Administrative law, Introduction.

This is a summary of some of the readings and cases, as well as selected answers to question. It is written taken from a logical frame work that take nothing for granted. The views are not necessarily correct, but are at neither are those views that you teacher or any book may espouse. It is up to you the reader to be able to fashion a logically coherent argument. A more complete set should be up soon.

Enjoy.

Class 2

Readings:

Pp2-7 Enright. Looks at the structure and development of govt.

Pp 45-47. Growth of the modern state.

Big government historically essential to economy.

Growth and inception of (federal) bureaucracy, federation to depression. 1901 AIA (CTH) 1932 senate standing committee on regulations and Ordinances. Post second WWII, education, full employment, national health , rural

stabilization polices Welfare state continues this trend Post war Labor Govt accepting of public service ideas Part of Menzies election platform mandate to cut down on govt intervention,

return to a laissez-faire economy This did not occur public service numbers increased. Menzies needed this to carry out public service projects. Admin law merely a branch of public law at this time (1950’s) The late 60’s finds, questions of general policy and decisions that effect

individual coming into question. Apparatus to promote bureaucratic policy in line with elected govt political

objectives. Second set to increase administrator’s responsiveness to individuals effected. Kerr, Ellicott, Bland Comimittee’s leads to final report in 1975

Political power lies wit ht e Executive rather than the with Parliament: Summers (1985);Herman and Lodge(1978).

PP 19-22 Types of administrative controls

Funds:

Senior administrator ans. Ministers ans. Parliament.ans to electorate.

Parliamentary supervision, eg. Senate enquiry.

Independent Auditors.

Ombudsman

Royal commissions

Judicial (doctrines)

+ Parliamentary Legislated.

PP 31 –34 should we have strong legal controls?

Titmuus (1969) Welfare “rights” law and discretion.Legislative methods of review are much more desirable than case law, which require lawyers and the inherent discretions of the legal system. More to form of conrol.

Goldring (1986) Administrative Law: teaching and practice.

Admin law. Red light, to stop, green light to enfranchise. Lawyers Individual View Administrator’s Policy view. Efficiency of policy implementation versus preservation of rights.

What should the State be in control of and how is this best regulated? Courts are good at individual, bureaucracy at mass decision-making.

Civil libertarian dimension and collectivism dimension.

PP 47 –52 should we have strong legal controls?

Brugger and Jaensch (1985) Australian politics Theory and practice.

They do not believe that administrative law has ascended because of the “demise of Govt” The question the demise of Govt by citing early 20th century observations that sound remarkably fresh.

---Administrative law is used largely in its individual context, rather than policy development role. Weak Govt at most set the climate for receptivity to institutional change.

Ministers Administrators relationship, seeking more control, hostile, subversive.. Coombs commission. Ministers own recruitment and senior appointment. Gradual extension of controlling powers.

Individuals and administrators.Consensus politics decline.+Wages,+Economic opportunity, +job options u, +education up, +young population criticizes old.

+Vietnam war politicizes generation. +Sate no longer seen as benevolent,. +Individuals demand respect. Ideology of rule of law mobilized for transparency of government. Reich’s new property. Green V Daniels (1977) expresses assertion of rights. But the court could only order reconsideration. Limits or rights talk. Economic realities?. Courts not a good place to fight for policy rather individual rights.Note license rights, effectively right to earn under legislative frame work.

Yick Wo Hopkins. Right to earn at the mere will of another, intolerable in country where freedom prevails.

Rights + rule of law powerful. rights a powerful proponent of rule of law. The rights limb can be seen in the creation of the AAT, ADJR, FOI and FOI open govt publishing req.

Pp 57-59 ADJR.

ss5-7 grounds for administrative challenge

Applicable to Post 1980 decisions of an administrative character. s3 s5(1).

Grounds; s5 post D. s6 During D. s7 failure to make D.

ADJR codified common law + significant improvements. + Req. Reasons Simplification of Remedies. Apply and Fly. + Access, Fed. Court, s39B JA 1903(Cth) + admin juris // HCA. Expeditious of cases (but deteriorating)

GG specifically excluded, Common law req.

AAT Subrogate. Standing rules are broad. As AAT applies reasons for D req. Usually req’s other legislation to make decision review able.

Ombudsman Tables Palliative Useless

FOI Access to range of information held Challenge validity of information Severe restrictions of information Not limited to affected individual. Requires Dept. manuals to be published.

pp69 –72 Economic rationalist attack on Admin Law

Bayne(1998).Weak arguments and weak casual relationships that baseline cost efficiency detracts form adherence to rule of law.

Selected questions:

4. (i) When are rules preferable to discretions? High stakes broad policy

(ii) Who makes rules?

Formally Elected Parliament, who may then delegate some making power, but theoretically need to keep some form of accountability. Executive power as proscribed in constitution or at state level, residual + constitutional but what are these limits? For discussion on federal limits , see; Research Paper 28 1995-96 The Executive Power of the commonwealth: its scope and limits Dr. Max Spry. http://www.aph.gov.au/library/pubs/rp/1995-96/96rp28.htm#SCOPE

(iii) Who wants them made?Those with political agendas (almost everyone want a rule made). The system enfranchises certain people with rulemaking power, so they become the integrators of what individual wills. They ostensibly translate the peoples wants within the democratic paradigm.

(iv) Who benefits from them?Purportedly the electorate. The democratic paradigm benefits to maintain sufficient support.

6. What are the principal statutory components of Commonwealth Administrative Law? Why did both sides of politics agree that it was a good thing? What did they think they were going to get out of it? Were they right?

AAT, ADJR, FOI request limb, FOI dept manual publishing, Ombudsmen Act.

Benefits Politicians saw

Increase control of (hostile/recalcitrant?) bureaucratic departments. Legitimating of government, transparency and a level of accountability to

individual. Efficient policy implementation. Allows outsource of departmental functions but creates an infrastructure of

control. While govt, may decline in ‘size’, its reach may be effectively extend. The outworking of this are seen today.

What happened.

The to some extent above, but

“New Speak” evolved where Mangerialsim adapts a pro forma creates stock non-answers and non-positions to be espoused by govt.

Departments become more politically perhaps diminishing he quality of their “objective” advice.

CLASS 3 – SUBORDINATE LEGISLATION

When does the LIA make delegated legislation of no legal force.?

To be subject to LIA, Delegated legislation must be an LI. A I is a LI when;

It meets the requirements of and is not excluded by ss 5, 6 ,7,9. (ss7-9 exclusory) It is declared as such by GG, ss10 – 11.

Assuming LI

Subject to enabling legislation s12(3)

s12(2) Requires a LI must be registered before it can have legal effect despite internal dates.

s24 If a legislative instrument: (a) is made on or after the commencing day; or (b) is to be treated, under subsection 55(2), as if made on that day; the legislative instrument must be registered in accordance with this Division.

s31(1) A legislative instrument that is required to be registered under Division 2 is not enforceable by or against the Commonwealth, or by or against any other person or body, unless the instrument is registered.

s38 Tabling of legislative instruments (1) The Department must arrange for a copy of each legislative instrument registered under Division 2 of Part 4 to be delivered to each House of the Parliament to be laid before each House within 6 sitting days of that House after the registration of the instrument. (3) If a copy of a legislative instrument that is required to be laid before each House of the Parliament is not so laid in accordance with this section, the legislative instrument ceases to have effect immediately after the last day for it to be so laid.

s 42 Disallowance of legislative instruments (1) Motion to disallow within 15 sitting days and the House passes a resolution, in pursuance of the motion, disallowing the instrument or provision; the instrument or provision so disallowed then ceases to have effect.

(2) motion to disallow a legislative instrument or a provision of a legislative instrument is given in a House of the Parliament within 15 sitting days of that House after laid (b) at the end of 15 sitting days of that House after the giving of that notice of motion: (i) the notice has not been withdrawn and the motion has not been called on; or

(ii) the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of;

the instrument or provision specified in the motion is then taken to have been disallowed and ceases at that time to have effect.

Readings

Casebook pp 280-281,

Deligated legisltaion is inpart a pragmatic approach to government by parliament. Parliament is not ominpresent and omnicient, so it allows those a the coal face latitue to adapt to context.

Allows minority govts. To pass skeleton legislation, then leaving minister to fill out details.

What should be deligated? Finacial limits, effect limits.

pp291-294, and

Austral Fisheries Pty Ltd. FCA.

Deligate legislation could be void on unreasonableness. But his unreasonablness is very hard satisfy. A patent mathmatical error would be unreasonable as it can be objectively demnostrated by all.

pp318-325.

How it works. The legislation is mechanisitic.

(1) What is subordinate legislation,

Legislation that finds it basis in other Legislation. (note exceptions)

and what sorts of subordinate legislation are not covered by the Legislative Instruments Act 2003?

LIA does not cover.parent acts that say delgated legislation is not a LIA.. listed in table s7.

s8 Rules of court

The crux of this issue is that in the making of Q (1), a certain level of difficulty has been attempted by the marker, by trying to make the answer require an exposition of various issues. However in the creation of the problem other ways to solve the question arose.

The markers mind appears to have been so directed as to overlook alternative approach(s), understandably hedged by pre existing expectations. The answer submitted by the author obviates the intended difficulties by using the words of the statue and the logical structure of statue, which provide a more sure path. The following splits out the argument into its major parts. The author notes that almost all points here within were raised with the marker and the marker did not dispute any material issues. The marker only commented that different views had been taken, not that either view was incorrect.

The fist major most foundation al step in any analysis must be is the legislation in force, otherwise all other arguments fall.

The second major step is to ask is there any thing in the enabling legislation that would remove the guidelines from the ambit of the LIA which if it did would obviate any effect of the LIA. This shows an appreciation that the LIA is basal procedural legislation. An assumption needs to be made that nothing does occur in the other sections of the QEA

The 3rd major point is the guideline a LI. The major argument, which both the marker and author identified, is the “flag pole” which may tend be against the guideline being construed as a LI. The author’s approach observed s5(4) which allows the flag pole issue to completely severed and the guideline remain a LI. The marker suggested an approach about meaning imported from “Austral Fisheries”, which cannot be preferable to s5(4) as it leaves room for argument. The other issue with the approach of Austral fisheries, is that the qualification of the court is that only in extreme cases will it invalidate delegated legislation. Austral fisheries provides an example of a mathematical error readily an objectively apparent to everyone. This qualification rules it out from consideration in the current question, as the flag pole requirement is by no means as strict as the mathematical example. Thus the approach to austral fisheries appears on very shaky ground at best, and would at best be an inferior analysis to the one given by statue.

The 4th major issue was the failure of registration, which invokes s31, which both parties agree on.

The 5th step is to recognize that question clearly states that the parliament voted to disallow by the time it had be registered. This step is adequately recognized by observing that s47(1) and s48 have been invoked which necessarily acknowledges that s42 has had to have been traveled through. with it repercussions. The writer of the question had hoped to introduce some uncertainty at this point and excite some discussion about whether s38 casts doubt on the vote to disallow. But a clear reading of that section shows that s38 has only one repercussion, which does not touch or diminish the effect of s42.

s42 stands on its own, and has its own effect. This is clearly apparent, and is implicit in the construction of the statue.

CLASS 4 - FREEDOM OF INFORMATION

Reading

Casebook pp 89-97,

103-113,

115-119.

Questions for class discussion

1. Is there a presumption in favour of access to government documents where: (i) the facts are unclear?

(ii) the consequences of disclosure are uncertain? (iii) the meaning of the legislation itself is ambiguous? (iv) the person with the power to determine whether access should be granted has a statutory discretion? If you were on the ADT hearing appeals from refusals to allow access to government documents under the FOI Act, would you "lean" towards disclosure, and if so, how would you do that?

2. When does the "deliberative documents" exemption apply? Should the section be repealed?

3. When does the "confidentiality" exemption apply? Should it be repealed?

4. You are the head of a government Department. You hate the very idea of an FOI Act, and will do anything legal to weaken its effectiveness. What strategies can you think of?

Group assignment

A journalist working for The Australian lost two AAT appeals in December 2004: McKinnon and Secretary, Department of the Treasury [2004] AATA 1364; and McKinnon and Secretary, Department of Foreign Affairs and Trade [2004] AATA 1365 (the "David Hicks case"). Discussing only the exemptions for cabinet, international relations, and internal working documents, explain why Mr McKinnon lost the David Hicks case, and his chances of success if he were to exercise his right to appeal to the Federal Court for error of law.

CLASS 5 – REASONS FOR DECISIONS

Reading

Casebook pp 122-132.

Allars(1990)

Why information should be given:

Crucial to asses fairness of:Evidence includedReasoningApplciation of lawApplication of policy

Serve to convince individual of fairness Allows appeallant to develop present Chorent argument Public interest to see democratic process Legitimise governmnet. Cause Department to questioned Reasons can reveal (true) policy Knowing policy allows affected individual to submitrelevant information to be

presented. Disclosure of Ministers or Senior Public servants, interests.

Bayne(1992A)Per Shepard J; (1) Embed intelectual rigor and dicipline [of decision maker] into the system.Engenders community confidence.

(2) McHugh JA; (1)The extent of argument has been understood and accepted as well as the basis for the judges decision” “Provide a foundation for the acceptability of the decision by the parties and by the public

(3)Furhters judicil accountability.

(4)Allows prctioners, legislators, and public an indication of how like cases will be decided.

Osmond. No common law(1) Gibbs:

Burden, lack of candor, not for court to make such rules. Divergence of states legislature, divergence of Australian common law.

A Judicial development would blunt instrument opp. finely tuned federal system. Overwhelming authority against.

Not even a common law duty for reason pursuant to a statutory discretion. Clear settled common law rules of Australia repel the need for other jurisdiction to be looked at.

Kirby Judiciary as the model gives reasons. Just and fair, incident of natural justice. So court can fulfill their roles ie accessed for appeal. Allow for parliamentary investigation. Ombudsman. No extra burden as reason must have been adverted to anyway. So as to not render facility of appeal of appeal. Natural development of common law in modern times Judges and commentators unanimous

Cypressvale, The extent of reasons to be given? Case by case?

Statutory right to reasons.(2) s13 ADJR act, 13. Reasons for decision may be obtained(3) s28 AAT (Cth)(4) ss 49 – 50 ADT Act 1997(NSW) note s5 ADT (NSW) requires decision to be review able under some enactmentand enactment is defined in s5.Interpretations ACT 1987, includes, a regulation, by-law, rule or ordinance:(5) FOI legislation.

To what detail? Need some help with this one!

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CLASS 6 – OMBUDSMEN

Reading

Casebook pp 188-219.

Content of class

Public and private ombudsmen: their rationales, their powers, their discretions, and their effectiveness.

Questions for class discussion

1. Do Ombudsmen have coverage over all governmental activities? If not, what are the exceptions?

2. What is defective administration for the purposes of the Ombudsmen Acts?

3. What sorts of powers do Ombudsmen have to (i) investigate; and (ii) determine complaints?

4. Who can lodge complaints, and how formal is the process? How expensive is it all?

5. What is the Ombudsman's lion hunting role, and what is his or her fly swatting role? Are they mutually exclusive? If the Ombudsman's resources are limited, what role should receive priority?

6. The argument between the ABC and the Ombudsman is full of semantic niceties, but there are some very serious underlying issues still to be resolved. What are they, and how do you think they should be resolved?

Group assignment

Look up the Submission by the Commonwealth Ombudsman to the Senate Finance and Public Administration References Committee's Inquiry into Contracting Out of Government Services (February 1997, available through the Ombudsman's website). It had quite a lot to say about "contracting out" or "outsourcing". What was it, and do you agree? (Pages 73-83 of the Casebook might also help.)

CLASS 7 – TRIBUNALS: 1

Merits Chapter7 Reading

Casebook pp 220-248.

Other approaches; MP,

Civil ServantsAllude to merits, but ill equipped to handle.

Ford, love thy decision maker as thyself, Cost saving, Speed, Wider discretion appeal to ego. Many review procedures are not referred to in the enabling leg. Some review process are mandatory b4 court. Need clients file, and relevant manuals FOI them. The more review stages the more likely some one will say yes. Manipulation and plain pandering work.

Handley suggest right to talk to primary Decision maker.

Formal Review.Law reports, partial signs of success may allow you to glean what changed decision makers mind. Internal review may be come instituionalised.

Creyke (1997) Internal Review.Internal review may be cost effective. But balanced against other costs. To value add review must look at more material and further analysis. Personal contact shows less appeals. Allows feedback system for improvement (but improvement for what end?) Independence of internal officers. Institutional Bias

External review Specialist tribunals:1. Small claims.2. Tribunals that create rights: Salaries, town planning licenses.3. Administrative review: executive review.4. Hybrid. ADT NSW private and public law.

Growth // state, sinister? Deferential to Govt? Diversity cause idiosyncratic problems? Conceal short comings

AAT staffed to be independent + procedural frame work. to ensure independence.

Application costs? A barrier. Is AAT to court like contra. Mandate.

Representation makes a difference but weak link only IRT. Not enough evidence for boarder comment. Representation or legal advise makes the difference?

Some evidence in NT some evidence that disadvantaged groups as likely to use tribunal as advantaged groups.

Quite fast but becoming slower in processing cases.

Sassella (1997) Problems with tribunals.

Exercise of judgment, not policy (a bit semantic) e.g. when is one in a relation ship?

AAT and SSAT make preferable decision rather than correct (err on the side of caution). This is frustrating DSS.

But who cares, they don’t have to work there. Is not subversion of government policy healthy! Why should departmental policy matter if it is not based on legislation. Rule by law not policy.

Senior Administrators pushing for non review able decisions or changes only if the “seriously wrong.”

Debate over super tribunals and diversified tribunals. VACT shows no real gains.Arguments, which can be constructed for either side, include: Cost, Procedure, efficiency, expertise, refinement of process, identification of process issues, independence, funding, meeting govt. controls, idiosyncratic developments, unified procedure, less court like, more approachable, less legalistic, less ritualistic. Harder for govt to influence.

External review.

Red lighters 9those that believe law checks / stops bridles the executive policy. AAT reviews merits.

But what are merits. Rule by policy? Rule of law, one court based interpretation can be given, thus the discretion of any law narrows to a point. So merits cannot not really exist it is an executive fallacy. The only power the executive has is found in the constitution and how far does this extend. Public servants are ciphers of the parliaments [law], not the creators.

The idea of merits appears a historical fiction rather than a logical construct.

Perhaps only discretion is whether to apply the law (does not bind the crown) thus a null generation which will usually result no complaint.

Harris identifies the AAT as having 3 crucial elements Single entity to review Discretion and Policy Institutional separation from court system Institutional separation from bureaucratic system

But note: rule by policy see the PM’s web page where it explicitly says policy has no legal effect]Extracted from PM&Chttp://www.dpmc.gov.au/guidelines/docs/ministerial_responsibility.rtf

A GUIDE ON KEY ELEMENTS OF MINISTERIAL RESPONSIBILITY

Although government policy can be, and often is, an important factor considered in making statutory decisions, it is important to recognise that policy does not of itself have the force of law. Should there be any inconsistency between the application of the policy and the legal requirements for making the decision, the legal requirements prevail.

Tomasic and Flemming (1991) AAT 1975

AAT: Major improvement. Requires jurisdiction [basic fault, unless ultra vires, Lawlor] Merits review Rights reasons Deals with limitations of parliamentary review Uncoordinated growth of conferred discretions Machinery provided by parliament of adjudication Policy review [what extent] Sees itself as concerned with policy isseus. Hybrid merits and law. Case load has generally increased, but comes from quite a narrow section of

legislation eg tax law.

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Structure and processConstitutional issues, separation of powersThe president was a judge. In Drake (1979) The full federal court held that.

It is not administrative powers being conferred on judicial office but on a person who happened to occupy judicial office. [This is classic Houdini semantics about as meaning full as “I loved you but I was not in love with you”].

HCA in Wilson 1996 rejected this as it may be confusing to the public [Kirby with strong dissent] but did not cast doubt on the presidency issues.

Issues of limited office for most members. Tension of government’s wishes for decision in their favor against legitimacy. Does allow flexibility to staff according to (application) demand.

Legal qualifications of membership. Arguments that it is needed as without more issue appealed, obviating function of AAT or ART.

Jurisdiction

Typically must be given by another act.S25(6), 6A allow the modification of the act w.r.t exercise of jurisdiction of the tribunal. Conferred jurisdiction may also be given by subordinate legislation.

ARC guidelines.A non binding list.

Lawlor(1999), ultra vires gives jurisdiction, followed Baran (1988)AAR. Bowen CJ considers to restrictive of AAT objective and function to be otherwise. Opts for (c) “purported powers conferred by enactment”.

RBA (1989) no withdrawn stance on constitutional issues.

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Content of class

Formal and informal avenues of merits review;

The differences between internal and external review mechanisms; bias issues, efficiency issues, developing procedure of “improvement” policy or stock answers. May cause in- efficiency of policy, but this hinges on whether you take a red-light (bridle approach) or green light (enabling approach ) of legislation.

whether there is an "ideal type" of "tribunal", and if so, how it differs from the "ideal type" of a "court"; Ideals would be:fast, efficient , low cost , informal, strong policy powers, strong merits review (far reaching).

The Commonwealth AAT, the effect of having judges on the AAT;Lends status, but constitutional issues.

The AAT's powers; and why you don't have to state the grounds of your appeal to the AAT.

Because if you have an appeal right, under statue or ultra vires, then you may merely present a request for it to be reconsidered? You just state facts or result, note Dywer in Knight (1994). Just refer to decision made and the date it was made on. (pg 249)

Questions for class discussion

1. What's the bottom line message of the Ford extract (Casebook pp 222-223)? That bureaucrats are slightly dopey, and lawyers are brilliant?

Ford, love thy decision maker as thyself, FOI them.

2. What problems can you see in a system of internal reviews? What are the advantages?

Creyke (1997) Internal Review.Internal review may be cost effective. But balanced against other costs. To value add review must look at more material and further analysis. Personal contact shows less appeals. Allows feedback system for improvement (but improvement for what end?) Independence of internal officers. Institutional Bias

Advantages1. Another person that may say yes in the chain2. Often wider discretion that tribunal3. Allows for refinement of policy by feedback, value add, improvement (but

improvement for what end?)4. May be cost effective.5. Personal contact, serve to explain issues.

Disdvantages1. Institutional bias2. Ossifies into pointless structured system.3. Develops stock answers4. Inefficient5. Another barriers to cross, a hurdle for the applicant, eg in DSS

AROsSSAT AAT6. Becomes uneconomic

3. What makes a tribunal different from a court?

Ostensibly merits review, less chance of cost, less formality (legalese) Accessibility Speed Policy review ability

Membership more varied Expertise develop to by wider Hybrid of merit and law. Membership (except president) Membership tenure limited Bias/without settlement independence? Membership flexibility Standing may be relaxed Jurisdiction can be conferred as desired. Amenable to legislative reform (opp. Chapter III constitutionally

entrenched court)

4. Why do legislatures give some jobs to tribunals instead of courts? Merits review Accessibility, less formal?, cost? More influence (control of tenure) Enhance legitimacy of rule, check on growth of discretionary power, in

addition to courts, which could not review many admin decisions. AAT Amenable to legislation Cost Efficiency?

5. Does the Commonwealth AAT have power to hear appeals from all decisions taken by Commonwealth bureaucrats under Commonwealth Acts?

No only those conferred (s25) or ultra vires Lawlor(1999), followed by Baran (1988)AAR. and perhaps not touching constitutional issues RBA (1989). Also consider if the conferring statue modifies AAT normal operation, s25(6), 6A

6. If there's such a big difference between craven, government-dominated tribunals on the one hand, and heroic, independently-minded courts on the other, how is it that Federal Court judges are allowed to sit on the AAT (or any other tribunal, for that matter)?

Semantics of FC see above. Could yet be challenged.

7. The AAT currently has appellate jurisdiction in over 300 types of matters. What are the advantages and disadvantages in having a tribunal which has so much jurisdiction, as opposed to, say, having 300 tribunals (one for each type of matter)?

Debate over super tribunals and diversified tribunals. VACT shows no real gains.Arguments, which can be constructed for either side, include: Cost, Procedure, efficiency, expertise, refinement of process, identification of process issues, independence, funding, meeting govt. controls, idiosyncratic developments, unified procedure, less court like, more approachable, less legalistic, less ritualistic. Harder for government to influence.

Monolithic to uncreative. Diverse to disparate, but quick reacting. Profile, public familiarity, legal familiarity. Funding. Bias. Conferring legitimacy.

8. Look at the Casebook's summary (at pp 226-228) of the matters reported in vol 36 of the Administrative Law Decisions series of reports. How much "Administrative Law" can you see?

Under half, but the remember term “law” is subjective and semantic it is a meme, so this question is useful as a division but fundamentally meaningless.

9. Why don't appellants to the AAT have to state legal grounds (such as "error of law") for their appeals?

Answered above.

10. What is the difference between the majority approach in Brian Lawlor and Deane J's approach? In purely practical terms, which is the more efficient approach? In purely legal terms, does the majority approach blur the distinction between an appeal on the merits and judicial review?

Majority convenience and inline with central objective of AAT.

Deane J, For the sake of convenience will not write in to AAT legislation what is not there.

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CLASS 8 – TRIBUNALS: 2; and Revision for class test

Reading

Casebook 253-273.

Procedure.

S331(1) Act mandates as little formality and as much expedition as possible

ADT s73 goes further +understanding s 73(4) +fullest opportunity for evidence.

Critical that AAT is to formal and fails its mandate. Legal profession to involved, a causes and symptom of this or simplify recognsie arguments of legal merit?

Preliminary conference disclosure to stop surprise

1991 mediation started, 70% result in withdrawal or settled b4 hearing (but contrary evidence that this happened anyway) Parties can negotiate on own volition.

?resolve disput4s or establish right in opposition to statute?

Formality, story telling v making good legal arguments.

Involvement of layers, spot weakness in Govt case, makes uneven playing field in one side un-represented, engenders unwanted formality. Lay members may spurn or welcome legal input. Appeal rates? Economic rationalist use social workers discourse arguments against lawyers, lawyers use economic rationalism arguments to say lawyers are efficient. Unpresedented goes to hearing more often but take less time. Case more complex for represented, lawyers make them so? (note this does air issues, thus systematic economic gain in policy review)

Evidence

More is admissible, but not necessarily of probative value. Kevin and minster for Capital territory (1979) applicant gave valuation, but not expert so dismissed. (argue what is an expert Bernard Shaw’s maxim, “ a profession is a conspiracy against the laity”, if he owns the land for a reasonable time, he is an expert of that land and make a fair estimate as much as any valuer)

Procedural fairness

Reqd.

O’Neil (1996) The rules of evidence and Admin LawTribunal member with good inquisitorial technique beneficial. (weakness member dependant, strength, obviates un-represented disadvantage)

Linguist and cultural factors

Too many confusion unstructured or or too few questions hazardous & tone must be set.To informal may self incriminate because of incorrect assessment of members empathy.

Gesault of multi member tribunals may be more effective. Wider perspective.

(g)Decision making powers.Subrogation. S 43(1)

Retrospective? Dangerous. But AIA s(8) protects accrued rights. Less clear for altered discretions.

Esber v Commonwealth (1992) HCAMajority HCA held conditional substantive right established cases and AIA s8

Brennan J: No right established in 1971. AAT bound to apply standing law at invoked time as De Novo.

Note possible shades.

Fro example a $5000 grant could have quantum and right. AAT jurisdiction invoked by challenge. (really this is quite out of step with the previous, no reasons needed, the AAT appear invoked on a broad jurisdiction of merits or circumstance one duly approached)

Can the AAT act contrary to govt policy, why not rule of law not policy (arguments supra)

Drake (1) 1979 FCABowen CJ & Deane CJQuestion not if decision maker correct on materialQuestion is for tribunal to make on material

[De Novo subrogation]

More nicely stated, Tribunal to makes it own decision on material before it.

Adverting to policy is loosely inversely proportional to particular legislation or guideline in the area. Legislated requirements cannot be abdicated for policy. No general rule, treat on a case by case specific for this balance. Good window dressing for tribunal to say it had observed policy.

Drake (2) 1979 AAT

Brennam J

Got to use the word “enlivened”

Now new policy can be retrospective!

Liberal protective view enhances security and personal liberty. (did not good government mantras fade with Street CJ?)

Multiplicity of factors in issue preclude parliament to legislate or Minister to make guidelines that are absolutely proscriptive. But discretion and terms of reference (best interests of Australia) produce inconstancy.

Guidelines can focus issues and make uniform.

Policy must be consistent with statute and any reposed discretion. E.g. a policy to exclude merits in discretion would be against statue granting merit-based exercise of discretion. Ministers can refer to policies of their own making [note exceptions just above].

As part of discretion it is lawful and desirable to create policies.

Tribunal not bound from ministers policy, but may refer, must reach robust view based on law and fact.

Creating rights is different from applying rights. Creating rights should ignore executive. Applying rights should not.

Poor, convenient and logically flawed. Why draw a line in the sand. A creation of a right then applying of that creates a new species of particular right. It is a creation of a more precise right. Brennan is arbitrarily dividing but perhaps practically. This can also be shown, as the result is the same how ever phrased, the “law” eventually effects the persons rights, [black box the rhetoric]

Because a Ministerial decision, not lightly departed fromAgainst legislation that repose discretion in ministerTribunal Adjudicative processTribunal ill equipped to form policyTribunal not in same chain of responsibility to parliament.If tribunal reviewed case have different outcome to non-reviewed, undesirable anomaly.

Thus tribunal will normally adopt ministers guidelines if found lawful..

Brennan also falls down in logic, that the tribunal has a legislated place to consider the issues before it, see Drake (1). Thus the mantle of discretion is placed upon it by parliament by the interlocking legislations. This is not apprehended by Brennan J or intentionally ignored

Brennan J builds weight of argument and practicality rather than a powerful and clear logical construct.

=======>+

Questions for class discussion

1. The AAT is not bound by the rules of evidence. That means that it can act on the basis of documents (including correspondence or written statements), and on the basis of evidence taken by telephone hook-up. When you are acting for a client against a government decision maker, when would you be happy to proceed by way of documentary proof or telephone hook-up, and when would you want to insist on more formal methods of proof?

Formal figures and accounts an monetry numbers and calucaations would be best served by paper records. Circumstance suitable for oral. Visual evidence not sutable for phone.

2. The AAT has long tried to restrict or even abolish "ambush" evidence in cross-examination. Does Bessey finally tell it to stop trying?

Australian Postal Corporation v Bessey (2001) 32 AAR 508, no, only in such circumstances as this case, as it contravines natural justice case authority and s44. President can make practice rules.

3. AAT appeals are generally decided according to the facts as presented to the AAT, and on the law which applies at the date of hearing. How, therefore, does one explain the Esber case?

Accured rights AIA s(8) and creation of substantive conditional rights.

4. Note that the High Court discussed (and distinguished) Esber in Attorney-General (Queensland) v Australian Industrial Relations Commission (2002) 192 ALR 129.

5. What are the advantages in allowing the AAT to review the merits of a government policy, and to decide not to apply it? What are the disadvantages? Discuss.

For Allows gross errors to be rectified. Test legality.

Against Tribunal not a forum condusive to policy development. Tribunal Adjudicative processTribunal ill equipped to form policy Tribunal not in same chain of responsibility to parliament. Inconsistency If tribunal reviewed case have different outcome to non-reviewed,

undesirable anomaly.

6. How closely did Brennan J scrutinise the government policy in Drake (No 2)?

He did not as no issues were raised to displace it. He agreed with government policy, this may be a type of scrutiny.

CLASS 10 – INTRODUCTION TO JUDICIAL REVIEW

Reading and content of class

HCA, gains [admin review] power from, 1. Constitution, s752. Constitution, s75(v) constitutional writs.3. Constitution s76 allows a very wide conferral by parliamentary legislation.

The Fed[s]1. A superior court of record with limited jurisdiction. [technically all courts have a

limited jurisdiction]. FCA act(1976) s5.

2. General judicial review conferred by ADJR act 1977, deprived state courts of Cth. Administrator review

3. Judiciary Act 1903 s 39B most matters could be heard.

4. s 44 remit from HCA.

5. FCA Jurisdiction by application top 39B regardless if 39B remedies are not applicable. FCA can the use statutory or implied powers.

6. JA 1903 (Cth) s39(b) subsumes associated jurisdiction. 75(iii) & 75(v), the latter stops former being read down. Stops against person argument?

7. Federal Courts and Habeas Corpus, doubted Tampa.

The Pizza Courts.

Superior courts of record, ADJR displacement, cross vesting scheme s6 CVA requires transfer to FCA court unless special circumstances

(B) Power to make orders.If in doubt, mere Status grants HCA power!

Aala [2000] Hayne J s75 does not grant power to writs but jurisdiction.

If a court lacks explicit jurisdiction to entertain application for a particular writ, it can make an order in a from a writ. FCA s23. Habeas Corpus, useful as standing relatively easer to satisfy than other writs. But wrong to rely on unlawful acts for writ. Lord Scarman.

(ii) judicial review's refusal to supervise "private" power Casebook pp 34-36 a);

Administrative law is largely confined to public bodies. Private bodies subject to market, and often public bodies. And directors are responsible in some degree to shareholders. But ineffective where choice is limited. Also market do not work where cost cannot be passed on, eg polluters. Private bodies in the exercise of statutory power will generally be treated. Private bodies may be moving to public norms (emulation of PSA). Some private bodies adopt self review system rather than have on foisted on them. This suggests admin law may be relevant to certain features. Bodies that supervise both public and private, eg ombudsman. Some public functions are being removed in the private domain.

and 356-358.

ADJR represent a codification as to the availability of writs. ADJR remedies not available antecedent to decision. Certori only available against final operative decisions that effect rights. Prohibition and Certori lie against GG or G against statutory and prerogative

powers. May lie against mixed bodies, public and private.

Chapmans ASX (1994) FCR.Beumont J Held that rules recognised by legislation do not make them LI, and arrangement under contract, but alludes to some imposed duties of having public character thus susceptible to judicial review.

Chapman wanted s13 reasons, not remedies as these were abundant in contract.

Dorf (1994) per Ryan J. Suggests that certori was available against a private body charged with determining wether an advertisement breached The Media Council of Australians code (a public code)

Declaratory, injunctive may be available independently of wether a body is private.

Speed of application is essential.

Injunction and declarations.

Discretionary but much less restricted in application. Private bodies not exercising Procedural fairness may be liable for damages as well as declarative or injunctive relief.

(iii) "non-justiciability" - its meaning, (Casebook pp 379-381), its operation as a limitation to the scope of judicial review, and how it is consistent with the fact that judicial review is often exercised in respect of governmental power which is exercised on highly political grounds (an introduction to the distinction between merits and legality).

Spycatcher. (1988) HCA.Not for HCA to determine who is a friendly power or to enforce governmental interests of a foreign state. Claims of nation security cannot transmogrify the issue

Council of civil service Unions v Minister for civil service [1985] AC 374 Prerogative decisions can be subject to judicial review but must be qualified. . E.g. treaties, defence, honours, pardons, grace, dissolution of parliament.

ARC suggested that GG decisions under enactment reviewable (does this include constitution?)

Supplementary material for class 10

The following table might be a useful summary of how the principal courts get their powers to engage in judicial review.COURT REMEDIES SOURCE OF POWERSupreme Court

1.Prerogative remedies (namely, certiorari, mandamus, prohibition, and habeas corpus). Note that the High Court said in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 that these remedies should be called constitutional writs (not prerogative writs) where they are granted under s 75(v) of the Constitution.2.Declarations (this is both a public and a private law remedy)3.Injunctions (this is both a public and a private law remedy)4.Any other private law remedy which might be appropriate (such as damages)

(Except in the case of declarations), either an inherent power inherited from the superior courts (King's Bench, Chancery, Common Pleas, Exchequer and Ecclesiastical)or Supreme Court Act 1970 s 23In the case of declarations, the source of power is s 75 Supreme Court Act 1970, although the High Ct has recently taken to describing the declaration as an equitable remedy.NOTE that where the Supreme Ct is engaged in judicial review of Commonwealth (as opposed to State) activities, the net effect of s 39 Judiciary Act 1903 is that the S Ct is exercising federal jurisdiction (ie, the source of power is the JA 1903, not the S Ct's inherent State powers)

COURT REMEDIES SOURCE OF POWERHigh Court 1. Prohibition, mandamus or injunction

against an officer of the Commonwealth2. Any appropriate remedy in a matter in which the Commonwealth (or a person on behalf of the Cth) is a party3. Any other matter in which the H Ct is given jurisdiction by a Cth Act4. Note The H Ct can always remit a case commenced there to another court (usually the Federal Ct) to handle. It also has power to uplift a case from most other superior courts on certain criteria.

1. Const s 75(v)2. Const s 75(iii) and the Judiciary Act 1903 ss 30-333. for example, the JA 19034. JA 1903ss 40 & 44 particularly.

Federal Court

1. Mandamus, prohibition or injunction against most officers of the Commonwealth2. Any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the [Commonwealth] Parliament3. An "order of review" if the ADJR Act applies

1. JA 1903 s 39B(1)2. JA 1903 s 39B(1A), paras (a), (b) and (c) respectively (new since 1997). [Note that since October 2001, the Federal Ct's power to engage in judicial review of migration decisions is limited to "privative clause decisions" (essentially, these require exhaustion of internal reviews, and even final administrative decisions are protected by a strong ouster clause). The Fed Ct's judicial review power here comes from the Migration Act 1958 s 475A, and s 39B JA.]3. ADJR Act s 16.

Federal Magistrates Court

1. An order of review if the ADJR Act applies.2. Judicial review of "privative clause decisions", as with the Federal Ct.

1. The Federal Magistrates Act 1999 (Cth) establishes this court. The ADJR Act gives it almost coordinate ADJR jurisdiction (for judicial review purposes) as the Federal Court.2. MA 1958, s 483A, and JA 1903, s 39B.

Questions for class discussion

1. Does the High Court exercise federal jurisdiction, State jurisdiction, or both?

It can exercise both jurisdictions. The constitution gives original federal jurisitiction. There is a doctrine of implied jurisdiction by Hayne et.al Aala [2000].If in doubt, mere Status grants HCA power!

When matters criminal are appealed and granted leave to the HCA as per the constitution, the HCA exercise state jurisdiction. Or where the HCA may rule some law of a state falls by way of s109, the HCA is effectively engaging in state jurisdiction.

2. Is the NSW Supreme Court allowed to exercise federal jurisdiction?

Only in very limited maters. They are superior courts of record but ADJR causes displacement or Jurisdiction of Commonwealth bodies , cross vesting scheme s6 CVA requires transfer to FCA court unless special circumstances.

3. When does a court have inherent jurisdiction? When does it have invested jurisdiction?

Inherent when superior court of record, or by status e.g., HCA, and in some part FCA. Invested by particular legislation,

eg, 75(iii) 75(v) constitutional conferral on HCA, A superior court of record with limited jurisdiction. [technically all courts have a limited jurisdiction]. FCA act(1976) s5.General judicial review conferred by ADJR act 1977, deprived state courts of Cth. Administrator review. Judiciary Act 1903 s 39B most matters could be heard.& s 44 remit from HCA. Some example of SA court given state admin jurisdiction. FCA Jurisdiction by application top 39B regardless if 39B remedies are not applicable. FCA can the use statutory or implied powers.

4. Which aspects of the High Court's jurisdiction to engage in judicial review are invested directly by the Constitution? Which aspects are invested in it by legislation of the Commonwealth Parliament?

.s75 constitutional, s76 (i)-(iv) ordain the limits of legislation.

5. Which aspects of the High Court's jurisdiction does it share (ie, on a concurrent basis) with the Federal Court?

The federal aspects. But not typically state aspects, such as stae criminal law. (note terrotry criminal law is appelable?

6. The Federal Court's judicial review jurisdiction comes from two principal Commonwealth Acts: the Judiciary Act 1903, and the ADJR Act 1977. Explain.

FCA act (1976) s5 requires conferment of certain jurisdiction by statute.

ADJR act confers extensive jurisdiction by providing decisions of an administrative character made under an enactment. And for conduct associated with decisions or for failure to make decisions when obligated to do so.

JA1903 t s 39(b)1 confers jurisdiction as s75(v) Constitution, s44 (2a) // s75(iii) and then s39(b)1A allows the issues of administrators who were not cth officers to be abrogated.

7. Judicial review doctrine as such is not available against the private sector. But one sees echoes of it in private sector cases nevertheless. Expulsion from non-statutory sporting associations, for example, can't be made unless the person involved has had a fair chance of defending themselves. What is the jurisdictional basis for the courts thus supervising the procedures of sporting associations?

Natural justice?

8. What makes an issue or dispute non-justiciable?

The nature of the subject matter, the person making the desison, the equipment apparatus the court has to make such a decision. Spycatcher, GG without enactment, defence,international treaties, Honors, acts of grace. Acting for soverign powers interests (without local satute). Political content?.

9. If one of the criteria for identifying non-justiciability is an issue's political content, how can the courts routinely engage (as they do) in judicial review of government acts which are highly political?

Where the politics threatens the power of the court, a vigourous defence of the courts power typically ensues, eg Communist case. To a leeser extent the common law courts have been strong on personal liberties, but th HCA has histoically often bowed to government. To actually engage, the will grant leave to a particualr request, or may drop hints that in obiter that if something werer to come before them, then they would consider it.

CLASS 11 – THE ADJR ACT

Reading

Casebook pp 337-356,

Mobilising Jurisdiction.

AN ARRAY OF OPPTIONS be wary not to leave yourself short suited so claim for every thing you can at the beginning eg combine ADJR with Federal court rules. [This is not so bad in equity divisions].

When can something be reviewed? Under the ADJR.

Exclusion

GG decision, s3(1)c.

Schedule I s3(1)d.

Must be of administrative character.

Made under an enactment.

So how is a division made between administrative and legislative?

The trichotomy of administrative, legislative and judicial acts are maintained in the ADJR. per Sundberg J in SAT v ABC (1997) FCA @ [308].

What is administrative?

Toohey. 1982 FCA.

Toohey desires his import item to attract tax concession through by laws. Legislation allows the minister to make determinations in writing w.r.t the item. The Govt did not decide in Toohey’s favour. Toohey reapplies; the govt. refuses to make another determination, and also argues that it is a legislative decision thus not amenable to ADJR act.

Legislation is the creation of rules in a particular context.

Administration is the application of these general rules to a particular case. Note there is a further division in this paradigm: Rules about rules, eg the constitution is a rule about legislation.

By-laws are not necessarily legislative. Administrative is application of law in a particular set of circumstances. [Complete circular reasoning]

QLD Medical Lab v Blewett (1988)

Gummow J

Some limited sphere of legal power, under s61 the executive is a mere cipher of legislation. CH I allows the legislature to repose legislative power in the executive also s 122.

Per Latham CJ

The general distinction between legislation and execution of legislations that legislation determines the content of the law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the rule in a particular case.

*How is this different to the judicial power then, and is it a mere sematic difference anyway, as all law ultimately effects in persona, I find support from Raz in this assertion.

But to accept Latham CJ just not make a rule that a norm of general application is a norm.

Look to the Schedule, it is statutory by way of IA s13. The legislation…[per Dixion J] reposed in him an authority of essentially legislative character.

The Minister but for s4A(8) would lack competence to decide. Minister permitted by the law, to act as a delegate.

But if committee failed w.r.t law to correctly advise the Minister the Minister had no power to make a decision. A condition precedent had not been met.

*How is this really different from Toohey? Perhaps the IA making the schedule legislative. Gummow J does not seem to put to much weight on this. Gummow’s main argument is the word, Nevertheless . Ultimately an exercise in convenient circular reasoning to maintain the fiction of separation of powers and rule of law. A more accurate description is the separation from powers [of the people] and rule without law.

Gummow J Held Court has power under s 21 Federal Court Act to grant declaratory relief

SAT FM v ABA (1997) FCR

The radio station, SAT sought ADJR reviews of a plan to grant no more radio licences. SAT challenged this under the ADJR, ABA countered that the plan was legislative.

Sundber J makes list of reasons why this was legislative

(a) A licence area plan make rules of general application * note the use area, very useful by ABA to get you desire construed as legislation

(b) Must be notified in the gazette s 35. suggest legislative character.

(c) Wide consultation before plan

(d) Wide policy considerations, of complex matters.

(e) Variation in writing // to legislatures mechanisms of amendment

(f) Once made not subject to executive variation

(g) Decision to promulgate plan is not reviewable by the AAT. S204 provides for review of some parts and not others *so cast all real power as non-reviewable and give a few scraps as reviewable.

(h) Carry on effect?

Though not of equal weight enough herer to support of legislative character.

*Much better analysis, as a case is actually built, with some persuasive points. It is still line in the sand, but at least some guidance is given as to which side of that line your position will be. Much better than Gummow J Nevertheless.

ABT v Bond HCA (1990)

The QLD govt had found a way to get quite a lot of money from Bond, and perhaps Bond saw this a as a good investment. Effectively settling a libel case provided opportunity a ”lawful” money laundering. A licence was denied by the ABT, Bond successful at FC, then ABT appeals at HCA.

Mason CJ

Effectively Mason defines what the word decision means, then say that according to this definition it was not or was a decision. The defn is that decision is final; substantive, and operative. There are qualifications. This is very fuzzy reasoning,

that doesn’t amount to much as it leaves you at the total discretion of a judge who hears the matter. In other words this reasoning creates no clear precedent. In fact it does the opposite as it reads down a few parts of the ADJR act that may have acted to delimit the boundaries…read on.

Act supplies no definition of decision.

A need to balance, red lighters with green lighters, that is the ADJR allows us to question, but to much would make system inefficient. Generally the final decision is the one that can be reviewed, unless statute provides otherwise. It should be a substantive decision. s3(2)(g) read down for conformity to ss3(2)(a)- (f) and my thesis in the larger scheme of things. I will also merely read down these other annoying motes, s 16(1)(b) , par e sch 1 and par (a) of Sch 2. (isn’t it great being a judge, I can just make up what I want, with the thinnest of reasons to fit my view ha ha ha ha ha). But just in case I do agree with something in the future, let me make an escape hatch. A decision made on the way to the final determinative decision is not beyond reach. I am generally dismayed by this poorly written legislation (*spot on). s16 has a lot of relief power.

Was there a reviewable decision.

Federal court had jurisdiction s3(1), but decision on Mr. Bond despite centrality to the final decision, it is not a decision by my definition.

Consequences are out manoeuvred by my neat definition. Finding of fact will not usually constitute a reviewable decision, note exceptions. Goes against separation of powers to invest legislated executive factive (fact finding) powers in the judiciary. Conduct looks at manner of proceedings

Gleeson CJ to decide whether there was a “decision of an administrative character under an enactment”. However, his Honour’s preference was for the view that it was. His Honour said:

While AWBI is not a statutory authority, it represents and pursues the interests of a large class of primary producers. It holds what amounts, in practical effect, to a virtual or at least potential statutory monopoly in the bulk export of wheat; a monopoly which is seen as being not only in the interests of wheat growers generally, but also in the national interest. To describe it as representing purely private interests is inaccurate. It exercises an effective veto over decisions of the statutory authority established to manage the export monopoly in wheat; or, in legal terms, it has power to withhold approval which is a condition precedent to a decision in favour of an applicant for consent. Its conduct in the exercise of that power is taken outside the purview of the Trade Practices Act.

McHugh, Hayne and Callinan JJ considered that there was no relief available under ADJR or at common law. They said:

intersection between private and the public.

A private corporation is given a role in a scheme of public regulation. The parties could point to no other federal legislation in which there was a similar intersection.

whether public law remedies granted against private bodies which fulfils roles under the 1989 Act?

Depends on structure of the legislation in question.

In this case

[1] structure of s 57 and the roles which the 1989 Act gives to the two principal actors – the Authority and AWBI.

[2] "private" character of AWBI as a company incorporated under companies legislation objective of best returns.

[3] Not possible to impose public law obligations on AWBI while at the same time accommodating pursuit of its private interests. …

AWBI self interest is legitimate. It could outweigh any countervailing consideration derived from the context of the 1989 Act, or from the nature, scope or purpose of the 1989 Act's provision that AWBI's prior written approval was a necessary condition for the Authority's giving its consent.

Neither a decision of AWBI not to give approval to a consent to export, nor a failure to consider whether to give that approval, was open to judicial review under the Judicial Review Act or to the grant of relief in the nature of prohibition, certiorari or mandamus.

Kirby J thought that the ADJR Act did apply.

No isolation of power from rule of law an constitution available, character of the decision not the body that made it.

concept of an "administrative" decision was not susceptible to a comprehensive and universal definition.

Constitutionally entrenched power of judicial review is one of the limits on the extent to which corporatisation and privatisation of federal administrative action in Australia may escape the disciplines of judicial scrutiny.

Otherwise AWBI would come close to possessing absolute legal power

Approached in the broad way that the composite phrase in the ADJR Act suggests, it follows that the notion of a "decision … made … under an enactment"

is not to be construed narrowly. Whether or not the source of the decision-maker's power to act derives from a statute is not the determinative criterion for the purposes of characterising the impugned decision as reviewable under the ADJR Act. However, while cases such as Forbes or Datafin illustrate that a statutory origin is not essential to invoke the supervisory jurisdiction of a court at common law, for a decision to come within the ADJR Act, it must have some appropriate nexus to a federal enactment, given the specific reference to a decision "made … under an enactment" in s 3(1).

In this regard, the fact that AWBI was a private company, incorporated under corporations law, does not have any immediate legal consequence. While it is true that AWBI as an entity does not owe its existence to the Act, focusing on the terms of the Act it is equally clear that AWBI is not just an ordinary private corporation. AWBI is specifically named in the Act (as "nominated company B"). The Act confers on AWBI the privileged position of being the only person who can export wheat from Australia without approval from the regulating Authority. The Authority had to consult AWBI in performing its key regulatory function. Moreover, the Authority could not give consent for an export by another trader without obtaining AWBI's prior approval.

The only way that AWBI's "decision" could take on a legal character affecting the conduct of the Authority, and the economic rights of NEAT (and its growers) and of other Australian growers who wished to export wheat to the world market, is by force of the Act. And then only if the Act gives such authority in clear and unmistakable terms.

in s 57(3B) of the Act, they are decisions outside the private curtain. They are subject to public scrutiny. They are decisions of an administrative character made under an enactment, as that expression is used in the ADJR Act.

Content of class

The ADJR Act covers only "decisions of an administrative character made, proposed to be made, or required to be made, (whether in the exercise of a discretion or not ...) ... under an enactment". We explore the meaning of:

(i) administrative (and one of its opposites, namely, legislative);

(ii) under an enactment (as opposed, say, to under a contract);

(iii) decision. We also explore when these questions really matter, and when they don't.

Questions for class discussion

1. Ministerial by-laws and determinations of the type under discussion in Tooheys had the effect (according to their parent Act) of changing the classification of goods, shifting them from one tariff Schedule in the Act to another Schedule. How, then, was the court able to say that they were administrative, not legislative?

Legislation is the creation of rules in a particular context.

Administration is the application of these general rules to a particular case. The Court held that the minister was merely doing something parliament would have do it had the resources and time. Parliament thus merely conferred a discretion of application of a rule, not rule making, and the minister is exercising this discretion in a set of circumstances.

By-laws are not necessarily legislative. Administrative is application of law in a particular set of circumstances. [complete circular reasoning]

2. Did the Tooheys Minister have a broad discretion to make by-laws or determinations?

Unkown, but generally yes.

3. If a decision applies to a lot of people, is it legislative?

Not nececairlay but this would tend to support this conclusion,

4. Did the Minister make a determination? What, exactly, was it?

Yes, what items received a tax break w.r.t the legislation and material circumstances provided to be considered by the legislation

5. When can the Executive perform legislative tasks?

When the legilsature respose such power in them, QLD v Blewit The legislation…[per Dixion J] reposed in him an authority of essentially legislative character.

6. You studied the separation of powers in Public Law. How do you define a legislative, executive (which includes administrative), or judicial power? Is it simply a matter of identifying the institution (Parliament, the administration, or the courts) which has exercised the power? In other words, is the power classified according to its institutional source?

Legislative makes the laws when passed by a majority and its members elected by the people

Executive is largely the cipher of the legislature, but with some reserve powers.

Judicary applies the all to a particualr circumstance before it.

It is calssified by conection with constituoion, tradition and socio-political climate.

7. Did you know that the ADJR Act has been used to facilitate the judicial review of the decisions of magistrates when they issue search warrants, and of the AAT generally? So those decisions must be administrative for ADJR purposes. Can you think of a reason why that approach might have been taken?

To be way for (superior) courts to review desisons, and enlartge their power for the occaions thatthey may wish to exercise such power. This also has the effect of giving more opportunities redress to the people. Although practically ew in this case.

8. Look at the Burns case and say whether a decision taken under a contract can at the same time be a decision under an enactment? If so, under what conditions?

9. Burns said that the decision there in question was made under a contract and not under an enactment. Would the applicant have got more joy by using s 39B of the Judiciary Act 1903 (Cth)?

Group assignment

Look at ABT v Bond (Casebook, 349) and explain: (i) how the court defined decision and conduct; (ii) when that is simply a technical problem which clever lawyers can overcome; and (iii) what motives the High Court might have had for trying (however unsuccessfully) to put brakes on abuses of the ADJR Act. (See Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004, LBC, Sydney) pp 52-61.)

CLASS 12 - STANDING

Content of class

Standing to seek judicial review - how "affected" or "interested" does the challenger have to be?

Reading

Casebook pp 384-410.

Standing is like an unexploded land mine:

"The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest." Gibbs CJ in Onus, confirmed,

The doctrine of standing has not been sufficiently discussed to give clear rules.

Some frame has been built:

To have standing (the applicant must satisfy the court)

[1] Where the interference of a public right is such as that some private right is interfered with at the same time: Boyce:

[2A] In respect of his public right, a peculiar damage has been suffered.

[2B] Having a special interest in the subject mater Gibbs J ACFvR (1980) (restatement of boyce)

[3] It must be more than mere belief or concern genuine. Mason J ACFv R

[4A] Connection between the interest and remedy sought

[4B] But mere outcome of review may not give standing

Also

[5] When to consider standing? Before or after legal merits Mason J?

Note

[6] Commercial interest does not preclude standing.

Tran urban specifically teases out some of relevant to standing for an AAT matter.

[7] The court in transurban confirms BLACK CJ, HILL, SUNDBERG, MARSHALL and KENNY JJ

In reaching this conclusion Brennan, Dawson, Toohey, Gaudron and McHugh JJ applied the test derived from Australian Conservation Foundation v The Commonwealth and stated by Gibbs CJ in Onus at 558 in the following terms:

"A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action."

The court in Transurban sets these tests and or conditions to determine standing for administrative decisions:

[8] In summary,

(1) the question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review.

(2) It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it.

(3) An interest in the outcome of the review may give standing.

(4) But there will be no standing where the actual outcome of the review will not affect the applicant.

(5) There will be a question of degree involved in many cases.

In the present case, HBC will have to demonstrate a sufficient interest in the decision to have standing.

Arguments for HBC

[1] Demonstrate that its commercial operations will be significantly harmed by such advertisement. Demonstrate a causal relationship, of previous advertising campaigns and effect on insurance premiums

[2] Argue then that Gasper is cost shifting, I.e it is making more profits at the expense of public health and so sending the costs to another sector, the health and health insurance sector, so any profits are illusory.

[3] It has been government policy HBC could also argue that it is a rather unique body in a rather unique sphere. Health insures are by their mandate and nature quite different form “joe” public, the interest is obviously different.

[4] Concerted anti smoking campaigns and the statutory requirement for warning labels over many years as well as age restriction.

[5]The fact that the parliament has seen fit to provide an avenue of appeal, means that parliament intended that a class of bodies must have standing. HBC must belong to such a class, being effected, and knowledgeable about the subject. This is an important and strong argument. To not give standing to such a body as HBC would tend to put at naught the intention of the parliament.

Arguments against HBC.

The nebulous nature of an advertising campaign can never be sufficiently related to profits a particular health insurance company in field of may health insurance companies at a given time. HBC own policies are the effect of its success and profits. Not another companies advertising campaign. HBC is entirely able to take out an advertising camping of its own if it wishes to dispute the facts. Rather it is hoping to bridle free speech over an emotive topic. HBC has the TPA which is may use if it believes false or misleading statement have been made w.r.t what is the clear and undisputed scientific fact. The parliament meant for genuine bodies such as public interest groups to make applications, as they would typically not be resourced to mount their own advertising campaigns. HBC is obviously resourced. While commercial interest does not preclude.

Even if smoking did cause health issues, smoking is a choice made by individuals. If this did equate to higher costs for the HBC the costs would be passed on to the individuals. Thus this will not effect HBC profits, but only those who chose to smoke. Thus HBC interests remain unaffected. That is HBC premium and payout policy it the metric of HBC economic standing.

HBC should not be able to tacitly censor free choice through the AAT.

It is simply too remote HBC’s cannot sufficiently show prospectively that an event witch has not occurred in an area as nebulous as advertising may have an effect on its fortunes.

ADJR

The ADJR argument runs along similar lines. Kirby dissent in Transurban notes that the Full court equated AAT standing with ADJR standing

The ADJR act is generally easier to satisfy than the AAT requirements but this depend s on specific legislation in place. Arguably the specific creation of an appeal in by the parliament may be such a case where the burden of AAT standing is easier to displace than the ADJR requirement.

Mason J in ACF stated business and economic interests in general have standing.

HBC has to convince the court that it has some connection that is not too remote with the advertising campaign.

HBC could argue that its commercial interest does coincide with the public interest as in light of the concerted (government) Public anti smoking campaign

Collateral arguments/Notes:

Where issues have received ever increasing public attention note the progression of ACF 1 ACF 2 North Coast the court has shown a desire to be considered attuned to public “norms”.

The Federal court has historically been very generous in granting standing, although this is more related to Judicial standing than AAT.

Arguments against would again center on remoteness of interest.

Further Facts.

Sackville J in north Coast as 512 provides a useful list.

A positive answer any of these questions would advance arguments giving HBC standing.

Statutory standing of HBC;

HBC mentioned in relevant statue (National trust)

HBC formed by statue (note insurance companies often exist within statutory regimes)

Has HBC received funding form the commonwealth or state governments over an extended period of time.?

Does HBC and has HBC offered substantial discounts for non smokers in their premiums this may be an acid test of how much HBC really gives smoking?

Has HBC been involved in an advisory role to the Govt, Hospital or government bodies at state level? Does HBC have a history of Anti smoking activities.

Has HBC sponsored or organized any conventions on the material issues?

Has HBC been consulted by the government on material issues?

Does HBC represent any other groups through funding or other means?

Is HBC involved in research In the area?

Questions for class discussion

1. The rule that a person seeking judicial review must have "standing to sue" (sometimes called locus standi) excludes some people from challenging government decisions which are illegal. How can that be justified? Jot down as many reasons as you can think of as to why the legal system might want to exclude some people from bringing such challenges. Don't worry if your reasons overlap, or if they consist of examples, rather than generalised principles. Having done that, jot down as many reasons as you can think of for wanting to abolish the requirement that a person seeking judicial review should have standing to sue.

2. The superior courts have an amazingly wide discretion to allow an amicus curiae to appear in a case in which that amicus is not (by definition) a party on the record. The amicus has no right to appeal, and does not file pleadings. He or she is almost never allowed to participate in the processes of discovery, and certainly never in any settlement processes which might occur. The amicus is hardly ever allowed to appear in a trial. They are almost always confined to making submissions on matters of law before an appellate court, although they sometimes will also make submissions to the appeal court on the evidence as found by the trial judge. They are probably liable to costs orders in respect of the extra costs which the parties on the record might incur by virtue of their case taking longer because of the participation of the amicus. (Courts nowadays usually say that their discretion over costs orders is virtually unlimited. In the old days, they used to doubt that, and in consequence, they doubted whether a costs order could be made against an amicus, who is not a party.) Their origins are somewhat murky, and they've never had a tightly defined role. They probably started in the days when the Attorney-General might appear on a voluntary basis in a case to assist a court on a difficult legal issue, especially where the parties lacked counsel. There are also recorded instances of barristers hanging around in court (perhaps waiting for a brief, perhaps waiting for their case to come on) being heard as amici to assist the court on a legal issue which they knew something about, and no-one else did. In those old days, the amicus was really a disinterested legal expert, assisting the court as a matter of professional courtesy. The American amicus ditched that role long ago. They are passionate supporters of one side or the other, or, at least, of a cause which they think can be promoted by the appellate court. So if the US Supreme Court is hearing an appeal relating to the product liability of a pharmaceutical manufacturer, you could expect that anywhere between one and two dozen amici will file written briefs or memorandums, urging this or that consideration or result. The amici will range from the US Surgeon General, and the Food and Drug Administration, to the Association of Trial Lawyers of America (a plaintiffs' lobby group in tort law) and medical insurance company lobby groups. We in Australia are just starting to see this sort of amicus, but they are still a relatively rare bird here. Bearing all of this in mind, would you change any of your arguments which you listed in responding to question 1?

3. McHugh J doubted in Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 424 whether Ogle was correctly decided. He held that the bishops lacked standing to challenge a Federal Court decision invalidating a Victorian ban on IVF treatment for single women, as this would merely vindicate their beliefs. Kirby J inclined to the view that the bishops had standing in their own right. His Honour also signalled doubt as to the privileged position of Attorneys-General to grant fiats: 449-451.

4. It seems that ACF denies standing to someone who has a mere intellectual or emotional attachment to or concern with the subject matter of the challenged decision. What's that? Are intellectuals and emotional people hopeless litigants, hopeless Administrative Law teachers, or both or none of the above?

5. One of the judges in Ogle (Casebook pp 395-396), namely, Wilcox J, had appeared before the High Court in ACF, where he had sought to persuade the High Court to abolish the common law requirement of standing. Do you think he's changed his views since then?

6. How do you reconcile the rulings in ACF 1989 (Casebook at p 396) and North Coast (Casebook p 397) on the one hand, with ACF 1980 (Casebook p 386) on the other hand?

7. The Right to Life plaintiffs were denied standing because their concerns weren't relevant to the statutory concerns of the Secretary of the Health Department. What were the concerns of the Secretary (look at Casebook, p 401)? Imagine that The Morning After Pty Ltd claims that it owns all rights to the formula used in the pill which the Health Department has said could be tested. The Morning After Pty Ltd says that the people planning to test the pill have no right to do so, and that they are using an illegal copy of their pill. Would the company have standing to seek judicial review of the Secretary's decision?

8. Did Bateman’s Bay (Casebook, p 391) do anything radical? Is the High Court now disposed to determine the question of standing by simply answering whether there are any statutory indications in the particular case that standing should not be granted?

9. The Casebook notes that despite the 1980 ACF case in the High Court, the Federal Court has been very generous in recognising the standing of some enviromentalist pressure groups. It is interesting to note that the Commonwealth Parliament has caved in to the Federal Court on this particular topic in the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Section 475, for example, stipulates the requisite standing for seeking an injunction to stop offences or other contraventions of the Act. It divides applicants into three categories, namely, the Minister, individuals and organisations. The Minister can apply in his or her official capacity. Individuals can apply where they are "interested persons". Organisations can be "interested persons" whether or not they are incorporated, but they can apply in their own names only if they are incorporated. Unincorporated organisations need an individual to apply on their behalf, and once again, the organisations need to be "persons interested". Individuals are interested persons if they fall within the definition in sub-section 475(6):

"(6) For the purposes of an application for an injunction relating to conduct or proposed conduct, an individual is an interested person if the individual is an Australian citizen or ordinarily resident in Australia or an external Territory, and: (a) the individual's interests have been, are or would be affected by the conduct or proposed conduct; or (b) the individual engaged in a series of activities for protection or conservation of, or research into, the environment at any time in the 2 years immediately before: (i) the conduct; or

(ii) in the case of proposed conduct—making the application for the injunction."

To be interested persons, organisations need to be incorporated or otherwise established in Australia or an external Territory. They must in addition satisfy one or more of the following conditions laid down by the following paragraphs of sub-section 475(7):

"(a) the organisation's interests have been, are or would be affected by the conduct or proposed conduct; (b) if the application relates to conduct—at any time during the 2 years immediately before the conduct: (i) the organisation's objects or purposes included the protection or conservation of, or research into, the environment; and (ii) the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment; (c) if the application relates to proposed conduct—at any time during the 2 years immediately before the making of the application: (i) the organisation's objects or purposes included the protection or conservation of, or research into, the environment; and (ii) the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment."

Sections 487 and 488 apply to ADJR applications. That Act requires applicants to be "persons aggrieved". Sections 487 and 488 extend the concept of "persons aggrieved" to individuals and organisations meeting criteria almost identical to those used above to define "interested persons" in the context of injunction applications. Once again, unincorporated organisations can qualify, but their applications must be through persons acting on their behalf.

10. There are lively debates as to the appropriate tests (indeed, whether there are any separate tests) for the standing of associational or representative groups. See Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2004) pp 664-670.

Group assignment

Imagine that there is a Commonwealth Tobacco Advertising Regulation Act 1998. It bans all tobacco advertising without a permit. The Minister for Health can grant a permit if he or she thinks that the advertisement adequately warns the public of the major health hazards in smoking. The Act grants an appeal to the AAT, and does nothing to limit Federal Court review under the ADJR Act. Gasper Ltd manufactures cigarettes, and wants to show an advertisement on television which says, amongst other things, that the links between smoking and lung cancer have still not been established with scientific certainty. The Minister granted the permit. This has upset Health Benefits Corporation (HBC), a major health fund. Has HBC got standing to (i) appeal to the AAT; or (ii) seek judicial review under the ADJR Act? What further facts do you need to help you answer these questions?

CLASS 13 – STATUTORY INTERPRETATION IN JUDICIAL REVIEW

Reading

Casebook pp 426-451.

Content of class

Statutory interpretation in judicial review.

Questions for class discussion

1. When can the courts use extrinsic material to assist them in the interpretation of a statute, and for what purposes?

2. Why did Parliament bother to pass Border Protection legislation in 1999 if the Executive could still use common law powers to expel aliens in the 2001 Tampa affair?

3. Section 15AA(1) of the Acts Interpretation Act 1901 (Cth) requires the court to prefer that interpretation of an Act which promotes the Act's underlying purpose or object, to an interpretation which doesn't. What, in practical terms, does that mean? How is a court to understand the context in a which a statutory scheme of regulation operates?

4. Could passengers who had paid for their fares on buses run by the London County Council (Casebook p 439) get a refund?

5. Can a private person over the age of 18 run buses (assuming that licences aren't a problem)? The London County Council was set up as if it were a corporation. Corporations can enter into contracts, run businesses, sue and be sued -- in fact, in most things, they are like natural persons in terms of legal capacity. So, why couldn't the Council run buses?

6. What really separated the majority from the minority in Paull? (Casebook, p 440). Was it legal technicalities?

7. You act for the government in Paull. Now that you've lost in the High Court, you have been told to redraft the Regulation to make it work. What will you do?

8. If you can imagine a situation in which an impugned Regulation or by-law covers things which do not fall within the purposes of the enabling Act, does that automatically mean that the Regulation or by-law is invalid?

Group assignment

The magistrate in Jamieson v McKenna (2002) 136 A Crim R 82 was well past her retirement age when she convicted the appellant. Explain how the appeal court dealt with that aspect of the case, and explain whether you think its decision was correct.

Supplementary material for class 13

Plaintiff S157/2002 v Commonwealth

(2003) 211 CLR 476 (references omitted)

GLEESON CJ: …The essence of the plaintiff's application for a visa was that he satisfied the Convention definition of a refugee, and that, pursuant to the Convention, Australia owed him protection obligations. The relevant provisions of the Act constitute the means by which Australia gives effect to its international obligations. The interpretation of the definition of refugee in the Convention is a matter of law. Decisions as to whether a person is someone to whom Australia owes protection obligations often turn upon questions of law; sometimes complex and difficult questions of law. Although it is the provisions of the Act concerning protection visas that are directly relevant in the present case, they are only part of a wider, and more detailed, pattern of legislation which, in a variety of respects, affects fundamental human rights and involves Australia's international obligations.

In such a context, the following established principles are relevant to the resolution of the question of statutory construction.

First, where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia's obligations.

Secondly, courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. As Lord Hoffmann recently pointed out in the United Kingdom, for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be "subject to the basic rights of the individual".

Thirdly, the Australian Constitution is framed upon the assumption of the rule of law. Brennan J said: "Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly."

Fourthly, and as a specific application of the second and third principles, privative clauses are construed "by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied" …

CLASS 22 – NATURAL JUSTICE: 4

Reading

Casebook pp 663-666,

A degree of bias must always be bresent, but how much bias is too much.

(i) Observer bias

(ii) No consensus.

Most bias case relate to judges.

Natural justice, right to be heard, and right to impartial hearing.

Extreme cases.

A tribunal member was pregnant so her decision to Rebiuld a nursing home biased?

A Christian man belief that only men should judge argued that hisjury shouldonly be composed of me (his piers).

Ones very expertise may be grounds for bias. Perhaps time for a white male Judge bias.

Netureness. Historically mans docrtine develeoped in a mans world. [but consider why!]

674-679,

R v CCAC, exparte Angliss (1969)HCA

But to be seek to be more informed is not to admit to bias. Natural justice as to circumstance under common law. Nature of jurisitction and staturoy regieme that the decsion maker operates under [commisioner] should be considered and are part of the crcumstances.The commision is not attempting to enforce private rights [*really?!?] . The commission is there to develop broad lines of action and create new rights.. The nature of the job requries the arbitrator to apply their mid to the subject matter and so must be informed.If the commisoner makes to obvious an expression that would undermine imaprtiallity then thre is a prblem.to the percetption of justice.Mere expression of opinion ecen if that opinion is given to futher the development of policy is no reasonable grounds.

Vakauta v Kelly (1989) HCA.

Stage when view is announced, just before judgment not as likely to amount to bias. Note if respondent in Appeleate case asked to argue first this is well known to be saying the respondant has the stronger case But this is not bias. Must raise quite a substantial case to succeed.

701-704.

No hearing, do not want to offside the judge, or hope for outcome then claim bias, 2 bites!

Vakauta v Kelly (1989) HCA.

“A jaundiced view” The observe would most likely see bias. These wee series comments.Bias in a hearing may not be concluded by the judgement.

Kirby, the individual cannot waive a public right, but comduct may waiver.Bias on interests. The informed litigant would be presumed to know and make issue or atl least objection. Reserved judgement does not offer councel a chance to question what it contained.

Content of class

(i) The difference between questions of bias and questions of subjectivity;

A matter of degree.

(ii) Meanings of actual and reasonable apprehension of bias;

(iii) Waiver.

The reasonable opportunity to make an objection or coment, or in sim cirumstances obviated by the degree of bias.

Questions for class discussion

1. Is it more important that judicial decisions “be seen to be just” or that administrative decisions be “seen to be just”?

Peerhaps judical, as administrators are already bias, being paid by the Govt, without tenure.

2. Are judges specially trained to make decisions in an unbiased manner? Does the reasonable apprehension of bias depend on whether you accept that judges have such training? Are courts more likely to find a reasonable apprehension of bias in a judge or in a non-judicial decision maker?

No judges are trianed to be biased to a form of ideas called common law. The y hav a distinct trianing bias. But his is an allowed bias.

Maybe more ready to find bias in judge, as there is a greater requirment to be seen impartial.

Group assignment 1

By reference to Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 and Hot Holdings Pty Ltd v Creasey (2002) 210 CLR 438, discuss the extent to which the bias rule restrains a Minister's ability to formulate, implement and/or announce government policy.

Formulate: Be in general, and broad termnis not direcected against a specifical class., although not fatal, it came under considerable scrutny In the HCA

Implement. Unirmly then apply discretions , based on that uniform policy basis, this will tend to make it seem less biuas.

Announce. In gereral, and remain silent, on outcome in specific cases. Execut on the materail facts of the case “don’t shoot of your mouth”.

But less stricture d than a judge, aor adminstraotr,.