LAWS5010 ADMINISTRATIVE LAW...LAWS5010 – ADMINISTRATIVE LAW 4 • Supreme Court Act 1970 (NSW) s69: “the Court has jurisdiction to grant any relief or remedy or do any other thing

LAWS5010 – ADMINISTRATIVE LAW

1

Table of Contents

1: INTRODUCTION TO ADMINISTRATIVE LAW ............................. 2

2: MERITS REVIEW ......................................................................... 6

3: JUDICIAL REVIEW – JURISDICTION OF THE COURTS .......... 11

4. ERRORS OF LAWS UNDER THE ADJR ACT ........................... 36

5. STANDING – ACCESS TO JUDICIAL REVIEW ........................ 37

6. JUDICIAL REVIEW OF RULE-MAKING ..................................... 43

7.1 PROCEDURAL FAIRNESS- WHEN IS IT OWED?................... 47

7.2 PROCEDURAL FAIRNESS: CONTENT OF THE HEARING RULE .............................................................................................. 54

7.3 PROCEDURAL FAIRNESS: BIAS RULE .............................. 60

8. SUBSTANTIVE GROUNDS OF JUDICIAL REVIEW .................. 78

9. JUDICIAL REVIEW REMEDIES ............................................... 119

10. PRIVATIVE CLAUSES ........................................................... 128


2

1: INTRODUCTION TO ADMINISTRATIVE LAW Administrative law is concerned with decisions – the power to make the decision will have been granted by legislation. It is important to note that in administrative law, decisions can be “divided up” – procedural aspects, information on which the decision is based, the outcome itself.

Who makes these decisions?

Department officials, agency officials (e.g. local councils)

How does ‘discretion’ come into it?

Legislation will grant an administrator discretion (usually by the word ‘may’) – this allows the administrator to choose from a number of different reasonable/ legitimate alternatives.

The merits of a decision is the ‘discretionary’ part.

The public interest – the case law says that the “public interest” is an extremely broad team.

What can go wrong?

• The administrator misunderstands the legislation.

• The administrator may not have given the person a chance to provide information (e.g. in the case of the presence of adverse information, the administrator failed to give the applicant a chance to counter the information)

• The administrator fails to consider relevant matters, acts for an improper purpose etc.

1. Constitutional fundamentals The rule of law, parliamentary supremacy and the separation of powers

C&M Textbook Ch 2.4

2. Introduction to judicial review and the law/merits distinction

Overview of judicial review • Does the court have jurisdiction?

• Is the application justiciable – not really an issue in admin law cases, as usually will relate to a decision under a statute.

• Does the applicant have standing – usually courts will apply the “special interests” test.

• Is a breach of one or more of the grounds of review established? o Procedural grounds


3

o Substantive grounds

• Is a remedy available? Consider certiorari, mandamus, injunction, o Might not be available, or the courts may have a discretion not to

grant the remedy (consider the case of the M5, where a LEC judge refused to grant the remedy due the money that the NSW government had already spent)

Grounds of review Procedural grounds - note that the “rules” belo

• Hearing rule (usually has something to do with adverse information) – relates to the person affected by the decision being given the opportunity to be heard

• Bias – relates to the judge being considered ‘bias’

Substantive grounds

• Decision-maker must consider relevant factors

• Disregard irrelevant factors

• Decision maker must have jurisdiction

• Wednesbury unreasonableness

Grounds of review are principles/standards – they are not clear-cut rules

Review/appeal distinction Review:

• Usually refers to judicial review by courts

• Inherent or statutory jurisdiction of the court o All State Supreme courts have “inherent jurisdiction” – as State

Supreme courts essentially took over the role of the British Court system, they have an inherent ability to oversee and supervise any administrative decision (both State and Federal)

o For example, that means that even if the EPPA Act only gives power to a council to grant development consent, but makes no reference to rights of review, the applicant can apply straight to the Supreme Court for review of that decision.

• Review focuses on the grounds of judicial review

• Court cannot substitute a decision – usually will remit it to another Court. o The Court may nullify a decision – but it cannot substitute. The

Court may then direct the original decision maker “not to make the legal error” but cannot force the body to make a certain decision – a Pyrrhic victory.

Example: Inherent jurisdiction of Supreme Court


4

• Supreme Court Act 1970 (NSW) s69: “the Court has jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari”

Appeal (in an administrative sense):

• Only available if the statute expressly provides for it – it is a create of statute.

• Scope of court’s authority depends on the statutory provision enabling appeals to a court.

• The remedy also depends on the statute – may include substituting a decision (merits appeal)

Example:

Appeal rights are explicitly granted by the legislation:

• Section 97 of the EPAA Act permits an appeal from a planning decision of a council

• Appeal from a commissioner of LEC to a judge of the LEC (s56A) on a question of law.

• Appeal from the LEC to the Supreme Court (s57) on a question of law.

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Per Brennan J:

“The duty and jurisdiction of the court to review administrative action does not go beyond declaring and enforcing of the law which determines the limits and governs the exercise of the repository’s (the administrator’s) power”

“In doing this, the court avoids administrative injustive or error, so be it; but the court has no jurisdiction simply to cure an administrative justive or error”

• There must be a legal issue.

“The “merits” of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone”

• That is, if there’s administrative injustice (i.e. a decision that you consider is “wrong”) this is a decision for the political realm.


5

• The boundary between law and merits is determined by the courts

• “The problem


6

2: MERITS REVIEW 1. Types of tribunals Civil/appeals tribunal:

• Civil: disputes between individuals (e.g. NCAT civil jurisdiction)

• Appeal: review of decision made by a government official Generalist/specialist tribunals

• Generalist: may determine appeals in many different areas of law (e.g. AAT)

• Specialist: former RRT – used to only hear appeals in particular area (now merged in AAT)

Adversarial/ inquisitorial tribunals

• Adversarial: parties determine issues, collect and present evidence (current AAT is in this model)

• Inquisitorial: tribunal determines issues and collects evidence (former RRT was of this model)

2. Independent merits review tribunals • Only available if the statute allows for it

• If the statute says nothing, there will be no allowance.

• Merits appeal tribunals can deal with issues of law and fact

• They can substitute the decision of the original decision maker.

• Note that there is no precedent in merits review decisions. What is the purpose of merits review?

• To ensure the correct and preferable decision is made – both correct interpretation of law, and correct finding of fact.

• Improve the quality and consistency of government decision-making (the normative effect) – note that there is no precedent in merits review decisions but the effect of merits review can send “signals” back to the department that this is how a decision is being interpreted by the tribunal.

• Provide a mechanism that is cheap, informal and quick.

• Openness and accountability of government.

3. Commonwealth: Administrative Appeals Tribunal Established by the Administrative Appeals Tribunal Act 1975 (Cth)- came as part of a “package” of administrative reforms following a parliamentary inquiry

• Deals a lot in social services, migration, freedom of information

• Judge is the President (ensuring there is some independence)


7

3.1 Jurisdiction – what allows the AAT to hear a decision? Section 25 of AAT Act

• An enactment may provide that applications may be made to the Tribunal…for review of decisions made in the exercise of powers conferred by that enactment”

PLUS

Section in the relevant act (e.g. Migration Act 1958) allowing a decision to be “reviewed”

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR

Facts:

• Lawlor’s warehouse licence was cancelled by the Collector of Customs Lawlor successfully appealed to the AAT – AAT found that Collector of Customs had no power to cancel the licence

• Subsequently, Collector of Customs brought an appeal to the Federal Court and argued

The arguments: 1. Either that the Collector did have power to revoke the licence, that it was an implied right. 2. If this implied right didn’t exist and the Collector did not have power to revoke then, the AAT had no jurisdiction to determine Lawlor’s application With this argument, the Collector argued that its actions must be legally insignificant (as it wasn’t based in law) and so there could not be a decision. Without a decision, the AAT would have no jurisdiction – as Section 24 of the AAT Act states “an enactment may provide that applications may be made to the Tribunal…” The judge’s decision:

Options considered by Bowen CJ for issue regarding the AAT’s jurisdiction:

(a) in pursuance of a legally effective exercise of powers conferred by the

enactment; or

(b) in the honest belief that it was in the exercise of powers conferred by

the enactment; - Bowen rejected this as it would involve too onerous

a task i.e. determining the subjective mindset of the AAT or


8

(c) in purported exercise of powers conferred by the enactment. – Bowen

preferred this option.

Administrator’s reasons for decision Request for reasons

• by a person who is entitled to apply to the Tribunal for review of the decision - request is made in writing to the decision-maker

• Reasons are to set out o findings on material questions of fact o referring to the evidence or other material on which those findings

were based, and o giving the reasons for the decision

AAT can give reasons orally, but if the person requests written ones, the AAT must provide this, AAT hearings

• Informal and efficient

• No rules of evidence, however the rules of procedural fairness apply. o Representation is permitted (AAT Act, s 32) o Shall be in public (s35) o Opportunities for parties to present case (s39)

Powers of the AAT

Administrative Appeals Tribunal Act 1975 (Cth), s 43(1): AAT may exercise all the powers and functions that are conferred by an Act on the person who made the initial decision and shall make a decision: (a) affirming the decision under review, or (b) varying the decision under review, or (c) setting aside the decision under review, and

(i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409


9

Migration Act 1958 s 12: where an alien has been convicted of a crime for an offence for which he has been sentenced to be imprisoned for one year or longer the Minister may order his deportation

Minister's deportation policy: matters to be taken into account included:

• the nature and circumstances of the offence

• the prospects of recidivism, etc.

• particular concern where trafficking or distribution of drugs is involved

This third policy focus is what caught Drake, and his visa was refused.

He applied to the AAT and theAATapplied the policy exactly as the Minister had written it – it affirmed the Minister’s decision.

Drake applied to Federal Court, who said it was erroneous for the AAT to apply the policy as if it had the status of law – it hadn’t gone through Parliament. Remitted it back to AAT.

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1980) 2 ALD 634

Having been remitted back to the AAT, Brennan J in the AAT said:

• The AAT will ordinarily apply a governmental policy when it is reviewing a decision – they are good for establishing consistency.

• Brennan noted that “where a discretionary power guided by an administrative policy is exposed to review by this Tribunal, the powers with which this Tribunal is vested by s43 of the AAT Act are wide enough to permit sterilization or amendment of policy in its application to the cases which come here… However it would be imprudent for the Tribunal to manifestly override a Ministerial policy and to adopt a policy of its own”

• For this reason, Brennan said:

• The AAT should not apply a policy when the policy is unlawful or when it tends to produce an unjust decision in the circumstances of the particular case.

o “The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review”

• He noted that an argument against applying a policy will be considered by the AAT (by the applicant’s representative) but cogent reasons will have to be shown against its application


10

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

• MARA cancelled Shi’s registration (July 2003) for poor client management.

• Shi applied to the AAT o July 2003: AAT stayed the cancellation decision – Shi continued

working but subject to conditions o 2. Sept 2005: AAT set aside MARA’s decision and substituted a

decision to caution Shi - AAT considered facts at time of its decision

Issue: could the AAT take into account facts occurring after MARA’s decision? High Court said YES. it could take into account all material facts up to the time of decision.

MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133

o Applicant was an asylum seeker who was refused a protection visa by the departmental delegate and the Refugee Review Tribunal (“RRT”)

o Applicant sought judicial review in Federal Court and succeeded – case remitted to RRT

o RRT with different member reconsidered claim to refugee status o Second tribunal member also rejected applicant’s claim o However, second Tribunal member’s reasons were very similar to initial

RRT member’s reasons

Issue: did the second RRT fail to perform its merits review function? High Court held yes – as the second Tribunal member did not independently and separately assess the merits and facts of the case.

Review of AAT decision by the Federal Court:

Appeal on a question of law (s44): “A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding


11

3: JUDICIAL REVIEW – JURISDICTION OF THE COURTS

1. State and Territory Courts

Supreme Court Act 1970 (NSW) - sets out the inherent jurisdiction

of the Supreme Court

o Section 23: The Court shall have all jurisdiction which may be necessary

for the administration of justice in New South Wales referred to as its

supervisory jurisdiction.

o Section 69: the Court has jurisdiction to grant any relief or remedy by way

of writ, whether of prohibition, mandamus, certiorari or of any other

description these are remedies that the Supreme Court can grant.


12

Note that NSW does not have an ADJR Act equivalent judicial review must be

brought either through inherent jurisdiction, or an appeal on a question of law.

2. The Public/Private distinction

What is the public/private distinction and how does this affect judicial

review? A public decision is usually made under statute, by a public official.

Private decisions are usually assumed to be reviewable by private law (tort law,

contract law etc.) However sometimes private institutions make decisions that

have public characteristics – a number of cases in the courts discuss whether

public law remedies should apply.

Prerogative writs: historically applied to public decision-makers exercising

statutory or prerogative power part of the common law judicial review

principles.

ADJR: “decision of an administrative character made under an enactment” –

doesn’t expressly deny private decisions but the decision must be of the nature

above.

Declarations and injunctions: public and private decisions

R v Panel on Take-overs & Mergers; Ex p Datafin

Case on a private institution making a public decision, which the Queens

Bench held to be reviewable.

Facts:

o Complaint made to Takeovers Panel by Datafin about takeover practices

of another company

o Datafin’s complaint was dismissed by Takeover Panel

o Datafin applied for judicial review of Panel’s decision

o Takeovers Panel was an unincorporated association with no statutory,

prerogative, common law, or contract-based powers

o Issue: Did the Court’s judicial review jurisdiction extend to supervision of

the Takeovers Panel?

What was the Panel?


13

Sir John Donaldson: “A truly remarkable body…it oversees and regulates a

very important part of the United Kingdom financial market. Yet it performs this

function without visible means of legal support.” - was an unincorporated private

institution.

o It could investigate, report, order sanctions

o Note that the Code that moderated this part of the market was not legally

enforced either

What did the Court find? The Court held that YES, its performance could be

reviewed by the Court.

Why? Even though it was a private institution, it was carrying out public

functions – this was the reason it could be reviewed by the Court.

What were these public functions?

o It performed a public duty – furthermore, the UK government had

acknowledged that the Takeovers Panel was the preferable option and it

would opt not to regulate this area through legislation

o Rights of citizens were indirectly affected by Panel’s decisions i.e.

Shareholders

o Panel had a duty to act judicially – it was required to abide by procedural

fairness (i.e natural justice)

o Panel’s source of power was only partly based on moral persuasion and

assent of members, however if people did not abide by these rules, the

Panel could rely on the statutory power of the Dept of Trade and Bank of

England.

There is uncertainly but it is generally accepted that it has not been affirmed in

Australia – this is shown by Chase Oyster.

Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242

Facts:

o NSW Trotting Club (a private company) made decision to exclude Forbes

(a professional punter) from trotting courses in NSW, via a “Warning

Notice”

o Decision made under the “Rules of Trotting”

o Forbes sought a declaration that “Warning Notice” was invalid – claimed

breach of procedural fairness by the Club. (He argued that there was no


14

opportunity provided to him to counter adverse information, or to make a

counter-argument).

o Trotting Club argued that as a private company which owned private land,

it had a right as a private individual to exercise its powers to dispel

someone.

Issue: did the court have jurisdiction to review the trotting club’s decision?

Gibbs:

o Whilst the NSW Trotting Club was not acting under statute, it did control a

public activity.

o He distinguished between this and a smaller club, where members may

have had a contractual relationship with a club as a member. Mr Forbes

was just a member of the public.

o Gibbs said that whilst the Club was a private owner, the fact that they had

Rules overrode their private rights and required procedural fairness apply

Murphy

o The fact that the Club was exercising a public power, the Court had

jurisdiction and that due process (procedural fairness) was required to

apply.

o “A body, such as [the Club], which conducts a public racecourse at which

betting is permitted under statutory authority, to which it admits members

of the public on payment of a fee, is exercising a public power”

Two ways of understanding this case – a step towards Datafin? Some say yes,

others say no. Those who say no say that this case must be viewed in a

narrower context, known as “the club context”. The club context is usually

governed by the law of contract, however the Courts tend to impose procedural

fairness. Others say its not a club case, as Mr Forbes was not a member.

Mark Aronson, Matthew Groves, Greg Weeks – see these academics for more.

Chase Oyster Bar v Hamo Industries (2010) 78 NSWLR 393

o Dispute between parties regarding payments for building work – Chase

Oyster did not pay on time.

o Builder (Hamo Industries) initiated adjudication proceedings under

Security of Payments Act 1999 (NSW)

o Adjudicator dec


15

Who was this adjudicator?

o Someone appointed by the Minister – but they were not paid by the

government, employed by the government nor a Government official. They

were paid for by the parties, and the Government had no control.

o Act made clear that adjudicator was not a government official and was

paid by the parties to the adjudication

o Adjudicator decided in favour of builder

o Chase Oyster Bar sought to bring judicial review proceedings raising

issues concerning the adjudicator’s process

Issue: was the adjudicator’s decision amenable to relief in the nature of

certiorari for jurisdictional error of law (i.e. did the Court have jurisdiction?)

Spiegelman CJ:

o It is important that the adjudicator was acting under statute – he is carrying

out a public power.

Basten J:

o The adjudicator was carrying out public power because of the factors he

had to take into account – the Act, the contract (and other sections under

the Securities Payment Act). The fact that the factors weren’t personal to

the adjudicator – they were statute/public/contract factors that governed

the way he exercised his powers.

This case says we “sort of” have Datafin – difference between this and Datafin is

that the body in this case had legal support (was established by statute)

3. High Court: “Constitutional writs” Appellate jurisdiction - Constitution, s 73:

The High Court shall have jurisdiction … to hear and determine appeals from all

judgments, decrees, orders, and sentences:

](ii) of any other federal court, or court exercising federal jurisdiction; or of the

Supreme Court of any State, or of any other court of any State from which at the

establishment of the Commonwealth an appeal lies to the Queen in Council;

Original jurisdiction - Constitution, s 75:

In all matters

(i) Arising under a treaty: …

(iii) In which the Commonwealth, or a person suing or being sued on behalf of the

Commonwealth, is a party: …

Documents

LAWS5010 ADMINISTRATIVE LAW...LAWS5010 – ADMINISTRATIVE LAW 4 • Supreme Court Act 1970 (NSW) s69: “the Court has jurisdiction to grant any relief or remedy or do any other thing