administrative charactero Made under an enactment

Qld—non-statutory scheme or programmeo Cth—not a decision of the GG

JR s4: decision to which this Act applies means—(a) a decision of an administrative character made, proposed to be made, or required to be

made, under an enactment (whether or not in the exercise of a discretion); or(b) a decision of an administrative character made, or proposed to be made, by, or by an officer

or employee of, the State or a State authority or local government authority under a non-statutory scheme or program involving funds that are provided or obtained (in whole or part)—(i) out of amounts appropriated by Parliament; or(ii) from a tax, charge, fee or levy authorised by or under an enactment.

ADJR s3: decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):

(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or

(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;

other than:(c) a decision by the Governor-General; or (d) a decision included in any of the classes of decisions set out in Schedule 1.

Alternative—Invoke Jurisdiction under Common Law (Pt 5 JR)Atkin Formulao Exercise of Public Power or Authorityo Decision sufficiently affects the applicanto (residual discretion)

Constitution s75 In all matters:…(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;the High Court shall have original jurisdiction.

Judicial Review Act 1991, s43 Application for review(1) An application for—(a) a prerogative order; or(b) a prerogative injunction;must be made by way of an application for review.

JUSTICIABILITY

Private power = powers retained or created under private law (eg. power to enforce contracts, arbitration, or the actions of a private club or association) = not reviewable: Griffith University v Tang (decision to expel a student from the PHD program for falsifying evidence not judicially reviewable)

Public Powers= statutory powers or prerogative powers = reviewable

Statutory power—Courts clearly able to review: R v Tooheyo Regardless of who makes decision—even where low-ranking public official: R v Toohey; Ex

parte Northern Lands Council (1981) (land rights decision made by NT Land Commissioner (under Norther Territory (Self-governing) Act in bad faith with ulterior purpose irrelevant whether examined by high or low ranking official)

o Public authorities, tribunals etc = JR Prerogative power— Now subject to review: Ex parte Laine (UKCA) (Home Office non-statutory

compensation scheme for crime victims—wife of police officer disputing amt decision reviewable); Council of Civil Service Unions (HL)

o historically unwilling to judicially review: Communist Party Case (ignored by R v Toohey)o includes power on immigration: Ruddock v Valdaris (2001) (keeping illegal aliens out of the

country was a prerogative power reviewable)

Areas of Doubt May refuse judicial review of high level political or policy decision (economic/political/social

issues): Council of Civil Service Unions (HL) (Union workplace relations disputes in GCHQ—Thatcher outlawed as affecting homeland security prerogative decisions judicially reviewable but declined to intervene given political implications)

o Decisions made by cabinet: Minister v Peko-Wallsend (inclusion of Kakadu as protected site by cabinet—challenged by mining company declined to intervene || conflicting opinions between justices as to whether this was all cabinet decisions)

o Broader implications must be considered: SA v O’Shea (Cabinet rejecting parole board recommendation, contrary to custom declined to intervene)

Different approaches—substance or formo UK—look at nature not source of power—Decisions of boards in self-regulating industries:

(gov allows to self-regulate, keeps a close eye on them): R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] 1 QB 815 (Panel independent, not created by statute or gov—rejected complaint that rival companies acting in concert nature of responsibilities meant performing a public duty → JR || but no ground to review as no procedural unfairness); adopted by Neat per Kirby J (dissenting)

o AUS—source rather than nature of power—Outsourcing of government functions (GOC & GBE)—reviewable if decision comes from a statute, not from company constitution etc: AWB v Neat Domestic Trading (2003) 216 CLR 277 (N seeking to export wheat—refused permission by AWBi (wholly owned subsidiary of AWB)—power in company constitution & Sch2 Wheat Act not JR || Minority—in effect acting for government)

Consider nature of particular decision, not general power to make such decisions: General Newspapers v Telstra (Telecom receiving tenders for white pages contract—incorporated as Telstra—statute gave it power to enter into contracts—decision on particular contract made based on Articles of Association not a public matter → no JR)

DECISION TO WHICH THIS ACT APPLIES

[→Standing | Justiciability]1. Decision or conduct ****Read Ricegrowers – add notesDecision (s5 ADJR, s20 JR) Includes— (s5 JR & AJDR s3(2))

(a) making, suspending, revoking or refusing to make an order, award or determination;(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or

permission;(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;(d) imposing a condition or restriction;(e) making a declaration, demand or requirement;(f) retaining, or refusing to deliver up, an article; or(g) doing or refusing to do any other act or thing

Reports & recommendations → included in ‘decision’: Judicial Review Act, s6; ADJR Act, s3(3) (rarely invoked as narrowly interpreted in caselaw)

o Federal interpretation—must be a ‘condition precedent’ to the making of a decision | act must create power to make report/recommendation: Ross v Costigan (1982); Edelstein v Health Insurance Commission (1990)

o State interpretation— ‘condition precedent’ not necessary: Resort Management Services Ltd v Noosa Shire Council(1993) (preliminary step taken by a local authority in passing a resolution to amend a town planning scheme JR ) St George v Wyvill (1994) (requirement that the Commissioner of Police Service Reviews makes a recommendation to the Commissioner of Police—not a ‘condition precedent’ JR )

‘Failure to make a decision’ is considered a decision: JR s5; ADJR s3(2)

Decision must be— 1. Final or operative—not an intermediate decision

unless a mandatory step under the statute: Bond per Mason J2. Substantive rather than procedural 3. (Not an intermediate step on the way to making a decision)

← ABT v Bond (1990) (whether to revoke license under Broadcasting Act—first found (0) that Mr Bond fraudulent, no longer fit & proper → two-step decision (1) that company no longer fit and proper ‘person’ | (2) revocation (2)=final decision | (1)=mandatory step; but (0)=intermediate finding of fact → JR )← Rejected old test in Lam v Moss (any preliminary ruling = ‘decision’) because deprives ‘conduct’ of any operation

Final or Operative Not final or operative → JR

o Not determinative of final action: Redland Shire Council v Bushcliff Pty Ltd [1990] (decision to amend a planning scheme, then put to public scrutiny before deciding whether to proceed merely procedural step in the decision)

↔ Definitive acceptance or rejection of proposal, even if procedural acts to follow: Noosa Shire Council v Resort Management Services Ltd [1995] (acceptance of proposal to amend planning scheme—only remaining act to amend legislation)

o Delegation of decision: Edelsten v Health Insurance Commission (1990) (decision of Minister to refer matter to committee not final or operative)

o Where self-executing statute—no active decision open to the executive: Guss v Deputy Commissioner of Taxation (2006) (liability under statute for tax—steps set out in legislation—only decision as to whether to initiate proceedings not a ‘decision under an enactment → no JR)

o Act which is one factor in reaching a decision, even if turns out to be determinative—eg vote: Hutchins v Deputy Commissioner of taxation (1996) (decision to vote against motion to accept

less than owed at meeting of creditors—motion would otherwise have been carried but didn’t make decision, just voted || also not made under that power)

Final enough to be a decision → JR o Initiation of / refusal to initiate proceedings → JR : Schokker v Commissioner of Taxation

(1998) (refusal to refer the complaint about alleged breaches of privacy to the DPP—final decision to prosecute would be made by DPP not merely a step along the way as determinative of outcome)

o Decisions leading up to the final decision which have their own effect Parts of investigation which have an effect and are not merely a step in the process → JR

: Salerno v National Crime Authority (1997) (decision to authorise warrant to search premises effect on private property—not just step in process of proceedings || but not made under enactment)

Setting terms & conditions under which later decision may be made: Chittick v Ackland (1984) (Health Insurance Act give commission power to establish terms of employment—employee fired under those terms making of terms and conditions a decision under the enactment)

Not final but mandatory step under the statute→ JR : Bond per Mason J (whether to revoke license—two-step decision (1) that company no longer fit and proper ‘person’ | (2) revocation (2)=final decision | (1)=mandatory step || but intermediate finding of fact not JR)

Conduct engaged in for the purposes of making a decision: s6 ADJR, s21 JR ‘conduct’ = Procedures undertaken in the making of the decision: ABT v Bond (1990) (whether no longer

fit and proper person not ‘conduct’ because substantive in nature—question of fact) Must be conduct for the purposes of making a decision to which this act applies: s6 ADJR, s21 JR Does not relate to intermediate decisions Irrelevant whether conduct by final decision-maker: Chan v Minister for Immigration and Ethnic Affairs

(1989) for Commonwealth | JR Act s6 After decision made , conduct not reviewable: NSW Aboriginal Land Council v ATSIC (1995) Examples—

o refusing request to cross examine or adjournment: ABT v Bond (examples given by Mason CJ—finding that not a fit & proper person not ‘conduct’)

Seems generally to be relating to procedures of tribunals & quasi-judicial bodieso failure to take evidence from a witness, and failure to make investigations as required by statute

was judicially reviewable ‘conduct’: Courtney v Peters, Marsh, Fee and the Repatriation Commission (1990)

o first part of a procedural step before a decision was to be made: Edelsten v Health Insurance Commission (1990) (the action of a delegate of a Minister)

2. Of an administrative character↔ legislative or judicialDistinction from separation of powers: Evans v Friemann (1981)

Legislative ↔ Administrative: Consider nature of power—words of statute not conclusive: Indicia: Central Queensland Land Council Aboriginal Corporation v Attorney-General (2002); Vietnam

Veterans Affairs Association of Australia New South Wales Branch Inc v Cohen (1996) o New rule is formulated which has general application ↔ on merits of particular case o changes or determines the law ↔ applies the law; o instrument is binding ↔ provides guidance o Where bodies have the same status as parliament, their decisions will be legislative and will not

be amenable to judicial review: Corrigan v Parliamentary Criminal Justice Commission (2000) Examples of legislative

o City council by-laws: Paradise Projects Ltd v Gold Coast City Council [1994] (By law preventing handing out flyers on roads)

o Determining number and type of broadcasting licences available for particular areas: RG Capital Radio Ltd v Australian Broadcasting Authority (2001)

o Ability to change a water management plan, where called “subordinate legislation” and Minister given power to enact: Currareva Partnership v Welford [2000]

Illustrations of Distinctiono Determining pathology table of service fees = legislative ↔ failure to make decision under the

legislation = administrative: Queensland Medical Laboratory v Blewitt (1988) o Determine aeronautical charges payable based on the commercial considerations at time of

determination = administrative ↔ by-law power given to same body = legislative: Federal Airports Corporation v Aerolineas Argentinas (1997)

o Intermediate decisions in the process of changing a town planning scheme = administrative ↔ final decision is legislative: Resort Management Services v Noosa Shire Council [1995]

Judicial ↔ Administrative Ch III courts, when exercising their judicial powers are not amenable to judicial review: Evans v

Friemann; Stuberfield v Webster SM [1996] (magistrate’s ct) Administrative decisions by courts—

o Magistrate conducting committal hearings: Lamb v Moss (1983) (← determine whether sufficient evidence exists to go forward with the trial)

Very rarely would the courts allow judicial review Public policy against collateral attack on judicial proceedings

o Decision to refuse a bill of costs: Legal Aid Commission v Edwards (1982) (notwithstanding that the Registrar’s activities were within the broader framework of the government)

o HCA decision to strike a practitioner off the register: Little v Registrar of High Court (1990) BUT Decision by the Registrar of the High Court to seek a direction as to whether documents were

lodged were an abuse of process = judicial power: Letts v Commonwealth (1985) (← exercising the court’s jurisdiction to prevent abuses of power)

3. Made under an enactmentEnactmentCommonwealth— (s3 ADJRA)

o An Act: (a) except for Commonwealth Places (Application of Laws) Act 1970; Northern Territory (Self-

Government) Act 1978; some legislation relating to ACTo Ordinance of territory (other than ACT or NT): (b)o Instrument (rules, regulations, by-laws) made under Act or Ordinance: (c)o Acts of states/territories set out in Sch3 & instruments under those acts: (d)

Queensland— (s3 JRA)o Act; oro Statutory instrument

= document (s6 Statutory Instruments Act 1992) that satisfies two conditions: (s7 Statutory Instruments Act 1992)

i. made under an act or other statutory instrumentii. one of the following types:

o a regulationo an order in councilo a ruleo a local lawo a by-lawo an ordinanceo a subordinate local lawo a statuteo a proclamationo a notification of a public natureo a standard of a public natureo a guideline of a public natureo another instrument of a public nature by which the entity making the instrument

unilaterally affects a right or liability of another entity. Not an Executive Council minute

Document which set out terms and conditions on employment made under the Act = instrument: Chittick v Ackland (1984) (health employee fired for divulging personal information making of terms and conditions a decision under the enactment)

Deputy Police Commissioner’s contract not a instrument: Blizzard v O’Sullivan [1994] (because it was negotiated, not imposed by the statute)

State Purchasing Policy not an instrument: Concord Data Solutions v Director-General of Education [1994] (because it was not made pursuant to a statutory power to make it)

Not tender guidelines

Under an enactmentCurrent test:

Decision expressly or impliedly authorised by the Act o Gleeson CJ: that the enactment gives legal force or effect to the decision

Decision confers, alters or otherwise affects legal rights and obligations, and in that way, be derived from the enactmento Legal rights can arise from statute or general unwritten lawo The capacity to affect rights must arise from the statute

Griffith University v Tang (2005) (Gummow, Callinan and Heydon JJ, Gleeson CJ agreeing, Kirby J dissenting) (PhD candidate expelled by committee after found to be fabricating lab results—under GUA, s5 university functions to support research/disseminate knowledge | s7 & 8 council & functions | s11

delegate powers to committee not under enactment ← entirely consensual arrangement || Kirby J in dissent—power could have come from nowhere else | gravity of case)

Sufficient if enactment gives implied power to make decision: Minister for Immigration and Ethnic Affairs v Mayer (1985) (power to issue entry permit → gives power to determine refugee status (interdependent) both reviewable)

Source of the power must be in the statute: Glasson v Parkes Rural Distributions (decision of NSW official to demand return of overpayment under Cth petrol subsidy scheme—set up under Cth legislation | decisions to be made in accordance with State legislation no judicial review under AJDR Art (Cth))

Self-executing statute not sufficient—need some active decision: Guss v Deputy Commissioner of Taxation (2006) (liability under statute for tax—steps set out in legislation—only decision as to whether to initiate proceedings not a ‘decision under an enactment → no JR)

Other examples, tests & considerations Other tests—

o Decisions must be made in pursuance of, or under the authority of the Act: Chittick v Ackland (1984) (Health Insurance Act give commission power to establish terms of employment—employee fired under those terms making of terms and conditions a decision under the enactment)

o Statute must be the force and effect behind the decision: General Newspapers v Telstra (Telecom receiving tenders for white pages contract—incorporated as Telstra—statute gave it power to enter into contracts—decision on particular contract made based on Articles of Association not a public matter → no JR); AWB v Neat Domestic Trading (2003) (N seeking to export wheat—refused permission by AWBi (wholly owned subsidiary of AWB)—power in company constitution & Sch2 Wheat Act not JR || Minority—in effect acting for government)

Decision must be made under the specific enactment, o not under powers gained because the body gained legal personality under statute: Electricity

Supply Assoc. of Aust v ACCC [2001] (publishing decision about operation of TPA provisions made in pursuance of ACCC’s legal personality, not under any power in act);

o not under articles of association—private matter: General Newspapers v Telstra (Telecom receiving tenders for white pages contract—incorporated as Telstra—statute gave it power to enter into contracts—decision on particular contract made based on Articles of Association not a public matter → no JR);

o not under State act rather than Cth act or vice versa: Glasson v Parkes Rural Distributions (decision of NSW official to demand return of overpayment under Cth petrol subsidy scheme—set up under Cth legislation | decisions to be made in accordance with State legislation no judicial review under AJDR Art (Cth))

Where power given is very general, specific decisions may not be made under the enactment: Hutchins v Deputy Commissioner of taxation (1996) (power to ‘do anything to recoup tax’ in bankruptcy cases—decision to vote against motion to accept less than owed decision not made under that power || not a ‘decision’ either)

o General provisions prescribing conduct not sufficient: MacDonald Pty Ltd v Hamence (1994) (conduct of the relevant officer)

o General power to investigate—specific decision to issue warrant → not sufficient: Salerno v National Crime Authority (1997) (Cth act conferring power to investigate—decision to issue warrant made by SA policemen wrt SA legislation → no ADJR review)

Decisions made under private contract not made under an enactment: o Even where power to make contract comes from statute: ANU v Burns (dismissal on grounds of

physical incapacity—provision allowing found in contract—statutory provision allowed to appoint staff decision made under contract not under enactment); Blizzard v O’Sullivan [1994] (dismissal of the Deputy Police Commissioner—terms of employment governed by contract: s5.4 of Act was not made under an enactment but under contract);

o Examples

Not to promote: Australian National University v Lewins (1996) (decision not to promote lecturer—made in accordance with university promotion policy—individually developed, not under ANU Act not reviewable)

Dismissal : Blizzard v O’Sullivan [1994] (dismissal of the Deputy Police Commissioner made under contract); ANU v Burns (dismissal on grounds of physical incapacity—provision allowing found in contract decision made under contract not under enactment)

Terminating agreements: Post Office Agents Association Ltd v Australian Postal Commission (termination of agreements selling NSW duty stamps contract was proximate source)

Decision to award contract after tender: Concord Data Solutions v Director-General of Education [1994] (decision after tendering process—provision of computer programs to school no JR || BUT Bill thinks could have been under a statutory scheme: see below)

o BUT if legislation transcribes a contract into law, that will be a decision: Department of Aviation v Ansett Transport Industries Limited (particularly where that allows for the unilateral decision-making, rather than mutual)

o Even where instrument regulates how that power to be used: Hawker Pacific v Freeland

3A. [Qld only] “under a non-statutory scheme or program”: s4(b) JRs4: decision to which this Act applies means—(b) a decision of an administrative character made, or proposed to be made, by, or by an officer or employee of, the State or a State authority or local government authority under a non-statutory scheme or program involving funds that are provided or obtained (in whole or part)—

(i) out of amounts appropriated by Parliament; or(ii) from a tax, charge, fee or levy authorised by or under an enactment

1. Scheme or program scheme is singular | program is ongoing idea: Anghel v Minister for Transport (No 1) [1995] (rail line

funded by State & Cth—compulsory acquisition = scheme JR reviewable || but lost on merits) o BUT not mere incorporation of a scheme: Mikitas v Director-General, Department of Justice and

Attorney-General (1999) (a decision to make offices open-air, in accordance with ‘office fit-out guidelines’ not a scheme)

Possibly scheme in Concord Data Solutions v Director-General of Education [1994] (decision after tendering process—provision of computer programs to school no JR) but not applied

Mere criteria for establishing a scheme or program not sufficient: Bituminous Products Pty Ltd v General Manager (Road System and Engineering), Department of Main Roads [2005] (decision to remove product from list of approved products for road construction—list developed within Main Roads manual setting out standards—entitled to create program under Transport Act criteria for scheme or program, not scheme in itself)

o Decision must be close to the reason for appropriating the funds

2. Involving funds appropriated or collected by Parliament Must be based on appropriating money: Wide Bay Helicopter Rescue Services v Minister for Emergency

Services (1999) (decision not to approve helicopter company for provision of rescue services—merely varied contract required no money → not a decision under a scheme or program → no JR)

Under non-statutory scheme or program Decision expressly or impliedly authorised

o Gleeson CJ: that the enactment gives legal force or effect to the decision Decision confers, alters or otherwise affects legal rights and obligations, and in that way, be derived

from the enactmento Legal rights can arise from unwritten law—capacity to affect rights must arise from scheme

Griffith University v Tang (2005) (Gummow, Callinan and Heydon JJ, Gleeson CJ agreeing, Kirby J dissenting) (PhD candidate expelled by committee after found to be fabricating lab results—under GUA, s5 university functions to support research/disseminate knowledge | s7 & 8 council & functions | s11 delegate

powers to committee not under enactment ← entirely consensual arrangement || Kirby J in dissent—power could have come from nowhere else | gravity of case)

[Cth only] Exception: decision by the Governor-General Governor-General decisions are expressly excluded: s3 ADJR Act

o ↔ Qld—no exclusion exists under JR Act Can be judicially reviewed under the general law

[→ if not satisfied alternative is to claim under CL or Pt 5 JR Act (Qld)]

Statutory right to obtain Statement of Reasons Once pre-requisites to statutory judicial review are proven, have a statutory right to reasons: ADJR s13,

JR s32 o cf no right at common law: Public Services Board of NSW v Osmond (1986) HCA

Benefits of receiving reasonso Potential applicant can assess chances of successful applicationo Improves administrative decision (accountability)

Procedure Qld & Cth—must request

o within 28 days of issuance of document stating the decision: s33(4)(a) JR Act; s13(5)(a) ADJR Act; and

o In any other case, within a reasonable time: s33(4)(b) JR Act; s13(5)(b) ADJR Act. If requested → Reasons must then be given within a reasonable time, not later than 28 days: s33(1) JR

Act; s13(2) ADJR Act Otherwise →

o May refuse to give reasonso BUT must give notice of reasons why the request reasons is being refused: s33(5)

Obligation on decision maker Law relied on | the facts relied on | the decision maker’s reasoning: Ansett Transport Industries

(Operations) v Wraith (1983) (Should use clear language and not just mimic words of statute)o Qld—statement must contain the reasons for the decision: JR Act s34

Reasons = findings on questions of fact, and a reference to the evidence given, as well as the reasons given: s3 JR Act

o Cth—the statement must contain any findings on questions of fact, evidence, and the reasons given: s13(1) AD(JR) Act

Need only state facts actually relied on by the decision maker, not all facts which might be relevant: Minister for Immigration and Multicultural Affairs v Yusuf (2001)

reasons must be stated in terms that people who are most affected by them can understand: Commonwealth v. Pharmacy Guild (Aust) (1989)

Exclusions Already accompanied by a list of reasons → new list of reasons not required: s31(1)(a) JR Act; s13(11)

(b) AD(JR) Act. Exempt decisions

o Queensland—s31(b) JR Act – refers to Sch 2 decisions Matters relating to Crime & Misconduct Act 2001: Sched 2, No. 3-5 Weapons (5A), Prostitution (5B) Recovery or enforcement of judgements: Sched 2, No. 6 Recruitment, training, promotion etc of public servants: Sched 2, No. 7-8

Incl police: Sched 2, No. 9 Industrial disputes: Sched 2, No. 10 Local gov budget & rates: Sched 2, No. 11-12

Tendering & awarding of contracts : Sched 2, No. 13 Assessment & calculation, collection of tax: Sched 2, No. 15-16

o Commonwealth—s13(8) AD(JR) Act (Sched 2 Decisions)

Cases—Justiciability

R v Toohey (Aboriginal Land Commissioner) Ex parte Northern Land Council (1981) 151 CLR 170 Decision upon a land rights claim to be made by the Northern Territory Administrator, who is given

prerogative powers by the Northern Territory (Self-governing) Act. Decision on a land rights claim by the Northern Land Council, with the decision made by the land

rights commissioner The Administrator declared much of the area as an area where there are ‘towns’, which prevented a

claim being made upon the landHeld

Doesn’t matter who has the power, it must be exercised lawfully. The court will determine whether the power has been exercised lawfully

High Court able to review decision of Governor etc This is unless the statute expressly excludes judicial review Declined to follow the Communist Party case,

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24: The Minister’s direction was invalid. The Minister was bound to take into account the information But there will be some decisions which are so infused with complex economic, political and social

issues that they are not suitable for the courts to review Here, simply a narrow dispute between the government and a coy Different where high level governmental policy decision

South Australia v O’Shea Some decisions made by federal cabinet are not amenable to JR Parole board recommended that cabinet approve parole for O’Shea Cabinet vetoed recommendation Held that decision not amenable to JR because cabinet had function to look at broader issues than

just one prisoner

Ex parte Lain (UK CoA) Home Office were compensating victims of crime – applied set of rules to decide on applications for

compensation No statutory powers CoA held that decisions made were judicially reviewable – history of prerogative writs were not

dependent on existence of statutory powers

Council of Civil Service Unions (UK HoL) Industrial action taken in GCHQ (part of foreign office, intelligence) All staff part of general civil service union (CSU) Disputes regarding security screening Order in council (cabinet) to give civil service minister (Thatcher, at the time) the power to instruct

the civil services to forbid industrial action CSU sought declaration that decision was invalid Govt argued that it was a political decision and exercise of prerogative power so was not judicially

reviewable HoL held that exercises of prerogative power was prima facie judicially reviewable but there would

be some exceptions (ie decision of AG to initiate process of prosecution)

Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277: Neat Trading wanted to export wheat Wheat Exporting Authority approval is needed For them to get this, AWBi (a wholly owned subsidiary of AWB, Neat’s competitor) must approve a

rival firm to export wheat

Power for AWBi to make decisions on exporting in coy constitution and in a list of companies in Schedule 2 of the Wheat Act

Neat Trading wanted a particular type of wheat exported; AWBi refused to give consent Neat wanted the decision judicially reviewed

Majority held the company’s decision can’t be judicially reviewed, as there was an intersection between public and

private business Per McHugh, Hayne and Callinan JJ: refusal to consent, the AWBi’s powers arren’t from the Wheat

Act, as they are incorporated under the Corporations Act – therefore, can’t be reviewedo Focused on the source of the power (here coy constitution not statute)

Minority held Gleeson CJ: reviewable decision as public law element present, AWBi was in effect operating for

nation/government Not unreasonable for the decision to be judicially reviewable Would be unfair for some corporations to be subject to JR and others not Kirby J - AWBi is part of the statutory scheme from the Wheat Act, means that the AWBi is within

the web of that Act, and the power exercised was a public powero Primary consideration should be the nature of the power not the source of the power

R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] 1 QB 815: The Panel on Take-overs and Mergers was a self-running body, not created by statute, nor was it

based on common law or prerogative powers It administered a code of conduct on mergers and take-overs There was a complaint by one company that two rival companies were acting ‘in concert’ on a take

over bid The panel rejected the complaint

Held: The court was not confined to considering the source of the power when considering whether a

decision was judicially reviewable, but could look to its nature, and to the duties and functions actually exercised

The nature of the responsibilities of the Panel made it a public board performing a public duty Implied recognition of Panel decisions in statutes as they were given legal force by a statute – further

public in nature Therefore, a decision could be judicially reviewed In this case, however, there has been no procedural unfairness, or any other ground upon which

judicial review could be founded

Cases—Decision to which this Act Applies

DecisionAustralian Broadcasting Tribunal v Bond (1990) 170 CLR 321:

There was a two-stage process under the Broadcasting Act, to decide whether a person would retain their licence:

Whether that person was no longer a fit and proper person Then the decision could be made to suspend or revoke the licence Alan Bond was deemed to be not a fit and proper person, in regards to a settlement

between Sir Joh Bjelke-Peterson, which was said to be a bribe. Bond sought to judicially review the decision

Held was not a “decision” under the AD(JR) Act (see below for conduct) Per Mason CJ: (at 337) A decision is one that is final or operative, and determinative It is a substantive decision This decision gives effect to the statute’s intention, when considering that ‘conduct’,

‘reports’ and ‘recommendations’ can be reviewed An intermediate decision can be reviewed, only where it is provided for under the

statute, so that it can be characterised as a decision under an enactment Applying that to the facts, The decision in question here, that Bond was not a fit and proper person, is not

something which would allow for a final, determinative decision. The finding is not a decision – the only decision was the second step of deciding

whether or not to revoke the licence

Redland Shire Council v Bushcliff Pty Ltd [1990] 2 Qd R 97 Process of deciding to amend a planning scheme, and then putting a proposal to

public scrutiny before deciding whether or not to proceed Held that the first decision to amend was not judicially reviewable as it was merely

procedural First decision to amend was not determinative of action

Noosa Shire Council v Resort Management Services Ltd [1995] 1 Qd R 311 Decision by local authority to accept a proposal to amend a planning scheme Held to be judicially reviewable because it was a final and operative decision – the

next step was to amend the legislation

Edelsten v Health Insurance Commission (1990) 96 ALR 673 “decisions” of a Minister (or delegate) as to whether to refer a matter to a committee

for an inquiry regarding the regulation of medical practitioners Held that decisions to refer were not final or operative Northrop and Lockhart JJ b/c procedural decision only Davies J b/c it was conduct engaged in in the process of making a decision

Schokker v Commissioner of Taxation (1998) 51 ALD 654 : related to the refusal to refer the complaint about alleged breaches of privacy to the

DPP. The decision to prosecute was a decision of the DPP. Held: was a sufficiently final decision, because it settled a final determination of the

complaint, and was not a mere step along the way

Salerno v National Crime Authority (1997) 144 ALR 709 : related to a decision to authorise a warrant to raid + search premises

Held: Was a reviewable decision. Even though it related to investigation, the effect of the search warrants was to interfere with the private property and privacy of the person.

Was therefore a substantive determination, and not procedural Was a serious infringement of a person’s right to quiet enjoyment of property Note Salerno lost in the end because the decision was not made under an enactment

Made under an Enactment

Griffith University v Tang (2005) 213 ALR 724o Respondent was a candidate for a doctorate of philosophyo The candidature was terminated, after it was found that there was a falsification of laboratory

results o Internal appeals committee set up by GU made the decision o Said to be a breach of natural justice/procedural fairnesso The decision was said to be under the Griffith University Act, which had:

s5 – functions of university to support research, disseminate knowledge s7 – council s8 – council as a governing body s9 – delegate powers to appropriate committee

o Which was where the relevant committee got their power o QCA held that the decision must have been made under an enactment – GU had powers only

from the Act, did not have any prerogative powers, so must have been made under the enactment

o HCA allowed GU’s appeal; the decision was not one that was under an enactment Did not affect legal rights of Tang as r/ship between Tang and GU was entirely

consensual – no right to continue Kirby J – vigorous dissent – where there is no contractual or other source of the

power, must be made under the enactment. Given that the decision happened in the statutory context and GU could not have made the decision without the statute, it is made under the statute. Kirby J also criticised the majority’s narrow approach as undermining the whole point of the ADJR Act + judicial review reforms in Australia

Guss v Deputy Commissioner of Taxation (2006) 152 FCR 88o Self-executing statute – decisions made automatically under the statute so no-one needs to

actively “make a decision”o Regarded provisions in tax legislation regarding tax payable by coy directors – who are

personally liable if coy does not payo Steps under legislation

1. Cmr to give directors notice2. director to elect one of 3 options within 14 days3. if directors don’t elect an option, they become personally liable

o if Cmr wished to sue to recover tax, must first give notice that he intended to initiate recovery proceedings

o HELD: TJ <> not a decision under an enactment because statute automatically made them

liable, not of action did not affect legal rights as legal obligation already imposed under step 3

FCFCA <> affirmed TJ’s decision Dissent – Gyles J <> Cmr must take step in statute to give notice to initiate

proceedings to make liable, so Tang test satisfied

General Newspapers v Telstra Telecom received tenders for white pages contract During process, Telecom was incorporated into Telstra Held that decision to award contract was made by Telstra under power given to it by

its Articles of Association, not by any statute Provisions in statute gave general power to enter into contracts, but entry into that

particular contract was one step removed + hence was sourced in personality as company

Electricity Supply Assoc. of Aust Ltd v ACCC [2001] FCA 1296 Published decision about the operation of a provision of the TPA was made in

pursuance of the ACCC’s legal personality, and not under any power in the Act Publishing decision was well outside decision making power conferred by Act

Glasson v Parkes Rural Distributions Pty Ltd Cth body set up under legislation regarding petrol subsidy scheme All decisions made by body were to made in accordance with state legislation Decision by NSW official to demand return of overpayment Held decisions could not be reviewed under ADJR Act, because no decisions were

made in pursuance of any Cth Act, the decisions were made under the State Act

Non-statutory Scheme or Program

Anghel v Minister for Transport (No 1) [1995] 1 Qd R 465: A rail line to the port of Brisbane was going to be constructed, jointly funded by state

and Commonwealth money This meant it was funded by money appropriated from state parliament Properties were going to be resumed Applicant wishes to argue that the decision breached environmental regulations

Held: The rail link was a scheme, because it was a one-off project Therefore, it could be JRed as a scheme However, lost on the merits of the case

Bituminous Products Pty Ltd v General Manager (Road System and Engineering), Department of Main Roads [2005] 2 Qd R 344:o Applicant owned a product that was used as a pre-coating for road construction o People were slipping on roads when weto Sought appeal against a decision to remove its product from a list of approved products o The list was developed within the Main Roads, and was a manualo Set out standards for carrying out road workso Minister entitled to create road implementation program under Transport Act 1995o Held the list was simply criteria upon which a scheme or program could be developed o It was the criteria for a scheme of program, and therefore, couldn’t be a scheme itselfo As power was in Act, it was not “non-statutory”o The closer the decision to the reason for expropriating the $, the more likely that it is a

decision under a non-statutory scheme/program

Standing

Background—CL Judicial Review Historically, standing different for common law (writ), equity (injunction) and statute Now treated as same

Old CL Crown had standing—prerogative writs of certiorari and prohibition granted only at the suit of the Crown,

← to ensure inferior courts didn’t encroach on the royal prerogative Strangers —

o Standing to persons aggrieved: Forster v Forster (1863) Wrong legal test used → standing granted to seek certiorari or prohibition: R v Greater

London Council; Ex parte Blackburn [1976] (release of an indecent film)o No standing where a ‘mere busybody’: R v Greater London Council; Ex parte Blackburn [1976]

(so as not to waste the court’s time)

Later Common lawGeneral Rule—Only with Fiat of AG: Cooney v Kuringai Municipal Council Only the Attorney-General could bring an action to defend public rights, ex relatione (on relation of the

facts by an individual): Cooney v Kuringai Municipal Councilo Usually requires undertaking as to costs from interested partyo Refusal of A-G’s consent to give name is not justiciable: Gouriet v Union of Post Office Workers

[1978] (no JR) AG may also bring matter Ex propia motu | ex officio (on their own motion)

Exception: Boyce v Paddington Borough Council [1903] (built block of flats in churchyard—council worried that might in the future claim unrestricted right—council building awning over space—Boyce claiming injunction action failed)

1st Limb—Private right also infringedPlaintiffs can sue without relying on the AG if public right has been infringed and a private right is also infringed eg—car blocking street (public nuisance) & blocking person’s driveway (private right)

2nd Limb—Suffered special damage= any substantial damage that is distinct from or goes beyond that to the general public and is not too remote Same damage to a higher degree not sufficient: Anderson v Cth (importing of sugar—only damage was

the increase in sugar price—would affect everyone)

2nd Limb expanded—Has a special interest: Onus v Alcoa (1981) per Stephen J (Building aluminium smoulder—Act prohibiting interference with ‘relics’—Aboriginal community seeking to preserve cultural significance of relics | long association with the land → special interest → standing || no private rights—legislation not enacted with that people specifically in mind → 1st limb not satisfied)

Standing under StatuteA person who is aggrieved by decision/conduct can seek review: s20 JR | s5 AD(JR) (person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision) ‘Aggrieved’ includes a person whose interests are adversely affected: s7(1)(a) JR | s3(4)(a)(i) ADJR

o Report or recommendation → would be adversely affected if (not) implemented: s7(1)(b) JR | s3(4)(a)(ii) (making of a report or recommendation—to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report)

o Conduct proposed to be engaged in for the making of a decision → would be adversely affected if (not) adopted: s3(4)(b) AD(JR) (reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct)

Common Law Basis← Common law issues involving standing are incorporated into the statute: Australian Institute of Marine and Power Engineers v Department of Transport (1986) per Gummow J (Application for statement of reasons—decision as to how many men were required on a ship to meet safety requirements decision produced “danger and peril to the interests of the applicant that was clear and imminent rather than remote, indirect or fanciful” → interest of an intensity and degree well above that of an ordinary member of the public → standing granted)

Originally—Special Damage: 2nd Limb of Boyce v Paddington Borough Council [1903] (built block of flats in churchyard—council worried that might in the future claim unrestricted right—council building awning over space—Boyce claiming injunction action failed) = any substantial damage that is distinct from or goes beyond that to the general public and is not too remote Same damage to a higher degree not sufficient: Anderson v Cth (importing of sugar—only damage was

the increase in sugar price—would affect everyone)

Expanded—Special Interest: Onus v Alcoa (1981) per Stephen J (Building aluminium smoulder—Act prohibiting interference with ‘relics’—Aboriginal community seeking to preserve cultural significance of relics | long association with the land → special interest → standing || no private rights—legislation not enacted with that people specifically in mind → 1st limb not satisfied)

Contrast with position under Statute JR & ADJR acts more liberal than common law Remedial & designed to make JR more accessible: Ogle v Strickland (1987) (decision to allow film to be

released depicting Jesus as a petrol bowser attendant—review sought by priests sufficient interest)o ‘person aggrieved’ not to be given a rigid or inflexible meaning but should derive its meaning

and take its colour from the context in which it appears and the nature of the particular statute BUT cases unclear about in what sense the statutory position is ‘more liberal’ so this remains ambiguous

InterpretationMerely interested people ↔ group involved in government programs & contributing to decisions Need not be a pecuniary interest: ACF v Commonwealth (1980) Courts must consider proximity and weight of interest, cannot be considered mechanically: Onus v Alcoa

(1981) per Stephen J (cultural connection of aboriginal groups sufficient) ‘Mere emotional concern’ not sufficient: ACF v Commonwealth (1980) (Japanese company permitted to

build resort—environmental group seeking review—no direct private rights in legislation mere concern not sufficient—not sufficient that the constitution of ACF stated aims to include environmental protection → no standing)

o Although note the position has since become more liberal: ACF v Minister for Resources (1989) (granting of licence for woodchip export—review sought by ACF & local landowner—concerned with protection & conservation of environment ACF had government financial support | pre-eminent body on issue | made submissions to inquiries etc → sufficient interest → standing);

Involvement in Process Indicia of an organisation with sufficient involvement to have standing: North Coast Environment

Council v Minister for Resources (1994) per Sackville J (granting of interim licence to export woodchips while preparing environmental statement—environmental group seeking reasons for decision had standing ← recognised by government | made submissions on forestry | umbrella organisation | on advisory committees | received government funding)

(1) peak organisation in region | with activities related to the areas affected: also ACF v Minister for Resources (1989)

Size not critical—but trust is significant, in terms of membership, income, range of activities: Tasmanian Conservation Trust v Minister for Resources (1995)

(2) recognised by Government as a significant and reputable environmental organisation, through the provision of regular financial grants : also ACF v Minister for Resources (1989) (granting of licence for woodchip export—review sought by ACF & local landowner—concerned with protection & conservation of environment ACF had government financial support || pre-eminent body on issue, made submissions to inquiries etc → sufficient interest → standing); Tasmanian Conservation Trust Inc v Minister for Resources (1995) (licence to export woodchips had standing ← received funding || conducted research, advice, lobbying | peak organisation | recognised by Tas Gov)

(3) recognised by Government as a body that should represent environmental concerns on advisory committees: also Tasmanian Conservation Trust v Minister for Resources (1995)

Party to conference deciding on issues: US Tobacco Co v Minister For Consumer Affairs (1988) (decision to deny permission to import tobacco products—US Tobacco seeking review—AFCO wanted to be joined as was a party to conference deciding against those products AFCO had sufficient interest → joined)

Level of government recognition | involvement in environmental issues: Save Bell Park Group v Kennedy [2002] (Decision to rezone park—environmental group seeking JR—difficult to imagine another group having standing | connection not merely intellectual or emotional standing granted)

(4) conducted or coordinated projects and conferences on matters of environmental concern for which it had received significant Commonwealth funding: also Tasmanian Conservation Trust Inc v Minister for Resources (1995) (licence to export woodchips—normal submission of statement etc foregone as earlier assessment sufficient—decision to forego challenged by environmental group had standing ← conducted research, advice, lobbying | peak organisation | recognised by Tas gov | received funding)

(5) makes submissions on issues: also ACF v Minister for Resources (1989)

Cultural / Spiritual / Religious concern

May be sufficient where o a necessary incident to the profession | representing a significant sector of the community: Ogle v

Strickland (1987) (decision to allow film to be released depicting Jesus as a petrol bowser attendant—review sought by priests sufficient interest)

Damage sustained as Christians may be sufficient to give standing without the additional factor of their vocation: Wilcox J only (Fisher & Lockhart JJ not deciding)

o Special cultural connection exceeding a mere concern to have the law enforced: Onus v Alcoa (1981) (Building aluminium smoulder—Act prohibiting interference with ‘relics’—Aboriginal community seeking to preserve cultural significance of relics | long association with the land → special interest → standing || no private rights—legislation not enacted with that people specifically in mind → 1st limb not satisfied)

Not sufficient if philosophical grievance does not extend beyond that which he or she has as an ordinary member of the public: Right to Life Association v Department of Human Services and Health (1995) (RTLA objecting to testing of morning after pill only religious or philosophical concerns | goal of act was health)

Commercial Interest May be sufficient where—

o accompanied by a social interest, even though the applicant stands to gain financially also: Re Boe and Criminal Justice Commission (1993) (CJC decisions on legal aid funding—prominent solicitor seeking review—no direct interest as did not affect his own licence had interest in seeing his clients get more funding = affected economic interests | also social concerns → standing)

o Particular economic interest arising from competition—where there is a limited market | addition of competition would have severe effect | policy reasons to encourage growth: Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund (1998) (Local government starting funeral fund—exemption from Minister required under Funeral Funds Act—rival company objecting—only interest economic special interest → standing || important for FFA to be enforced for public benefit)

Even though goals of applicant not consistent with purposes of the act: Bateman’s Bay v Aboriginal Community Benefit Fund (1998) (action should not fail for want of a competent plaintiff)

BUT note cannot be too far out of line: Right to Life Association v Department of Human Services and Health (1995) (RTLA objecting to testing of morning after pill only religious or philosophical concerns | goal of act was health)

Pure desire to exclude competitors from the market to own commercial benefit not sufficient to give standing: California Theatres v Hoyts

o Policy considerations lacking: Alphafarm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) (Drug company seeking to prevent rival from trialling equivalent no standing—purely commercial); Rayjon Properties Pty Ltd v Chief Executive Queensland Department of Housing, Local Government and Planning [1995] (attempting to hinder economic rival)

o Especially where there are policy reasons to the contrary: Chilcott v Medical Board of Qld (2002) (decision to register 2 Nigerian doctors—other doctor seeking JR—interest = loss of ability to apply for job at those practices | reputation no standing ← insufficient interest | shortage of doctors)

Construction of Statute Must consider the relevant statute—eg if decision wrt company: Allan v Transurban City Link (2001)

(land being resumed for Melbourne link—owner seeking review—not considered by authority as not a ‘person’ aggrieved under the act—companies only no standing)

New CriteriaLook to both interest and effect of allowing standing

Standing to be granted so long as claim is not—

Abuse of process Motivated by malice Made by a busybody Resulting in inconvenience

Nth Queensland Conservation Council v Queensland Parks & Wildlife Service [2000] (Licence to build harbour—JR sought by environmental group QCC based on values of council—no private rights—receives funding | actively involved in environmental issues on Magnetic Island standing allowed || detriment to Qld gov not considered || would have ‘special interest’ under old test in any case)← Applied in Qld in Save Bell Park Group v Kennedy [2002]← Has been adopted by SJSC decisions but unclear as to whether uniformly adopted across Aus

Possible Return to a Restrictive Approach High Court may be returning to a more restrictive approach to standing—must consider the relevant

statute: Allan v Transurban City Link (2001) (land being resumed for Melbourne link—owner seeking review—not considered by authority as not a ‘person’ aggrieved under the act—companies only no standing)

Collateral IssuesConstitutional Issues The word ‘matter’ under ss 75 & 76 Constitution does not restrict law on standing in administrative law:

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment management Ltd (2000) (action to prevent distribution of false and misleading information—applicant argued that ‘judicial power’ in ss 75&76 meant must be an issue to be tried, not merely some general interest US constitution considerations not applicable—ACF v Cth not altered by constitution)

Amicus curiae= person stands as a ‘friend of the court’ = court gets information from a source to be fully informed about litigation Court now more likely to join the person to the proceedings than amicus curiae: United States Tobacco

Co v Minister for Affairs (1988) (decision to deny permission to import tobacco products—US Tobacco seeking review—AFCO wanted to be joined as was a party to conference deciding against those products amicus curiae but also had sufficient interest → joined)

Where lesser interest not sufficient for standing, may be joined as amicus curiae: McBain v Victoria (2000) (priests arguing against Victorian fertility treatment legislation)

o but unable to appeal: Re McBain; Ex parte Australian Catholic Bishops Conference (2002)

Reform of standing several attempts to reform standing rules For example—Australian Law Reform Commission wanted to liberalise rules

← Standing should be offered in cases unless: o Relevant legislation provided a clear intention to the contrary; oro Would not be in the public interest to do so, because would unreasonably interfere with the

ability of a person to have a private interest in the matter to deal with it sufficiently or not at all

Cases

Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493: An environmental group wanted to review a decision relating to the building of a

resort by a Japanese coy Group asked for an injunction to stop construction, argued that the decision to support

the project was invalid b/c no environmental impact statement was commissioned The Australian Conservation Foundation was a group of 6,000 members, and its

constitution was concerned with protecting the environment The relevant legislation did not confer any direct or private rights on the applicant to

seek compliance Held:

3-1 majority that there was no ‘special interest’ and so no standing Per Gibbs CJ: No special interest While doesn’t have to be pecuniary damage, can’t simply be a mere emotional

concern Must show that applicant will be advantaged if decision overturned or detrimentally

affected if decision stands The argument about the constitution of the ACF isn’t sufficient – doesn’t distinguish

anyone else from having an interest in the issue Not simply about being interested in upholding the law – otherwise everyone would

have a ‘special interest’.

Onus v Alcoa of Australia Ltd (1981) 36 ALR 425 Building of an aluminium smelter on land that had relics from the Aboriginal people

in Victoria. The A-G (Vic) refused to allow a relator action. There was legislation which made it an offence for anyone to interfere with relics Onus sought an injunction to prevent Alcoa from proceeding, as the land in question

had ‘relics’ on it, arguing1. That there was a private law right associated with the passing of the Act, as it was

for the benefit of the Aboriginal people as a special class (were descendants of original owners of land, used relics to teach children)

2. That there was a public law right, upon which they had a ‘special interest’ Held:

The applicants had a ‘special interest’ within the meaning of the limb This was because the people were custodians of the relics, and as descendents of the

people who occupied the area. The relics had an important cultural and spiritual heritage for the people More than a mere emotional concern, the building of the smelter would have a huge

personal effect Cf ACF (whose concern over the environment didn’t differentiate themselves from

the rest of society: Gibbs CJ

Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247:

The plaintiffs were operating a funeral benefit fund and life insurance businesses for members of the Aboriginal community in NSW

They sought an injunction to prevent a rival land council from creating a similar funeral business.

An exemption by the Minister was required under the Funeral Funds Act to allow this to occur

Only interest was economicHeld:

HCA held that they had sufficient interest Observance by their competitors of statutory conditions would be necessary for their

competitiveness Judges didn’t support the principle in Alphapharm (see below)

Per Gaudron, Gummow and Kirby JJ That the test of ‘special interest’, put a heavy burden on those alleging against a

government authority, because they had to prove a ground of appeal and that they had special interest

Should not interpret second limb of the rule in Boyce strictly Also, they questioned the logic of having a relator action with an A-G who was within

the executive government Wasn’t peculiar to the business; simply because they were opposites in business

Per McHugh J Saw that the protection of law was a chief responsibility of the executive government Because JR questions involve political tests, these decisions were best left to the A-G.

Alphafarm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 121 ALR 373: Company made a drug, and sought to prevent a rival from having a generic equivalent They sought to do so for purely commercial reasons The Therapeutic Goods Act’s purpose was to ensure public safety and health issues The company didn’t have standing, because of their narrow commercial interest

(trying to prevent rival entering market), particularly when considering the purpose of the legislation

Allan v Transurban City Link Pty Ltd (2001) 208 CLR 167: The respondent was the link corporation, designed to build the Melbourne City Link

project The authority had to get the borrowings for infrastructure approved by the

Development Allowance Authority The authority issued its certificates The appellant (an owner of property that was to be resumed for the project), sought to

have them reconsider the grant. The authority didn’t consider the request, as they were a ‘person’ aggrieved The appellant then tried to have the decision reviewed by the AAT, with no avail –

because of lack of standing Held: (per Gleeson CJ, Gummow, Hayne and Callinan JJ, with Kirby J dissenting)Judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ:

The court held that this was a specific statute in mind, and the court was construing this statute when it decided upon the issue of standing

Whether a person is ‘affected by’ a relevant statutory scheme, is a matter of construction – taking into consideration the purposes of the Act, and the decision made under that Act

The review type envisaged under the legislation was a failure of companies who wanted to review a decision, not someone who was affected in another way

This is because of references elsewhere to an ‘applicant’ – meaning that there would be consideration of those who applied and failed to get the certificates

Per Kirby J (dissent): Supports reference by the majority that a person affected by a decision should be

construed in terms of the Act itself That the interest in this case was supportable, even though it was akin to a ‘property’

interest The trend of federal statutes has been to allow anyone who is affected to bring

standing requirements

Australian Conservation Foundation v Minister For Resources (1989) 19 ALD 70:

Woodchips were only able to be exported where a licence was granted under regulations

The Minister for Resources granted such a licence to the second Respondent, to export 850,000 tonnes of woodchips from certain forests, which are part of the National Estate

The applicant was the ACF, and second applicant was a landowner near the logging area – who said they would lose their enjoyment and livelihood if this was to happen

They sought review, that the Minister had not followed all the requirements Held per Davies J

That the first applicant had standing, because of the particular forests from which the forests would come from

Was not merely a local issue Was more concerned with the protection and conservation of the natural environment The ACF was not merely a busybody, but had government financial support, and was

the pre-eminent body upon the issue, including making submissions to inquiries etc Public opinion had changed in 10 years since ACF v Cth and now expected the ACF

to act in the public interest ACF had particularly taken this issue on, by making enquiries, submissions,

protesting etc

US Tobacco Co v Minister For Consumer Affairs (1988) 83 ALR 79 US Tobacco wanted to judicially review a decision to prevent them from importing

smokeless tobacco products The Australian Federation of Consumer Organisations (AFCO) wanted to be joined as

a further respondent to proceedingsHeld:

That AFCO should be joined as respondents to the action That ‘interests’ within the ADJR Act had a broad term – going beyond legal,

proprietary, financial or other tangible interests or interests necessarily peculiar to the person

AFCO was a party to the conference which decided against importing the smoking products, was able to give evidence and challenge material and views of the AFCO

Tasmanian Conservation Trust inc v Minister for Resources (1995) 127 ALR 580: o Gunns applied to the Minister for Resources for a licence to export woodchips. o The Minister required that an Environmental Impact Statement be lodged to the Department

for the Environment o The Minister however said that what was assessed earlier was sufficient, and therefore this

process was not required to be followed o ‘In-principle approval’ was challenged by the Tasmanian Conservation Trust o Held : the Tasmanian Conservation Trusts was a ‘person aggrieved’ because:

The environmental organisation is a peak environmental organisation Activities include research, advice, lobbying and consultations – particularly in regard

to wood chipping Has been recognised by the Commonwealth as a peak environmental body Represents environmental interests to the Tasmanian government Receives government funding for research and advisory activities of trust Trust has made submissions and engaged in activities that show its conservationist

attitudes The size of an organisation not critical – but still the trust is significant, in terms of

membership, income and range of activities

Chilcott v Medical Board of Queensland [2002] QSC 118o Applicant is a medical practitioner, who is attempting to appeal decisions which would allow

the conditional registration of 2 Nigerian doctors

o Argued that had standing because of reputation, adverse economic impact, loss of ability to apply for a job at the practices where the Nigerian doctors have been placed

o Held : (per Cullinane J) that did not have standing Did not have sufficient standing Must consider the legislative framework upon which the cases are concerning Economic loss would not alone be sufficient, particularly where there is a shortage of

doctors Did not refer to the above 2 cases

JR Grounds

Decision: s5(1) ADJR | s20(2) JRConduct: s6(1) ADJR | s21(2) JR

A person who is aggrieved [STANDING] by a decision to which this Act applies [PREREQUISITES] that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

→ ss 5(2), 6(2) ADJR | s23 JR

The reference in paragraph (1)(e) [JR: sections 20(2)(e) and 21(2)(e)] to an improper exercise of a power shall be construed as including a reference to:

(a) taking an irrelevant consideration into account in the exercise of a power;

(b) failing to take a relevant consideration into account in the exercise of a power;

(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d) an exercise of a discretionary power in bad faith;

(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;

(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j) any other exercise of a power in a way that constitutes abuse of the power.

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g) that the decision was induced or affected by fraud;

(h) that there was no evidence or other material to justify the making of the decision;

→ ss 5(3), 6(3) ADJR | s24 JR

The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a) the person who proposes to make the decision is required by law to reach that decision only if a particular matter is established, and there is no evidence or other material (including facts of which he or she is entitled to take notice) from which he or she can reasonably be satisfied that the matter is established; or

(b) the person proposes to make the decision on the basis of the existence of a particular fact, and that fact does not exist.

(i) [ADJR: (j)] that the decision was otherwise contrary to law.

Natural Justice & Procedural Fairness

Decision: s5(1)(a) ADJR | s20(2)(a) JRConduct: s6(1)(a) ADJR | s21(2)(a) JR

A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

[→ also Broad JE: Animisic]Look at whether a final decision has been made → if not use ‘conduct’ provision

TWO QUESTIONS TO ANSWER; THRESHOLD AND CONTENT (HEARING AND BIAS)

THRESHOLD MATTER—APPLICABILITY OF RULES OF NATURAL JUSTICE

Right to procedural fairness & natural justices characterised in two ways— (Kioa v West (1985))o CL rule —decision maker must act fairly: Kioa v West (1985) per Mason J; Miah per Gaudron and

McHugh JJ (impliedly)o Implied statutory constraint on administrative and judicial power: Kioa v West per Brennan J

Whichever theory is correct, rules on application are the same: Miah per Gaudron J

Whether NJ Applies under the StatuteStarting point is the natural justice stipulations which the statute contains

Generally applies unless clear contrary intention in the statute: Haoucher v MIEA (1990) Deane J (deportation for criminal offence—policy that AAT would only alter decision on appeal in ‘exceptional circumstances’ | ‘strong evidence’ being led—no indication of what this meant deportee had a right to know—breach of procedural fairness)

Exclusion of NJ rightsExclusion—Legislature can exclude the rules of NJ, but only by very clear words: Kioa v West (1985) (deportation of Tongan family—Migration Act contemplates ex parte orders Kioas should have chance to answer charges against them—NJ depends on nature of case, looking to nature of inquiry, subject-matter, rules under which decision made, etc)

NJ obligations = Common law safeguard not dependent on statute—must establish clear, contrary & manifest contrary intention: Mason J

Clear parliamentary intention required ↔ issue of statutory construction: Brennan J Exclusions & restrictions strictly construed Examples of included and excluded by statute—

s147 Veterans Entitlements Act (veteran has the right to be heard, but not be represented by counsel)

s32 AAT Act Can exclude hearing rule by express & clear terms: MIMIA v Lat (FFC) (immigration visa—

Cambodian denied business visa ← earnings came from illegitimate sources—s51A ‘this subdivision is taken to be an exhaustive statement of NJ hearing rule’ legitimate)

o May not be true for bias rule

Supplementation of NJ rightsFurther NJ obligations & procedural fairness requirements may be implied to supplement rights given by statute: Kioa v West (1985) (proposition that court should not add more NJ rights rejected)

o Unless parliament expressly & clearly excluded: Ainsworth v Criminal Justice Commission (1992)

Adding more NJ obligations than those expressed in the statue—eg examination of witnesses → submission at end: Annetts v McCann (1990) (WA Coroners Act gives right to persons with a sufficient interest to appear at enquiry, examine & cross-examine witnesses—parents wanted final speech—coroner denied JR granted ← extra NJ requirement: allowed to pre-emptively reply to any anticipated adverse findings);

Where included in one part of Act but not the other: Ainsworth v Criminal Justice Commission (1992) (intermediate report on pokie licenses to assist in decision—portrayed Ainsworth in negative light recommending against permission due to mafia connections—no NJ obligations for research department in statute irrelevant that act creates NJ in one part but not another)

Where labelled a ‘Code’—does not make exclusive: Minister for Immigration v Miah (2001) (HCA) (deportation of Bangladesh based on material change of circumstances—Migration Act ‘code’ of NJ

obligations Pt 3 SbdivAB—legislation did not actually say that ‘Code’ was exhaustive—said no need to allow to make submissions did not oust other obligations—reasonable apprehension of bias (website) → should be invited to make submissions); Re MIMA; Ex parte Epeabaka (2001) (RRT member’s website called refugees liars & made other derogatory statements | also said positive things about work no bias on facts—overall willingness to help asylum seekers)

↔ minority—code is exhaustive: Miah per Gleeson & Hayne JJ

Whether NJ Applies to the PersonRules of natural justice must be followed where a decision would affect a person’s rights, interests or ‘legitimate expectation’: Schmidt v Secretary of State for Home Affairs (1969), per Lord Denning

Rights & Interests= decisions dealing with a person’s exercise of lawful right to do something

Initially—only removal of a person’s pre-existing right: Sydney Municipal County v Harris (1912) o Eg interference with property rights: Cooper v Wandsworth Board of Works (1863) o Developed to include dismissal from employment

Now—includes occupational licences = ‘privileges’ of an occupational nature: Banks v Transport Regulation Board (1968 HCA) (granting of taxi license—‘privilege’ not legal right—but involved occupation & had legitimate expectation of exercise procedural fairness rules apply)

Extended—Legitimate expectations= something less than a legal right

Must comply with NJ where legitimate expectation that decision won’t be made without giving you your say: Schmidt v Secretary of State per L Denning

Including expectations held as a result of—o Statements of policy : Haoucher v Minister for Immigration and Ethnic Affairs (deportation

for drug offences—AAT recommendations to minister—parliament policy that would follow recommendations unless ‘exceptional circumstances’ | ‘strong evidence to justify’ | tabled reasons in parliament legitimate expectation that would follow policy—otherwise must be heard → NJ applicable)

o Assurances or undertakings: cf. Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] (deportation for criminal offence—submission made about chn—Minister said they would contact carer but didn’t NJ applicable BUT no actual unfairness—no detriment suffered—considered submission so no obligation to contact carer)

o Existence of a regular practice: Heatley v Tasmanian Racing and Gaming Commission (1977) (decision to prevent person from entering horse racing track—usually allowed to enter on payment of a fee legitimate expectation → NJ rules applicable); Council of Civil Service Unions v Minister for Civil Services;

o Consequences of an adverse decision resulting in deprivation of rights or interest in property: FAI Insurances v Winneke (refused to renew insurance company licence legitimate expectation that renewed unless adequate reasons to the contrary | given opportunity to address → entitled to be heard = NJ)

o International instruments : Minister for Immigration v Teoh (1995) (HCA) (deportation—did not consider needs of children—UN Treaty on Rights of the Child—signed & ratified but not incorporated into Australian law nonetheless legitimate expectation that would be observed → right to be heard → set aside decision)

Criticised—signing treaty does not create legitimate expectation that it will be adhered to Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] (HCA) (deportation for criminal offence—submission made about chn—Minister said they would contact carer but didn’t no actual unfairness—no detriment suffered—considered submission so no obligation to contact carer)

o Existence of clear statutory criteria (where apparently satisfied): R v Murphy; ex parte Clifto Consideration of factors specific to the person or entity in question: FAI Insurances v

Winneke

Legitimate expectation does not entitle the person to a decision in their favour, just to procedural fairness: Minister of State for Immigration and Ethnic Affairs v Teoh (1995); Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] (granting NJ obligations does not guarantee decision of reversal of deportation)

Legitimate expectation more relevant to content stage—actual rights the legitimate expectation requires to be extended: Ex parte Lam

o legitimate expectation will not necessarily result in breach of NJ—actual unfairness or detriment required | procedural unfairness insufficient: Ex parte Lam (↔ HCA in Applicant VEAL (procedural unfairness enough))

Application of NJ in specific cases

Intermediate Decisions Old approach —NJ only applies where decision itself penalises or directly affects the person: Testro v

Tait Now—Where intermediate decision sufficiently affects the rights of the parties, the decision maker

will be subject to NJo Intermediate decision of sufficient weight—eg recommendation: Hot Holdings v Creasy

(1996) (2-stage process for granting mining lease—(1) warden recommendation | (2) Minister’s decision—sought JR of warden’s decision to hold a ballot as allowed under Mining Act Certiorari available ← minister must consider warden’s decision—had sufficient weight to sufficiently affect rights)

Cf. a mere report: Ainsworth v Criminal Justice Commission (1992)o Natural justice right to respond to detrimental statements: Annetts v McCann (1990) (Death

of boys in the desert—WA Coroners Act gives right to persons with a sufficient interest to appear at enquiry—parents wanted final speech—coroner denied JR granted)

BUT remedies not available if preliminary decision has no effect: Ainsworth v Criminal Justice Commission (1992) (feasibility report on introduction of pokies—intermediate report going to cabinet to assist in decision—portrayed Ainsworth in negative light recommending against permission due to mafia connections NJ not complied with because legitimate interest in maintenance of business reputation—but no effect (can’t certiorari quash a report with no legal effect) → only declaration of interference with rights)

Where right of appeal existsWhere an appeal right exists (whether exercised or not), there is no hard and fast rule as to whether NJ applies to the original hearing/decision: Calvin v Carr [1980] PC (Decision against jockey for race-fixing under Racing Rules → appealed but contended NJ problems in original decision NJ applicable || but no breach of procedural fairness on facts)

Generally reluctant to allow statutory judicial review applications unless appeal rights have been exhausted

Some NJ defects at first instance can never be remedied

Three different situations— (Calvin v Carr) De novo hearing by same body to supersede first hearing → sufficient to cure any loss of NJ: Re Refugee

Tribunal; Ex parte Aala (Iranian seeking protection visa—refused by Minister—reviewed also by Refugee Review Tribunal—did not consider statements that would turn in accomplice if found breach of NJ || if internal appeal full & fair rehearing of previous appeal, no appeal to courts)

Hearing structure indicates procedural fairness required at both levels → NJ required at both levels Appeal simply reviews decision to decide whether it was accurate → case by case

Factors to determine whether appeal will cure NJ defect— (Minister for Immigration v Miah (2001) per McHugh J (protection visa under Migration Act—entitled under Convention NJ meant should be given a chance to support contention that change in government made it dangerous to go home))

How preliminary the initial decision is Whether reputation was already affected Level of formality at first stage Urgency of the matter Nature of the appellate body Breadth of the appeal Subject matter of the decision

Also waiver of NJ possible in some circumstances

SUBSTANTIVE RULES OF NATURAL JUSTICE

Where an Act of parliament confers an administrative power, there is a presumption that it will be exercised fairly: R v Secretary of the House Department; Ex parte Doody [1994]

Basic Principles— (R v Secretary of the House Department; Ex parte Doody [1994]) Standards of fairness—

o not immutable o dependent on the context of the situationo must be determined in context of Statute

Person should be able to make representations, in order to gain a favourable result Should be informed of the gist of the case against him Should be heard by an impartial and unbiased person with an open mind

Hearing ruleAdequate prior noticeA person who is going to be affected by a decision should have adequate prior notice of a case against them: Annomunthodo v Oilfield Workers’ Trade Union [1961]; Re Macquarie University; Ex parte Ong (1989)

Length of time required determined by seriousness and urgency o None in some circumstances

Charges cannot be supplemented by another charge at the last minute: o Change of charge: Annomunthodo v Oilfield Workers’ Trade Union [1961] (trade union

member—plotting & corruption charges by internal disciplinary office | last minute second charge of conduct prejudicial to union (worse) no notice → breach of NJ)

o Letter with more allegations at hearing: Re Macquarie University ; Ex parte Ong (1989) 17 NSWLR 113 (removal of head of law school for not working with VC & others (factions in uni)—preliminary report given to Ong didn’t include some matters—given copy of final report 2 days before—further allegations in letter at hearing breach of NJ)

Notification of some matters but not others insufficient: Re Macquarie University; Ex parte Ong (1989) 17 NSWLR 113 (removal of head of law school for not working with VC & others (factions in uni)—preliminary report given to Ong didn’t include some matters—given copy of final report 2 days before—further allegations in letter at hearing breach of NJ)

Late notice (2 days) Re Macquarie University; Ex parte Ong (1989) 17 NSWLR 113 (removal of head of law school for not working with VC & others (factions in uni)—given copy of final report 2 days before breach of NJ)

Adequate opportunity to address issues= right to be given adequate opportunity to address issues

No absolute right to address all issues—depends on context (eg where investigation occurring): National Companies and Securities Commission v News Corp (1984) (investigating corporations for unlawful behaviour—lawyers wanted to XE all witnesses not allowed to XE every witness—not even determining guilt just whether enough evidence to try)

Must be allowed to XE adverse evidence: cf. National Companies and Securities Commission v News Corp (1984) (body investigating corporations for unlawful behaviour—News Corp sought right to cross-examine at investigations Policy that investigation able to operate without constant surveillance by accused—must give statement of adverse findings later in the piece)

Where a decision is being made, without all of the relevant facts, that will prevent a person from having an adequate opportunity to address issues

o Certain evidence not considered: Re Refugee Review Tribunal; ex parte Aala (2000) (Iranian seeking protection visa—refused by Minister because decided would not be persecuted | said to be concocting evidence—reviewed also by Refugee Review Tribunal—unsworn statements not made available in proceedings Breach of NJ—didn’t tell that thought concocted evidence | didn’t let him address issue of relevance of documents);

o Evidence not passed on: Muin v Refugee Review Tribunal (2002) (Indonesian/Chinese applicant for refugee status—parts of evidence not passed on to RRT failure to look at missing documents = breach of NJ)

o Inconsistencies caused by translator: Applicant NAFF of 2002 (Indian Tamil—RRT never questioned about detention in spite of otherwise extensive interrogation—alleged inconsistencies in story caused by translator not speaking dialect—rejected did not get fair chance to explain)

o Actual unfairness unnecessary: Applicant NAFF of 2002; SAAT (2005) Cf. Ex parte Lam

Disclosure of adverse material

Adverse information must be disclosed where it is credible, relevant and significant—otherwise procedural unfairness as no time to respond to it: Kioa v West (1985) (Deportation—Information that Kioa assisting other Tongans to stay in Australia illegally—not given to Kioa procedural unfairness)

Does not encompass all information—depends on nature of circumstances (eg investigative bodies): NCSC v Newscorp Ltd (1984) (investigating corporations for unlawful behaviour—lawyers wanted to XE all witnesses not obliged to allow lawyers to be present for entire proceedings ← an investigative body didn’t have to be 100% open)

Confidentiality —must balance against security considerationso Must be disclosed if credible, relevant & significant (even if says ‘no weight given to it’):

Applicant VEAL of 2002 v MIMA [2005] (application for refugee status—confidential letter received—application denied, stating that didn’t consider the letter must have at least looked at it to determine that it wasn’t relevant → had a subconscious impact → breach of NJ → must be disclosed)

← decision-maker might develop subconscious prejudice Can disclose substance without disclosing source: Applicant VEAL of 2002 v MIMA

[2005] (confidential letter re refugee status) BUT possible that in some cases disclosing substance will also disclose source

o Perhaps a retreat from such an open position in Minister for Immigration & Citizenship v Kumar (2009)

if disclosure would found an action for breach of confidence then need not disclose obliged only to give opportunity to contradict, not exact nature of information

(application for spousal visa— unnamed informant provided letter that not in continuing marriage relationship with mutual commitment—K invited to respond to allegations prior to hearing—not given name of or full nature of information provided by informant—application rejected on those grounds may disclose nature of allegations only—provision provides for protection of informant)

Can’t determine NJ by reference to reasons of tribunal: Applicant VEAL of 2002 v MIMA (confidential letter—credible | relevant | significant—stated that not considered but should be disclosed anyway)

Must also disclose new information becoming available before the decision is made: Minister for Immigration v Miah (2001) 179 ALR 238 (Deportation—new information that change in government made Bangladesh safer must be disclosed)

Breach of procedural fairness to consider a decision based on facts not available to other party without letting them respond: Re Herscu and Queensland Corrective Services Commission (1994)

Right to lodge written submissions | right to an oral hearing No absolute right to oral hearing—written submissions sufficient in some circumstances: Heatley v

Tasmanian Racing and Gaming Commission (1977) (obliged to give written notice | invite to make written submissions—no requirement for oral hearing)

Determined by seriousness of the matter | whether the person has been given an adequate opportunity to present their case. (Eg. in proceedings before the CMC, oral hearing is necessity)

Appropriate to have an oral hearing if—o adjudicating between 2 people; Finch v Goldstein (1981) (promotion in public service oral

hearing)o testing the evidence: Cf. Heatley v Tasmanian Racing and Gaming Commission (1977)

(warning not to enter property obliged to give written notice | invite to make written submissions—no requirement for oral hearing || cf. if contesting evidence, determining rights b/w 2 parties)

o issue of credibility involved | the applicant would be disadvantaged: Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1993)

Right to representation Prima facie should be represented by counsel, unless it appears the opposite is the case Not an absolute rule: Cains v Jenkins (1979)

Factors— (WABZ v MIMIA)o applicant’s capacity to understand procedure & issues o applicant’s ability to communicate in language used by decision maker (ie translator)o legal/factual complexity of the issues o significance of outcome for applicant’s welfare or liberty (eg application for parking permit

↔ dismissal procedure) Criminal proceedings require legal representation as part of a requirement for natural justice:

Dietrich v R (1992) (adjournment given until representation could be found) Not if Dietrich Principle not incorporated in Statutory regime: NSW v Cannellis

Right to cross-examine No automatic right to cross-examination: O’Rourke v Miller Cross-examination required where necessary to allow a person to put forward their case (e.g. by

allowing them to cross-examine a witness to show their side): o Necessary for DM to establish the truth: Finch v Goldstein (1981) (promotion of public

servant cross-exam allowed to explain her side of argument)o 2 versions of the truth raised—credibility of witness vital to finding: Harrison v Pattison

(1987) (Principal of a TAFE under disciplinary proceedings— quality & credibility of that witness was vital procedural fairness breached)

Delay in reaching the decision← Breach of procedural fairness if unnecessary delay gives a real risk that it impacts on the decision being made satisfactorily and fairly:

Decision is based on evidence taken in person—5 years to be made too long: NAIS v MIMIA (2005) (refugee status—rejected on demeanour based findings & no real danger of persecution due to religion & marriage—5 year delay breach of NJ)

Failure to observe Rules of evidence No general obligation to observe the rules of evidence (unless the statute provides for it) BUT Administrative tribunals should proceed on ‘logically probative evidence’: Re Pochi and

Minister for Immigration and Ethnic Affairs (1979) per Brennan J (evidence that P involved in certain operations—hearsay evidence not strictly bound by rules of evidence | but this evidence not ‘logically probative’ so should not have accepted)

o eg hearsay evidence not to be used: Re Pochi; Bunning v Cross

Failure to provide reasons for decision No general obligation to provide reasons: Public Service Board v Osmond BUT may require in some circumstances

Bias ruleTwo levels of bias

Actual bias → rare & difficult to establish [also →fraud ground] Ostensible bias—reasonable apprehension of bias by informed lay bystander (below)

Livesey v NSW Bar (1983); Johnson v Johnson; Ebner v Official Trustee in Bankruptcy (2000)Whether an innocent bystander would reasonably suspect that the decision maker would not bring an impartial and unprejudiced mind to the resolution of the issue

1. identify issue which causes partiality 2. determine logical connection b/w that matter and the feared deviation from a meritorious

decision Now same test for pecuniary & non-pecuniary bias: Ebner v Official Trustee in Bankruptcy (2000)

(abolishing conclusive presumption in pecuniary bias cases)

Non-pecuniary biasTest—reasonable apprehension of bias: Livesey v NSW Bar Association (1983) (Would the public, entertain a reasonable apprehension of bias; that the decision maker would not bring an impartial and unprejudiced mind to the resolution of the issue)

Indicia Preconceived perception from previous hearings on same material facts: Livesy v NSW Bar

Association (1983) (bailing out criminal who then disappeared—decision to strike off barrister—2 judges also refused admission to other party 80% same facts in both cases—did not come with open mind)

Public comments critical of a party: Carruthers v Connolly [1998] (retired QSC judges chairing CJC commission of inquiry—previously sitting on associated matters | public critical comments bias)

o BUT not if balanced by positive comments —can’t pick out an isolated part: Re MIMA; Ex parte Epeabaka (2001) HCA (RRT member’s website called refugees liars & made other derogatory statements | also said positive things about work no bias—overall willingness to help)

Holding private meetings with parties sympathetic to one side: Keating v Morris (2005) QSC (Patel inquiry—holding private meetings of people critical of Qld health bias || also commissioner consistently harsh on certain witnesses)

Consistent pattern of attacks, abuse & harsh treatment of certain witnesses: Keating v Morris (2005) QSC (Patel inquiry—commissioner consistently harsh on certain witnesses bias || also holding private meetings of people critical of Qld health)

o Commissioner may be vigorous—isolated attacks on witnesses permissible but cannot develop into pattern or biased practice: Keating v Morris (2005)

Decision-maker also acting as prosecutor : Re Macquarie University; ex parte Ong (1989) (removal of head of law school for not cooperating with other staff—VC instigated investigation & participated in council’s deliberations bias)

NOT bias merely to make statements about preliminary view: MIMA v Jia Legung (2001) (denied visa on ‘bad character’ grounds—Minister making public statements against giving visas to convicted criminals no bias, just opinion)

o ← Minister accountable to public—entitled to make public statements Bill thinks this isn’t a great point

o ← Not the same high standard of impartiality as judges & jurors

Waiver & Defence Waiver of bias—bias is apparent but only raises after an unfavourable decision: Vakauta v Kelly (1989)

(Not easy to waive this NJ right) Defence—necessary bias—where the biased person is the only one who can make the decision: Builders

Registration Board v Rauber (1983) (Brennan J—in order to absolutely prevent bias, would have to prevent the body from performing its statutory function)

Pecuniary bias

Presumption of bias abolished—o Old rule—even the smallest financial interest → conclusive presumption of bias: Dimes v

Grand Junction Canal Proprietors (1851)o Now—same test as non-pecuniary— ‘reasonable apprehension’ of bias: Ebner v Official

Trustee in Bankruptcy (2000) (Fed ct judge—beneficiary of trust with ANZ shares ordinary feature of modern life—no bias)

Not necessarily bias where—o Owning shares in a company in question, as a normal investment: Ebner v Official Trustee in

Bankruptcy (2000) (Fed ct judge—beneficiary of trust with ANZ shares ordinary feature of modern life—no bias); Hot Holdings v Creasy (2002)

o One of people involved in drafting advice with a small financial interest: Hot Holdings v Creasy (2002) (warden recommendation re mining lease—warden held a ballot as allowed under Mining Act—had shares in company | son would buy shares if tender successful Son insignificant | amount of shares so small that not likely to be linked to recommendation)

Effect of breaching NJ

Conflicting rules—decision which breaches NJ is— decision void: Ridge v Baldwin, affirmed in Calvin v Carr [1980] (better view) voidable = valid and operative unless challenged: FAI v Winneke. Court in MIMA v Bhardwaj (2002) suggested that categorising the decisions as void, voidable etc

takes away from the question—whether a person’s rights have been interfered with

Cases

Applicability of NJ

Kioa v West (1985) 159 CLR 550: 2 Tongan parents, with their Australian daughter, sought statutory judicial review against a

decision to deport them. The father entered on a student visa, the wife on temporary entry. Their daughter was born in

Australia. They stayed past the expiry of their visa in order to earn money for their relatives, who

suffered from a cyclone Held:

That the deportation orders be set aside, so the Kioa’s have a chance to present their case No requirement that natural justice be observed in all decisions. However, the Tongans should have been heard, in accordance with requirements that a

person be heard before they have a decision made that will adversely affect them. The UN Declaration of the Rights of the Child, nothing in it suggested that the child was

entitled to having the care of both parents.Per Mason J:

What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting

Procedural fairness here conveys an obligation to adopt fair procedures, which are adapted to the circumstances of the case

Whether there is no obligation will largely depend on a construction of the statute On applying it to the facts, the Migration Act obviously contemplates the making of an order

ex parte, so the natural justice requirement that someone be notified beforehand would frustrate the intention of the Act.

Where, however, an order is made to refuse to grant him, that person should be able to answer the charges against them

Per Brennan J: The question is one of statutory construction – does the statute expressly limit the operation

of the rules of natural justice? On applying this to the facts, there would be no danger in allowing Mr Kioa to answer the

claims against him, as he was not trying to evade immigration officials.

Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648: A person was under a deportation order under the Migration Act, as that person had been

convicted of a criminal offence. There was a policy, expressed to the Parliament, relating to the appeals avenue to the AAT,

but where the AAT would only alter the decision in very exceptional circumstances, where strong evidence was being led.

Held: That the deportee should have known what the ‘exception circumstances’ and ‘strong

evidence’ would be, in order to make his claims, but these were not forthcoming. This was therefore a breach of the requirements of procedural fairness. Per Deane J: procedural fairness requirements will generally be implied into an exercise of

government power

Minister for Immigration v Miah (2001) 179 ALR 238 Migration Act contained what appeared to be self-contained “code” of NJ obligations in

Subdivision AB of Part 3 3:2 held that existence of code not sufficient to oust other NJ obligations

o Gaudron, McHugh + Kirby JJ (majority) – held that the existence of the code was not sufficient to exclude all other obligations of NJ

Prevention of actual bias not included in code and obviously parliament would not intend actually biased decisions

Nothing in legislation said that the code was exhaustiveo Gleeson CJ + Hayne J (minority) – held that the statute was comprehensive and

parliament intended that nothing more than what was spelt out in the Act was required

Re MIMA; Ex parte Epeabaka (2001) 206 CLR 128 Regardless of statutory description as “code”, bias held to be a NJ obligation under the

Migration Act

FAI Insurances v Winneke (1982) 151 CLR 342: Insurance company had a licence to operate an insurance business wrt worker’s compensationn They were seeking a renewal of the licence GG could choose to give licence or not

Held: That the company had a legitimate expectation that the licence would be renewed unless there were

adequate reasons to the contrary + those reasons were put to FAI so they could address them Mason J said natural justice not limited to rights Where someone is being deprived of a right or interest in property, or legitimate expectation, they are

entitled to know the case against them and be given an opportunity to be heard (ie entitled to have NJ extended to them)

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273: A person was subject to a deportation power for committing criminal offences Decision maker did not take into consideration the needs of his children

Held: That there was a legitimate expectation that that deportation power would be used in compliance

with a United Nations Treaty on the Rights of the Child While the treaty had not been formally incorporated into Australia, there was a legitimate

expectation that its terms would be observed in areas of decision-making

Haoucher v Minister for Immigration and Ethnic Affairs Visa refused by Minister because of criminal offences AAT did not have power to overturn Minister’s decision, only had the power to return it to the

Minister for reconsideration and give a recommendation AAT sent decision back to Minister, suggested he make opposite finding Policy of government (which was tabled in parliament) was that Minister should follow

recommendations of the AAT unless exceptional circumstances + good reasons to the contrary + tabled those reasons in parliament

Held by FCA that tabling policy created a legitimate expectation that Minister would follow the AAT’s decision + so NJ obligations applied

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6: Vietnamese citizen entered Australia and was granted a transitional (permanent) visa. He was convicted of a variety of criminal offences, and sentenced for 8 years. A member of the Immigration Department advised the Vietnamese person that they were considering

cancelling his visa and having him deported He was given a chance to reply, and was advised as to what matter should be taken into account,

including the welfare of his children. The department said they would contact the carer of the children, and ascertain their relationship to

the applicant. They failed to do so. They cancelled the visa

Held: No denial of procedural unfairness on the facts

Criticised Teoh – said signing treaty will not always be sufficient to create legitimate expectation that it will be adhered to

3 principles in this area1. Legitimate expectation can’t give rise to an exercise of substantive rights (ie does not

guarantee a particular decision)2. legitimate expectation not so relevant to the threshold question of NJ, more relevant in the

content stage as to what actual rights the legitimate expectation requires will be extended3. legitimate expectation will not necessarily result in breach of NJ unless can prove some

actual (substantive) unfairness or detriment (ie not enough to prove procedural unfairness) Note HCA in Applicant VEAL said procedural unfairness was enough

Preliminary Stages

Ainsworth v Criminal Justice Commission (1992) 106 ALR 11: The CJC and the Deputy Premier agreed that there would be a report into the feasibility and problem

areas involved with instituting of a Cabinet decision to introduce poker machines. CJC report was intermediate because report would go to Cabinet and Cabinet would make the

ultimate decision The CJC Report dealt with many matters, including the Appellants (Ainsworth), and portrayed them

in a negative light, and suggested they shouldn’t be allowed to conduct pokies in Queensland b/c of alleged underworld/mafia connections

Legislative provision said that the CJC should act impartially, fairly, and in the public interest Held:

That the commission had failed to act in line with principles of natural justice Maintenance of a business and commercial reputation is a legitimate interest in line with the

principles of ‘legitimate expectation’ As the decision therefore was going to affect an interest, the CJC did not conform to the principles of

natural justice as they were required to do Irrelevant that the Act spelt out the NJ requirements for some functions but not for others – CJC

owed NJ obligations for all its functions No remedy was however available (neither certiorari or mandamus) because:

o Mandamus: no legal duty to investigate; o Certiorari: can’t quash a report that has no legal effect

However, they could get a declaration that their rights had been interfered with Hot Holdings v Creasy (1996) 134 CLR 469:

The Mining Act provided the Minister could grant a mine lease, a 2-stage decision-making process: Mining warden would consider it first, and make a recommendation to Minister; Then the Minister would make the decision In this particular case, there was a question about who had priority over a mining site, and as the Act

authorised him to hold a ballot, he made a decision to do so Hot Holdings sought to quash a decision made by a mining warden to hold a ballot, under the Mining

Act. Held:

Certiorari available – 3:2 majority Per Brennan J: 2 types of situation:

1. Where the decision under review is the final decision - on the facts here, would be the Minister’s decision

2. Where the decision is the first in a two-stage process - the question must be then: does that intermediate decision sufficiently affect a person’s rights?

Respondent argued no, just a recommendation Held that the mining warden’s decision under certiorari, would affect applicant’s rights, as Minister

must consider warden’s decision This preliminary decision did affect the company’s interest

Gave itself sufficient weight to say it sufficiently affected, so as certiorari applied

Annetts v McCann (1990) 170 CLR 596: Under the Western Australian Coroners Act, a person was given the right to appear in front of the

inquiry, where they had a sufficient interest 2 boys had died in the desert, one from thirst and the other from a gun shot wound The parents wanted to having a final speech at the end of the evidence The coroner refused to allow it.

Held: The coroner should reconsider that decision. The decision should be reviewed Where the parents were responding to anything detrimental said about them or their children, then it

would be against the rights of natural justice to have them not heard They had passed the threshold question here If it was a general statement, then the refusal would not amount to a breach of the rules of procedural

fairness.

Right of Appeal

Calvin v Carr (1979) ALJR 471: Horse racing regulated by the Rules of Racing of the Australian Jockey Club, which is a consensual

arrangement but also reinforced by statute. They have a comprehensive code or rules which form the basis of conducting rules in racing. A horse, CM, was run from New Zealand. There were extensive bets on the horse, but it run poorly –

although did finish 4th, after a strong run at the end An extensive investigation took place, upon which consideration of a great deal of evidence

occurred. The jockey was ruled against, and banned for 1 year. Jockey appealed; all jockeys etc. were available for cross examination, both parties were represented

by counselHeld: (per Privy Council)

The decision could be ruled ‘void’ even though it were subject to a further appeal No set test for overruling a decision where an appeal was available; General principles can be laid down for when a decision has an appeal: See above However, on the facts here no breach of procedural fairness

Minister for Immigration v Miah (2001) 179 ALR 238 at [35] per Gleeson CJ: The prosecutor was a citizen of Bangladesh, and applied a protection visa under the Migration Act. He was entitled to a protection visa under the Convention of the Status of Refugees There was some concern about religious fundamentalists in Indonesia, but after change of

government he was safer The delegate was not convinced the person was a refugee Prosecutor applied for the constitutional writs

Held: Procedural fairness required that the prosecutor should be given the chance to support his contention

that there was a change in government which made it dangerous for him Per Gleeson CJ:

o A right to appeal can also give an indication that procedural fairness was required to be applied also

o That the prosecutor was able to appeal and get a full statement of reasons would imply that there was a right there to ensure that procedural fairness was complied with

Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 at [50]: Prosecutor was born in Iran, sought to gain a protection visa

Minister for Immigration refused the application, when the Refugee Review Tribunal also reviewed the decision.

There was some question of persecution because of the concern of some real estate deals with the Shah’s property would lead to some real estate deals

Some statements were provided in the appeal book that said if the prosecutor’s accomplice was found, he would tell the authorities to make it easier on himself.

These statements were not considered. Held:

Decision overturned – certiorari Where there is an internal appeal right which is a full and fair rehearing of the previous appeal,

irrelevant to appeal to courts Was a breach of NJ - they prevented the prosecutor from fully putting his case

Substantive Rules

Hearing Rule

Adequate Prior Notice

Annomunthodo v Oilfield Workers’ Trade Union [1961] AC 945: Member of a trade union was charged with irregular discussion, plotting and corruption Was an internal disciplinary offence The Council convicted him Applicant was present Threw in a second charge (worse offence – conduct prejudicial to union) Held: (Privy Council) No notice of 2nd charge = breach of NJ

Re Macquarie University; Ex parte Ong (1989) 17 NSWLR 113: 2 rival factions in the University, both were trying to control teaching of the law in a particular way The question was whether or not the head of the law school should be removed, because he refused

to work with the Vice-Chancellor and other senior members of the university The Committee was to provide a report on the issue The report provided information on the stated topics, but also on a variety of other issues, for which

the Head of the Law School was not aware A preliminary report was given to Ong (head), but didn’t include additional matters + submissions

from VC Held: Was a breach of procedural fairness in relation to the additional areas discussed by the committee,

because Ong was not given the right to see them first (no prior notice of issues that were to be raised)

Disclosure of adverse material

Applicant Veal of 2002 v MIMIA [2005] HCA 72: A person was seeking to be considered a refugee The Refugee Review Tribunal got an unsolicited letter. Not anonymous, but requested the info to be kept secret Applicant had admitted being accused of killing a prominent politician of Eritrea. The RRT didn’t tell the applicant they had received it, nor the information In their reasons, they said they hadn’t given any weight to letter or contents, and the

contents of that letter not to be exposedHeld:

Their statement that they didn’t consider the letter does not cure the defect of procedural fairness

Adverse material could be put in sub-conscious That they would have to have seen it to determine there was no value to it, and therefore

were considering it Therefore, as they had considered it and determined it irrelevant, they had to disclose the

nature of it <> NJ won out over confidentiality Security:

o Balance public policy in decision maker getting all relevant information against public policy in NJ

o Had to make the decision on the basis of each case

Adequate opportunity to address issues:

National Companies and Securities Commission v News Corp (1984) 156 CLR 296

o The National Companies and Securities Commission had the power to make an investigation where the Commission is satisfied that a person had committed an offence under the Corporations Act.

o Provision provided for the requirement of natural justiceo The Commission could also invite people to interject in the proceedingso News Corporation, at one of these investigations, demanded the right to cross-examine, and

lead evidence in reply o Held: o Because there were no legal consequences at the hearing, the Commission would have

complied with the natural justice requirement where the witnesses were legally represented, and allow that person to commit examination

o Should give a statement of adverse findings to be made later o Policy is that investigation can be vigorous and continuous without accused always looking

over investigator’s shouldero Policy that NCSC should be able to hold their hand during early parts of investigation, but at

some stage opportunity must be given

Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82: Overseas national applied for refugee status. His application was rejected on the basis that he would not be persecuted – official

decided that his friend in Iran who was executed did not tell police/army of Aala’s involvement

After appealing to the FCA, the application came again before a differently constituted RRT.

They said they were making their decision on all information available in all of the court proceedings

o But they didn’t have several unsworn statements given to the Federal Court in earlier proceedings

They said his appeal was rejected, as they said the refugee had concocted the evidence.Held:

Was jurisdictional error + breach of NJ RRT was obliged to tell Aala that they thought he had concocted the evidence so that he

could deal with the matter Because they chose not to look at a certain document, they had to let him address the

issue of the relevance of the document Muin v Refugee Review Tribunal (2002) 190 ALR 601:

Applicant asked for refugee status Was an Indonesian of Chinese origin The application was passed onto the RRT, and they said they would look at it. Parts of the evidence, relating to the application, were not passed on. A secretary’s

written submission was also not looked at They said they had looked at all evidence and denied his application

Held: Failure to accord natural justice in relation to the missing documents, and the secretary’s

submission Need to disclose adverse material that is relied on

Applicant NAFF of 2002 Indian Tamil/Muslim RRT never questioned him about the dates of the alleged detention he had suffered,

although questioning generally was extensive RRT members said there was an inconsistency of answers he gave and that she would

write to him about it

Inconsistency caused by translator not speaking particular dialect and problems with translations

RRT members never wrote to him and found against him HCA held that if member thought answers were inadequate + needed information then

could not properly conclude matter without giving him fair chance of explainingo No need for actual unfairness cf Ex parte Lam

Right to lodge written submissions and/or a right to an oral hearing

Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487o A person had been given a ‘warning off’ warning, which meant that if he were to enter onto

the property, then they would not be admitted o Held: o They were obliged to give him written notice of the warningo They also should invite him to make written submissionso No requirement however to give him an oral hearing o Would be where there was a requirement to contest the evidence, or in determining the rights

between two parties

Finch v Goldstein (1981) 36 ALR 287o Case where a person was promoted in the Commonwealth public serviceo Fellow employee appealed to the Promotions Appeal Committeeo Not bound by legal forms o At the hearing, was interviewed by committee, but didn’t have her own counsel, nor put her

own case forwardo Held: o Natural justice should applyo Even though not bound by legal forms, could at least have mind to having her cases heard

Bias Rule

Hot Holdings v Creasy (2002) o The applicants were a mining company. o There was a decision which had affected their interest in a mining project. o A mining warden had received so many claims to mine in a particular area that he held a

ballot. o Some department officers then prepared a minute for the Minister for him to consider

following the warden’s advice, which he did. o One of the officers had shares in the company was present the minute was drawn up; another

had a son who was going to buy shares if the tender was successfulo Held interest of the son was insufficient to warrant bias. o The person who owned the share’s role was so small, that it could not be fair to say that the

departmental minute was made at the subject of bias o Not every interest held by a decision-maker will lead to the conclusion that there was bias

Livesy v NSW Bar Association (1983) 151 CLR 288: A barrister (Livesy) was struck off; administration refused for another They bailed out a well-known criminal who then disappeared Bail raised – judge set is at $10,000 – they raised it independently. Court said they had raised

it in a criminal proceeding. Went on appeal, also disbelieved 3 judges sat on the criminal’s case when it went on appeal Subsequently a hearing was heard to determine whether or not Livesy should be struck off for

participating in a criminal proceeding 2 of the judges there were also on the appeal case, which said they didn’t believe her story

She was struck off Held:

Breach the rules of procedural fairness That a fairly minded observer would construe a reasonable apprehension of bias, as they had

already pre-judged her in different proceedings They had already judged her in the first instance; they had already made up their mind that

she had done it Had been critical of her admission; Had the same critical facts in both cases Had not come with an open mind

Carruthers v Connolly [1998] 1 Qd R 339 Two retired Supreme Court judges chaired commission of inquiry into the CJC QSC held that on the whole there was a reasonable apprehension of bias, from conduct such

as:o Prior involvement in associated matterso Public comments critical of the CJC inquiry and its chairmano Public comments critical of CJC generallyo Public support of witnesses adverse to the CJCo Uneven conduct

Keating v Morris [2005] QSC 243: The Morris inquiry into Dr Patel The terms of reference to be considered: The appointment of Patel; Complaints of malpractice, with Keating and Leek – both senior staff of Bundaberg Hospital Keating and Leek were called to be witnesses at the inquiry Morris’ conduct: Questioning of Keating and Leek was antagonistic, and sarcastic Differential (sympathetic) treatment given to the doctors and nurses at the hospital Interrupted cross-examination Had private meetings between people critical of Queensland Health Legal action: Keating and Leek brought an application that there was bias at the trail

Held: That there was obviously bias. The differential treatment was sufficient to suggest bias Although it is permissible for a Commissioner to be vigorous in his questioning, and that may

excuse isolated attacks on witnesses But here there was a consistent practice/pattern of attacks and abuse at certain witnesses and

very different treatment to other witnesses (particularly whistleblowers, patients etc)

Re Macquarie University; ex parte Ong (1989) 17 NSWLR 113 V-C acted as both prosecutor (instigated the investigation and set out the scope of it) + judge

(by participating in council’s deliberations) Definitely reasonable apprehension of bias, perhaps even actual bias

MIMA v Jia Legung (2001) 205 CLR 507 Minister, just before cancelling a visa on the “bad character” ground, made adverse

statements on radio and in a letter to the AAT Minister said he was concerned about approach of AAT to letting people have visas who had

committed crimes HCA held there was no actual or reasonable apprehension of bias

o Bias means the person is incapable of changing their mind

o Some sort of initial predisposition or inclination does not automatically mean a person is biased

o Must also take into account that a Minister is accountable to public and entitled to make forthright public statements

o Cannot apply the standard of detachment necessary for judges and jurors to Ministers

Re MIMA; Ex parte Epeabaka (2001) 206 CLR 128 o Review for appeal decision for refugees o The person considering the application (RRT member) had a web site, which said that some

of the refugees lied through their teeth, and made other derogatory statements about refugeeso Also said some positive things about the work he did, and how he liked to help genuine

refugees o Full Fed Court held there was bias

Sympathetic tone – general tenor of what was said o HCA said no reasonable apprehension of bias

Where a tribunal member has his own page, not a good idea to discuss cases No bias here to suggest that there was a level of untruthfulness about refugees Seemed to have a general willingness to help asylum seekers Held no bias overall

Procedures Required to be Followed

Decision: s5(1)(b) ADJR | s20(2)(b) JRConduct: s6(1)(b) ADJR | s21(2)(b) JR

A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;

[→ JE—Jurisdictional Fact (if ~ then the minister may ~)]

General Test Historically—divided procedures into mandatory & directory procedures (now replaced)

o → only disregarding mandatory procedures would invalidate Current test—whether parliament would have intended a decision made in violation of a procedure would be invalid: Project Blue Sky Inc v Australian Broadcasting Authority (2000) (HCA) (ABA must act in accordance with Australian treaty obligations: s160 + Treaty with NZ on equal access to markets + ABA standards must be consistent with other sections of act: s122 —set standard that 55% of prime-time broadcasting = Australian content only regulating power → not void || but interested party could seek injunction to prevent reliance on it)

Contrast— establishes an essential pre-condition to the valid exercise of a function → void

o eg “the ABA may make standards provided that they are consistent with Australia’s obligations”: ↔ Project Blue Sky

o Consider why procedures required by statute & interaction with purpose of legislation Eg Requirement to issue health impact statement → reason is to provide factual &

expert matrix against which decision made about public health = purpose of act↨

regulates a decision making power or function which has already been conferred → not void (but person with sufficient interest may seek declaration that unlawful | injunction to prevent reliance of it)

o eg “ABA may make standards” + “ABA must perform its functions consistent with Australia’s treaty obligations: Project Blue Sky

Example—requirement to give in writing: SAAP v MIMA (2005) (high water mark) (immigration—Migration Act requires giving written particulars—RRT using video link to applicant, putting daughter’s statements to him orally condition precedent || even though no actual injustice || also JE)o May not be adopted: Minister for Citizenship v SZIZO (2009) (less willingness to find it will be a

condition precedent) Decision-maker must be bound to follow procedures for claim to succeed: Minister for Health and

Family Services v Jadwan Pty Ltd (1998) (Minister followed wrong procedures in Act—for declaring nursing home didn’t meet standards rather than to revoke licence minister not bound in any case → claim failed)

Considerations (cases under old approach—but in substance would have same result) Degree of importance, effect on community to be taken into consideration: Scurr v BCC (1973)

(Application to build shopping centre— public notice not given as required by Town Planning Act feedback important—critical process of public notice → void ↔ cf if merely technical matters like size of sign)

Where concerns public safety → probably precondition: JJ Richards & Sons v Ipswich City Council [1996] (Application to dispose of industrial waste written informally—Health legislation prescribed form mandatory)

Causing public inconvenience | aim of legislation → precondition: Hunter Resources Ltd v Melville (1988) (marking on ground for mining application in specified intervals measurements prevented multiple claims—aim of legislation to prevent this unfair advantage → mandatory)

Statute—may broaden Statutory wording may be broader —suggests a mere relationship, not necessarily causal connection:

Ourtown FM Pty Ltd v Australian Broadcasting Tribunal (1987) per Deane J (stand-alone—questionable authority) (broadcasting licence—required report to minister w reasons to decide whether to grant—argued that two separate powers, one not a precondition to the other legislation widened scope of ground—even if not a temporal relationship, still sufficient → JR)

o JR 20(2)(b) that procedures that were required by law to be observed in relation to the making of the decision were not observed

o JR 21(2)(b) that procedures that are required by law to be observed in relation to the conduct have not been, are not being, or are likely not to be, observed

o ADJR 5(1)(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed

o ADJR 6(1)(b) that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;

Cases

Project Blue Sky Inc v Australian Broadcasting Authority (2000) 74 ALJR 419: A case relating to whether Project Blue Sky, a NZ television producer The ABA created standards for television content, which could not be inconsistent with other

sections of the Act under s122(4) ABA created a standard that said by 1998, 55% of broadcasting b/w 6pm and midnight would be

Australian content S160 said ABA would perform its obligations consistently with Australia’s international treaty

obligations Treaty signed with NZ allowing equal access to markets – demanding 55% Australian content

breached this Section 122(4) – standards created can’t be inconsistent with the Act Full Fed Ct held that the Broadcasting standard was void because the procedures where not complied

with – the specific provision (s160) overrode the general provision (s122)Held by the HCA

Test is whether parliament would have intended a decision made in violation of a procedure would be invalid

Distinguished between two different types of legislative sections:1. a provision which establishes an essential pre-condition to the valid exercise of a function or

decision making power <> which if breached will make the decision void 2. a provision which simply regulates a decision making power or function which is conferred

elsewhere <> which will not ordinarily void decision always a question of statutory construction, reading the Act as a whole here, s160 is merely regulating the exercise of the power conferred under s122 because:

o s160 did not have a “rule like” quality further, if standard was void huge public inconvenience <> goes back to parliament’s intention as to

what would happen in the case of a breach so, held that ABA’s standard was not void, but was unlawful

o open for a person with a sufficient interest to seek a declaration that it was unlawful or injunction to prevent reliance on it

Scurr v Brisbane City Council (1973) 133 CLR 242: Company applied to the Brisbane City Council to build a Target shopping centre on land that was

owned by the Council. Section 22 of the Brisbane Town Planning Act, required a public notice to be set out in the form

required. The requirements were not filled out – not sufficient particulars, not told where it would be etc.

Held: Under old mandatory/directory approach: said it was a mandatory provision, and as it hadn’t been

completely filled, it was against the legislation Even where directory, had not been substantially complied with Re-considering the case in light of Project Blue Sky: The parliament would have wanted full compliance with the notice, because of the importance of

feedback Because the decision had a great effect on the community, it needed to be complied with cf merely

technical and trivial matters such as the size of the sign JJ Richards & Sons v Ipswich City Council [1996] 2 Qd R 258:

Relevant public health legislation required that an application to dispose of commercial and industrial waste had to be in the prescribed form.

The application was written informally The application was rejected

Held:

In later procedures for judicial review of the decision, the court said that the requirement that the application be in the prescribed form was mandatory.

This was because it was so important, as it concerned public safety, that it would require substantial compliance w formal requirements

Hunter Resources Ltd v Melville (1988) 164 CLR 234: Provision in mining legislation required the marking of ground for a mining application in specified

intervals. Held: (per Wilson J)

Was mandatory This is because unless the measurements were exact, it could allow for a couple of applications in

respect of the same area Without strict compliance, there could be multiple claims, which was an unfair advantage the

legislation sought to avoid Public inconvenience would therefore result, which was against the ambit of the legislation

Ourtown FM Pty Ltd v Australian Broadcasting Tribunal (1987) 13 ALD 740: Broadcasting Act required the granting of a broadcasting licence, and a report to the Minister, for

deciding the reasons for finding in favour of/against the applicant A person was given a licence, decision made and application for JR filed on the basis that the report

to the Minister was not sufficiento Argued that the procedure required by the Act had not been followed because the Minister

did not receive a full report w reasonso ABT argued that there was two separate powers – one to make a decision, the other to make a

report to the Minister and they were separate and autonomous so report was not necessary to make decision

FCA held Held that the legislation widened the scope of the ground Doesn’t need a temporal relationship in the sense that one thing must go before the other; provided

there is some form of relationship, applicant is able to say there was a procedure not followed.

Minister for Health and Family Services v Jadwan Pty Ltd (1998) 159 ALR 375 Minister followed wrong set of procedures in Act – followed ones for declaring that certain nursing

home did not meet standards when he was trying to revoke licence of a nursing home Applicant argued that the Minister had not properly complied with the procedures Claim failed because Minister not bound to follow the procedures outlined

JR Grounds—Improper Exercise of Power

Decision: s5(1)(e) ADJR | s20(2)(e) JRConduct: s6(1)(e) ADJR | s21(2)(e) JR

A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on 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 in pursuance of which it was purported to be made;

&

(2)  The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

[considerations]

(i) taking an irrelevant consideration into account in the exercise of a power;

(j) failing to take a relevant consideration into account in the exercise of a power;

[purpose]

(k) an exercise of a power for a purpose other than a purpose for which the power is conferred;

(l) an exercise of a discretionary power in bad faith;

[discretion]

(m) an exercise of a personal discretionary power at the direction or behest of another person;

(n) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

[others]

(o) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(p) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(k) any other exercise of a power in a way that constitutes abuse of the power.

RELEVANT & IRRELEVANT CONSIDERATIONS

Considerations can be, according to statutory construction—o Irrelevant → must not be consideredo Relevant but discretionary → can but need not be consideredo Relevant and mandatory → must be considered

Improper Exercise of PowerDecision: s5(1)(e) ADJR | s20(2)(e) JRConduct: s6(1)(e) ADJR | s21(2)(e) JR

Failure to take relevant consideration into account: s5(2)(b), s6(2)(b) ADJR | s23(b) JR

failing to take a relevant consideration into account in the exercise of a power;

[→Broad JE: Animisic][→Irrelevant Considerations]

← Mandatory relevant considerations must be considered Minister may delegate some functions to a fact finding inquiry

o BUT must give proper, genuine & realistic consideration to merits: Tickner v Chapman (1995) (hindmarsh bridge—staff read report but not Minister) Peko-Wallsend (letter held by department)

Weight —up to decision-maker—court can only say whether should consider at all: Peko-Wallsend per Mason J

Ex parte communications —mandatory if relevant, credible and not insignificant & adequate reason given for not disclosing earlier: Peko-Wallsend per Brennan J (inclusion of Kakadu on protected list—mining companies contesting—letter from mining company with relevant information should have been considered)

o Minister must ensure he has up-to-date knowledge to make a decision: Peko-Wallsend per Brennan J (letter from mining company providing relevant information must be considered)

in two-stage decision making process → final decision-maker must update information

No positive obligation to unearth relevant material, but must consider all relevant information available

Constructive knowledge —if communications in possession of ministerial department: Peko-Wallsend (minister didn’t know of letter—but held by department mandatory relevant consideration)

o Brennan J conjectured that providing the letter privately to the Minister after full opportunity to give it in public hearings might create an estoppel against the mining coy to stop them from using it)

o ALSO NJ—if had used, should have exposed to other side to comply with natural justice requirements

Not specified in legislation → may not be mandatory: Foster v Minister for Customs and Justice (2000) (extradition to UK for fraud—regulation says not to extradite where ‘trivial offence or other sufficient cause’—submission that failure to consider that already spent time in prison, unlikely to be further sentenced not mandatory—not in legislation)

Improper Exercise of PowerDecision: s5(1)(e) ADJR | s20(2)(e) JRConduct: s6(1)(e) ADJR | s21(2)(e) JR

Considering irrelevant considerations: ss 5(2)(a), s6(2)(a) ADJR | s23(a) JR

taking an irrelevant consideration into account in the exercise of a power

[→ also Broad JE: Animisic][→Relevant Considerations]

Relevant ↔ IrrelevantTo determine whether relevant— 1. determine if any mandatory considerations listed in section that gives the power + determine if list

inclusive or exhaustive2. determine any mandatory or discretionary considerations that arise by implication from the subject

matter, scope and purpose of the Act Can use extrinsic materials (second reading speech etc) to determine: AIA

← Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) per Mason J, Gibbs CJ and Dawson J agreeing; Brennan J (inclusion of Kakadu on protected list—mining companies contesting—letter from mining company that included area for mining → minister & government changed—not considered should have been considered || BUT cabinet decision not justiciable [→intro notes])

If wide discretion with little guidance for the decision-maker → only considerations which lack bona fides are irrelevant: Murphyores Incorporated Pty Ltd v The Commonwealth of Australia (1976) (denied licence for export sand miners due to environmental impact—Customs Act said considerations depend on nature of export/import wide discretion → relevant)

Ministerial decisions → wider discretion due to public policy considerations: Botany Bay City Council v Minister for Transport and Regional Development (election promises relevant); Murphyores

o But not unlimited: Padfield (own political concern about election irrelevant) Can’t make decisions for pure political gain: Padfield v Minister for Agriculture, Fisheries and Food

[1968] (fixing milk prices under marketing scheme—complaint—decision not to put complaint to board—concern about raising milk prices before election irrelevant—had discretion but must exercise it within confines of the law)

Consistent with scheme of the act → probably relevant: McCasker v Queensland Corrective Services Commission (1998) (decision to grant remission of sentence—consideration of risk to community relevant)

General social considerations—an old decision: Roberts v Hopgood (1925) (decision to pay women same as men—based on ‘eccentric principles of socialist philanthropy’ ‘feminist ambitions to secure the equality of sexes in the workplace’ irrelevant consideration → invalid decision || obviously would be decided differently now)

Effect Irrelevant consideration → only a decision made for an improper purpose if the consideration was significant in the reasoning: Peko-Wallsend

not a merits review: Mason CJ in Peko-Wallsend courts not to decide issues of weight—only whether something was taken into account or not: Bruce

v Cole

IMPROPER PURPOSE

Improper Exercise of PowerDecision: s5(1)(e) ADJR | s20(2)(e) JRConduct: s6(1)(e) ADJR | s21(2)(e) JR

Purpose other than that intended: ADJR s5(2)(c), s6(2)(c), JR s23(c)

an exercise of a power for a purpose other than a purpose for which the power is conferred;

(Higher standard & more difficult to establish than relevant/irrelevant considerations)

Test: Municipal Council of Sydney v Campbell (1925) (council with power to resume land to widen road etc—actual purpose to sell at profit not express purpose → improper)

Purpose stated in Act → power must be exercised for that purpose or purpose implied from the subject matter, scope or purpose of the Act

No purpose stated → permissible purposes are those that are implied from the subject matter, scope or purpose of the Act

Suggestion that purposes only improper if—o inconsistent with scope and purpose of the Act o whimsical or personal: R v Toohey; ex parte Northern Land Council (1980); Padfield v

Minister of Agriculture, Fisheries and Food [1968] Examples—

o Not within concern of the Act: Mixnam Properties Case (1965) (caravan licensing—power to impose conditions—rent conditions imposed invalid || not implied as purpose of act not concerned with social/economic circumstances in caravan parks)

o Not within spirit of the Act: Arthur Yates v Vegetable Seeds Committee (power to regulate seeds in war effort—body grew own seeds invalid—power to organise, not to compete & eliminate competition)

o Inconsistent with role of body: Kwiksnax v Logan City Council [1994] (market stall licensing—wide discretion to make by-laws—decision to exclude non-local traders invalid ← basically just trying to get rid of mobile food vans ↔ local government should encouraging free trade)

o Inconsistent with objective of the power: Schlieske v MIEA (deportation = back-door for extradition invalid—different purposes—remove from Australia ↔ return to other country)

o Back-door way of using a certain power conferred: Schlieske v MIEA (deportation for extradition)

Multiple purposes for decision Substantial purpose test —decision invalid if improper purpose is a ‘substantial’ purpose: Thompson

v Randwick Corporation (1950) (decision to acquire land—purpose = improvement of local environment | also making profit—bought too much, sold off at profit invalid)

o Need not be sole purposeo Purpose is substantial purpose if decision wouldn’t have been made without it

Clarified—Substantial purpose if ‘true or dominant’ purpose—but for test: Samrein v Metropolitan Water Sewerage & Drainage Board (1982) (boards acquiring land—purpose = for own purposes | but also to rent out to improve financial position—bought land in excess of own needs to rent valid ← rent of excess improper purpose but not dominant purpose—not economic or desirable to build a smaller office building on the block—would have acquired all land even if not going for rent)

Decision made by multiple people

Decision made in committee → invalid only if illegitimate purpose in the minds/voices of some had a real causative effect or was critical to the outcome: IW v City of Perth (eg majority of the majority had an improper purpose || evidentiary problems in minutes at board meetings)

Improper Exercise of PowerDecision: s5(1)(e) ADJR | s20(2)(e) JRConduct: s6(1)(e) ADJR | s21(2)(e) JR

Bad faith: ADJR s5(2)(d), s6(2)(d), JR s23(d)

an exercise of a discretionary power in b ad faith

[→fraud | irrelevant consideration][→ also Broad JE: Animisic]

Must show dishonesty, corruption or fraud: SSBS v MIMA (2002) (anti-taliban Afgani applying for protection visa—refused by minister & RRT ← Taliban no longer in power not bad faith)

No comprehensive definition (many ways in which bad faith can occur) Usually not a stand alone ground, tacked onto other issues Rarely made out— (SSBS v MIMA; Westminster Corp v London & Northwestern Railway (1905))

o Not to be made lightly—must be clearly alleged and proveno Only in rare and extreme caseso The more serious the consequences of an adverse decision, the worse the decision maker’s

behaviour must be and the more evidence needed: SSBS v MIMA

Protection Visa Cases (necessary because migration act removed other grounds)Not Bad Faith: SSBS v MIMA (2002) (anti-Taliban Afghani applying for protection visa—refused by minister & RRT ← Taliban no longer in power not bad faith)

Bad Faith: Ignoring information & closed mind: SBAU v MIMA (Iranians applying for protection visas—

religious minority—incident showed imminent harm—rejected ignored information—d-m had closed mind—merely denying claims of family → bad faith)

Reckless disregard—not bona fide attempt to exercise jurisdiction: SCAZ v MIMA (statute required 7 days notice of hearing date—given 5 days—sought adjournment—told day before that would go ahead—rejected protests bad faith)

Indicia (= 9 points on powerpoint) May be shown through— (SSBS v MIMA)

o an extreme improper purpose or o an extreme denial of natural justice

Relevant considerations— (SSBS v MIMA)o Presence or absence of honesty (crucial)o Often involves personal fault on the part of the decision marker.o Recklessness sufficient—need not demonstrate the decision maker knew the decision was

wrong Not sufficient — (SSBS v MIMA)

o mere error or irrationality o errors of fact or law and illogicality

Demonstrating by inference— (SSBS v MIMA)o from acts or failures to act of tribunal | extent to which reasons show approach to the decision

MISUSE OF DISCRETION

Improper Exercise of PowerDecision: s5(1)(e) ADJR | s20(2)(e) JRConduct: s6(1)(e) ADJR | s21(2)(e) JR

Personal Discretion at behest of another: ADJR s5(2)(e), s6(2)(e), JR s23(e)

an exercise of a personal discretionary power at the direction or behest of another person

Public authority with a discretionary power must exercise the discretion itself, and not at the behest of another: Robcarelli v Duplessis (1959) (Canada); Stepney Corporation (1902) UK (council allowed Treasury to determine compensation payable abdicated power)

Overborne by Minister [→Rule or Policy]Decision-makers can take government policy | ministerial direction into account: ← Ansett v Cth (decision to allow another company to import aircraft—by Secretary of department may make decisions in line with government policy—likely to be a determinative factor)← R v Anderson; ex parte Ipec-Air Pty Ltd (1965) (denying licence to import aircraft—DG of Civil Aviation spoke to minister—said two-airline policy—rejected application for licence on that basis legitimate to refer to gov policy || may have been decided differently if 2 airline policy not such a big issue)

o could take policy into account: Taylor & Owen JJ Gov policy may be relevant—but here overborne: Kitto & Menzies JJ (power

conferred on DG in order to keep politics out of the decision)o Only option to comply with policy: Windeyer J

Determined by degree of involvement of minister in decision-making under statute: R v Anderson; ex parte Ipec-Air

Statute involves Minister in decision-making process → allowed to get information from minister as well as other sources: Bread Manufacturers of NSW v Evans (1981) HCA (Setting max price for bread—Minister had power direct enquiry | prohibit publication | to veto decision had not abdicated)

o Provided did not act in capricious manner Minister given power to veto → appropriate to consult with minister: Bread Manufacturers of NSW v

Evans (1981) per Gibbs CJ (NSW Prices Commission fixing max price of bread—allegation that abdicated decision to minister—minister had power to veto any decision sensible to consult minister rather than make a decision he’d veto anyway || rest of majority: Commission not independent body, but had not abdicated on facts)

Minister given power of absolute direction → decision maker will have to follow directions given: Nemer v Holloway (2003) (power of direction in AG ↔ DPP Act providing that DPP independent of government AG overrode DPPA)

Overborne by someone other than the Minister← Less liberalTest— whether the decision maker truly exercised an independent discretion: Telstra Corp v Kendall (Phone lines disconnected under Telecommunications Act to stop offences does not show that discretion completely overborne → valid)

Inference can be drawn from d-m exchanges with minister & others: Nashua Australia Pty Ltd v Channon (said in conversation that ‘instructed’ to make a particular decision—wrote consistent file note overborne)

Improper Exercise of PowerDecision: s5(1)(e) ADJR | s20(2)(e) JRConduct: s6(1)(e) ADJR | s21(2)(e) JR

Under rule or policy without regard to merits: ADJR s5(2)(f), s6(2)(f), JR s23(f)

an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case

Can develop a general policy ↔ can’t blindly apply it without considering the merits of the case: British Oxygen Co Ltd v Minister for Technology [1971] HL (power to assist with purchase of equipment—policy not to assist unless equipment <£25—bought £4000 but <£25 each can develop policy but not ‘shut its ears’ to all applications)

Lawful policy or rule—policy cannot change the way the legislation works: Green v Daniels (1977) (unemployment benefits—policy not to grant until start of year after leaving school as might go back inconsistent with criteria in legislation → unlawful) Must not encourage unlawful activity (very rare obviously) Political realities of high level policy consideration does sometimes mean that the policy will have to

be complied with: o Single desk policy: Neat Domestic Trading Pty Ltd v AWB (single desk policy for AWBi to

monopoly for importing wheat—exception for consent but obviously wouldn’t grant—argued that niche market in Italy for particular grain—denied Gleeson: ok ↔ Kirby J);

o Two-airline policy: R v Anderson; ex parte Ipec-Air Pty Ltd (1965) (denying licence to import aircraft—two-airline policy—rejected legitimate || topical issue at the time—may be different otherwise); Ansett

AAT can’t simply follow government policy, rather than considering the best decision: Drake v Minister for Immigration and Ethnic Affairs (1979)

Flexibility—Must not blindly apply it—but actually consider the facts of the case evidence in statement of reasons | exchanges with other departments etc: Nashua Australia Pty Ltd v

Channon (conversation saying ‘instructed’ to make a certain decision | file note) Not obliged to depart on evaluation of the policy itself: R v Moore; Ex parte Australian Telephone

(1980) 148 CLR 600 at 615 per Stephen J Blind application—

o Crude arithmetical application is inflexible: Yang v Minister for Immigration (2003) 132 FCR 571 at 579 (regression policy for student visa applications—18 month maximum must pay attention to different nature of school systems | circumstances of applicant)

o Automatically acting on someone’s status without looking to other facts: Minister for Immigration v Tagle (1983) 67 FLR 164 at 171 (deportation—immigrant became prohibited immigrant—made representations of intended marriage and family ties ignoring these and acting automatically = inflexible)

Reliance on government policy is permissible: R v Anderson; ex parte Ipec-Air (1965) 113 CLR 177 (2 airline policy—request for licence by 2nd private company Ipec—requirements in legislation related only to safety, which company complied with—rejected because of 2 airline policy from Minister valid—can take account of government policy: at 200)

o May even be conclusive: R v Anderson at 204; also Ansett Transport Industries v Cth (1977) 139 CLR 54 at 62 (conclusive); also at 115 (not improper)

AAT can’t simply follow government policy, rather than considering the best decision: Drake v Minister for Immigration and Ethnic Affairs (1979)

OTHER

Improper Exercise of PowerDecision: s5(1)(e) ADJR | s20(2)(e) JRConduct: s6(1)(e) ADJR | s21(2)(e) JR

Unreasonableness: ADJR s5(2)(g), s6(2)(g); JR s23(g)

an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power Controversial—toeing the line with merits review: Peko-Wallsend per Mason J cited in Min Imm &

Multicultural Affairs v Eshetu (1999)

Unreasonable DecisionHigh Standard—decision so unreasonable that no reasonable person could make it: Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) (power to allow cinemas to open Sunday subject to conditions they think fit—imposed condition: no chn <15 on Sunday not completely unreasonable)

Clarified—so devoid of any plausible justification that no reasonable body of persons could have reached them: Bromley London Borough Council v Greater London Council (1983)

High standardo Not unreasonable if some legitimate justification: Provincial Picture Houses v Wednesbury

(1948) (condition that no chn <15 in cinemas on Sunday not completely unreasonable)o May be reasonable even if decision seems extreme: SA v Tanner (1989) (legislation

preventing zoos etc being built in watershed land—to prevent pollution of water—decision to prevent building of aviary extreme—but possibly proportionate for purposes → not ‘unreasonable’)

Unreasonable if— (Fares Rural Meat)o Capricious choice of powers available to the decision-makero Exercise of power involving discrimination without justificationo Exercise out of proportion to the scope of power(Fares Rural Meat v Aust Meat & Livestock Corporation (1990) (stop on exports of live sheep due to trouble in middle-east—gave applicant approval & then later revoked not unreasonable ← difficult judgement best left to AMLC || successful as no authority to revoke at all))

Examples—o Out of proportion—re delegated legislative power (=to make by-laws): Vanstone v Clarke

(FFC) (Power to determine what is ‘misbehaviour’ which would have consequences of disqualifications—Minister made it ‘conviction for which penalty is imprisonment’ must specify some type of ‘behaviour’ ↔ very wide → disproportionate)

o Artificial formula with arbitrary results: Minister for Primary Industries v Austral Fisheries (1993) (amount of fishing permissible by complex formula artificial, resulted in anomalies, extraordinary results)

o Completely arbitrary: Short v Poole Corporation (sacking a red-haired teacher unreasonable || also irrelevant consideration, bad faith)

o Direction to implement previous government / stat body policy, unless failure to do so would result in administrative chaos: Secretary of State for Education and Science v Tameside Metropolitan Borough Council (education reform decisions—after election, new body chose not to implement—Secretary of State direction to implement reforms of previous govt unreasonable under ss(g) ← could only be reasonable if clear evidence that policy reversal would result in administrative chaos—not true on the facts)

New Ground of Irrationality—Unreasonable fact-finding processUnclear whether possible to extend to unreasonable fact finding: Eshetu (1999) (RRT decision) per Gummow J

o Unreasonableness only applicable to discretionary “if A&B, the Minister may…”

o BUT fact-finding process may be subject to Irrationality: McHugh, Gummow, Kirby JJ “if A&B, the Minister may…”:

New ground of irrationality—uncertain: Re MIMIA; Ex parte Applicant S20/2002 (2003) (Migration Act removed NJ & unreasonableness grounds—lawyers argued ‘irrationality’ in fact-finding process FCA: not a separate ground | HCA declined to decide)

o Possibly: Gleeson CJo Alternative—does not correspond with statute: Kirby J

Mistaken fact-finding leading to unreasonable decision: Prasad v Min Imm & Ethnic Affairs (denying permanent resident status—flawed investigation into whether a legit marriage—had constructive knowledge of correct info ‘perverse’ decision)

Improper Exercise of PowerDecision: s5(1)(e) ADJR | s20(2)(e) JRConduct: s6(1)(e) ADJR | s21(2)(e) JR

Uncertainty: ADJR s5(2)(h), s6(2)(h), JR s23(h)

an exercise of a power in such a way that the result of the exercise of the power is uncertain

Too many convoluted conditions & qualifications: King Gee v Cth (1945) (regulations stipulating max prices for clothes—subjective | too many qualifications & conditions—large penalties for non-compliance uncertain || but exercise of legislative power—no JR);

Where consequences of decision so uncertain that not possible to work out how to comply: Television Corp (1963) (TV licensing scheme—broadcasters could not work out how to comply uncertain || but exercise of legislative power—no JR)

Artificial formula with arbitrary results: Minister for Primary Industries v Austral Fisheries (1993) (amount of fishing permissible by complex formula artificial, resulted in anomalies, extraordinary results → uncertain)

Objective criteria required: King Gee v Commonwealth (1945) per Dixon J

Abuse of power: ADJR s5(2)(j), s6(2)(j), JR s23(i) [→unreasonableness]

← Not in the common law; is part of the statutory framework only = decision is ‘unfair, arbitrary and capricious’: Sunshine Coast Broadcasters Ltd v Duncan (1988) (Direction to exclude Caboolture as already served by metropolitan radio stations—unfair treatment abuse of power ← no logical reason for choosing one over the other)

Arbitrary discrimination is an indicator Will be narrowly construed: Sunshine Coast Broadcasters v Duncan

o Not an open ended ground of reviewo Will be construed narrowly

Cases

McCasker v The Queensland Corrective Services Commission [1998] 2 Qd R 261 Whether risk to community was relevant consideration when considering whether to grant remission

of sentence Held relevant as protection of community consistent with scheme of act – imprisonment for

commission of offences, remission for good behaviour

Roberts v Hopgood [1925] AC 997: Ruling by a Local Council that women were to be paid the same as men in exercise of a power to set

wages for council employees District Auditor exercised power to disallow payments

House of Lords helds That the decision was based on ‘eccentric principles of socialist philanthropy’; or ‘feminist ambitions

to secure the equality of sexes in the workplace’ and therefore was invalid MT: Obviously would not be decided the same way now

Padfield v Minister for Agriculture, Fisheries ad Food [1968] AC 997: Fixing of milk prices by the Board administering a milk marketing scheme Complaints about the scheme could be forwarded to the Minister, who could then decide to refer a

complaint again A complaint was lodged by milk producers, who were concerned about the low prices He chose not to exercise his discretion to put the complaint to the board Recorded his reasons for the decision in a memo – that he was concerned about the affect of an

increase of milk prices during an election Held:

That this was an irrelevant consideration That the Minister, even though he had a discretion, still had to exercise that discretion within the

confines of the law This meant considering the object and purposes of the legislation. The object here was to provide milk producers with a redress where problems arose under milk

marketing. Therefore, the milk producers were entitled to have the discretion exercised, to pass on the complaint

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 A claim was made for land by Aboriginals who were said to have a claim to certain land. Upon the making of an application, the Aboriginal Land Commissioner had to consider whether they

were the original owners of the land, and whether or not to recommend the Minister grant the land to them.

Exploration companies had made a grant, and wanted to explore uranium deposits, which made up a part of the block.

The company would not say exactly where the deposit was, and therefore the Commissioner didn’t consider very strongly the interests of the mining company, and made a recommendation that the land be given to the aborigines

The company sent a letter, ex-parte communication to the Minister to tell him where the uranium deposit was, in order to get him to consider it before he made the decision.

Then there were several Ministerial changes, and the decision was made without reference to the information in the letter

Held: That there was an improper exercise of power, because of the failure of the Minister to take relevant

considerations into account. The letter was shown to be a significant enough consideration to be given weight. That the letter also updated the findings of the commissioner, and therefore the information should

have been considered

Foster v Minister for Customs and Justice (2000) 200 CLR 442 Regulation 7 of the Extradition Regulations required that a person otherwise to be extradited from

Australia would not be extradited where there was a trivial offence, or another sufficient cause, which would render the extradition too unjust or oppressive.

The UK sought to have a person extradited for fraud, but the person had already spent a substantial amount of time in prison, and would be unlikely to be further sentenced.

The Minister did not take account of those considerations Held that the legislation only required the Minister to consider whether the offence was trivial or

extradition would be unjust or oppressive Likelihood and duration of imprisonment not a consideration the Minister was bound to take into

account

Municipal Council of Sydney v Campbell [1925] AC 338 Council had authority to resume land within its own jurisdiction, for specific purposes (improving or

remodelling area or widening or extending any public road) There was an injunction against the first attempt, as there was no need to have a resumption order to

widen the roadway. Next there was another one said to be for improving or remodelling The actual purpose for buying the property – to offset costs going on in the nearby area, sell the

property and return a profitHeld:

Looking at the express purposes within the Act, was not one of the purposes they were given to use the power

Therefore, it was an improper use of the power, as it was used for another purpose

Mixnam Properties Case [1965] AC 735: Where legislation provided for the power to grant carazvan licences and impose conditions thought

desirable Rent controls imposed

Held: That this was outside the scope of the Act – was controlling economic circumstances relating tot eh

granting of licences As the Act was not concerned with the social and economic circumstances in caravan parks, it would

be outside the scope of the Act, and therefore could not be a power impliedly authorised from the Act

Arthur Yates v Vegetable Seeds Committee. Where an Act facilitated orders for seed for the war effort; it was outside of the scope to eliminate

competition and grow competitive seeds Power was for the organisation of seeds across Australia for the war effort, not to create a viable

business:

Kwiksnax Mobile Industrial and General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291 (Thomas J)

power given to licence market stalls Wide discretion to make by-laws but must be consistent with scheme of local government Arbitrary decision to prevent outsiders from trading within area not consistent with purpose local

government is to achieve (free market)

Schlieske v MIEA Deportation power used as a back-door to extradition proceedings which had failed. This was after a

failure to extradite the person back to Germany Was an improper purpose – inconsistent with purpose of deportation powers which is simply to

remove a person from Australia

SSBS v MIMA (2002) citizen of Afghanistan who applied for a protection visa after arriving in Australia – Sunni Muslim

with anti-Taliban views – feared reprisals if returned to Afghanistan Delegate of the Minister refused the application, and that decision affirmed by the RRT RRT found there was a significant change in the circumstances in Afghanistan (Taliban no longer in

power in his province etc), such that it was not satisfied the appellant had a well-founded fear of persecution

Held circumstances not sufficient to show bad faith

SBAU v MIMA: Family from Iran applied for protection visas under the Migration Act. The family was a religious minority, and stated a particular incident which was suggested to show

imminent harm. A delegate of the MIMA rejected each visa. Held the bad faith here was cumulative It was shown by the constant pre-occupation with denying the claims of the family Decision maker had its mind closed to the outcome Ignored the information which would have supported their claims Said there was unlikeliness to matters which were considered to be likely, etc.

Bread Manufacturers of NSW v Evans (1981) 56 ALJR 95o Breadmakers challenged orders made by the NSW Prices Commission on the maximum price

of bread o Argument that the Commission had bowed to the wishes of the relevant Minister. o Minister had power of veto over any decision made by the Commissiono Held: necessary to examine statutory framework to determine that the Minister had a role in

the decision-making process, and that made it difficult to discover whether the will had been overborne

o The Commission was supposed to get information from a wide range of sources, including the Minister

o Not sufficient evidence to draw inference that Commission had abdicated power to the relevant Minister

o Gibbs CJ <> power of veto in Minister means that it was appropriate to consult with Minister rather than make a futile decision (which would be overturned)

o Mason + Wilson + Aickin JJ <> Commission not an independent statutory body, but on facts did not abdicate power

Ansett Transport Industries (Operations) Pty Ltd v Commonwealtho In Ansett¸ that company sought to challenge a decision of the Secretary of the Department of

Aviation to allow another company to import aircraft. o Said that the decision-maker was overborne by the Ministero Held: nothing wrong with making decisions in line with government policy, in fact it is likely

to be a determinative factoro Mason J dissented: saying there was something wrong – said there was a complete abdication

of power, defeated statutory intention that Secretary make decision

R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177: o A company wanted a licence to import aircraft in order to operate an air freight business in

Australia. o The decision upon licences was made by the Director-General of Civil Aviation.o He referred to the Minister, who said there was a two-airline policy. o On that basis, the Director-General rejected the applications o Held: 3:2 it was permissible for the DG to follow govt policy

o Per Taylor and Owen JJ: it was appropriate to take account of government policy in refusing to allow the applicant to have an importing licence

o Per Windeyer J: that taking heed from government policy was the only thing that the Director-General could do

o Per Kitto and Menzies JJ: that the Director-General had acted under dictation. Although government policy may be a relevant consideration; the Director-General here had been overborne by the Minister and government policy

Menzies J <> one of the reasons for conferred power on the DG was to keep politics out of the decision

o Two airlines policy was rife political issue – this may have come out differently in different circumstances

Telstra Corp v Kendallo Steps taken under the Telecommunications Act including disconnection of phone lines to stop

offences being committedo FCFCA (Black CJ, Ryan and Hill JJ) held that it is not sufficient for an applicant to show that

decision is same as Minister requested, must show that the decision maker had “no real independent discretion”

Fine line b/w making a decision at the behest of another and just making the same decision

Must show that the decision maker’s will or capacity to independently make a decision was overborne

Must show that, in truth, someone else made the decision

Nashua Australia Pty Ltd v Channono Minister’s delegate revoked a decision made under s273 of the Customs Acto Courts will determine whether a decision maker’s will has been overborne – will draw

inference from the evidence, including exchanges with minister and others etco Court will look behind statement of reasons presentedo Where statute states that power is given to a person “personally” it is showing an intention

that that person specifically is to exercise the powero Here, evidence sufficient to show will was overborne <> decision maker said in conversation

that he had been “instructed” to make a particular decision + wrote consistent file note

Green v Daniels (1977) 51 ALJR 463: A government department refused to give unemployment benefits to a school leaver. It based this on departmental policy of not giving unemployment benefits to school leavers until

the start of the next school year, as they may go back to school. Held that this was blind application of the policy, without considering the merits of the

individual’s case. Per Stephen J: the blind application of policy actually prevented the legislative discretionary

criteria from being applied <> was an impermissible substitution of a policy for the legislation – therefore an unlawful policy

Decision maker is not entitled to follow an unlawful policy Declaration that the DG should have considered all the circumstances, knowing a school leaver

could be the start of the inquiry

Prasad v Min Imm & Ethnic Affairs Minister denied applicant permanent resident status relied on investigation into bona fides of applicant’s marriage (marriage of convenience) information regarding marriage was wrong Minister deemed to have constructive knowledge of the correct information on that basis, decision was “perverse” <> problem evolved in fact finding exercise

Re MIMIA; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Migration Act removed certain grounds of review – unreasonableness and natural justice So lawyers argued new ground of “irrationality” Problem was in fact finding process – unreasonable approach FCA <> 2 judges held irrationality not a separate ground of review from unreasonableness so could

not appeal, Finkelstein J held that unreasonable fact finding was an error of law HCA <> 5:2 held that the appeal was excluded on other groundso Gleeson CJ <> acknowledged possibility of irrationality as a separate groundo Kirby J <> if irrational, perverse view on fact finding, court could say that it does not correspond

with statute

Jurisdictional ErrorDecision: s5(1)(c) ADJR | s20(2)(c) JRConduct: s6(1)(c) ADJR | s21(2)(c) JR

A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

Common law origins jurisdictional error ↔ ultra vires

o Jurisdictional error—inferior courts when outside their jurisdictiono Ultra vires—administrative bodies

For common law action, HCA, FCA and QSC have original jurisdiction to hear judicial review applications for jurisdictional error:

o High Court – original jurisdiction – s75(v) of the Constitution o Federal Court – original jurisdiction – Judiciary Act 1903 (Cth) s39Bo Queensland Supreme Court – originally was given in s179 Supreme Court Act 1995 (Qld),

but now derived from part 5 of the Judicial Review Act 1991 (Qld), specifically Judiciary Act 1903 (Cth) s43(1)

The High Court’s original jurisdiction, as given to it by the Constitution, can’t be restricted or removed: R v Hickman (1945) 70 CLR 598; s75(v) Constitution

Advantages of JE over other statutory grounds Can be applied to inferior courts as well as to administrative tribunals Has a common law basis, cannot be repealed like the rest of statutory JR Legislative privative clauses not effective to cure mistakes so fundamental that they result in JE

Types of jurisdictional error Narrow JE (body acting in an area they could not)

o complete absence of jurisdictiono failure to exercise jurisdictiono error in finding jurisdictional facts

Broad (Anisminic) JE (had ability to decide in that area, but fundamental error along the way)o errors of law done while within jurisdiction (ie during process of making decision)o different for administrative tribunals and inferior courts

Narrow Jurisdictional Error

Absence of jurisdictionJurisdictional error where a decision-maker makes a decision upon which it had been given no authority to proceed: R v Hickman (1945)

Mistake upon the construction of the statute upon which the powers are based, that will be jurisdictional error:

o Statute allowing decision but only in a certain way: Coco v The Queen (1994) (statute allowing listening devices—didn’t allow to be placed on private property judge issuing warrant to put on private property = JE)

express and unambiguous words required in legislation to abrogate common law rights (eg to private property): Coco v The Queen

o Statute allowing decision but only on certain matters: Ex parte Wurth; re Tully (1954) (board could hear appeals re promotions, demotions & dismissals—appeal re refusal to make probative staff permanent JE—not analogous to dismissal as lacking punitive character)

Errors in investigation do not render investigation outside jurisdiction: Eckersley v Medical Board of Queensland (1998) (medical board investigating medical practitioner for disciplinary proceedings)

Matter of statutory construction: Potter v Melbourne & Metropolitan Tramways Board (1957) (decision to change bus operator to conductor = reduction in pay—board had jurisdiction to review punishments ‘punishment’ confined under act → change in position not punishment so no jurisdiction)

Failure to exercise jurisdictionJE may also be tribunal’s erroneous conclusion that no jurisdiction : Dickinson v Perrignon (1973) (dismissal of public employee by board); Carlson v Queensland Building Tribunal [1999] (tribunal with decision to resolve ‘domestic building disputes’—tribunal declined to hear complaint about costs—but statute did not limit jurisdiction to that therefore within jurisdiction)

Deciding in breach of procedural fairness can amount to failure to (properly) exercise jurisdiction → first decision invalid, may re-decide: MIMA v Bhardwaj (2002) (RRT rejecting student visa because didn’t attend hearing date—then reversed decision when discovered student was sick—Minister appealed saying can’t re-decide procedural fairness requirement in Migration Act—first hearing was a nullity as a failure to exercise jurisdiction as didn’t act with procedural fairness)

Misinterpretation based on misunderstanding can be failure to exercise jurisdiction: Dranichnikov v MIMA (2003) (RRT said merely being a “Russian businessman” not enough to make refugee—but misunderstood: actually “businessman critical of police force” = social group for the convention—& well-founded fear of persecution failed to properly address first question as to whether a ‘social group’—failure to exercise jurisdiction → JE)

Error in finding jurisdictional factsJurisdictional fact = must exist as a pre-condition to a court or tribunal having jurisdiction → if the court/tribunal wrongly decides that the fact exists, they proceed without jurisdiction and fall into jurisdictional error: City of Enfield v Development Assessment Commission (2000) (building approval process—‘special industry’ or ‘general industry’—if special then council approval also required—classed as general, allowing board to make decision jurisdictional fact)

Characterisation—o “If A, then DM may…” → Jurisdictional Facto “If in the DM opinion A, then DM may…” [→also Irrationality]

Eshetu (1999) (RRT decision) per Gummow J Re MIMIA; Ex parte Applicant S20/2002 (2003)

Whether fact a statutory precondition to jurisdiction a question of statutory interpretation—whether distinct objective preliminary fact ↔ part of decision-making process: Timbarra Protection Coalition Inc v Ross Mining NL (1999) (application to extend gold mine—Act requires species impact statement if ‘critical habitat’—no statement issued)

To prove JE—must show that the jurisdictional facts cannot be made out on the findings of fact, or inferences supported by logical grounds: Minister for Immigration v Eshetu (1999) 197 CLR 611 at 657 per Gummow J

o Inadequacy of information not determinative, but may be a major step along the way to determining that they have not satisfied jurisdictional fact: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ; supported by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte s20/2002

Broad Jurisdictional Error

UK Position: AnisminicEven where a decision-maker had jurisdiction initially, it might, nevertheless, subsequently exceed that jurisdiction by making serious errors of law in the process of coming to a decision: Anisminic Ltd v Foreign Compensation Commission [1969] (foreign compensation after Suez Canal incident in Egypt & nationalisation of companies—contained privative clause ousting jurisdiction of court—improperly took

Egyptian nationality into account clause needed to be more specific—void decision could not be protected by clause → outside jurisdiction)

JE where body makes decision which takes them outside their jurisdiction—for exampleo Bad faith o Breached the requirements of natural justiceo Refused to take relevant consideration into account; o No power to make o Misconstrued the instrument giving it power; o Taking something into account which was irrelevant

Includes administrative tribunals and also inferior courts also: Pearlman v Harrow School [1979] QB 56 at 69

Position in Australia: Craig v South Australia (1995); Kirk (2010) Anisminic has not been wholly adopted in Australia: Craig v South Australia (1995); Kirk (2010) In Australia a clear distinction remains between inferior courts and administrative tribunals: Craig v

South Australia (1995) (criminal case—accused unable to get representation—stayed proceedings per Dietrich order—State sought JR within jurisdiction ← even if given erroneously, still within jurisdiction—can be ironed out on appeal || cf if administrative body); Kirk (2010) (IRC determined that K liable for death of employee on farm on truck—in the process interpreted duty under s15 broadly—breached rules of evidence by allowing K to testify for prosecution JE | Privative clause not effective to exclude JR for JE)

Basis for distinction—o Tribunals were said to be more likely to be without formal legal qualifications or training o Where courts are part of a hierarchical system of justice, where problems may be ironed out

on appeal → More difficult to prove jurisdictional error for inferior courts

Inferior Courts (& Administrative Tribunals)Inferior courts commit jurisdictional error only where— (Craig v SA ; reinforced by Futuris Corporation (2008) per Kirby J (Kirbz in grey)) Asserts or denies its jurisdiction mistakenly; (eg: exclusively civil court hears a criminal case) [→

Narrow JE (1)&(2)]o A mistaken assertion or denial of the very existence of jurisdiction

Mistakenly defines the extent of its jurisdiction, where it does exist [→Narrow JE (1)&(2)]o A misapprehension or disregard of the nature or limits of the decision maker's functions or

powers.o Misconstruing the decision maker's Act in such a way as to misconceive the nature of the

function being performed or the extent of the decision maker's powers. While acting wholly within its jurisdiction, doing something which it lacks power to do (ie make an

order with no power)o Acting wholly or partly outside the general area of the decision maker's jurisdiction, by

entertaining issues or making the types of decisions or orders which are forbidden under any circumstances.

Wrongly find the existence of a jurisdictional fact [→ Narrow JE (3)]o Acting on the mistaken assumption or opinion as to the existence of a certain event,

occurrence or [jurisdictional] fact ... or other requirement, when the Act makes the validity of the decision maker's acts contingent on the actual or objective existence of those things, rather than on the decision maker's subjective opinion.

Relevant & Irrelevant considerations—o disregards a matter which the legislation requires it to consider

Disregarding a relevant consideration which the Act required to be considered o takes regard of a matter which the legislation says not consider

paying regard to an irrelevant consideration which the Act required not to be considered, in circumstances where the Act's requirements constitute preconditions to the validity of the decision maker's act or decision.

← If ct makes a legal error in the identification of issues or formation of questions, then can be corrected on appeal

Administrative Tribunals (only)In addition to the above, administrative tribunals commit jurisdictional error where they make an error of law causing them to— (Craig v SA at 179)

Identify a wrong issue Ask itself the wrong question Ignore relevant material Rely on irrelevant material At least in some circumstances—to make an erroneous finding or reach a mistaken conclusion

Other Matters Included in JEList not exhaustive—JE is an overarching concept which may embrace other areas where made out in circumstances where it result in a serious legal error, having regard to establishing statute & all the circumstances: MIMA v Yusuf (2001)

Breach of Natural Justice: Body of immigration cases (MIMA v Yusuf (2001); Aala (2000), etc); reinforced by Futuris Corporation (2008) per Kirby J

o Although depends on particular statute Failure to abide by procedures required by law: Project Blue Sky Inc v ABA (1998)

o even where the RRT had practically remedied the defect in procedure: SAAP v MIMIA (2005) Acting in bad faith: Futuris Corporation (2008) per Kirby J

Privative clauses (excluding JR) Commonwealth (HCA s75(v) Jurisdiction): Plaintiff S157/2002 v Cth (2003)A privative clause will only exclude judicial review where— (Plaintiff S157)

1. Hickman test satisfied a. bona fide attempt to exercise power;

ie not in bad faithb. On its face, the decision does not exceed the power conferred;

Decision not outside the power conferredc. The decision is reasonably capable of reference to the power

Decision in line with the power

R v Hickman (1945) (settling coal mining industrial disputes—reg 17 provided no decision of local reference to be challenged in any way whatsoever—Board included coal transport company in industry, applying award to them—company sought writ of prohibition cannot exclude HCA—board’s powers do not extend to defining own industry—very phrase which restricts their jurisdiction)

2. Upon reading the statute as a whole there are no other indispensable condition to the valid exercise of the power Important to construe legislation to determine ‘indispensible conditions’ Privative clauses incapable of depriving HC of jurisdiction to hear applications for mandamus,

prohibition or injunction under s75(v) Constitutiono Although particular clause did not do thato ↔ state powers—no express grant of judicial review in any constitution that is binding on

parliaments “Protect decisions made under the Act”

o RRT decision not a decision ‘made under the Act’ if Made in JE

in violation of some indispensible condition—in this case NJ

Also Effective privative clause will protect a decision from review where there is a “mere defect or

irregularity which does not deprive the tribunal of the power to make the award or owner”: Deputy Commissioner of Taxation v Richard Walker Pty Ltd (1995)

Privative clauses are not effective where no decision has been made: Dickinson v Perrignon [1973]

Queensland (State Jurisdiction of QSC) Kirk v Industrial Relations Commission of NSW [2010] HCA (prosecution for failure to provide safe workplace—employee drove tractor across a field rather than using the road provided—convicted—NSW legislation sought to protect NSWIC decisions via privative clauses NSWIC = JE—privative clause not effective)

ChIII Constitution requires State SC—o must comply with Ch III requirements as sometimes exercise federal jurisdictiono has power to confine inferior courts within limits of their authority

Therefore → privative clause in state legislation tries to take away this defining characteristic → invalid

← Adds to Plaintiff S157 by adding matter re States

Decisions which are made in jurisdictional error are not decisions made ‘under the Act’ and are therefore not protected by the privative clause: Kirk; Darling Casino Ltd v NSW Casino Control Authority (1997) (two tenders for casino—Act allowed authority to grant licence—rival of bad character selected—privative clause: no decision could be challenged no grounds for JE || generally excluding review will not exclude JE, but can if more specific)

o (Analysis of the High Court of Australia in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 may not be entirely applicable, because of its basis upon Constitutional principles)

o Application different in States because— (Darling Casino Ltd v NSW Casino Control Authority (1997))

lack of separation of powers constitutionally entrenched original jurisdiction of the Supreme Court:

Must construe the privative clause in the Act as a wholeo Prefer construction such that provisions don’t remove rights for citizens, unless it express or

by necessary implication: Public Service Association (SA) v Federated Clerks Union (1991) o The Hickman principle is a rule of construction, which must be applied to state Acts: Darling

Casino Ltd v NSW Casino Control Authority (1997) o The major point is to construe the provision in line with the rest of the Act: Darling Casino

Ltd v NSW Casino Control Authority (1997)

Cases

Plaintiff s157/2002 v Commonwealth (2003) 211 CLR 476: In 2001, s474 of the Migration Act 1958 (Cth) states that a ‘privative clause decision’ shall not be

reviewed or called into question With parliament expecting that the Hickman test would be applied to it, thus allowing the decisions

falling outside that area would be allowed o While submissions were given in the HCA, FCA handed down decision in NAAV v MIMIA

(2002) 123 FCR 298 which stated that privative clause was sufficient to prevent courts JR-ing decisions which committed jurisdictional error (including failure to extend natural justice)

The parliament also enacted s486A, which limited appeals to the High Court to 35 days after the actual decision was made.

The Plaintiff sought to appeal against a decision by the Refugee Review Tribunal, that he was not a refugee as defined in the Migration Act (and informed by the principles of the UN Convention)

The Plaintiff sought to argue that the provisions in the Migration Act (s474 and s486A) were invalid, as per the Commonwealth Constitution, s75(v)

The Commonwealth sought to argue that the Hickman principle would exclude all decisions from review made within the parameters of the Hickman test.

Held: Sections 474 and 468A were validly enacted, and did not offend against s75(v) of the

Commonwealth Constitution because of the limited interpretation the court gave to privative clauses Held that jurisdictional error means that a decision won’t be a ‘decision’ for the purposes of the

privative clause, and therefore is not protected from attack by the privative clause This construction exists both in the federal and state jurisdictions, and in the unitary system of the

UK Couldn’t exclude it because of the interpretation given to privative clauses in any event That the Hickman test isn’t exhaustive, it is simply a way of statutory interpretation, rather than a

hard-and-fast rule As a form of statutory construction, the privative clause must be construed in line with the other

provisions of the statute In the Commonwealth Constitution, bodies constituted of executive power aren’t able to determine

their own jurisdiction, as that would be a judicial power Jurisdictional error (broad approach) includes a breach of natural justice Here, natural justice should bring a limit of jurisdictional error because of the seriousness of the

Tribunal’s work Per Gleeson CJ:

o That where administrative tribunals were able “to exceed their jurisdiction, the rule of law would be at an end”: R v Medical Appeal Tribunal; Ex parte Gilmore [1957] 1 QB 574 at 566 per Denning LJ

o In the Commonwealth federal system, the Constitution doesn’t allow executive tribunals to decide their own jurisdiction, which is a judicial function (at 484)

o Statutory construction: o Major issue is a construction of the statute itself, not strong rules (such as what was assumed

by the parliament after R v Hickman) o The major problem with privative clauses is that the provisions are inconsistent with each

other o 5 main principles of statutory construction:

1. Construing an enactment pursuant to international obligations2. No imposition of a curtailing of citizen’s rights, unless parliament does so in

unmistakable and unambiguous language 3. Australian Constitution founded upon the rule of law – JR is the vehicle to enforce

executive accountability 4. Specific application of 2 and 3 – that privative clauses themselves are construed not to

limit rights unless expressly doing so 5. Need to construe a reconciliation between the Act and the rest of the legislation

o Because there are usually provisions state the Tribunal’s jurisdiction, it would be inconsistent to allow those tribunals to escape judicial review when they are outside those bounds

Per Gaudron, McHugh, Gummow, Kirby and Hayne JJ: o 2 main ideas are relevant to the majority’s decision:

1. The jurisdiction of the HCA can’t be removed by statute, per s75(v) Constitution 2. Executive bodies are unable to determine their own jurisdiction, as that would be a

judicial power <> would be breach of the separation of powers

Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602: In a case for two tenders for a casino in Sydney, the relevant Casino Control Act 1992 (NSW)

empowered the Casino control authority to determine an application for the only license under that Act

The principle factor in this case, between the Darling Island Casino Ltd its main rival, is that a person must be of good repute

With some evidence to suggest that one of the associates of the company was not of good character, but the rival with bad character was selected anyway

Section 155 of the relevant Act stated that no decision could be challenged unless by some procedure – Q – was this effective to exclude JR for JE?

Held: Per Gummow and Gaudron JJ (with whom Brennan, Dawson and Toohey JJ agreed): That there were no grounds to find that there was jurisdictional error On interpreting the privative clause:

o Construing a privative clause in state legislatures remains a question of statutory construction more than any other factor

o Where the clause states that a decision may not be called into question in a court of law, that will not exclude jurisdictional error <> but may exclude jurisdictional error by being more precise in privative clause

Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531Joint Judgement by French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ

Facts Kirk Group Holdings Pty Ltd owned a farm in NSW; Kirk was a director of the company Kirk did not operate the farm—delegated to Palmer Palmer delivering steel on to contractors with truck Went down the side of a hill instead of using the provided road Rolled truck & died: [6] OH&S Act s15(1): “Every employer shall ensure the health, safety and welfare at work of all the

employer's employees” Alleged failure to do so: [22] Kirk charged also as directors personally liable: s50(1) (unless can prove that “not in a position to

influence the conduct of the corporation in relation to its contravention or, being in such a position, used all due diligence to prevent the contravention”)

Heavy sanctions imposed

Decision of the Industrial Court (Quasi-judicial body) Liable because

o Risks of use of ATV off-road were not eliminated by Kirk’s company Even though evidence to suggest that Palmer had read the manual which detailed the

risks = warning: [36] No express instruction to comply with the manual, other specific warnings

o Could not be said under s53 that ‘not reasonably practicable to take precautions against the risks’: [35]

Mistake = Did not consider that the prosecutor had to show what measures specifically should have been adopted: [37]

Supreme Court of NSW Sought certiorari and prohibition in the NSWSC Privative clause : s 179(1) IR Act

o decision of the Industrial Court "is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal"

o Except allows appeal to Full Bench of IC: s 187(a) (leave required) Court of Appeal would not intervene until Full Bench of IC had decided issue or refused leave: [44]

o Went back to FBIC who dismissed the action

High Court Jurisdictional Error

o Errors which constituted jurisdictional errors: [48] Errors of interpretation

Improperly interpreted s15 as almost strict liability, making compliance virtually impossible

Improperly applied defence under s53 so restrictively that it was ineffective Confused questions about corporate responsibility Further error identified by HCA—prosecution called Kirk as a witness—rules of

evidence: [52]o Did not qualify as JE:

Approaching the problem with the benefit of hindsight, therefore easily recognising risks which materialised—mere error of fact

o Metes & Bounds of JE not defined: [71] Craig provides a useful analysis but not a ‘rigid taxonomy’ of JE: [73]

Grounds for Certiorari at CL: [56]o Error of law on the face of the record

o Jurisdictional Error Contrast between Jurisdictional & Non-jurisdictional error: [66] citing Craig

o There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do.

o By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.)

Reason for not adopting the UK Anisminic doctrine o Constitutional difference does not permit it: [66]o Administrative tribunals ↔ inferior court: [67]o Tribunals cannot ‘authoritatively’ determine questions of law: [69]

Error of law on the face of the record: [78]o Generally such a discussion would be superfluous given JE but did it anyway

Privative Clauses Constitutional question—over extent to which legislature can immunise courts or tribunal from JR,

while staying within Australian constitutional framework: [93] Contradiction in legislation— (Hickman)

o one provision says conditions must be observedo privative clause says not open to challenge even if they are not

Fundamental considerationso HCA Jurisdiction under s75(v) to grant relief for JE cannot be removedo Non-judicial body cannot be given power to conclusively determine limits of its own

jurisdiction Privative Clauses in State Legislation

o State SC have supervisory jurisdiction to enforce limits on exercise of executive & judicial power by other bodies: [98]

o This is a defining characteristic under Ch III Constitutiono Privative clause which purports to exclude ability to judicially review decisions made in JE

void as removes this functiono BUT not all privative clauses void—distinction in Australia between jurisdictional & non-

jurisdictional error Reading down the privative clause in s179: [104]

o ‘decision’ of the IC is not to be called into question: s179o But decision made outside the limits of power is no decision of the IC at allo Therefore any decision made in jurisdictional error is not a ‘decision’ so not covered by the

privative clauseo → Privative clause not invalid

Conclusion Decision of Industrial Court (quasi-judicial body) against Kirk was made in jurisdictional error in

that ito Misinterpreted the statute upon which it was based (s15 in particular) and therefore

misconstrued its role and the extent of its jurisdictiono Disregarded the rules of evidence—therefore acting outside its power which was to determine

liability in accordance with the rules of evidence Therefore, it was not a decision at all as s179 ought to be construed Such a construction is the only logical one available considering

o The constitutional implications of a clause which attempts to legislatively define the boundaries of the court’s jurisdiction

o The inability of administrative tribunals to conclusively define the metes and bounds of their own jurisdiction

o The inability to exclude the jurisdiction of the court under s75(v) of the Constitution to award a remedy where a writ of mandamus or prohibition (and by analogy certiorari) = where a decision has been made in jurisdictional error

o The logical inconsistency in legislation which requires certain conditions be observed in one part ↔ declares that decisions which fail to do so are not open to challenge in any case

Therefore, the decision was quashed without invalidating the privative clause

Narrow JE

Outside of Jurisdiction Coco v The Queen (1994) 179 CLR 427

o Where in that case, a statute allowing for listening devices to be used, didn’t allow for the listening devices to be placed on private property

o The judge issued a warrant to allow the listening devices to be placed in the offices of Cocoo Held: HCA – that there was no basis upon which the judge could have issued a warrant to put

listening devices on private propertyo The legislation didn’t provide for a listening device to be put on private property, and

therefore that decision was made outside the jurisdiction of the court/judgeo As a matter of statutory construction, must use express and unambiguous words in legislation

to infringe common law rights (to private property)

Ex parte Wurth; re Tully (1954) 55 SR (NSW) 47, o A board that dealt with appeals in relation to promotions, reductions in rank, and dismissals

was asked to hear an appeal in relation to refusing to put a probationary public servant on permanent duty

o Held: That the board was only able to hear on those areas listed in the statute, and not hear the complaint.

o The court rejected an argument that a ‘dismissal’ was not similar to a failure to become permanent, as there wasn’t the punitive character

Eckersley v Medical Board of Queensland [1998] 2 Qd R 453, o A Medical Board that was able to investigate a medical practitioner for disciplinary

proceedings, where there was an opinion madeo Held: That the board had every right to have an investigation when that opinion was made,

irrespective of the errors in investigation upon that board.

Potter v Melbourne & Metropolitan Tramways Board (1957) 98 CLR 337o A decision was made by the Melbourne Tram authority to take a one-man bus operator and

put him as a conductor, because he was unable to keep to the timetable. o This involved a loss of payo The employee applied to have the decision reviewed by the Melbourne and Metropolitan

Tramways Board, which had jurisdiction to review the punishments, such as loss of pay and suspensions

o The appeal board found that they only had jurisdiction to hear complaints against punishments, and therefore didn’t have the jurisdiction to hear a complaint relating to change of position, which also involved a reduction in pay

o Held: The appeal board did only have jurisdiction to hear punishments, and not to review

every decision of the board The legislation’s use of the word ‘punishment’ confined the jurisdiction to this The legislation did not have the intention to treat that every decision changing the

jurisdiction of the board

Dickinson v Perrignon [1973] 1 NSWLR 72.o Where in that case a decision of a Public Service Board could not dismiss a public service

employee until the decision of the Governor was grantedo The Board made a decision that the employee was dismissed. o An appeal was launched, where there was no final decision by the Governor-in-council to

dismiss the employee – as it had been practice to wait until the appeal process had been finished

o The employee sought judicial review under jurisdictional error, on the basis that so far as the appeal had been conducted and the employee had been ‘dismissed’, the Board did not have jurisdiction to make a decision until the Governor-in-council decided

o Held: The Board had jurisdiction The employee’s construction was not the right construction of the legislation This is because the Governor, in order to approve the dismissal, needed a ‘decision’ to

be made, which could only be concluded after the appeals process were ended

Carlson v Queensland Building Tribunal [1999] 2 Qd R 483, o The tribunal wrongly failed to exercise jurisdiction where it believed it didn’t have the

jurisdiction to hear a complaint about costs, because the decision didn’t refer to a ‘domestic building dispute’

o Held, per White J, that the statute didn’t limit the jurisdiction to that definition, and therefore it was not limited to things that the tribunal considered were within its jurisdiction

Failure to Exercise

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597,o The RRT initially rejected the application of a person whose student visa was revoked

because they hadn’t yet commenced study, because on the scheduled hearing date the person was sick and couldn’t attend

o The RRT, after hearing that this was the case, and that they were notified of this fact, they made the determination again in the students favour

o The Minister appealed on the basis that the RRT could not re-decide once a decision had been made

o Held: That as there was a requirement of procedural fairness contained in the Migration Act, the first hearing was a failure to exercise the Tribunal’s jurisdiction as they didn’t act with procedural fairness

o So 2nd hearing was actually the first decision because first purported decision was invalid

Dranichnikov v MIMA (2003) 197 ALR 389o The RRT’s failure to understand the submission of a Russian businessman as of that class of

persons (Russian businessmen who publicly criticised the police force) (and therefore not someone who had a well-founded fear of persecution and therefore not a refugee),

o When actually the businessman was concerned about being a businessman who criticised the government, and did have a well-founded fear of persecution

o Held: Failure to exercise jurisdiction, as misinterpreted the group to which the applicant belonged, and therefore was a complete failure to decide if he was in a group that should have a well founded fear of persecution

Jurisdictional Facts

City of Enfield v Development Assessment Commission (2000) 199 CLR 135: Where approving a building to be constructed, and where that was no approved, there was a required

that the development be constructed in terms whether it was a ‘special industry’ or ‘general industry’ Had to be a special industry if use would be offensive or repugnant to other uses of land in the area Where it was a ‘special industry’, it would follow that it had a more difficult job in the approval

process, having to gain the approval of the local council The relevant industry was determined to be a general industry. Q: had the board committed jurisdictional error by determining the board to be a ‘general industry’,

and therefore bypassing the requirement of council approval – meaning that because it was a special industry, and hadn’t been approved by the Council, whether that would be fatal to it.

Held:

Per Gleeson, Gummow, Kirby and Hayne JJ: A jurisdictional fact is a criterion which, when satisfied, allows a decision-maker to make a decision

(at 148) The Commission was required to determine whether the development was special or general <> but

power was not totally discretionary – the legislation imposed the test of how they were determine whether the industry was special or general and they were bound by that test

Where the characterisation was wrong, they had committed jurisdictional error Where they characterised it as a ‘special industry’, it therefore means that there is a requirement that

they follow the steps of it being a special industry A court was able to determine whether the relevant facts existed

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55: A mining licence is required to conform to various stipulations in Environmental planning Acts in

NSW. This case concerned an application to extend a gold mine The jurisdictional fact is found in s77(3)(d1) of the Environmental Planning and Assessment Act

1979 (NSW), which requires that where there is ‘critical habitat’ or ‘likely to affect threatened species’, then a species impact statement is needed

There was no specific impact statement prepared for the application Applicant claimed the threat on species was a jurisdictional fact

Held per Spigelman CJ (with whom Mason P and Meagher JA agreed) Jurisdictional facts are determined by statute (at 64) If a fact must exist before a statutory power can be exercised, then that is a jurisdictional fact (at 65) “A factual reference in a statutory formulation relating to the instigations of a statutory decision-

making process, is more likely, in my opinion, by reason of its extrinsic nature, to turn on an objective fact, than is a factual reference arising in, or in relation to, the conduct of the decision-making process itself.” (at 65)

Relevant question is whether it is distinct from an essential preliminary to an inquiry (jurisdictional fact), or whether it is something which must be adjudicated on in the course of making the decision

Broad JE

Animisic Ltd v Foreign Compensation Commission [1969] 2 AC 147: After the Suez Canal incident, the Egyptian government took the property of English businesses, and

either held them or sold them on. Those English businessmen, who could prove that they were either the company, or ‘successors in

title’, and who (or their successors) were English nationals, could gain compensation from the Foreign Compensation Commission

Section 4(4) of the Foreign Compensation Act 1950 (UK), was a privative clause, which prevented any court from questioning the decision

The company in question, owned mining interests in Egypt, and then had its land taken. After which they were given money from the Egyptian company which bought it

The decision of the Commission took into account the current owner’s nationality (being Egyptian) to deny an original owner compensation.

Held: Per Lord Reid: That where this clause (s4(4)) was intended to ouster the jurisdiction of the court, it needed to be far

more specific The determination of the Commission which was void, was not a decision which could be protected

by the privative clause Jurisdictional error will allow judicial review in circumstances where the commission or body has

made a decision in the course of the inquiry which takes them outside their jurisdiction These are cases upon which jurisdictional error will be founded in line with the above view (per Lord

Reid) – not an exhaustive list: o Bad faith

o No power to make o Breached the requirements of natural justiceo Misconstrued the instrument giving it power; o Refused to take something into account it was required to take into account; o Taking something into account which was irrelevant

Where a decision-maker doesn’t do any of these things, then the decision will be valid Applying this to the facts, in this circumstance the phrase ‘successor in title’ should not apply to an

original owner such that the requisite national would be an Egyptian. The Commission’s taking that into account makes the decision a nullity.

Craig v South Australia (1995) 184 CLR 163: In a criminal case involving actions for larceny or a motor car, receiving a stolen motor car and

damaging a motor car by fire, the District Court judge (Judge Russell) held that the accused was unable to gain legal representation, and therefore a stay in proceedings as per a Dietrich order was made

The Attorney-General appealed to the Full Court of the Supreme Court of South Australia on the basis of jurisdictional error and error on the face of the record.

The Attorney-General wanted an order in the nature of a certiorari to quash the decision.Held: (per Brennan, Deane, Toohey, Gaudron and McHugh JJ – joint full court judgement)

The decision of the Full Court of SA set aside. Distinction between administrative tribunals and inferior courts was maintained from pre-Anisminic

Australian jurisprudenceo Tribunals were said to be more likely to be without formal legal qualifications or training o Where courts are part of a hierarchical system of justice, where problems may be ironed out

on appeal On jurisdictional error:

o That Judge Russell did have the jurisdiction to order a Dietrich order. o The decision to award a Dietrich order was within his jurisdiction, as a primary trial judge o Even where there was an error to give a Dietrich order, that order was still within its

jurisdiction as a question of fact, or mixed question of law and fact On error on the record:

o That the record of an inferior court doesn’t ordinarily include the transcript, exhibits or reasons for decision

o However, those things can be included in a decision by reference o Determining what constitutes the ‘record’ of an inferior court is ultimately for the court

hearing the application o In this case, the transcript record doesn’t constitute

Privative Clauses

R v Hickman (1945) 79 CLR 598: A Local Reference Board settled industrial disputes between employers and employees in the coal

mining industry, pursuant to Regulations in the National Security (Coal Mining Industry Employment) Regulations. The Board was only to have effect in relation to industrial matters of the coal mining industry

Regulation 17 was a privative clause – that no decision of a Local reference Board was to be challenged in any way whatsoever

In this case, the Board decided that a company employing lorry drivers who transported coal (but that was not their exclusive business) was in the coal mining industry, and that an award which affected coal mining also applied to them

The lorry company attempted to institute a writ of prohibition against the local reference board – Board argued that reg 17 prevented application

Held: No statute or regulation can exclude the jurisdiction of the High Court, as conferred on it by the

Commonwealth constitution: per Latham CJ, Rich, Starke, Dixon, McTiernan JJ (full court)

Per Dixon J (at 615):o “Such a [privative clause] is interpreted as meaning that no decision which is in fact given by

the body concerned shall be invalided on the ground that is has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.”

Applying the above analysis (per Dixon J at 617), the Local Review Board’s powers, as contained in Regulation 14, are to determine industrial disputes.

They do not extend to defining its own jurisdiction, nor to defining ‘coal mining industry’ The Act restricts the Board’s powers with the phrase ‘coal mining industry’ Therefore, the orders here do not allow the Board to make orders outside the limits of the coal

mining industry, nor to determine what that phrase means legally

Other cases at top: Kirk; Darling Casino; Plaintiff S157

JR Grounds—No EvidenceDecision: ss 5(1)(h) & 5(3) ADJR | ss 20(2) & 24 JRConduct: ss 6(1)(h) & 6(3) ADJR | ss 21(2) & 24 JR

A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

(h) that there was no evidence or other material to justify the making of the decision;

&

The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the person who proposes to make the decision is required by law to reach that decision only if a

particular matter is established, and there is no evidence or other material (including facts of which he or she is entitled to take notice) from which he or she can reasonably be satisfied that the matter is established; or

(b) the person proposes to make the decision on the basis of the existence of a particular fact, and that fact does not exist.

Common Law (Strictly no evidence)Test

Must show complete absence of evidence to support a decision such that it is an error of law (otherwise looks like a merits review): R v Aust Stevedoring Industry Board (Board with power to cancel registration of unfit employers—one employer had minor record-keeping infractions—board cancelled registration record-keeping irrelevant to fitness of employer → no evidence → writ of prohibition granted)

Not enough to show— o Insufficient evidence: Coleen Properties (UK) (rejected in Australia: Mason in ABT v Bond)o Decision could not reasonably have been made on the evidence: statutory position

Examples If ‘evidence’ is irrelevant then no evidence at all: R v Australian Stevedoring Industry Board (Board

with power to cancel registration of unfit employers—one employer had minor record-keeping infractions—board cancelled registration record-keeping irrelevant to fitness of employer → no evidence → writ of prohibition granted)

With evidence to the contrary: Coleen Properties Ltd v Minister of Housing and Local Government (compulsory purchase orders in ‘clearance area’—rejecting report that area was ‘first class’)

Minister cannot act on the basis of no evidence: Ashbridge Investments v Minister for Housing (Classification of houses in slum area Lord Denning: if the minister made a decision in which he acted on no evidence, then the minister has acted beyond power)

Now incorporated in “Error of Law” in s5(1)(f) ADJR: ABT v Bond Mason J (Decision: s5(1)(f) ADJR | s20(2)(f) JR; Conduct: s6(1)(f) ADJR | s21(2)(f) JR)

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision

Error of law = making the decision without any evidence to base it on NOT a merits review—only an error of law if strictly no evidence

Extended by statute —Two limbs in s 6(3) ADJR | s24 JR(1) Statutory condition precedent not established: s6(3)(a) ADJR | s24(a) JRthe person who proposes to make the decision is

required by law to reach that decision only if a particular matter is established, and there is no evidence or other material (including facts of which he or she is entitled to take notice)

from which he or she can reasonably be satisfied that the matter is established; or

1. Particular matter o Statute requires something to be established as a condition precedent to making a valid

decision: Not a condition precedent if no test set out in statute: Western Television Ltd (granting

TV licence to ‘most suitable applicant’—no statutory test for ‘most suitable’—gave to most ‘stable’ company judged by proportion of corporate shareholders (less stable than individuals)—alleging lack of evidence to make that call not a statutory test so not condition precedent → ground not made out);

Condition precedent if mandatory consideration set out in statute: TV Capricornia v ABT (not mentioned) (licence—had to consider ‘financial management & technical capabilities’—alleging no evidence to establish that rival (winner) company had that capacity statutory condition precedent → no evidence)

2. No evidence or other material o Need not show an absence of legally admissible evidence to support the decision

3. From which he or she could reasonably be satisfied o Lowers standard from CLo Need not show complete absence of evidence to support the decision— a lack of probative

evidence to support it will suffice: ABT v Bond per Mason CJ; TV Capricornia v ABT

(2) Decision based on incorrect fact: s6(3)(b) ADJR | s24(b) JRthe person proposes to make the decision on the basis of the existence of a particular fact, and that fact does not exist.

1. Particular fact o generally means a ‘secondary’ or ‘ultimate’ fact, rather than a ‘primary’ or ‘evidentiary’ fact:

Curragh Qld Mining v Daniel (importing machinery—Customs said should have renegotiated contract deadline, used Australian equivalent based on fact that company could negotiate contract deadline)

Primary fact = bare facts (A has red hair) Secondary fact = assumption as to legal implication of primary fact (people with red

hair should not hold TV licences) 2. Based on

o Fact must have been critical (not peripheral) to the making of the decision: Curragh Qld. Mining

o must be a critical link in the chain in the sense that the decision maker, relying on that fact, chose one path of reasoning over another

o But for that fact the decision would not have been made: MIMA v Rajamannikam (RRT not believing Sri Lankan refugee—2 of 8 reasons listed that applicant conveying false impression of safety in Sri Lanka → this ‘fact’ did not exist not ‘based on’ the fact because there were 6 other reasons)

3. That fact did not exist o Must actually show ‘fact’ did not existo Absence of evidence to support the “fact” is not sufficient: Curragh Queensland Mining v

Daniel (importing machinery to meet contract deadline—Import excise exemption if Australian equivalent could not be obtained by contract date—Customs Officer said time constraints of private contracts irrelevant: should be able to negotiate extension of deadline

decision based on fact that company could negotiate contract deadline—no evidence that they could → but absence of evidence not evidence of absence)

JR Grounds—Otherwise Contrary to Law Decision: s5(1)(j) ADJR | s20(2)(i) JRConduct: s6(1)(j) ADJR | s21(2)(i) JR

A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

(h) [or (j)] that the decision was otherwise contrary to law.

Intention to catch other common law grounds as they emerge: ABT v Bond

JR Grounds—Failure to Make a Decision s7 ADJR | s22 JR

Failure to make a decision is considered a decision: JR s5 | ADJR s3(2)

Can seek order for review where—1. Person has a duty to make that decision

o must have a duty to make the decision, not simply a discretion: Brownsville Nominees Pty Ltd v Commissioner of Taxation

2. Undue delayo Prescribed time period in statute → within that period: s22(2) JR; s7(2) ADJRo No period prescribed → if there is an ‘unreasonable delay’: s22(2) JR; s7(2) ADJR

Delay must be unreasonable in the sense of being capricious or irrational, not appropriate and unjustified: cf Thornton v Repatriation Commission

Cases

Curragh Queensland Mining v Daniel Held:

It was clear that the Customs Officer had accepted and dismissed as an issue the fact that if the company were forced to buy the Australian machine then it would not have been able to meet its contractual obligation.

But the customs officer had also reached a conclusion that the company was not locked into a specific delivery date under the contract - officer thought that the company could negotiate an extension on the deadline.

First limb : established - the decision was based on the existence of a particular fact, and that fact was critical to the decision.

Second limb – There was no evidence that this fact actually existed (fact being: the assumption made by the customs officer that the mining company could negotiate a later date for delivery of the coal, ie to get an extension).

o there was nothing before the Customs Officer which would enable him to conclude that the company could have negotiated a later delivery date in the contract, the company was locked into the delivery date and that was that - there was no evidence, no written amendments to the contract, no formal variation of the contract evidenced in writing, there was nothing before the customs officer that that fact existed.

The court endorsed Wilcox J in Capricornia - imposes a heavy burden on an applicant for JR in specifying an obligation to negative the existence of any fact relied upon.

MIMA v Rajamanikkam considered provisions of the MA with identical words to those above in JR Act. However, there was

no s20(2)(f) in MA. RRT disbelieved evidence given by Sri Lankan citizen trying to claim refugee status – claimed was a

doctor caught up between Tamil Tigers and govt in Sri Lanka RRT listed 8 reasons for not believing him

o 2 reasons were that the applicant had sought to convey a false impression of safeness to return to Sri Lanka

o Assumption that applicant had given inconsistent answers in earlier vs later interviews FCFCA held that s5(3)(b) established

o assumptions of non-credible nature of applicant was critical issue, without which the RRT would not have made its decision

o assumption was shown to be w/o basis – RRT had made a mistake, in fact the two interviews when properly translated were consistent

HCA 4:1 upheld the Minister’s appealo Agreed with FCA that RRT’s assumptions were non-existent facts (there was no

inconsistency between the interviews)o RRT did take account of non-existent facto BUT the decision was not “based on” the non-existent fact because the other 6 reasons for not

thinking applicant credible were unrelated to the non-existent fact

Remedies

Statutory Remedies—Order to Review

Available where Statutory JR applies—‘decision of administrative character made under an enactment’

Only one remedy “statutory order of review”—no need to choose between writs: ADJR s5 | JR s20 (A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds);

Orders which can be made Quashing or setting aside (=certiorari): s16(1)(a) ADJR | s30(1)(a) JR (an order quashing or setting aside

the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies)

o Generally quashed at date of order but may be changed to date of decision (void ab initio) under s16(1)(a) ADJR: Wattmaster Alco Pty Ltd v Button (TJ quashed decision from date of decision—duty paid, so questions as to how much recoverable—appeal FFC said possible but inappropriate in this case)

Referring for further consideration: s16(1)(b) ADJR | s30(1)(b) JR (an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit)

Declaring the rights of the parties: s16(1)(c) ADJR | s30(1)(c) JR (an order declaring the rights of the parties in respect of any matter to which the decision relates); s16(2)(a) ADJR | s30(2)(a) JR (conduct); s16(3)(b) ADJR | s30(3)(b) JR (failure to make a decision);

o Declaration can be made to assist in other (civil) cases: Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) (detention order made not for deportation but to keep person in Aus to use as witnesses—improper purpose declaration that detention order was unlawful = false imprisonment—would help in civil action)

Directing parties to do something: s16(1)(d) ADJR | s30(1)(d) JR (an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties) s16(2)(b) ADJR | s30(2)(b) JR (conduct); s16(3)(c) ADJR | s30(3)(c) JR (failure to make a decision);

o Cannot award damages: Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) (detention order made not for deportation but to keep person in Aus to use as witnesses—improper purpose declaration that detention order was unlawful = false imprisonment—would help in civil action)

o Substitution of a different decision (as opposed to sending back—merits review ↔ JR) may be appropriate where effect of JR is that no other decision can be made: MIMEA v Conyngham (1986) (recommendation to Minister to deny visa to travelling music group—first instance ordered opposite decision should not have substituted—violates merits review ↔ JR distinction || but in some cases may be permissible)

ie—where Minister does not have discretion Not just generally where ground is unreasonableness: MIMEA v Conyngham (first

instance) JR for failure to make a decision → can direct to make a decision: s16(3)(a) ADJR | s30(3)(a) JR

General Points Can vary or revoke these orders: s16(4) ADJR | s30(4) JR State courts don’t have jurisdiction to review decisions of federal decision-makers: AD(JR) Act, s9

Section 10 AD(JR) Act provides a wide jurisdiction for other remedies under ADJR Act to be provided, and allows courts to stop decisions from being made where there may be a better remedy (s10(2)(b) AD(JR) Act)

o Section 10 JR Act is enacted in similar terms as s10 of the ADJR Act

SEVERANCE OF OFFENDING PART OF DECISION

Cannot sever where offending part is basic or integral to the entire decision: Parramatta City Council v Kriticos [1971] 1 NSWLR 140

s46(b) Acts Interpretation Act 1901 (Cth)

COMMON LAW REMEDIES—PREROGATIVE WRITS History & Purpose designed to stop travelling judges from dispensing the incorrect law evolved to allow the courts to control quasi-judicial tribunals and administrative bodies In Australia

o 1823 Charter of Justice in NSW created the Superior Court of record, which had the jurisdiction of the Courts of Kings Bench, Common Pleas and Exchequer at Westminster

o the creation of each colony’s Superior court gave them the inherent jurisdiction of being able to introduce the writs

Types Certiorari—quashes a decision (decision has no legal effect) Prohibition—prohibits a decision Mandamus—compels a decision according to law Quo warranto—prevents usurping public office (extinguished under JR Act, Pt 5) Habeas Corpus—commands executive government to bring a person before the court, to determine the

basis upon which they are detained

Jurisdiction to issue prerogative writs→ If can’t pursue under Pt 3 JR Act because not ‘made under an enactment’, etc → fall back on CL JR: Pt 5 JR Act

High Court: s75(v) ConstitutionIn all matters:…(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;the High Court shall have original jurisdiction.

Original jurisdiction to hear cases of Mandamus or prohibition in regards to acts of the Commonwealth: Plaintiff s157/2002 v Commonwealth (2003)

o Certiorari is ancillary and implied by the wording of s75(v): Ex parte Aala (2000) o Certiorari for error of law on the face of the record → jurisdiction in ss 75(iii) or 76

Considered these as ‘constitutional writs’, rather than prerogative writs so they come without the baggage of the history of prerogative writs: Re Refugee Review Tribunal, Ex parte Aala (2000)

o Cannot be removed by legislation: Plaintiff S157o Can award against Supreme Courts

Constitutional writs only available to correct jurisdictional error: Re Refugee Review Tribunal, Ex parte Aala (2000) (RRT breached rules of NJ JE)

o Certiorari for error of law on the face of the record → jurisdiction in ss 75(iii) or 76 Injunction available for wider range of errors: Plaintiff S157/2002 v Commonwealth

Federal Court The Federal Court has original jurisdiction to judicially review: s39B(1) Judiciary Act 1903 (Cth) but not

where—o Prosecution started by officers of the Cth but commenced in court in State or territory: s39B(1B)o Prosecution for criminal offence under law of state, territory or Cth on foot and applicant is

seeking review against officers of the Cth relating to related criminal justice process: s39B(1C) Unless start process before prosecution started: s39B(1D)

o Proceedings or appeals before Fam Ct, or courts of state or territory, and applicant is seeking review against officers of the Cth relating to a related civil proceeding decision: s39B(1EA)

Queensland Historically, Supreme Court of Queensland Act 1867 (Qld) established the Queensland Supreme Court,

which had the jurisdiction of the supreme courts of common law, and had the power to issue prerogative writs.

Now Judicial Review Act 1991, pt 3, s43

The original writs (mandamus, certiorari and prohibition) no longer to be issued by the court: Judicial Review Act 1991, s41(1)

o Now has power to issue prerogative order—available where you would otherwise be able to get the writ: s41(2) (effect is the same)

The requirement is now that an application for review be made: s43(1) JR Act Writ of quo warranto abolished in Queensland: s42(1) JR Act The nature of the relief pleaded as part of the order remedy in the nature of the relief: s42(2) JR Act.

o Eg: order in the nature of certiorari

Requirements for relief

Certiorari and prohibition (originally for jurisdictional error of visiting judges—extended to other grounds)

Two elements of the ‘Atkin formula’: R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co Ltd (1920) per Lord Atkin

1. Decision is an exercise of public power or authority (=justiciability)Private Power → not available

power to enforce contracts, arbitration, or the actions of a private club or association: Griffith University v Whitehead [2003] (discipline staff for changing student grade to ensure granting of financial assistance no JR) Griffith University v Tang (decision to expel a student from the PHD program for falsifying evidence no JR)

Private powers of public bodies: R v British Broadcasting Corporation; Ex parte Lavelle [1983] (decision of the public body to dismiss an employee under contract)

Public Power → available Statutory power—Courts clearly able to review: R v Toohey

o Regardless of who makes decision—even where low-ranking public official: R v Toohey; Ex parte Northern Lands Council (1981) (land rights decision made by NT Land Commissioner (under Norther Territory (Self-governing) Act in bad faith with ulterior purpose irrelevant whether examined by high or low ranking official)

o Public authorities, tribunals etc = JR Prerogative power— Now subject to review: Ex parte Laine (UKCA) (Home Office non-

statutory compensation scheme for crime victims—wife of police officer disputing amt decision reviewable notwithstanding lack of legislation || failed on merits); Council of Civil Service Unions (HL)

o historically unwilling to judicially review: Communist Party Case (ignored by R v Toohey)

o includes power on immigration: Ruddock v Valdaris (2001) (keeping illegal aliens out of the country was a prerogative power reviewable)

Magistrates’ committal hearings—subject to review: Commissioner of Police v Cornack [2003] QSC 026 (committal hearings administrative rather than judicial); Sankey v Whitlam (1978) 21 ALR 505 (note NSW is different)

Areas of Doubt Must be justiciable—May refuse judicial review of high level political or policy decision

(economic/political/social issues): Council of Civil Service Unions (HL) (Union workplace relations disputes in GCHQ—Thatcher outlawed as affecting homeland security prerogative decisions judicially reviewable but declined to intervene given political implications)

o Decisions made by cabinet: Minister v Peko-Wallsend (inclusion of Kakadu as protected site by cabinet—challenged by mining company declined to intervene || conflicting opinions between justices as to whether this was all cabinet decisions)

o Broader implications must be considered: SA v O’Shea (Cabinet rejecting parole board recommendation, contrary to custom declined to intervene)

Different approaches—substance or formo UK—look at nature not source of power—Decisions of boards in self-regulating

industries: (gov allows to self-regulate, keeps a close eye on them): R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] 1 QB 815 (Panel independent, not created by statute or gov—rejected complaint that rival companies acting in concert nature of responsibilities meant performing a public duty → JR || but no ground to review as no procedural unfairness); adopted by Neat per Kirby J (dissenting)

o AUS—source rather than nature of power—Outsourcing of government functions (GOC & GBE)—reviewable if decision comes from a statute, not from company constitution etc: AWB v Neat Domestic Trading (2003) 216 CLR 277 (N seeking to export wheat—refused permission by AWBi (wholly owned subsidiary of AWB)—power in company constitution & Sch2 Wheat Act not JR || Minority—in effect acting for government)

Consider nature of particular decision, not general power to make such decisions: General Newspapers v Telstra (Telecom receiving tenders for white pages contract—incorporated as Telstra—statute gave it power to enter into contracts—decision on particular contract made based on Articles of Association not a public matter → no JR)

2. Decision sufficiently affects the applicant (=standing) Preliminary decisions & reports—

o Report with recommendations does not sufficiently affect rights: Ainsworth v CJC (1992) (report damaging reputation—but no legal effects no certiorari ← only available to quash decision affecting legal status of complainant || sufficient only for declaration)

o Preliminary step in mandatory statutory two-stage process may affect rights: Hot Holdings v Creasy (1996) (first decision in a 2-stage process = mining warden’s decision to hold ballot—still up to minister even after ballot—mandatory consideration under ADJR minister bound to take account of warden’s recommendation → preliminary decision affected interests)

First step in process—examine whether sufficiently affects rights Final step in process—examine whether sufficiently determines rights

Eg if relevant mandatory consideration: Hot Holdings v Creasy (1996); Bond per Mason J (whether to revoke license—two-step decision (1) that company no longer fit and proper ‘person’ | (2) revocation (2)=final decision | (1)=mandatory step || but intermediate finding of fact not JR)

Not sufficient if interim decision in a magistrate’s committal hearing: Commissioner of Police v Cornack [2003] (in this case sufficient evidence to put a person to trial therefore no error of law → certiorari only available where serious error of law → not available)

Writ of mandamus (historically a remedy against public officials ↔ certiorari & prohibition: inferior courts) Effect

o compels the exercise of a public dutyo does not entitle the application to a certain substantive decision, just that it will be made

Available only where the authority was under a specific public duty to be exercised: Ainsworth v CJC (1992) (report requested by Minister—trying to compel to listen to A before issuing report—CJC not strictly under any public duty to issue it at all mandamus not available)

Can be used against public bodies refusing to exercise their jurisdiction: Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473

Does not lie against the Crown , (State Governor or GG) as it is generally issued at the behest of the Crown: FAI Insurance v Winneke; R v Governor of South Australia (1907)

Availability of discretion in decision— (Commissioner of State Revenue (Vic) v Royal Insurance Aust Ltd (1994))

o decision with some residual discretion → order to have the decision determined ‘according to law’

o No discretionary facts available → order to compel decision

Considerations for BothExclusions

Governor-in-council: certiorari does not lie against the crown (ie against cabinet—justiciability issues): FAI Insurances v Winneke (1982) (given at the behest of the Crown—Crown does not direct itself)

Against decisions of a legislative character: R v Wright; ex parte Waterside Workers Federation (eg council making a by-law)o BUT may be possible (eg where setting an award—some general rule—writs still available as

illustrated by some cases) Discretion

All writs are discretionary Factors such as delay, futility, clean hands, appeal rights, more appropriate avenue of attack and

motive may be relevant Not so relevant regarding constitutional writs under s75(v) Const and s39B Judiciary Act: SAAP

Case (legislation requiring notice to be given of adverse material—notice given orally—therefore no real injustice no discretion for jurisdictional error and constitutional writs → writ had to be given)

May be less discretion available to refuse where jurisdictional error: SAAP v MIMI (may not be followed) (statutory provisions creating RRT—imposed NJ obligations—failure to observe NJ Tribunal committed JE (broad type)—but didn’t seem to affect outcome → nature & seriousness not relevant → discretion shouldn’t be exercised not to award writ)

EQUITABLE REMEDIES—INJUNCTION AND DECLARATION

Started being used in admin law to avoid restrictions on prerogative writs: Ainsworth v CJC For where statutory JR is not available, for example—

o Against an exercise of delegated legislative powero Against a decision by State Governor or GG

TypesInjunction enforced by contempt of court actions Requirements:

1. There is a serious question to be tried; 2. That the balance of convenience favours the applicant

May be prohibitory or mandatory (although rare)

Declaration A statement of the legal position of the parties made by a superior court Not enforceable by contempt of court

Procedures

Commonwealtho HC may order against State & officers of a State: s60 JA 1903o Processes must be served upon AG of Cth or State against whom sought: s63

60 Injunction against a State and its officersIn a suit against a State brought in the High Court, the High Court may grant an injunction against the State and against all officers of the State and persons acting under the authority of the State, and may enforce the injunction against all such officers and persons.

63 Service of process when Commonwealth or State is partyWhere the Commonwealth or a State is a Party to a suit, all process in the suit required to be served upon that party shall be served upon the Attorney-General of the Commonwealth or of the State, as the case may be, or upon some person appointed by him or her to receive service.

Federal Court: as above under rule 54.A

States: Judicial Review Act 1991, s43(2) and s47o Declaration or injunction available by action for review if appropriate having regard to— (s43(2)(a))

Nature of matter Nature of persons against whom relief sought

o Declaration or injunction may be awarded instead of or in addition to prerogative order if considered just and convenient by the court: s47

43 Application for review…(2) An application for a declaration or injunction (other than a prerogative injunction)—

(a) may be made by way of an application for review if it would be appropriate to do so having regard to—(i) the nature of the matters in relation to which relief may be sought; or(ii) the nature of the persons against whom relief may be sought;in an application for a prerogative order or prerogative injunction; and

(b) may be made by way of an application for review, whether or not a prerogative order or prerogative injunction is sought in the application.

…47 Powers of court(1) The court may grant the declaration or injunction sought in an application under section 43 instead of, or in addition to, a prerogative order if it considers it would be just and convenient to do so having regard to—

(a) the nature of the matters in relation to which relief may be granted by way of a prerogative order; and(b) the nature of the persons against whom relief may be granted by way of a prerogative order; and

(c) all the circumstances of the case.

Attorney-General enforcing criminal law by injunction: In some circumstances, the Attorney-General seeks to impose injunctions for breaches of the Criminal

law That the courts will be reluctant to allow the Attorney-General to exercise criminal law – particularly

major criminal law offences: Commonwealth v John Fairfax and Sons Ltd (1980)

Cases

o Wattmaster Alco Pty Ltd v Button Pincus J at first instance quashed decision from day after it was made rather than

date of order FCFCA said it may sometimes be appropriate to choose a different date, but

inappropriate in this case <> generally prudent to stick to general law position (date of order)

o See Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) 81 ALR 288 Where a detention order had been made for an improper purpose (instead of for the

purpose of deportation, was to keep the person in Australia to give evidence in a trial against others), and was therefore unlawful

Applicant claimed damages + an order declaring that detention was unlawful under s16(1)(c) so applicant could bring civil action

Held: damages was not an appropriate remedy for judicial review Appropriate in this case to make the declaration

o Minister for Immigration & Ethnic Affairs v Conyngham (1986) 68 ALR 441 Where in that case, a Minister had a recommendation made to him to prevent a visa

given to a travelling music group The judge at first instance issued an order forcing the Minister to grant approval to the

group Held, on appeal, that this was not an “appropriate case” to require the Minister to

comply with the direction Firstly, because of the separation of powers, judiciary could not force executive to

make certain decision But where effect of JR decision is that no other lawful decision can be made,

appropriate simply to substitute decision

Merits Review & AAT

Merits review by Administrative Tribunals ↔ Judicial review by courts

= having decisions of the executive reviewed on their merits = reconsideration of all aspects of the original decision—law, fact, discretion and policy

Overview Bodies

o Queensland—QCAT established 1 Dec 2009 (powers & functions mainly as per AAT)o Federal—The Administrative Appeals Tribunal (AAT) established under the AAT Act 1975

(Cth). holistic tribunal Expected to increase the standard of government decision-making

Determination o what is the ‘correct or preferable’ decision: Re Becker and Minister for Immigration and

Ethnic Affairs; adopted by FFC in Drake v Minister for Immigration and Ethnic Affairs o what is ‘fair and reasonable’

shows some deference to the decision-makero ‘stand in the shoes’ of the primary administrator

Method o generally inquisitorial (=that they can inform themselves of anything that they want)o As requiring little formality and expediency as the circumstances may permit: AAT Act s33(1)

(b) Effect

o Decisions substituted for the original decision-makers decisiono ↔ Judicial review—only considers the legality of a decision does not reconsider

Although it does allow consideration as to whether a decision is ‘unreasonable’

Benefits and negatives of merits review Benefits

o Addressing the substance of individual claims, in order to seek the ‘correct or preferable’ decision

o Improve government decision-makingo Provide an accessible and responsible mechanism for the review of a range of grievances o Enhance the accountability of government o Reduce demand for judicial intervention, therefore reducing costs

Negatives: o May be supplanting the role of parliament in keeping executive accountable; o May hurt fiscal responsibility – AAT is free from fiscal constraints o May mean that individuals are favoured over the interests of the wider community

Bodies conducting MR External boards —tribunals, councils, commissions, agencies and authorities

o also deciding decisions at first instance eg town planning, broadcast licensing and indigenous land claims

o have executive and judicial functions Internal review —government agency making the decision reviews decision itself

o Would allow for an expedient, cost-effective, administrative body conscious way of reviewing a decision

o However, may also inflame tensions between applicant and department, discourage good primary decision-making, or impede formal review

Development Establishment of tribunals and boards to determine public policy issues began in the early 20th

century o eg tax review boards and war pensions entitlement tribunalso created in an ad hoc way

Also, reaction to the cost and rigidity of JR also led the charge During the 1960s and 1970s, the government was becoming more interventionalist – lot more

decisions and regulations being made, affecting citizens Failure of parliament and court to keep up with executive action

o Courts were unable to control the trend, as it operated primarily for private law remedies Also, court action was prohibitively expensive

o Parliament unwilling to supervise all admin bodies

Kerr committee, 1968 – report in 1971 Review of judicial and merits review Recommended an intricate system of merits review, based on one major Tribunal (AAT)

Bland report, 1973 Surveyed mass of Commonwealth legislation, which ought to be amenable to review

Ellicot Committee, 1973 Supported the Kerr committee’s recommendations on JR

Administrative Appeals Tribunal Act 1975 (Cth) Passed in 1975 Set-up under the Fraser government

o Later introduced Commonwealth Ombudsman and statutory JR It introduced a broad, power, quasi-judicial, quasi

Specific review boards Such as the Veterans’ Review Board, and the Social Security Appeals Tribunal – which are

subordinate to the AAT Some are almost completely independent – such as the Immigration Review Tribunal and the

Refugee Review Tribunal

Merits review and the separation of powers Merits review said to be quasi-judicial and quasi-executive Bodies which exercise judicial power must be constituted as a Ch III court Constitutional questions —attempts to give decision of executive tribunals a judicial effect: Attorney-

General (Cth) v Breckler (1979) (Tribunal says it is to take effect as an order of the court) What is in issue is the general character of the responsibilities of the Tribunal

o The AAT is not a court – its functions are clearly administrative, so the fact that it has similarities to a court is irrelevant

Reform of the merits review system: Review of the system by the Administrative Review Council (ARC) in 1995 brought out some major

criterion: o Need to increase community awareness of services; o Tribunals should create an environment where parties represent themselves; o Independence of tribunals establishes credibility of decisions; o Variety of skills in AAT should be maintained; o Agencies should take AAT decisions into account when forming policy;

o Tribunal should move towards an ‘umbrella tribunal’, that handles all forms of Administrative Appeals (done in Vic)

StructureMade up of President | other presidential members | senior members | other members: s5 Administrative Appeals Tribunal Act 1975 (Cth) (provision establishing the AAT)

Appointment By GG: s6(1) Post

o Judge → President | presidential member: s6(2) Does not affect tenure as a judge: s7A Not a breach of the separation of powers for a judge to sit on the AAT: Drake v

Attorney-Generalo Other person → deputy president | senior member | member: s6(3)

Can be full-time or part-time: s6(4) Qualifications required

o President ← FCA judge: s7(1)o Deputy President ← legal practitioner of HCA | SC for > 5yrs: s7(1AA)o Senior Member :

legal practitioner of HCA | SC for > 5yrs: s7(1B)(a) in GG’s opinion has relevant special knowledge or skill s7(1B)(b)

o Non-presidential (normal) member legal practitioner of HCA or SC: s7(2)(a) > 5yrs experience at high level of industry | commerce | public admin | IR | profession

| government: s7(2)(b) University degree in law | economics | public admin or other field: s7(2)(c) In GG’s opinion has relevant special knowledge or skill : s7(2)(d)

Term < 7 years: s8(3) Can be reappointed: s8(3) Judge ceasing to be a judge → loses office on administrative tribunal too: s8(4) On terms & conditions as prescribed: s8(7)

Organisation Divisions— (s19(2))

(a) General Administrative Division;(b) Medical Appeals Division;(baa) Security Appeals Division;(ba) Taxation Appeals Division;(c) Valuation and Compensation Division; and(d) such other Divisions as are prescribed.

< 3 members: s21(1)(a) President responsible for efficient discharge of business: s20(1)

Jurisdiction The AAT has jurisdiction where— (s25 AAT Act)

o Enactment provides for applications to the AATo For the review of decisions made under that or another enactment

Tribunal has power to review any decision in respect of which an application is made to it under any enactment: s25(4)

1. Enactment: s3 AAT Act Means—

o Act o Ordinance of Territory other than NT or ACTo Instrument (eg rules, regulations, by-laws) made under Act or Ordinance

Includes amended enactment

2. Decision Includes— (s3(3))

(i) making, suspending, revoking or refusing to make an order or determination;(ii) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or

permission;(iii) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;(iv) imposing a condition or restriction;(v) making a declaration, demand or requirement;(vi) retaining, or refusing to deliver up, an article; or(vii) doing or refusing to do any other act or thing.

Must be determined in accordance with the legislation: DG of Social Security v Hales (1983) (decision to try and recover overpayment under social security legislation = ‘decision’)

Must be open/operative determination: DG of Social Security v Chaney (1980) o Guidance to be taken from JR principles—Final or operative & substantive decision: ABT v

Bond (1990) per Mason CJ (not AAT case but still gives some guidance) intermediate decision —reviewed only where provided for under the statute, so that it can be

characterised as a decision ‘under an enactment’: ABT v Bond (1990) per Mason CJ (not AAT case but still gives some guidance || must be a mandatory step under statute)

Must be primary decision : AAT is not a primary decision maker – there must be a primary decision maker to make the decision: Re Tradigrain (Board making export development grant—recipient appealed against amount—board said up your arse we’re taking all the money back, asked AAT AAT could not review as no primary decision to seek repayment yet)

Constitutes a decision, therefore reviewable—o Exercising of powers given under an Act: DG of Social Security v Hales (1983) (decision to

try and recover overpayment under social security legislation = ‘decision’)o Improper belief that they have no power : Deputy Commissioner of Patents v Board of

Control of Michigan Technological University (1979) (failure to grant an extension of time for patent application—cited lack of jurisdiction to grant extension decision → could be reviewed)

o Failure to make a decision where— s25 AATA duty to make decision unreasonable delay

Ombudsman may investigate and direct to the relevant Tribunal: Ombudsman Act 1976 (Cth), s10 (so long as the Act allows for review by the Tribunal)

o Invalid exercise of power : Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1988) (exercise of power it didn’t have—technically a nullity open to merits review so long as made in ‘purported exercise of the power’)

o Decision made in excess of power: Collector of Customs (NSW) v Brian Lawlor Automotive P/L (1979) (decision that not a fit & proper person to hold customs license—only had power

to revoke for non-payment—therefore beyond own power still a decision capable of review); reinforced in Alvaro’s Case von Doussa J

AAT will assume constitutional validity of Act under which the decision is made: Re Adams and the Tax Agents’ Board (1979), per Brennan J (as President) (cannot question constitutional validity as not a Ch III court—therefore affirmed decision of Taxation authority)

o Must nonetheless consider the substantive merits of a case: Re Reserve Bank of Australia and Comcare (1989)

3. Internal reviews exhaustedWhere the Act provides for an internal review procedure, that procedure must be followed first

→ decision reviewed is the decision of the internal review: Re Gee and Director-General of Social Services (1981) (←operative decision || NOT the original decision but the decision made in the internal review)

Time limits for internal review have expired → AAT has no jurisdiction: Re City of Yarra and Development Allowance Authority (1996) (where there had been no reconsideration because of the lapsing time limit, that would mean the AAT had no jurisdiction)

StandingIndividuals: s27(1)Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision

A person ‘whose interests are affected by the decision’: s27(1) AAT Act o Including Commonwealth or Commonwealth authority: s27(1) AAT Act

A person who has standing for judicial review has standing for the AAT: Re Control Investments (1980)

Not sufficient — (Re Control Investments and ABT (1980))o Generally interestedo Thinks that conduct should be observed

Decision can be adverse or beneficial: Re Control Investments P/L and Australian Broadcasting Tribunal (No 1) (1980) (ABT decision on TV licensing ALP as media affects political parties | individual members of ALP | Rupert Public Interest Movement ← link to objects too tenuous)

Process of statutory construction whether someone is considered to be interested in decisions made under a certain act: Allan v Transurban City Link Pty Ltd (2001)

o Narrow approach adopted—Confined to those within contemplation of the legislation: Allan v Transurban City Link Pty Ltd (2001) (building Melbourne Link project—resident whose land getting resumed challenged review in legislation contemplated failure of companies who tried and failed to get certificates—no review of decision to grant a certificate || Cf. powerful dissent by Kirby J); confirmed by Brisbane Airport Corporation Ltd v Wright

o Obligation to give notice to residents doesn’t give them standing: Brisbane Airport Corporation Ltd v Wright (2002) (decision to build runway—rep of community group & landowner 9km from airport ‘interest’ defined by Act—nature of Airports Act implied that only person affected is lessee—requirement to give notice to occupiers not sufficient to give them all standing → no standing)

Organisations & Associations: s27(2) & (3)An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association

Organisation or association has standing if decision relates to matter included in their objects or purposes: s27(2) AAT Act (broader than JR standing)

o Regardless of whether incorporated or noto Can’t just add to give themselves standing—does not apply if organisation formed or object

added after the decision: s27(3) (Subsection (2) does not apply in relation to a decision given before the organization or association was formed or before the objects or purposes of the organization or association included the matter concerned); Re Watson (must exist at the time the decision was made)

o An organisation whose objects were too tenuous to the would not be under the Act: Re Control Investments (1980)

Effect—Can apply to be added to proceeding Parties to proceeding include people added on application (s30(1)(d)); persons whose interests are

affected can apply in writing: s30(1A)o Unless that party fails to appear at a proceeding, in which case the Tribunal can make an

order the makes them unable to be a party to the proceeding: s42A(2)(b) AAT Act. Tribunal determines whether interests are affected by a decision (=whether has standing) → decision

is conclusive: s31 o Appeals—can appeal decision as to whether has standing: s44(2) AAT Act.

Decision-maker must give noticeNotification of appeal rights (always)

Where a person makes a reviewable decision, they must take steps as are reasonable in the circumstances to give notice that:

o A decision has been made: s27A(1)(a) AAT Act; ando The right of the person to have the decision reviewed: s27A(1)(b) AAT Act.

Exceptions Where decision made by default by missing the deadline to make a decision (under s25(5)): s27A(2)

(a) AAT Act; Where notification right to review made by another enactment: s27A(2)(b); a decision not to impose a liability, penalty or any kind of limitation on a person: s27A(2)(c)(i); Make an adjustment on periodic payments to a member of a class, where those adjustments are for

the entire class: s27A(2)(c)(ii) Decision placing a person in the most favourable category for monetary benefits: s27A(2)(c)(iii)

Statement of Reasons (on application)…  statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement

Decision subject to review & person with standing → may apply in writing for & must receive within 28 days (and as soon as practicable) a statement of— (s28(1))

o Material findings of facto Evidence relied upono Reasons for decision

Can refuse to give reasons if—o not requested in good time

Decision recorded in writing & given to applicant → w/in 28 days: s28(1A)(a) Otherwise → within a reasonable time: s28(1A)(b)

o Already given to them: s28(4) Decision-maker can contest entitlement

o DM must give the person give notice within 28 days of opinion that not entitled: s28(1AA)o Tribunal to decide on entitlement—not left to final hearing: s28(1AC)

If inadequate can order another statement within 28 days (and as soon as practicable): s28(5) If fail to give statement of reasons → can appeal to FCA as a question of law (breach of NJ—no

prior adequate notice): s44

Public Interest Reasons not available where the decision is to be made in accordance with the Security Appeal

Division under s19(6) AAT Act: s28(1AAA) AAT Act. o decision under s54 of the ASIO Act: s19(6)(a) AAT Act; and o A decision under the Archives Act relating to ASIO : s19(6)(b) AAT Act.

When a public interest certificate is issued by the Attorney-General, which prevents disclosure: s36(1) AAT Act.

← can be issued where—o Would prejudice the security, defence or international relations of Australia: s36(1)(a); o Cabinet | Cabinet committee deliberations: s36(1)(b); o Any other basis that would allow the Crown to establish in court that the information should

not be disclosed: s36(1)(c)

Application ProcedureApplications

In writing in prescribed form: s29(1)(a)&(b) AATA. Containing statement of reasons: s29(1)(c) AATA unless—

o Decision is a security assessment under the ASIO Act → must include assessment (i) & statement saying which parts the applicant does not agree with (ii): s29(1)(ca) AAT Act;

o A decision under the ASIO Act (s54(2)) → must include a statement setting out the grounds for appeal must be made: s29(1)(cb) AAT Act.

Must pay filing fee: s29A(1) AAT Act; o Can ask to have the fee waived under the regulations: s29(2) AAT Act.

Time Limit for Lodging Must be lodged with tribunal within prescribed time if—

o the statement of reasons were recorded in writing and given to the applicant, or o the decision made by default by missing the deadline under s25(5): s29(1)(d) AAT Act.

Time limit—28 days after—o Statement of reasons given with decision given to applicant: s29(2)(a)o Some statement of readings (through application under s28 or otherwise) issued to applicant:

s29(2)(a)(i)&(ii) o Terms of decision given to applicant: s29(2)(b)

Prima facie rule—applications should be within the time limit: Re Australian Telecommunications Commission and Commonwealth of Australia v Schmidt (1986)

Extension of time: The tribunal may extend the time in writing, where there are reasonable circumstances to so: s29(7)

AAT Act: o Can be made even where the time limit has expired: s29(8) AAT Act. o May have to give notice to affected person or tribunal: s29(9)o Where that person opposes the motion, the AAT must hear that person before they make that

decision: s29(10) AAT Act. Where there is an acceptable explanation for delay, that will be a relevant factor, but is not a

precondition to an extension of time: Comcare v A’Hearn (1993)

Rights and responsibilities of decision-maker Person who made the decision to be notified of application for review: s29(11) AAT Act. Must lodge within 28 days of receiving notice of the application— (s37(1))

o The statement of reasons: s37(1)(a) AAT Act; o Every other document in the person’s possession and that would be relevant to the decision:

s37(1)(b) AAT Act.

ADR & Settlement Does not apply to the Security Appeals Division: s34 AAT Act. Hold a conference - for formal dispute resolution: s34A(a) AAT Act. Hold other ADR: s34(1)(b) Can only occur where there is agreement: s34E AAT Act.

Concerns about ADR: Where the statute states there is no residual discretion, ADR may be inappropriate Power imbalances may also exist here

Orders giving effect to a settlement Tribunal can give effect to terms of agreement reached by the parties if— (s34D; 42C)

o Made in writing & signed by partieso No party notifies that wants to withdraw within 7 days

o Agreement would be within power of tribunalHearing powers and proceduresProcedure Generally

Theoretically an inquisitorial model—AAT is able to inform itself on relevant matters: s38o Procedural fairness element to this also (expressly required under s39(1))—must inform itself

on issues on which it makes a finding: Sec, Department of Social Security v Murphy (1998) (Dept Social Security—gives person impairment rating—AAT held no support program for alcoholics—no evidence to support this AAT could inform itself of this fact but failed to do so → breach of procedural fairness); McMullen; Kiazam; O’Rafferty; Winch

Hybrid Adversarial & Inquisitorialo Person may appear by themselves or with representation: s32 o Hearings are public: s35(1)

except if the nature of the information warrants private hearing: s35(2) o A person has a reasonable chance to present their case: s39(1) .

Goal—o to be fair, economical and quick: s33(1)(b) . o To move forward with as little formality and technicality as possible: s33(1)(b)

Powers of tribunal Can take evidence on oath or affirmation: s40(1)(a) Proceed in absence of party who had notice of attendance: s40(1)(b) Adjourn proceeding from time to time: s40(1)(c) Can summon anyone to appear who has evidence, documents or books which are relevant: s40(1A)

Rules of evidence AAT not bound by the rules of evidence: s33(1)(c) BUT don’t completely abandon for no good reason—Rules as to weight will be followed—eg

evidence must be ‘logically probative’: Re Pochi and Minister for Immigration (1979) (deportation—convicted for drug offences—Italian had family here—citizenship application rejected twice refused to consider hearsay evidence not presented in court → gravity to family → order revoked)

o For example where acquitted or had never been convicted: Re Pochi (had never been convicted of drug trafficking)

Reliance on non-probative evidence may equate to Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) (power to allow cinemas to open Sunday subject to conditions they think fit—imposed condition: no chn <15 on Sunday not completely unreasonable)

o Standard—so devoid of any plausible justification that no reasonable body of persons could have reached them: Bromley London Borough Council v Greater London Council (1983) (high standard) [→Improper Purpose grounds]

AAT may request more information: s38 AAT Act Confidential information —AAT can’t receive information where the information where the Federal

AG presented a public interest certificate: s36 AAT Act← can be issued where—

Would prejudice the security, defence or international relations of Australia: s36(1)(a);

Cabinet | Cabinet committee deliberations: s36(1)(b); (or State AG: s36B(1)(a)) Any other basis that would allow the Crown to establish in court that the information

should not be disclosed: s36(1)(c) (or State AG: s36B(1)(b))o AAT can have a private hearing where confidential nature of information warrants it: s35(2)

Onus of proof The general onus is that which is ‘correct or preferable decision’ – which may arise from:

o Facts of the matter: Re Ladybird Childrenswear Pty Ltd and department of Business and Consumer Affairs (1976)

o Evidence : Re Keane and Australian Postal Commission (1977) o Whether the facts exist that are necessary to change a statutory power’s status quo:

McDonald v Director General of Business and Consumer Affairs (1976) o Proposition that a party who asserts a fact must then be able to prove it: Re Eckersley and

Minister for Capital Territory (1979) An onus of proof may arise upon the circumstances in a particular circumstance, under the Act: re

Ladybird Children’s Wear and Department of Business (1976); o Eg gravity of implications to one party → onus on the other: Re Pochi and Minister for

Immigration, (deportation has grave implications for family onus on Minister)

Natural justice NJ required in the AAT: Sullivan; s39 (the Tribunal shall ensure that every party to a proceeding

before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents)

o Give a reasonable opportunity to present case No provision for ex parte hearings—both parties should be present

o Allow to inspect documents Right to use evidence as an ambush (APC v Hayes) does not relieve obligation to

discloseo Also failure to provide reasons as requested before hearing may equate to breach of natural

justice ← Entitlement to review = entitlement to reasons Also—lack of adequate prior notice if reasons given for first time at hearing

o → see NJ notes Specifically—requirement for public hearing: s35

o Subject to confidential information considerations—where the information where the Federal AG presented a public interest certificate: s36 AAT Act:

← can be issued where— Would prejudice the security, defence or international relations of Australia: s36(1)

(a); Cabinet | Cabinet committee deliberations: s36(1)(b); (or State AG: s36B(1)(a)) Any other basis that would allow the Crown to establish in court that the information

should not be disclosed: s36(1)(c) (or State AG: s36B(1)(b))o Where the decision is in the Security Appeals Division, person gets to provide evidence

under s39A(13) Right to cross-examination | right to put case the way you want to cannot be fettered: Australian

Postal Commission v Hayes (1989) (workers compensation—APC had video of H doing strenuous exercise—tribunal ordered tendering to evidence before examination, allowing witness to see it—reduced impact of ambush in cross-exam denying natural justice || conflicting NJ principle of entitlement to know case against you)

o Qualifications by AAT Only where it is the sole objective way available to test the evidence: Re Zeto and

Telstra (1995) Only adopted in exceptional circumstances where— Re Priker and Concare (1996)

(“contrary to the spirit of s37”)o Video came into existence after the date when decision-maker lodged

statement of reasons etc under s37 o Facts in issue of probative value and could not be established otherwiseo AAT informed prior to hearing that document exists

o BUT Hayes reinforced Federal Court: Re Bessey (withheld medical evidence until during AAT hearing) Acknowledged by AAT: Re Moline

Decision making powersMerits Review: re-making the original decision

AAT can re-make the original decision—full de novo hearing: s43(1) ((a) affirm, (b) vary, (c) set aside and (i) substitute, (ii) remit)

o Stands in the shoes of original decision-maker—exercises all their discretions etco ← The AAT considers itself what is the ‘correct or preferable’ decision: Drake v Minister

of Immigration and Ethnic Affairs (1979) (deportation—American with permanent residency | married w child in Aus—drug possession, sentenced 12mths | parole in 3—reaffirmed by AAT in reliance on gov policy AAT decision subjected to JR—stated that relied too heavily on gov policy); reinforced by Shi v Migration Agents Regulation Authority (2008)

o Must act within same statutory constraints as the Minister: Drake v Minister of Immigration and Ethnic Affairs (1979)

Can decide based on—o New evidence (not available or not before primary decision maker)o Things that have happened since the decision: Shi v Migration Agents Regulation Authority

(2008) HCA (cancellation of registration as migration agent as no longer ‘fit & proper person’—AAT stayed decision | required Shi to work under supervision—then set aside decision—took account of subsequent evidence from supervisor re Shi’s behaviour no problem)

o Generally, law at time of AAT reconsideration BUT—if change in law makes it harder to receive some benefit later when before

AAT, decision will be on law as at date of decision: doctrine of accrued rights The AAT cannot consider the exercise of a power or decision which the decision-maker did not have

the power to exercise: Re Brian Lawlor Automatic Pty Ltd and Collector of Customs (NSW) (1979) o Nor one which they could have exercised, but didn’t: Re Tradigrain.

Considering government policy Should consider government policy, but it is not bound by that policy: Drake v MIEA (1979)

(deportation of yank pothead—relied too heavily on minister’s written deportation policy of deterrence failed to make own decision in re-deciding the case)

o ← AAT subject to JR rule of blindly applying a policy [→improper purpose grounds] BUT should not openly depart:

o Must give cogent reasons for cogently departing from it if after considering it is concluded that— (Drake v MIEA (1979) per Brennan J)

policy is lawful application would not produce unjust result

o Level of government policy must be considered (Drake v MIEA (1979) per Brennan J) Ministerial policy should be complied with unless it would be illegal or unjust: Re

Drake and MIEA (No 2) (1979) o Arguments would have to be strongly against it to be allowed: Re Drake and MIEA (No 2)

(1979) (reconsideration of decision in No 1—Minister developed policy to guide exercise of discretions policy can provide assistance but must be used to arrive at preferable decision)

Other orders the AAT can make: To stay the operation of the original decision: s41(2) AAT Act. The AAT can also dismiss where—

o Where parties consent: s42A(1) o Where party discontinues proceedings: s42(1A) o Where party fails to appear: s42(2) o Where a party fails to prove a decision is reviewable: s42(4)(b)

Reasons for a decision of the AAT The Tribunal must provide reasons for a decision: s43(2) .

o These can be written or oral: s43(2) .

Where no reasons are given, a party may ask the AAT for reasons within 28 days: s43(2A) .o These reasons must include (s43(2B))

findings on questions of fact reference of evidence to which the findings were made

Status of the AAT’s decision Becomes primary decision-makers decision → has the effect of the original decision-maker’s

decision.o not a court decision .

No precedent for decisions of a body outside the court structure o Account will be taken of earlier decisions, in order to have consistent decision-making: Re

Drake and Minister for Immigration and Ethnic Affairs (1981)

Appealing decisions of the AATStanding decisions

AAT decisions relating to standing are reviewable: s44(2) (Where a person has applied to the Tribunal for a review of a decision, or has applied to be made a party to a proceeding before the Tribunal for a review of a decision, and the Tribunal decides that the interests of the person are not affected by the decision, the person may appeal to the Federal Court of Australia from the decision of the Tribunal)

Decisions of the AAT: s44(1) Decision of tribunal may be appealed to FCA on question of law: s44(1) (A party to a proceeding

before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding)

Appeal is not a merits review in the nature of the AAT

1. Decision = the effective decision or determination of the application for review: Director of Social Services v

Chaney (1980)

2. Must be on a question of law = factual errors or errors in allocation of weight not valid appeal grounds FCA has taken a atrict approach —“on a question of law” < “involves a question of law”: Comcare v

Etheridge (asbestos claims—determinations as to what constitutes an ‘injury’ question of fact)o This is a qualifying condition, and defines the parameters of the appeal: Brown v Repatriation

Commission (1985) experienced tribunals → Ct will avoid looking too closely at their decisions: Tax Agent’s Board

(NSW) v Martin (1997) Q of law—for example—

o Any JR groundo Breach of ‘natural justice’: Sullivan v Department of Transport (1978); confirmed in

Clementso Failed to apply its own independent judgment, by adhering to a policy or guideline: Drake v

Minister for Immigration and Ethnic Affairs (1979) o Where AAT finds no evidence but there is evidence: Gleeson v Repatriation Commission

(1994)

Cases

Drake v Minister of Immigration and Ethnic Affairs (1979) 24 ALR 577: Drake came from America and was granted permanent residency status in Australia. He lived in Australia and married, and had a child. He was caught with possessing a dangerous drug, and sentenced for 12 months, to be released

in 3. Minister for Immigration made an order for his deportation Appealed to the AAT – they found the decision was correct. It applied Ministerial policy in order to do this

Held: (FCA – Majority – Bowen CJ and Deane J) No error of law in finding that he was not someone who fit the bill as someone who had been

imprisoned for 1 year or more under the Migration Act – no error of law there. On re-deciding the case: The Tribunal’s function is to adjudicate on the merits of a decision. Was not limited to a consideration of the valid operation of the statute Tribunal had to act within the general constraints upon which the administrative officer who

originally made the decision made it. Must not be a consideration of irrelevant material; nor Exercised for a power upon which it doesn’t exist o On government policy:

The Tribunal is able to consider government policy, but it is not under a consideration to be bound by that policy.

The Tribunal had such reliance on the Minister’s policy that it failed to make its own decision

On re-deciding the case: has power to redecide case completely

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 : Reconsideration of number 1 decision. Minister developed a policy to guide the exercise of the discretion

Held: (AAT – Brennan J, President) Tribunal is free to apply the Minister’s policy or not in reaching the decision The policy can provide assistance in arriving at the preferable decision The Tribunal should adopt the following process when confronted with a Ministerial policy:

o Use the policy that has guided the Minister, except where that policy is illegal, or unless it creates an unjust decision

The appropriateness of a policy will be determined by the Tribunal, but the reasons against the policy must be cogently delivered to say why it shouldn’t be applied

o Particularly where policy open to parliamentary scrutiny The practice should however be to allow the Minister to consider the appropriate policy

Re Pochi and Minister for Immigration (1979) 26 ALR 247: Applicant, Pochi, was an alien of Italian origin, who started a family here. He applied for citizenship twice – he was accepted once, but didn’t get the approval, and therefore

didn’t take the oath of allegiance; 2nd time it wasn’t approved. He was arrested and convicted for marijuana selling. The Minister for Immigration exercised his ability to deport the person.

Held: (AAT - Brennan J, President) On logically probative:

o The orders given must have a ‘rational probative force’ o Must have regard to logically probative evidence, whether legally permissible or not. o Does not mean a complete abandonment of the rules of evidence for no reason – must be a

basis for doing so.o As the rules are the basis upon which findings of fact have been justified

Applying this to the facts,

o The gravity of the decision will require the consideration of actually occurring facts – strongly proved

o Therefore refused to take evidence that the authorities did not put before the court in the drug charges because not admissible (mostly hearsay evidence)

o Must consider the entirety of an alien’s circumstances when deciding whether or not to deport them – including their conduct in the community, and their standing in the community, and the effect it would have on the family.

o Burden to prove that the Minister’s decision was justified is borne by the Ministero The gravity of deportation to an Australian family means that they shouldn’t revoke it o Order of deportation should be revoked

Standing

Brisbane Airport Corporation Ltd v Wright (2002) 77 ALD 411 Respondent was a member of parliament, a representative of a community group and a landowner

near the Brisbane Airport <> lived 9km away from the southern end of the proposed runway The MP sought to review a decision by the Minister of Transport for a draft master plan of a new

runway at Bne airport, pursuant to s81 Airports Act. Held

o The word ‘interest’ is defined by the Act upon which it is used (ie the Act under which the decision was made)

o The nature of the Act implied that the only person who would be interested is lessee, who would be directly affected by a master plan

o Nothing in the Act suggested there was a need for the lessee corporation to consulto The requirement for notice of occupiers was not sufficient to suggest there was universal

standing

Allan v Transurban City Link Pty Ltd (2001) 208 CLR 167: The respondent was the link corporation, designed to build the Melbourne City Link project The authority had to get the borrowings for infrastructure approved by the Development Allowance

Authority The authority issued its certificates The appellant (an owner of property that was to be resumed for the project), sought to have them

reconsider the grant. The authority didn’t consider the request, as they were a ‘person’ aggrieved The appellant then tried to have the decision reviewed by the AAT, with no avail – because of lack

of standing Held : (per Gleeson CJ, Gummow, Hayne and Callinan JJ, with Kirby J dissenting)

o The court held that this was a specific statute in mind, and the court was construing this statute when it decided upon the issue of standing

o Whether a person is ‘affected by’ a relevant statutory scheme, is a matter of construction – taking into consideration the purposes of the Act, and the decision made under that Act

o The review type envisaged under the legislation was a failure of companies who wanted to review a decision, not someone who was affected in another way

o This is because of references elsewhere to an ‘applicant’ – meaning that there would be consideration of those who applied and failed to get the certificates

Per Kirby J (dissent): o Supports reference by the majority that a person affected by a decision should be construed in

terms of the Act itselfo That the interest in this case was supportable, even though it was akin to a ‘property’ interest o The trend of federal statutes has been to allow anyone who is affected to bring standing

requirements

Merits Review & AAT

Overview & History

Composition of Tribunal

Jurisdiction: s25 AAT

o Enactment provides for applications (s3)

o Decision made under an enactment (s3)

o Internal reviews exhausted

Standing

o Individuals—whose interests are affected: s27(1)

o Organisations & Associations: s27(2)&(3)

Notice to be given by DM

o Of right of appeal (always): s27A

o Statement of reasons (on application): s28

Applications

o Form & Filing

o Limitations

o Effect on DM

ADR & Settlement

Hearing Powers

o Procedure: s38

o Powers: s40

o Evidence: s33

o Onus

o Natural Justice: s39

Decision-making Powers

o Nature of Merits Review

o Considering government policy

o Orders

o Reasons for Decision

o Effect—status of decision

Appeals: s44

o Standing decisions

o Decisions of AAT—appeals to FCA

The OmbudsmanThe Ombudsman

Ombudsman Act 2001 (Qld) Ombudsman Act 2001 (Qld) | | Ombudsman Act 1976 (Cth) Ombudsman Act 1976 (Cth)

GenerallyGenerally

Primary role = investigate complaints from individuals about actions of government officesPrimary role = investigate complaints from individuals about actions of government officesoo Can investigate broader problem—not confined to individual matterCan investigate broader problem—not confined to individual matter

Differences from Judicial review | Merits review before tribunalDifferences from Judicial review | Merits review before tribunal AdvantagesAdvantages

oo Not dependent on final decisionNot dependent on final decision Can investigate manner—delay, rudeness, refusal to listenCan investigate manner—delay, rudeness, refusal to listen Although ‘conduct’ can be subject to JRAlthough ‘conduct’ can be subject to JR

oo Not restricted to specific legal errorNot restricted to specific legal error General unjustnessGeneral unjustness

Restriction—Ombudsman does not have determinative powerRestriction—Ombudsman does not have determinative poweroo Can only conduct investigation & make report with recommendationsCan only conduct investigation & make report with recommendationsoo Rationale—Dependent on Rationale—Dependent on

goodwill of person in officegoodwill of person in office threat of exposure & embarrassment (eg highly critical reports close to threat of exposure & embarrassment (eg highly critical reports close to

election time)election time)

Engaging the OmbudsmanEngaging the Ombudsman

Three ways of engaging Ombudsman—Three ways of engaging Ombudsman— Citizen complaint: Citizen complaint: s12(a)(ii) QOA | s5(1)(a) COAs12(a)(ii) QOA | s5(1)(a) COA

oo Annual reports show thousands of complaints per yearAnnual reports show thousands of complaints per yearoo Orally or in writing: Orally or in writing: s20 QOAs20 QOA

But may decline to pursue unless in writingBut may decline to pursue unless in writingoo Standing—Standing—

QldQld Previously—required person to be ‘person aggrieved’Previously—required person to be ‘person aggrieved’ Now ‘apparently directly affected’: Now ‘apparently directly affected’: s20 QOAs20 QOA May refuse to investigate if does not have ‘sufficient direct interest’: May refuse to investigate if does not have ‘sufficient direct interest’:

s23 QOAs23 QOA.. Cth—can refuse if doesn’t have a ‘sufficient interest’Cth—can refuse if doesn’t have a ‘sufficient interest’

Ombudsman initiated inquiry: Ombudsman initiated inquiry: s12(a)(iii) QOA | s5(1)(b) COAs12(a)(iii) QOA | s5(1)(b) COAoo Where individual complaint received sheds light on systemic problem in a certain areaWhere individual complaint received sheds light on systemic problem in a certain areaoo ExamplesExamples

Qld—FOI request handling | supply of electricityQld—FOI request handling | supply of electricity Cth—Mistreatment in immigration detention centresCth—Mistreatment in immigration detention centres

Parliamentary referral:Parliamentary referral: s12(a)(i) QOA | s5(1)(c) COA s12(a)(i) QOA | s5(1)(c) COAoo Ombudsman required to provide report to parliamentOmbudsman required to provide report to parliament

Jurisdiction Jurisdiction

1. Administrative Action (1. Administrative Action (s14(1) QOAs14(1) QOA) | Matter of Administration () | Matter of Administration (s5 COAs5 COA)) including— (including— (s7(1) QOAs7(1) QOA))

oo Decision & ActDecision & Actoo Failure to make decision or perform act (incl failure to provide statement of reasons)Failure to make decision or perform act (incl failure to provide statement of reasons)oo ProposalProposaloo RecommendationsRecommendations

Where some Where some institutional aspectinstitutional aspect: : Booth v Dillon (No 1)Booth v Dillon (No 1) (VSC) (VSC) (prison officer abused by prisoner—took (prison officer abused by prisoner—took to governor’s office & told him to repeat—to governor’s office & told him to repeat—struck prisoner in presence of wardenstruck prisoner in presence of warden action broadly action broadly about enforcement of discipline—institutional, not just an assault—particularly because condoned byabout enforcement of discipline—institutional, not just an assault—particularly because condoned by warden → administrative action → open to O to investigate)warden → administrative action → open to O to investigate)

Includes government’s Includes government’s commercial enterprise activitycommercial enterprise activity—everything done in implementation of —everything done in implementation of government policy: government policy: Re British Columbia Development Corporation and Friedmann Re British Columbia Development Corporation and Friedmann (Canada)(Canada) (Contract(Contract with promoter to redevelop waterfront site—restaurant owner objected: complained to O that actingwith promoter to redevelop waterfront site—restaurant owner objected: complained to O that acting in bad faith in bad faith O had jurisdiction) O had jurisdiction)..

NOT—NOT—oo unauthorised actionsunauthorised actions : : Booth v Dillon (No 2)Booth v Dillon (No 2) (VSC) (VSC) (prison officer making defamatory (prison officer making defamatory

statements to press about prisoner—saying he was lying statements to press about prisoner—saying he was lying no jurisdiction because if he did no jurisdiction because if he did make these statements, outside the scope of his role as a prison officer)make these statements, outside the scope of his role as a prison officer)

BUT may have limited relevance under Qld legislationBUT may have limited relevance under Qld legislationoo NOT general NOT general policypolicy: : Booth v Dillon (No 2)Booth v Dillon (No 2) (VSC) (VSC) (report into violence—abuse & assaults in jail (report into violence—abuse & assaults in jail

due to due to dorm sleeping arrangementsdorm sleeping arrangements—O investigating whether was being implemented —O investigating whether was being implemented Policy outside scope of O’s responsibilities)Policy outside scope of O’s responsibilities)

↔↔ implementationimplementation of policy—whether of policy—whether specific actionspecific action taken to deal with a specific taken to deal with a specific allegation = matter of administration: allegation = matter of administration: Biganovsky Biganovsky (SASC) (SASC) (investigation of policy re (investigation of policy re useuse of premises by community groupsof premises by community groups policy → outside O’s duties || BUT could policy → outside O’s duties || BUT could investigate way the policy is applied in particular cases—eg if applied in investigate way the policy is applied in particular cases—eg if applied in discriminatorydiscriminatory fashionfashion))

BUT indications by Ombudsmen in annual reports suggest they will investigate policy BUT indications by Ombudsmen in annual reports suggest they will investigate policy mattersmatters

Policy decisions of Policy decisions of Minister & CabinetMinister & Cabinet are excluded: are excluded: s16(1) QOAs16(1) QOA Distinction between Distinction between high-level & low-levelhigh-level & low-level government policy government policy

oo matters which are matters which are judicial or legislativejudicial or legislative functions of government (Separation of powers functions of government (Separation of powers approach): approach): Glenister v DillonGlenister v Dillon (complaints on imprisonment awaiting trial (complaints on imprisonment awaiting trial no jurisdiction no jurisdiction due to exclusion for person acting as legal advisor to crown—related to judicial process ↔ due to exclusion for person acting as legal advisor to crown—related to judicial process ↔ not administrative in character)not administrative in character) followed in followed in Booth v Dillon (No 3)Booth v Dillon (No 3)..

Problematic distinction—Problematic distinction—RejectedRejected in other jurisdictions: in other jurisdictions: Re Ombudsman of Ontario Re Ombudsman of Ontario (Canada)(Canada) (investigation of confirmation of board to confirm lower board’s decision—(investigation of confirmation of board to confirm lower board’s decision—quasi-judicial body so argued could not investigate quasi-judicial body so argued could not investigate contention rejected—“to base contention rejected—“to base on separation of powers doctrine is to base it on quicksand”)on separation of powers doctrine is to base it on quicksand”)

oo Operational actions of Operational actions of policepolice (arrest search seizure, etc) | officers of Crime & Misconduct (arrest search seizure, etc) | officers of Crime & Misconduct Commission: Commission: s7(2) s7(2) (not an ‘administrative action’)(not an ‘administrative action’)

2. By an Agency (2. By an Agency (s14(1) QOAs14(1) QOA) | Department or Prescribed Authority () | Department or Prescribed Authority (s5 COAs5 COA)) Definition— (Definition— (s 8s 8 QOAQOA))

oo Government departmentGovernment departmentoo Local government departmentLocal government departmentoo Public authority—Defined broadly as an entity established for public purposes under an Act (Public authority—Defined broadly as an entity established for public purposes under an Act (s s

99)) Popular agencies to dispute—Popular agencies to dispute—

oo Cth—Centrelink | ATO | Child Support Agency | Department of ImmigrationCth—Centrelink | ATO | Child Support Agency | Department of Immigrationoo Qld—Correctional Services | BCC | Workcover Qld | Dept of Education, HousingQld—Correctional Services | BCC | Workcover Qld | Dept of Education, Housing

Also includes things done on behalf of an agency, for example, things done by an independent Also includes things done on behalf of an agency, for example, things done by an independent contractor on agency’s behalf (contractor on agency’s behalf (s 10s 10))

GBEs & GOCsGBEs & GOCs , subject to exclusions, subject to exclusionsoo Cth—Cth— includes includes GBE & GOC GBE & GOCoo Qld—GOCs Qld—GOCs excludedexcluded: : Government Owned Corporations Act 1992Government Owned Corporations Act 1992 (Qld) (Qld)

Cf. Tas—included: Cf. Tas—included: Ombudsman Act 1978Ombudsman Act 1978 (Tas) (Tas) Excluded as not a ‘public authority’: Excluded as not a ‘public authority’: s9(2)(a) QOA s9(2)(a) QOA → therefore not an ‘agency’: → therefore not an ‘agency’: s8(1)(b) QOAs8(1)(b) QOA

oo Department Department oo Local governmentLocal governmentoo CourtCourtoo Registry of courtRegistry of court

Express ExclusionsExpress Exclusions QOAQOA

oo Operational actions of Operational actions of policepolice (arrest search seizure, etc) | officers of Crime & Misconduct (arrest search seizure, etc) | officers of Crime & Misconduct Commission: Commission: s7(2) s7(2) (not an ‘administrative action’)(not an ‘administrative action’)

oo Decision (incl policy decision) of Minister or Cabinet: Decision (incl policy decision) of Minister or Cabinet: s16(1)s16(1)oo Tribunals: Tribunals: s16(2)(a)s16(2)(a)oo Legal advisor to the state: Legal advisor to the state: s16(2)(b)s16(2)(b)oo PolicePolice : : s16(2)(c)s16(2)(c)oo Auditor-general: Auditor-general: s16(2)(d)s16(2)(d)oo Mediator: Mediator: s16(2)(e)s16(2)(e)

s5(2) COAs5(2) COAoo Action by Action by MinisterMinisteroo Action taken by Action taken by JudgeJudgeoo Action taken by Action taken by MagistrateMagistrate

Discretion to Refuse to Investigate: Discretion to Refuse to Investigate: s6 COA | s23 QOAs6 COA | s23 QOA

Discretion to refuse to investigate where, in the opinion of the ombudsman— (Discretion to refuse to investigate where, in the opinion of the ombudsman— (s23 QOAs23 QOA))(a)trivial (b)frivolous or vexatious | not made in good faith(c) the complainant does not have a sufficient direct interest in the action

complained of(d)Complainant not exhausted appeal or other remedy & would be reasonable to

expect them to do so(e)Complainant has exhausted appeal & continuing investigation not justified(f) No need for further investigation

Investigation powers & procedures (Investigation powers & procedures (QOA sections onlyQOA sections only))

Informality is the key: s24 not bound by rules of evidence

o Bound by NJ—right to be heard and the right to an unbiased adjudicator Procedure —O need not hold hearings, and can obtain information as required (Part 4 QOA)

o subject to the limits imposed by s 46 No matters or proceedings of Cabinet (s41(1)(a))

A certificate issued pursuant to this ss is considered conclusive (s41(2)) No matters deemed prejudicial to the security of the State (s 41(3))

o Can consult with principal officer of agency (s 26) | relevant Ministero Offence to obstruct O (s 41-43)

Confidentiality must be respected (s 25) Obligations of O to give notice & information

o Notice of investigation must be issued to the agency being investigated (s 27)o If O proposes to make adverse findings about a person, the O must give that person a chance to

be heard and report their comments fairly in the O’s report (s 55)o The complainant has the right to receive information from the O as to the result of the

investigation (s 57)

Reporting Powers Can give report to the principal officer of the agency with the findings (s50)

o Based on Categories in s 49: Action taken contrary to law Was unreasonable, unjust oppressive or improperly discriminatory Taken for an improper purpose or irrelevant grounds Based on mistaken fact or law Was taken for reasons which should have been given but were not Was, in the O’s opinion, wrong.

o If there is evidence of fraud, corruption, theft, wilful disobedience of direction, negligence or favouritism → report may also be forwarded to the relevant minister (s50(3))

The O may make recommendations to— (s 50)o Reconsideration of the matter by the agencyo That the agency take action to rectify, mitigate or alter the effects of the actiono That any practice in accordance with which the action was taken be variedo That any law in accordance with which or on the basis of which the action was taken be

reconsideredo That future reasons should be giveno Any other steps the O thinks fit

Note that this will be an apology Limitations

o The recommendations are highly regarded and often far reaching, but are opinions nonetheless (ATSIC v Commonwealth Ombudsman)

o The O cannot compel any action

Freedom of Information

Right to Information Act 2009 (Qld) The Information Privacy Act 2009 (Qld)

General No standing requirement—open to everyone Purpose—Keeping government accountable

o media investigating the Government;o private citizens to check and/or correct information on the public record;o discovery in litigation, particularly in judicial review.

Functions of FOI lawo Key feature—creates legally enforceable right of access to government documents

Does not relate to private information But governments often hold information about private enterprise

o Imposes positive obligation to publish information Not dependent on request for document

o Imposes limitations on the general right of accesso Mechanism to have documents about oneself corrected (now in Information Privacy Act

(Qld)) Related legislation

o Public materials becoming available after 30yr period, etc: Archives Act (Cth) & Public Records Act (Qld)

o Privacy legislation: Privacy Act (Cth) & Information Privacy Act (Qld)

Reform 2008: Solomon Report—recommendations to improve Freedom of Information Act.

o Abuse of Cabinet Exception (s 36 of FOI Act) mere submission to cabinet was sufficient to exempt it from FOI

o Culture of secrecy—agencies looking for exception in Act → Right to Information Act (push model) introduced, replacing FOI Act (pull model)

o Also enacted Information Privacy Act (Qld)

Right of Access Legally enforceable right of access to— (s23)

o "documents of an agency"; ando "official documents of a Minister".

"document of an agency" = (s12)o A document which the agency is entitled to access; ando A document under the control of an officer of the agency in the officer's official capacity

“agency” includes GOCs and GOC subsidiaries o ↔ Old FOI Act

Underlying policy of pro-disclosureo Must give access unless would be contrary to public interest: ss44(1),

48(1); object s3 (The primary object of this Act is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access)

o Grounds for refusal to be interpreted narrowly: s47(2)(a)o May give access even if ground for refusal applies: s47(2)(b)o Offence to direct to find an exemption to avoid having to disclose

information: s175

ExemptionsParticular Exemptions: s47(3) (provision refers to other sections, then to schedules)

Exemptions subject to a self-contained public interest testo Cf. previous legislative philosophy—statutes basically declaring there could be no competing

interest once a document comes under a certain category Exemption for certain information— (s47(3)(a) & s48 & Sch 3 RTI Act)

o was created for the consideration of cabinet;o would reveal any consideration of cabinet, or prejudice the confidentiality of cabinet

considerations or operations; oro was created in the course of the state’s budgetary processo Legal professional privilege

Exemptions for certain entities— (Sch 2)o Governor o Assembly , a member of the Assembly, a committee of the Assembly, a member of a

committee of the Assembly, a parliamentary commission of inquiry or a member of a parliamentary commission of inquiry

o a commission of inquiry issued by the Governor in Councilo Queensland Treasury Corporation (QTC)o Court documents—only those relating to executive functions

Exemptions for certain documents—eg documents generated within ASIO: Sch 1 (law enforcement & prevention of terrorism etc)

Exemption for applications by or on behalf of children—disclosure must be in the best interests of the child: s47(3)(c) & s50

General Public Interest Exemption: s47(3)(b) & s49(independent of other categories):

o Factors— (Sch 4) Compulsory steps— (s49(3))

Identify factorsIdentify irrelevant factors in deciding whether disclosure contrary to public interest,

including— (Sch 4 Pt 1)1. Might cause embarrassment or loss of confidence in Government2. Might cause misinterpreting or misunderstanding.3. Might result in mischievous conduct by the applicant.4. Creator was or is of high seniority within the agency.

Relevant factors favouring disclosure (Sch 4 Pt 2)Relevant factors favouring nondisclosure (Sch 4 Pt 3&4)Balance & decideDisregard any irrelevant factorBalance relevant factor on both sides

Subject to s49(4)—public interest harm in Sch4 Pt4 not conclusivedecide on public interest;allow access unless contrary

Must provide reasonso Including facts upon which based & reasons for decision: AIA

Information Privacy Act Allows access to personal information & right to amend: Ch 3 IPA

o Previously in FOI Act o Chapter 3 applies to the same entities which are subject to the RTI (Departments, Local

Governments, GOCs and public authorities) Imposes privacy obligations on government agencies: Ch2 (codifies information standards ‘IS 42’

and ‘IS 42A’—previously part of non-statutory scheme)

I don’t believe it, Bill has waited until the end of the podcast to say that none of this is examinable

Commonwealth Freedom of Information (Not Lectured) Cth government currently considering wide-spread legislative reform← will cover the field & make these notes obsolete

The FOI Act (Cth) provides a legally enforceable right of access to government documents.

Standing to applyThere is no standing requirement for FOI.

Is the body subject to FOI?The premise of FOI is to provide a right to information from government agencies and Ministers.However certain bodies are exempt (FOI Act (Cth) s 7 & schl 2), for example: ASIO Office of Natioal Assessments ABC and Australia Post in relation to the commercial aspects of their activities.

ProcedureMaking Request

The procedure is intended to be flexible to make it accessable.Agencies are required to assist applicants in preparing requests.Requirements: Must be in writing; It must be lodged with the agency/Minister holding the documents (however there is a

transfer mechanism if wrong agency); there is no prescribed form, however agencies may produce a form to help applicants; and the application must be sufficiently clear to allow the identification of documents sought.

Application Fees & ChargesThe initial application fee is $30 (Cf $38 in QLD).An application for internal review of a decision not to produce a document costs $40.The fees are waived for certain applications for political reasons (e.g. Veterans’ Entitlements).Charges: $15 an hour for searching for the docs, up to $30 where it relates to the personal affairs of

the person; $20 per hour for time spent making a decision whether to grant access, limited at $40

where it relates to the personal affairs of the person; The agency has the discretion to impose other fees for other costs (such as transcribing

documents); Again don’t apply to certain information (Veterans).

TimeframesThe agency/Minister must inform the applicant of the outcome of their application within a reasonable time not exceeding 30 days (s 15(5)).

How ProvidedThe relevant information may be provided by: giving the applicant an opportunity to inspect a document; providing a copy; making arrangements to view a film or listen to a sound recording, or providing a written

transcript or printout of such media as shorthand notes or Dictaphone tapes (s 20 FOI Act).A particular form may be refused where it would unreasonably interfere with the operations of the agency or infringe copyright.

Review / AppealThere is provision for internal review by an officer at least as senior as the DM (s 54 FOI Act).External review of FOI is done by the AAT (s 55 FOI Act).