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Table of Contents

Australian Constitutions and their Amendment.....................................................5Rigidity and Flexibility..............................................................................................................5Federal and Unitary Constitutions........................................................................................5Amending the Commonwealth Constitution.....................................................................5Amendment of State Constitutions.......................................................................................5

Manner and Form Requirements...........................................................................................................7

Representative Government....................................................................................... 14Voting..........................................................................................................................................................14Langer v Commonwealth...................................................................................................................14

Voter Equality............................................................................................................................ 14Commonwealth Electoral Act 1918....................................................................................14State.............................................................................................................................................. 15McGinty v WA............................................................................................................................. 15Representation of Territorians...........................................................................................16The Right To Vote..................................................................................................................... 16King v Jones (1972)................................................................................................................. 16R v Pearson; Ex parte Sipka (1983)....................................................................................16Implied right to vote................................................................................................................17

The Judiciary.................................................................................................................... 18APPOINTMENT OF JUDGES....................................................................................................18

HIGH COURT JUDGES...........................................................................................................................18FEDERAL COURT JUDGES..................................................................................................................18NSW JUDGES............................................................................................................................................18

REMOVAL OF JUDGES.............................................................................................................. 19FEDERAL JUDGES..................................................................................................................................19

THE SEPARATION OF FEDERAL JUDICIAL POWER.........................................................19SEPARATION OF STATE JUDICIAL POWER.......................................................................23DEFINING JUDICIAL POWER..................................................................................................24

Indicia of Judicial Power.....................................................................................................................26JUDICIAL POWER AND NON-JUDICIAL TRIBUNALS.......................................................27Exceptions to Boilermaker’s.................................................................................................28

Boilermakers Principle:......................................................................................................................28‘Persona designata’ Rule........................................................................................................29

Questions to ask:....................................................................................................................................33

Implications Arising From ChIII................................................................................. 34Bills of Attainder and retrospective criminal laws.......................................................34bills of attainder........................................................................................................................ 34RETROSPECTIVE CRIMINAL LAWS........................................................................................34

Polyukhovich v Cth.................................................................................................................................34ARBITRARY DETENTION........................................................................................................35Protective detention............................................................................................................... 36immigration detention........................................................................................................... 37preventive detention.............................................................................................................. 39Evolution of the Incompatibility Doctrine.......................................................................39KABLE PRINCIPLE.................................................................................................................... 41RETREAT FROM THE KABLE PRINCIPLE..........................................................................41

Totani v State of South Australia.....................................................................................................43

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2The Executive................................................................................................................... 45

Ministers, Cabinet and The Executive Council................................................................45Constitution..............................................................................................................................................45

Prerogative Powers................................................................................................................. 46NOTE: Justiciability and Judicial Review of Prerogative Powers ........................48

The Principle of Legality........................................................................................................48Entick v Carringtom..............................................................................................................................48A v Hayden................................................................................................................................................48

Prerogative Powers................................................................................................................. 49A-G v De Keyser’s Royal hotel Ltd 1920......................................................................................49Ruddock v Vardarlis (‘Tampa’ case) 2001..................................................................................50

Nationhood Power................................................................................................................... 50Responsibility of Executive to Parliament.......................................................................52

Production of Documents..................................................................................................................53

Executive Rule Making.................................................................................................. 56Golden-Brown v Hunt (1972) 19 FLR 438.................................................................................56Evans v NSW............................................................................................................................................58

Publication Rules......................................................................................................................58Watson v Lee............................................................................................................................................58

Accountability to parliament...............................................................................................59Tabling- Legislative Instruments Act (Cth) s38.......................................................................59Thorpe v Minister for Aboriginal Affairs.....................................................................................59

Informal Rule Making............................................................................................................. 60

Open Government........................................................................................................... 61Public Interest Immunity...................................................................................................... 61

130 Exclusion of evidence of matters of state......................................................................61Murrumbidgee Groundwater v Minister [2003] NSWLEC 322.........................................61

Freedom of Information legislation...................................................................................62Cabinet documents exemption........................................................................................................63Government Information Public Access Act (GIPA) NSW....................................................63Recent Changes.......................................................................................................................................64Exemptions to Disclosure..................................................................................................................64FOI Act reforms.......................................................................................................................................64

Review of FOI decisions..........................................................................................................65

10 Freedom of Information Legislation- Zagami..................................................66Section 36 Internal working documents.....................................................................................67

Executive Accountability- An Introduction to Administrative Law...............69Accountability........................................................................................................................... 69Administrative Appeals Tribunal.......................................................................................70Ombudsman............................................................................................................................... 70Administrative Decisions (Judicial Review) Act 1977.................................................70The Centrality of Statutory Interpretation......................................................................70

Coco v The Queen 1993.......................................................................................................................70Introduction to Judicial Review...........................................................................................71

Does the court have jurisdiction?...................................................................................................71Grounds of judicial review.................................................................................................................71Remedies...................................................................................................................................................72Minister for Immigration v Haneef................................................................................................72

Reasons for Administrative Decisions.....................................................................73Common Law.............................................................................................................................. 73

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3Statutory Obligations to provide reasons...............................................................74

Administrative Decisions (Judicial Review Act) s13..............................................................74Limits on duty to provide reasons- ADJR Act s13..........................................................74

Judicial Review of Administrative Decisions.........................................................75Sources of judicial review......................................................................................................75

Constitutional writs..............................................................................................................................75Judiciary Act 1903 (CTH)...................................................................................................................75Federal Court’s judicial review jurisdiction...............................................................................75To succeed in a judicial review application, an applicant must satisfy a number of distinct requirements:.........................................................................................................................75

SOURCES OF JUDICIAL REVIEW............................................................................................76Commonwealth.......................................................................................................................................76New South Wales...................................................................................................................................76

GROUNDS FOR REVIEW.......................................................................................................... 76The Nature of the Courts’ Review Jurisdiction...............................................................77Appeal/Review Distinction...................................................................................................77Judicial Review/Merits Review Distinction....................................................................78THE ADJR ACT 1977 (Cth)......................................................................................................79

Applications for Review......................................................................................................................79(a) ‘Decisions’?.......................................................................................................................... 80Decisions ‘of an administrative character’......................................................................81Private decisions of government statutory authorities..............................................82Justiciability............................................................................................................................... 82Is there a ‘matter’?................................................................................................................... 82Is the matter justiciable?....................................................................................................... 83

Examples of Non-Justiciable Decisions........................................................................................83Re Ditford..................................................................................................................................................84Thorpe v Cth (No 3)..............................................................................................................................84

Tribunals........................................................................................................................... 86Types of tribunals.................................................................................................................... 86Independent merits review tribunals...............................................................................86Commonwealth: Administrative Appeals Tribunal......................................................86

AAT membership and organization...............................................................................................87AAT jurisdiction......................................................................................................................................87Main function of the AAT....................................................................................................................88What decisions are reviewable?......................................................................................................88What is a decision..................................................................................................................................88Who may seek review in the AAT...................................................................................................89Pre-hearing procedure........................................................................................................................89Hearings before the tribunal.............................................................................................................89Powers of the AAT.................................................................................................................................91Appeals from the AAT to the Federal Court...............................................................................91Shi v Migration Agents Registration Authority.........................................................................91Esber v Commonwealth......................................................................................................................92The role of policy: the Drake cases................................................................................................92

NSW: the Administrative Decisions Tribunal.................................................................93The ADT and policy...............................................................................................................................94

MERITS REVIEW TRIBUNALS............................................................................................... 94What are Tribunals?.............................................................................................................................95Tribunals vs. Courts..............................................................................................................................95Purposes of Merits Review................................................................................................................96

The Administrative Appeals Tribunal (AAT)..................................................................96

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4Membership and Organisation........................................................................................................96Access to Merits Review in the AAT..............................................................................................962. Who has standing to make an application to the AAT?................................................98PROCESS.................................................................................................................................................... 99Hearing before the Tribunal.............................................................................................................99Powers of the AAT.................................................................................................................................99Appeal from Tribunal’s Decision..................................................................................................101

Investigating Administrative Conduct..................................................................102Ombudsman............................................................................................................................ 102

Ombudsman Act 1976 (Cth)...........................................................................................................102Corruption................................................................................................................................ 103

The NSW Independent Commission Against Corruption..................................................103ICAC Act...................................................................................................................................................103Greiner v ICAC......................................................................................................................................104

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Australian Constitutions and their Amendment

Rigidity and FlexibilityRigid constitutions require an onerous process to amend, for example the approval of the states and/or referenda.

Flexible constitutions may be amended by ordinary legislation.

Federal and Unitary ConstitutionsFederal constitutions require rigidity to preserve the federal balance (e.g. C’th Constitution, US Constitution)

Unitary constitutions have no need for rigidity (e.g. UK)

Amending the Commonwealth ConstitutionThe Constitution itself incorporates, in s 128, the referendum mechanism by which it may be changed.

However, achieving reform has proved difficult, with the political and other obstacles often proving insurmountable. Since 1901, 8/44 proposals put to the people have succeeded.

The result is that the Constitution remains almost as it was in 1901, ‘constitutionally speaking the frozen continent’.

While Toohey claims that popular amendment means judicial enforcement of the constitution serves the popular will, the practicality is that if the model does not work, or ‘the people’ are reluctant or unable to use it, does it serve the popular will?

A proposed law for the alteration of the Cth Constitution must be (under s 128):

1. passed by an absolute majority of both Houses of the Federal Parliament, or by one House twice; and

2. at a referendum, passed by a majority of the people as a whole, and by a majority of the people in a majority of the states (i.e. in at least 4/6 states).

Note: there is compulsory voting (s 45 Referendum (Machinery Provisions) Act 1984 (Cth)), pamphlets of no more than 2000 words are sent out, and assent by the G-G is required.

Amendment of State ConstitutionsEach State Parliament has power to amend the constitution of its State, subject to such binding manner and form requirements as the Parliament itself has been able to impose in the exercise of that power.

The power to enact a law includes the power to repeal or amend the law.

Can previous parliaments govern/bind future parliaments?

It seems Yes at Federal level due to the Constitution.

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6No at state level, because the Constitutions are pieces of legislation, and traditional Dicean theory stresses parliamentary sovereignty, or the belief in the ability of parliaments to regulate themselves.

The source of power to entrench a law must therefore come from a higher source. In the case of the States it came originally from Imperial legislation, and then from the Australia Acts 1986 (Cth) and (UK):

The Colonial Laws Validity Act 1865 (‘CLVA’) ceased to apply to the States upon the commencement of s 2 and 3 of the Australia Acts 1986 and the State Parliaments were given full legislative power.

Section 6 of the Australia Acts provides:

6. Notwithstanding sections 2 and 3(2) above, a law made (THE AMENDING LAW) after the commencement of this Act by the Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law (ENTRENCHING PROVISION) made by that Parliament, whether made before or after the commencement of this Act.

Each colonial (now state) Parliament was to have a continuing power to re-enact and re-write its own Constitution Act. In other words, these were flexible, not rigid, constitutions.

Taylor v A-G of Queensland (1917) 23 CLR 457

Issue: whether the Queensland Parliament had the power to enact the Parliamentary Bills Referendum Act, that is, to create an alternative legislative procedure bypassing the Legislative Council.

Injunction to stop referendum overturned by HCA on condition no action was taken on its result until constitutional issues resolved. Referendum failed, on constitutional matters the HCA held that the act was valid by relying on s5 of the Colonial Laws Validity Act.

Decided that the legislative power conferred by the CLVA did confer full constituent power ‘to make laws respecting the Constitution, powers and procedure of such Legislature’ (s 5), provided that such Laws shall have been passed in such Manner and Form as may from time to time be required.’

Established that the QLD Legislative Council could be abolished (and was in 1921).

McCawley v The King [1920] AC 691

Creation of Court of Industrial Arbitration included s 6(6) which impliedly limited a Supreme Court judge’s term to seven-years, contrary to s15 of the Constitution Act 1867 (QLD).

Privy Council affirmed the power of the QLD legislature to pass s 6(6), and thereby to effectively amend that State’s Constitution.

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7This power could be exercise impliedly, that is, even in the absence of an express intention in s 6(6) to amend the Constitution Act.

Lord Birkenhead

It was not the policy of the Imperial Legislature, at any relevant period, to shackle or control in the matter suggested the legislative powers of the nascent Australian legislatures.

What was given was given completely, and unequivocally, in the belief fully justified by the event, that these young communities would successfully work out their own constitutional salvation.

Can amend Constitution Acts impliedly.

Manner and Form Requirements

Manner and form requirements are restrictive procedures.

They restrict the legislative powers of the Parliament by requiring that laws on certain topics may only be enacted by a special and more difficult procedure.

There are usually three elements to any manner and form problem:

1 . There are the ‘entrenched provisions’ .

For example, ss 8 and 9 of a hypothetical Constitution Act 1950 might provide: 1. There shall be a Legislative Council comprised of 30 Members chosen directly by the

electors. 2. It shall be compulsory for all electors to vote in elections for the Legislative

Assembly and the Legislative Council.

2. There are the ‘entrenching provisions’ (or the ‘manner and form’ provisions).

These provide that certain sections cannot be amended or repealed, or laws on certain matters cannot be enacted without following a particular ‘manner’ (eg a special majority or referendum) or a particular ‘form’ (eg a law that contains a particular form of words). For example, s 32 of the hypothetical Constitution Act 1950 might provide: 32. A Bill that abolishes the Legislative Council or expressly or impliedly repeals or amends sections 9-15 or this section shall not be presented to the Governor for assent until it has been approved by the electors in a referendum.

3. There is the ‘ amending law’ (or ‘repealing law’)

This seeks to amend or repeal the ‘entrenched law’. For example, the Constitution Amendment Act 2008 might provide:

1. The Legislative Council shall be abolished. 2. Voting for the Legislative Assembly shall be voluntary.

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8Questions to ask:

A. Does the amending law seek to amend or repeal an entrenched provision contrary to the requirements of the entrenching provision?

B. Double entrenchment

If yes, then is the entrenching provision doubly entrenched? This means, can the entrenching provision itself be amended by ordinary legislation, or does it protect itself by requiring that the manner and form requirement it imposes also applies to amendments or repeals to itself.

If it is not doubly entrenched, then the amending law will also have the effect of impliedly amending the entrenching provision so that it does not need to comply with manner and form requirements.

If it is doubly entrenched, then go to C.

C. Abdication

Is the entrenching provision really a manner and form provision (dictating the manner and form by which the

amending law can be enacted); or is it really a purported abdication of legislative power?

o Any provision that says that the Houses of Parliament cannot enact a law without getting the permission of some external body (eg a tribunal, a company, a local council) other than the people in a referendum, is a purported abdication of legislative power. The Parliament has no capacity to abdicate its power, so such a provision would be ineffective.

o Also if the manner and form requirements are too stringent or the special majority is too high. ‘There must be a point at which the special majority provision would appear as an attempt to deprive the Parliament of powers rather than as a measure to prescribe the manner and form of their exercise.’ (Westlakes)

If, however, it is a true ‘manner and form’ provision, go to D.

D. Nature of amending law

Is the amending law one respecting the ‘constitution, powers or procedure’ of the Parliament? Eg does it concern how the Parliament or its Houses are comprised?

If it relates only to the judiciary, or local government or some other subject, then the effectiveness of the manner and form provision will not be supported by the Australia Acts.

(Query whether there is any other source of entrenchment – s 106 of the Commonwealth Constitution or the Ranasinghe principle).

E. Consequences

Consider the consequences of a breach of the manner and form provision. Under the CLVA there was no power to enact the entire amending law. Under the Australia Acts the entire amending law is of ‘no force or effect’.

[Consider also, if relevant, the issue of justiciability.

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Should the court intervene before the Governor gives assent to the amending Bill, or wait for it to be challenged once it has become a law? In general, courts prefer to deal with the issue of the validity of a law after it is enacted (Cormack v Cope). However, exceptions are sometimes made if the law expressly prohibits a Bill being presented to the Governor unless it complies with a manner and form procedure (Trethowan) and where there would be no remedy or it would not be in the public interest to wait until the Bill received assent (Marquet)]

‘Manner requirement’

Attorney-General (NSW) v Trethowan (1931) 44 CLR 395

The decisive judicial test of the proviso in s 5 of the CLVA arose in NSW. Following the success of the QLD Labor Party in abolishing the QLD Upper House, the NSW Labor Party attempted to follow suit.

Section 7A of the Constitution Act 1902 (NSW) (entrenched provision) meant that the Legislative Council could not be abolished without a referendum and also, by virtue of sub-s (6) (entrenching provision), that s 7A itself could not be amended or repealed without a referendum.

sub-s (6): ‘The provisions of this section shall extend to any Bill for the repeal or amendment of this section.’

Thus, if s 7A ‘entrenched’ the constitutional status of the Legislative Council, sub-s (6) made this a ‘double entrenchment’.

Reasoning in NSWSC (approved by HCA):

1. If s 7A had not been doubly entrenched, (i.e. if there was no sub-s (6)), the whole of s 7A could have been repealed.

2. On the same hypothesis, once s 7A was repealed, the Legislative Council could be abolished by an ordinary act of Parliament.

3. Moreover, what could thus be done in two steps could also be done in a single step. There was no need first to repeal s 7A before abolishing the Legislative Council. Parliament could simply legislate to abolish the Legislative Council, and, insofar as that legislation was inconsistent with s 7A, it would impliedly repeal that section.

4. The inclusion of sub-s (6) leads to a different result. That sub-section could not be repealed by an ordinary Act of Parliament. It could only be repealed in the manner prescribed by s 7A itself, that is, by a referendum. Section 7A thus incorporated a ‘manner and form’ requirement imposed by a law within the meaning of the proviso to s 5 of the CLVA.

If a ‘manner and form’ provision is not doubly entrenched, a parliament is free to legislate to remove the entrenchment and amend the protected provision.

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10 For measures affecting the constitution, powers and procedure of the State legislature, the requirement of submission to a referendum can be a ‘manner and form’ requirement within the meaning of s 5 of the CLVA.

‘...form requirement’

South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603

a mere requirement of a special declaratory form of words was not a ‘manner and form’ requirement.

Section 6 of the Real Property Act 1886 (SA) stated that : “No law, so far as inconsistent with this Act, shall apply to land subject to the provisions of this Act, nor shall any future law, so far as inconsistent with this Act, so apply unless it shall be expressly enacted that it shall so apply ‘notwithstanding the provisions of “The Real Property Act 1886”’.”

The South-Eastern Drainage Amendment Act 1900 (SA) did not contain the ‘magic formula’ that s 6 above required.

HCA held that this did not matter: the normal rule applied that, to the extent of any inconsistency, the later Act prevailed and the earlier Act was to that extent impliedly repealed.

! Question the reasoning in this case however !

Where an issue arises under s 5 CLVA or s 6 Australia Act, the first question to be asked is

1. Whether the law that is later in time is a law ‘respecting the Constitution, Powers and Procedure of such Legislature’.

If and only if it is such a law, it then becomes necessary to ask

2. Whether the earlier law has prescribed any ‘manner and form’ in which the latter law must be passed.

In South-Eastern Drainage the court should have asked whether the later act was a law ‘respecting the Constitution, Powers and Procedure of such Legislature’. Since it was clearly not such a law, no question under s 5 of the CLVA should have arisen.

Accordingly, it is sometimes suggested that the case is flawed and is of no value as precedent.

West Lakes Ltd v South Australia (1980) 25 SASR 389

You can’t require an external body to approve legislation (this would be an abdication of power).

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11Agreement made in relation to the development of a suburb between SA Govt. and a developer.

1969 Act required the consent of a corporation/company for any future amendments.

SA Govt. prepared draft legislation to amend the West Lakes Development Act to provide that the consent of the company should not be required for any regulation giving effect to a recommendation of the Royal Commission. The company sought an injunction to prevent that Bill from being introduced into Parliament.

Action failed on two grounds:

1. A contractual obligation entered into by the executive government could not inhibit the power of Parliament to enact legislation, or the right of Ministers to propose such legislation.

2. In any event, a requirement of written consent by a company was not a ‘manner and form’ requirement within the meaning of s 5 of the CLVA.

King CJ

The bill under consideration is not a proposed law respecting any of the topics enumerated in s 5 of the CLVA.

A question might arise whether as to whether a particular statutory provision is

o truly a manner and form provision, which must be observed as a

condition of the validity of the Act, or

o a limitation or restraint of substance which would not invalidate

legislation inconsistent with the limitation or restraint.

When one looks at extra-parliamentary requirements, the difficulty of treating provisions as relating to manner and form becomes greater.

Requirements of approval by electors at a referendum (see Trethowan), although extra-parliamentary in character, is easily seen to be a manner and form provision because it is confined to obtaining the direct approval of the people whom the ‘representative legislature’ represents.

If, however, parliament purports to make the validity of legislation on a particular topic conditional upon the concurrence of an extra-parliamentary individual, group of individuals, organisation or corporation, a serious question must arise as to whether the provision is truly a law prescribing the manner and form of legislation, or whether it is not rather a law as to substance, being a renunciation of the power to legislate on that topic unless the condition exists.

A provision requiring the consent to legislation of a certain kind, of an entity not forming part of the legislative structure does not prescribe a manner or form of lawmaking, but rather amounts to a renunciation pro tanto of the lawmaking power.

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12Such a provision relates to the substance of the lawmaking power, not to the manner or form of its exercise.

The point becomes clearer if one considers hypothetical (albeit extreme) examples such as provisions that legislation of a certain character might not be enacted without the consent of:

the governing body of a political party, or

an organisation of employers and employees, or

an officer of the armed forces, or

any other individual, office holder or body which does not form part of the representative legislative structure.

The provision does not prescribe a manner or form of legislation, and Parliament may legislate inconsistently with it.

Attorney-General (WA) v Marquet (2003) 217 CLR 545

Section 13 of the Electoral Distribution Act 1947 (WA) (entrenching provision) required an absolute majority in both Houses of the State Parliament for ‘any Bill to amend this Act’.

Held to be valid, and thus prevented the repeal of the 1947 Act by the Electoral Distribution Repeal Bill 2001 (WA) (amending law), which would have cleared the way for a new electoral distribution based on the idea of one vote-one value.

HCA had to answer

1. Whether a Bill to repeal the 1947 Act should be treated as a Bill to amend it.

It would be anomalous if ‘amend’ when used in a constitution were to be read so narrowly as to exclude, or have no application to a repeal, so as to enable a legislature, without complying with the requirements of s 13, to obliterate or extinguish entirely part of the Constitution, but not to amend it even by the addition or deletion of a mere word or phrase: that although the Parliament might not tinker with it, it was entitled to annihilate a constitution or a substantial provision of it.

‘Amend’ in s 13 should be read to include and apply to a purported ‘repeal’.

2. Whether legislation establishing a scheme for electoral distribution and the bureaucratic machinery for its implementation was ‘a law respecting the constitution, powers and procedure’ of representative legislatures as under s 5 of the CLVA.

The ‘constitution’ of a State parliament includes its own ‘nature and composition’ (A-G v Trethowan).

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13The contentions were that s 6 of the Australia Act should be read strictly, and as referring only the legislature’s general structure as bicameral and representative.

The reference to the ‘constitution’ in s 6 should not be read so confined.

Section 6 is not able to be read as confined to laws which abolish a House, or altogether take away the ‘representative’ character of a State parliament or one of its Houses. At least to some extent, the ‘constitution’ of the parliament extends to features which go to give it and its Houses a representative character.

Both the Repeal Bill and the Amendment Bill were found to be laws respecting the ‘constitution’ for the purposes of s 6 of the Australia Act.

Look to the later law for its nature.

Glew v Governor of Western Australia [2009] WASC 14

A change in terminology does not necessarily amount to a change in the substantive realities underlying the Constitution and the exercise of governmental powers. The consequence is that s 73(2)(g) of the Constitution Act concerning a referendum does not apply to the AARCLP Act because the latter did not, in a substantive manner, alter the constitutional structure of the State.

Is there an alteration in the office of governor? NO, so provisions are not even triggered.

Must answer first question first. I.e. have reference to Australia Act before analysing manner and form issues (similar to South-Eastern Drainage Board).

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14Representative Government

Voting

- s7 and 24 of the Constitution state members of the Senate and the house of Representatives must be ‘directly chosen by the people

- Commonwealth Electoral Act 1918 (Cth)o 93(1), (7), (8)o 1)- 18 years or older and a citizeno 7) not if here on a temporary visa or an unlawful non-citizeno 8) not if not of sound mind, or serving three years or more in

prison, or has committed treason or treachery and not been pardoned.

o S94, 94a- exclude citizens living overseas who did not intend to return within six year when they left.

o S245(1)- compulsory- penalty if don’t vote.

ACTV v Cth

- Senators are to be directly chosen by the people s 7- House of reps shall be composed of members directly chosen by the

people s 24- Sections provide the basis for the principle of representative

government - Freedom of communication is required to ensure accountability of

representatives

Lange v ABC

- Two step test: o Does the law effectively burden freedom of communication about

government or political matters either in its terms, operation or effect?

o If the law effectively burdens that freedom, is the law reasonably and appropriately adapted to serve a legitimate end?

- If the first question is yes but the second is no, then the law will be invalid.

Langer v Commonwealth

- Facts: - suggests compulsory voting is not inconsistent with ss7 and 24 of the

constitution.- Brennan CJ

o Within legislative power of federal parliament to prescribe methods for voting (ss31 and 51(xxxvi)).

o S329A of the Commonwealth Electoral Act (a person must not publish any matter with the intention of encouraging voters to vote inconsistently with s 240) protects what the Parliament intends to be the primary method of choosing members of the house of representatives.

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15o If the impairment of freedom is reasonably capable of being

regarded as appropriate and adapted to the achieving of a legitimate legislative purpose and the impairment is merely incidental to the achievement of that purpose, the law is within power.

o Prohibition in s329 is designed to stop the intentional encouragement of filling in the ballot paper in a way that makes it invalid and detracts from the expression of the elector’s preference. It is not imposed with a view to repressing freedom of political discussion, it is imposed as an incident to the protection of the s240 method of voting.

Voter EqualityFederal

Commonwealth Electoral Act 1918- ss18 and 19

o Electoral distribution commissioners to determine distributions by dividing state’s electors by number of members to be chosen for the state

o Margin of allowance of 10% is permittedo Other factors to consider

Community interests within the division Means of communication and travel within the division Trend of population changes within the state Physical features of the division and the existing boundaries

of divisions and sub-divisions.

A-G (Commonwealth); Ex rel McKinlay v Commonwealth (1975)

- Whether the constitution requires adherence to the principle of ‘one vote, one value’. P relied on s24 “directly chosen by the people” and that, subject to other stipulations, “the number of members in the several states shall be in proportion to the respective numbers of their people. “ only Murphy J accepted this argument.

- Murphy relied on the example of the United States and the decisions of the US Supreme Court in his judgment, based on fact our constitution had effectively copied the wording from the US Constitution.

- Barwick CJ rejected the analogy. - Other judgments- Barwick CJ and Gibbs J- s24 does not guarantee

equality- McTiernan and Jacobs, Stephen, and Mason JJ- s24 does not guarantee

equality but at some point distribution may be so unequal that s24 would be breached.

State

McGinty v WA- Electoral Distribution Act 1947 (WA)

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16o Electoral district placed within regionso Imbalance b/w metropolitan and non-metropolitan regionso 1993 Election

average district enrolment metro- 22 00 average district enrolment non-metro- 12 000

- Majority of HC rejected implication of voter equality and reaffirmed McKinlay’s case.

- Brennan CJ- ‘ in my opinion, the Commonwealth Constitution contains no implication affecting disparities of voting power among the holders of the franchise for the election of members of a state parliament.

- Dawson J- apart from specific provisions in the constitution “for the minimum requirement of representative government’ and for ‘certain other matters of machinery’, ‘the form of representative government which he are to have is left to parliament.”.. thus it may seem that the form of representative government, including the type of electoral system, the adoption and size of electoral divisions, and the franchise are all left to parliament by the constitution…. There can be no implication that a particular electoral system, of the many available, is required by the constitution. There is of course the express requirement that whatever system is employed it must result in a direct choice by the people.

- It is perhaps conceivable that variations in the numbers of electors or people in single member electorates could become so grossly disproportionate as to raise a question… but this is a matter quite removed from the proposition that s 24 insists upon a practical equality of people or electors in single member electorates. extreme situations.

Representation of TerritoriansWestern Australia v Commonwealth (First Territory Senators Case) (1975)

- issue whether commonwealth parliament had legislative power to provide for representation of territories in the senate.

- Cth argued power given by s 122, which provides that the Cth may allow the representation of such territory in either House of Parliament to the extent and on the terms which it thinks fit.” Plaintiffs argues ss7-15 of constitution refer exclusively to senators representing the states.

- Effectively a conflict between commitments to federalism and to democracy.

- Four of the seven judges effectively gave priority to democracy over federalism.

The Right To Votes41 of the Constitution- no person who has or acquires the right to vote at elections for the more numerous house of the parliament of a state shall, while the right continues, be prevented by any law of the commonwealth from voting at elections for either house of the parliament of the commonwealth.

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17Possible interpretations- transitional period designed to maintain right to vote in their state prior to enactment of 1902 legislation, or continuing operation protecting right to vote at federal elections for voters who acquire the right to vote in their state after 1902

King v Jones (1972)- HC asked to apply s 41 to resolve political controversy over lowering

the voting age to 18, having been lowered in NSW, WA and SA. - court considered whether word “adult” in s41 was open to a shift in

meaning . In end, whole court held that it was not and constitutional use of the word was held to be fixed with the meaning it had in 1901.

- “a meaning of adult which would enable a particular state, by appropriate legislation, to enfranchise large numbers of persons under the age of twenty one and byh the operation of s41 confer upon them the federal franchise.. is one not lightly to be attributed to the framers of the constitution.

R v Pearson; Ex parte Sipka (1983)- excluded from voting by s45 of Cth Electoral Commission Act- can only

enrol to vote up to afternoon of issue of writ for election. - brought by four people eleigable to vote in NSW but excluded from the

federal election under s45. - majority view that s41 had not been infringed. - s41 as prohibiting the prevention of a person from voting at a federal

election (as long as they continue to be eligible to vote in their state), rather than conferring the right to vote at such an election. If that operation of 41 was accorded, the State parliament would be empowered to give the right to vote at federal election to people who had been excluded from it by federal legislation.

- “it is impermissible to construe a provision relating to the prevention of the exercise of a right to vote as the source of the right itself.”

- s41 purpose was to ensure that those who enjoyed the constitutional franchise should not lose it when the statutory franchise was enacted. The statute was to govern the subsequent acquisition of the right to vote at federal elections.

Implied right to votecan be argued that ss7 and 24, which require that the members of the House of reps and the senate be ‘directly chosen by the people’, supports an implied right to vote.

Roach v Electoral Commissioner (2007) concerned the federal voting rights of prisoners. 2006 amendment that changed prisoners serving a sentence of 3 years or longer, to all prisoners serving a sentence of full-time detention.

HC held that the 2006 amendments were invalid as they were inconsistent with the system of representative democracy established by the constitution. however, the previous exclusion was held to be valid, and as the 2006 amendments were struck down, were restored to be statute.

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18- disenfranchisement of any group of adult citizen on a basis that does

not constitute a substantial reason for exclusion would not be consistent with choice by the people. What constitutes a substantial reason?

- Rational connection- behaviour that manifest such a rejection of civic responsibility as to warrant temporary withdrawal of a civic right.

- not an additional form of punishment, as being punished under state laws by state courts generally. must be to do with seriousness, as non-custodial sentences and fines do not attract the exclusion.

- mere fact of imprisonment, regardless of the nature of the offence or the length of the term, does not necessarily indicate serious criminal conduct.

- previous legislation valid, the amendment not. - Gummow, Kirby and Crennan JJ agreed that the prior exclusion of

prisoners serving a sentence of three years or more was valid. They found that this criterion does distinguish between serious lawlessness and less serious but still reprehensible conduct, and reflects the electoral cycle for which the constitution itself provides.

The Judiciary

APPOINTMENT OF JUDGES

HIGH COURT JUDGES

Commonwealth Constitution, s 72

The Justices of the High Court and of the other courts created by the Parliament … (i) Shall be appointed by the Governor-General in Council

A person shall not be appointed as a Justice of the High Court if he has attained the age of 70.

High Court of Australia Act 1979 (Cth)

Section 6: The Attorney-General shall consult with the Attorneys-General of the States in relation to the appointment of a justice of the High Court

Section 7: A person shall not be appointed as a Justice unless he or she has been a judge or has been enrolled as a barrister or solicitor for not less than 5 years.

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19FEDERAL COURT JUDGES

Federal Court of Australia Act 1976 (Cth) s 6

(1) A Judge … (a) shall be appointed by the Governor-General by commission …

(2) A person shall not be appointed as a Judge unless o he or she is or has been a Judge of a prescribed court or of a court

of a State o or has been enrolled as a legal practitioner for not less than 5 yearso Family Law Act 1975 (Cth), s 22:

(2)(b) by reason of training, experience and personality, the person is a suitable person to deal with matters of family law.

NSW JUDGES

Supreme Court Act 1970 (NSW), s 26

(1) The Governor may … appoint any qualified person to be Chief Justice or a Judge.

(2) A person is qualified for appointment as Chief Justice or as a Judge if the person:

o (a) holds or has held a judicial office of this State or of the Commonwealth, another State or a Territory, or

o (b) is an Australian lawyer of at least 7 years’ standing.

Judicial Officers Act 1986 (NSW), s 44 (1)

A judicial officer shall retire on reaching the age of 72 years

REMOVAL OF JUDGES

FEDERAL JUDGES

Commonwealth Constitution, s 72

The Justices of the High Court and of the other courts created by the Parliament

(ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity.

- 1977 referendum took away life tenure implication. - s72 has a double purpose- to ensure that nobody but parliament can remove a

judge from office, but also to ensure that it is possible for parliament to remove a judge.

NSW JUDGES

Constitution Act 1902 (NSW), s 53(2)

19

20 The holder of a judicial office can be removed from the office by the

Governor, on an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity.

Judicial Officers Act 1986

Establishes the Judicial Commission Establishes a process for examining complaints against judges Section 15: Complaints about ability or behaviour of a judicial officer Section 23: Conduct Division examines and investigates complaints Section 24: Conduct Division may decide to have a hearing either in public or private Section 28: If the complaint is substantiated the Conduct Division may decide that the

matter should be considered by Parliament for the removal of the judge Section 29-30: Conduct Division’s report given to Chief Justice and then to Governor

THE SEPARATION OF FEDERAL JUDICIAL POWER

Main contentions:

1. The ‘judicial power’ (to be defined) of the Commonwealth cannot be vested in any tribunal other than a Ch III court; and

2. A Ch III court cannot be invested with anything other than judicial power (except for those ancillary powers that are strictly incidental to its functioning as a court).

As early as NSW v Commonwealth (‘Wheat Case’) (1915), the HCA decided that the strict insulation of judicial power was a fundamental principle of the Constitution.

Under s 101 of the Constitution, there was to be an Interstate Commission. When it came into being after the ISC Act 1912 (Cth), the HCA held that the Act was invalid because it purported to invest the Commission with ‘judicial power’.

This was so even though s 101 of the Constitution proclaims that the Commission is to have ‘such powers of adjudication and administration as the Parliament deems necessary.’

New South Wales v Commonwealth (Wheat Case) (1915) 20 CLR 54

Chapter III [of the Constitution] is headed “the Judicature” and vests the judicial power of the Commonwealth not in the sovereign simply, or as he may in Parliament direct, but in specific organs, namely, Courts strictly so called.

They are the High Court, such other federal Courts as parliament creates, and such other Courts as it invests with federal jurisdiction.

There is a mandate to create a High Court; there is a discretionary power to create other federal Courts; and there is a discretionary power to invest with

20

21federal jurisdiction such Courts as Parliament finds already in existence, that is, State Courts.

But that exhausts the judicature.

The distinct command of the Constitution is that whatever judicial power - that is, in the contrasted sense - is to be exerted in the name of the Commonwealth, must be exercised by these strictly so called judicial tribunals.

…

The Constitution provided for the possible establishment of a novel administrative and consultative organ with incidental quasi-judicial functions.

But the powers of the Commission went beyond this:

Inter-State Commission Act 1912 (Cth), Pt 5 –“Judicial Powers of the Commission”

Hear and determine complaints and disputes Grant remedies including damages and injunctions

Isaacs J found, however, that the Commission was not a Ch III Court.

The duty of the Commission was to actively watch the observance of laws, and insist on obedience to their mandates. A court has no such active duty: its essential feature as an impartial tribunal would be gone, and the manifest aim and object of the constitutional separation of powers would be frustrated.

On the whole I reject the notion of the Commission as a Court of Justice, and regard its quasi-judicial powers, where given, as incidental and assistant to its main and paramount purpose, as in the making of some executive order.

__________________

The reasoning in the Wheat Case was taken further in:

Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434

The original conception of the Commonwealth Court of Conciliation and Arbitration was that it should consist of only one judge, a ‘President’, who should double as a High Court justice.

The terms of this ‘President’’s removal (in the Commonwealth Conciliation and Arbitration Act 1904 (Cth)) differed from the removal terms for the HC, in that the President had renewable seven-year terms.

As s 72 of the Constitution stood in 1917, it said nothing about any limited term of office.

In 1918, the WWF alleged that an employer, J W Alexander Ltd, was in breach of an award. The employer responded by arguing that the Arbitration Court was

21

22invalidly constituted because the President’s seven-year term was incompatible with s 72 of the Constitution.

After it was found (5:2) that s 72 impliedly (then) required life tenure for federal judges, the consequential issue was whether the President (Higgins J), appointed to the Arbitration for seven-year terms, could validly discharge:

1. its arbitral functions, including the making of awards; and 2. its judicial functions, including the enforcement of awards.

Held that the arbitral functions were validly conferred (6:1), but the judicial functions were not (4:3).

Isaac and Rich JJ

Essential difference is that:

judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted; whereas the functions of the

arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what in the opinion of the arbitrator what ought to be the respective rights and liabilities of the parties in relation to each other.

The two functions are therefore quite distinct: the arbitral function is ancillary to the legislative function, and provides the factum upon which the law operates to create the right or duty.

The judicial function is an entirely separate branch, and first ascertains whether the alleged right or duty exists in law, and, if it binds it, then proceeds if necessary to enforce the law.

Enforcement is the distinction. Arbitral findings can only be enforced by courts.

[Changes were made to the ‘Court’ after the decision, abandoning the seven year terms and restoring its enforcement powers. However, this would not solve the problem at all, because arbitral and judicial functions must be kept separate.]

________

The combined effect of the two propositions that:

1. The ‘judicial power’ (to be defined) of the Commonwealth cannot be vested in any tribunal other than a Ch III court; and

2. A Ch III court cannot be invested with anything other than judicial power (except for those ancillary powers that are strictly incidental to its functioning as a court).

is that judicial and non-judicial power cannot be mixed up in the same tribunal. This is what the Boilermakers case held.

22

23 R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers)

(1956) 94 CLR 254

The Metal Trades Employer’s Assocation sought to enforce a no-strike clause in an award. The Arbitration Court had made an order requiring the union to comply with the award, and a further order fining the union for contempt of court by reason of disobedience to the earlier order.

Held that: the vesting of judicial power in a body also exercising non-judicial power was unconstitutional.

Dixon CJ, McTiernan, Fullagar and Kitto JJ

It is beyond the competence of the Parliament to invest with any part of the judicial power any body or person except a court created pursuant to s 71 and constituted in accordance with s 72 or a court brought into existence by a state.

Ch III is an exhaustive statement of the manner in which the judicial power of the Cth is or may be vested.

The Arbitration Court is established as an arbitral tribunal which cannot constitutionally combine with its dominant purpose and essential functions the exercise of any part of the strictly judicial power of the Commonwealth...Ch III does not allow powers which are foreign to the judicial power to be attached to the courts created by or under that chapter for the exercise of the judicial power of the Commonwealth.

The name ‘Arbitration Court’ is irrelevant. This was not a Ch III Court.

Judicial power found to include enforcement, and the adjudication of pre-existing rights.

In 1956, Boilermakers was a 4:3 decision, and in later decades, the necessity for its rigid quarantining of judicial from non-judicial powers remained controversial.

There has been a change in the essential rationale behind the doctrine recently. In the case, an essential rationale was the need to insulate from political interference the special judicial responsibility for ‘the maintenance of the Constitution’. There has been a shift towards treating the courts as bulwarks or bastions of individual liberty, thereby implying that their role in policing constitutional limits on government has as much to do with the protection of individual freedom as with the federal distribution of powers.

Nowadays, it is on this basis, rather than that of federalism that the Boilermakers doctrine is most frequently upheld.

Another example:

Lane v Morrison [2009]

Establishment of a court, to be known as the ‘Australian Military Court’.

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24Provision stated that it was not a court for the purposes of Ch III of the Constitution.

Also, appointment of judges (eg 10 year terms, resigns along with defence identity) not in accord with s 72 of the Constitution.

Their decisions were binding, final and conclusive: this was an exercise of judicial power.

Inconsistent with the Boilermakers’ Principle.

R v Quinn; ex parte Consolidated Foods Corporation (1977)

Court held that the power of the Registrar of Trade Marks to order the removal of a trademark from the register did not involve judicial power. Constitution protects that rights are determine by a judiciary independent from parliament and the executive- basic rights, fundamental to freedom.

SEPARATION OF STATE JUDICIAL POWER

While there is a strong textual and structural basis for the separation of powers in the Commonwealth Constitution, the same is not true of the State constitutions.

It was held in Clyne v East (1967) that the separation of powers is not constitutionally entrenched in the Constitution Act 1902 (NSW).

Kirby J: ‘far from providing a constitutional protection, separation and entrenchment of the judiciary...the Constitution Statute and Constitution Act both specifically contemplated that, in respect of New South Wales, power would be held by the legislature not just to impinge upon courts and the judicial function but even to abolish, alter or vary such courts.

The protections of judicial independence now entrenched in the New South Wales Constitution were insufficient to furnish either the textual indicia of a strict constitutional insulation of judicial independence, or the long established historical tradition of such insulation, which were found for the Commonwealth of Australia in the Boilermakers’ Case.

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

No separation of powers at the state level. It remains true (from Clyne v East) that the structure and provisions of the Constitution Act 1902 (NSW) provide no ground for importing into it a principle of separation of powers.

The decision in Liyanage v R [1967] could not be relied upon, because although the Ceylon Constitution was silent on the vesting of judicial power, it merely rested in another source where it had lain for more than a century (the Charter of Justice 1833).

No basis could be found in the provisions of the Constitution Act 1902 (NSW) for isolating judicial power from the other powers of the government.

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25DEFINING JUDICIAL POWER

One reason for the absence of direct challenges to the Boilermakers decision is that, in practice, it has often been circumvented. The definitions of what does and does not constitute ‘judicial power’ are sufficiently imprecise to allow a significant measure of pragmatic flexibility.

Traditional definition:

The words ‘judicial power’ as used in s 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and itself and its subjects, whether the rights relate to life, liberty or property.

The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision, (whether subject to appeal or not) is called upon to take action.

Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330

‘The concept seems...to defy, perhaps transcend, purely abstract conceptual analysis.’ (Windeyer J in Tasmanian Breweries).The imprecise nature of this, and other, definitions has meant that tribunals whose functions might seem to overlap with ‘judicial power’ have nonetheless sometimes been regarded as validly constituted if the particular grant of power is appropriately tailored to the legislation purpose.

A good example of the overlap:

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361

Functions of the Trade Practices Tribunal were found not to involve judicial power and were thus validly conferred.

Power: to determine that an agreement or practice was ‘contrary to the public interest’.

One index of judicial power is the application of ‘standards’. Extreme examples such as ‘tyrannical’ give ‘more the impression of an attempt to afford some guidance in the exercise of what one may call an industrial discretion than to provide a legal standard governing a judicial decision.’

Here, ‘contrary to public interest’ embodied considerations much further removed from traditional judicial concepts than those which the words ‘just and equitable’ express when applied in a controversy between the parties.

The generality of the term prevents its providing objectively determinable criteria.

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26More an exercise of a legislative or administrative function of government rather than of the judicial power.

Kitto J

It has not been found possible to frame an exhaustive definition of judicial power.

The uncertainties that are met with arise generally, if not always, from the fact that there is a “borderland in which judicial and administrative functions overlap”, so that some powers which may appropriately be treated as administrative when conferred on an administrative functionary may just as appropriately be seen in a judicial aspect and be validly conferred upon a federal court.

The conclusion is that the powers entrusted to the Tribunal are essentially non-judicial.

Judicial power involves:

A decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons.

The process to generally be followed must generally be an inquiry concerning the law as it is and the facts as they are,

followed by an application of the law as determined to the facts as determined;

and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.

__________

While ‘judicial power’ may have a number of indicia (for example, that it is exercised with judicial fairness and detachment), none of these indicia is by itself decisive.

Whether a power can be said to be judicial depends upon the indicia found in the power being weighed up against those which are absent, or against any other indicia to the contrary.

Indicia of Judicial Power

The existence of a controversy between parties (individuals and/or governments). Chapter III requires that there be a ‘matter’.

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27 Adjudication upon existing rights (e.g. rights concerning life, liberty or

property), according to existing law.

An inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined.

The manner in which the functions are performed (i.e. with fairness and detachment), the application of rules of evidence, standards of proof, etc.

The making of a binding and authoritative decision (which may be subject to appeal), which is enforceable.

Appeals to a court on questions of law (as opposed to a de novo hearing in a court).

The exercise of functions which are exclusively judicial in nature, such as finding that a person is guilty of a criminal offence, and sentencing the person.

The power to give certain types of relief (e.g. damages, injunctions etc.)

A court has a duty to act: whatever other discretions it may have, it typically lacks discretion both in the sense that it cannot embark on action of its own initiative but must wait until a claim is filed or an application is made, and in the sense that it then must determine the issues raised by that claim or application.

JUDICIAL POWER AND NON-JUDICIAL TRIBUNALS

Federal Commission of Taxation v Munro (1926) 38 CLR 153

Isaacs J pointed out that the concept of judicial power includes enforcement: the capacity to give a decision enforceable by execution.

Brandy v HREOC (1995) 183 CLR 245

Sharp reminder of the limits on the extent to which ‘overlap’ of administrative and judicial functions will be tolerated.

Amendments in 1992/3 to the Racial Discrimination Act 1975 (Cth) were unanimously found to be invalid.

Before the amendments, the HREOCommission was empowered to make ‘determinations’ in response to complaints of racial discrimination, and the respondents to such determinations might voluntarily choose to comply.

However, in the absence of voluntary compliance a successful complainant had no direct means of enforcing the Commission’s determination. Instead, a complainant had to make a fresh application to the Federal Court, which, after a complete rehearing, could make such orders as it thought fit.

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28The amendments were drafted to save procedure wastage.

Under s 25ZAB of the [Amended legislation] a determination was to have effect ‘as if it were an order made by the Federal Court’.

Both joint judgements in Brandy’s Case made clear that before the 1992 amendments, although the Commission’s ‘determinations’ had many of the hallmarks of judicial power, the fact that they were not directly enforceable had been a saving factor.

The power to make an unenforceable determination was not ‘judicial’ and could thus validly be entrusted to an administrative body.

However, by providing machinery for direct/automatic enforcement of the determinations, the 1992 amendments had removed the one factor which had rendered the determinations non-judicial.

Deane, Dawson, Gaudron and McHugh JJ

Caveats: It is hard to point to any essential or constant characteristic.

Moreover, there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not.

While the finding of facts and making of value judgments, even the formulation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power.

Starting point = Huddart, Parker and Co Pty Ltd v MooreheadThe concept of judicial power in terms of the binding and authoritative decision of controversies between subjects or between subjects and the Crown made by a tribunal which is called upon to take action.

Another important element: it determines existing rights and duties and does so according to law. I.e. it does so by the application of a pre-existing standard rather than by the formulation of policy or the exercise of an administrative discretion.

There is one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal: the enforceability of decisions given in the exercise of judicial power.

The remedies which the Commission may award include damages as well as declaratory or injunctive relief and, according to whether they may be viewed as punitive or otherwise, make its functions closely analogous to those of a court in dealing criminal or civil cases.

As Isaacs J said in Munro, the punishment of crime or the trial of actions for breach of contract or for civil wrongs is ‘appropriate exclusively to judicial action.’

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29If it were not for the provisions providing for the registration and enforcement of the Commission’s determinations, it would be plain that the Commission does not exercise judicial power. That is because, under s 25Z(2), its determination would not be binding or conclusive between any of the parties and would be unenforceable. That situation is reversed by the registration provisions.__________

Brandy limited the capacity of the federal Parliament to establish non-judicial tribunals with effective powers of dispute resolution.

The decision stopped the proliferation of non-judicial bodies and was a factor in the creation of a Federal Magistrate’s Court.

This effect of the case is arguably at odds with the economic and social imperative for the informal, speedy and cost-effective resolution of some disputes.

On the other hand, to allow the functions of a court to be vested in tribunals may undermine a person’s right to a fair hearing by a properly constructed judicial body.

Exceptions to Boilermaker’s

Boilermakers Principle:

1. The judicial power of the Commonwealth cannot be vested in any tribunal other than a Ch III Court; and

2. A Ch III Court cannot be invested with anything other than judicial power (except for those ancillary powers that are strictly incidental to its functioning as a court).

Judicial and non-judicial power cannot be mixed up in the same tribunal.

Two major exceptions to the Boilermakers principle have assumed general importance.

1. The assignment of judicial functions to administrative officers (by delegation under continuing judicial supervision); (we need not consider) and

2. The assignment of non-judicial functions to judges (as personae designatae, i.e. in their personal capacity).

Note: this latter exception has given rise to another doctrine - an exception to the exception - forbidding the assignment to any judges exercising federal judicial power of functions incompatible with the exercise of federal judicial power.

This incompatibility doctrine has no emerged as a separate limitation on the functions that may validly be assigned to judges, supplementing and perhaps even supplanting in some respects the ‘separation of powers’ doctrine itself.

‘Persona designata’ Rule

Although it is impermissible to supplement the judicial functions of a federal judge by adding non-judicial functions, a person who happens to be a federal

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30judge may validly be appointed or assigned to perform non-judicial functions provided that the appointment or assignment is addressed to the individual person.

Such functions may be conferred even if federal judicial tenure is the criterion by which that person was selected.

Clear example:

Davies J (of the Federal Court) validly appointed also as Deputy President of the Administrative Appeals Tribunal (AAT):

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

The argument that it was constitutionally impermissible for Davies J to be appointed a Deputy President of the AAT confuses:

a. the appointment of a person, who has the qualification of being a judge of a court created by the Parliament, to perform an administrative function; with

b. the purported investing of a court created under Ch III of the Constitution with functions which are properly administrative in their nature.

This was a personal appointment, which could only happen if he held one of a number of designated qualifications.

There is nothing in the Constitution which precludes a justice of the HCA or any Ch III court from, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi-judicial in their nature.

Such an appointment does not involve any impermissible attempt to confer upon a Ch III court functions which are antithetical to the exercise of judicial power.

Indeed, it does not involve conferring of any functions at all on such a court.

___________

First significant application of the doctrine:

Hilton v Wells (1985) 157 CLR 57

Federal Police investigation into allegations of police bribery and corruption in early release of prisoners.

Evidence was obtained by telephone tapping pursuant to warrants issued by judges of the Federal Court under s 20 of the Telecommunications (Interception) Act 1979 (Cth) which authorised the issue of such warrants by ‘a Judge’, meaning ‘a Judge of the FCA, ACTSC, or state SCs’ under s 18.

In a challenge to the admissibility of the phone-tapping evidence, it was argued that s 20 of the Act was unconstitutional. The challenge failed.

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31Gibbs CJ, Wilson and Dawson JJ

The question is whether s 20 confers powers on the Federal Court (inter alia), or on the judges individually as designated persons.

Appears clearly from authority that where a power, judicial or non-judicial, is conferred by statute upon a court or a judge, it is not necessarily conferred on the court or the judge as such - the question is one of construction.

Where the power is conferred on a court, there will ordinarily be a strong presumption that the court as such is intended.

Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to ‘judge’ rather than ‘court’ indicates that the power was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it.

Even if they say ‘judge’, the presumption that he will determine it as a member of the court to which he belongs can be rebutted, as it is here.

Since when s 20 uses ‘judge’ it has the possibility of referring to a designated person, it is unlikely they would use ‘judge’ as such to confer power on the court.

s 20 confers no power on the Federal Court and does not infringe the rule laid down in Boilermakers.

If the nature or extent of the functions cast upon judges were such as to prejudice their independence or to conflict with the proper performance of their judicial functions, the principle underlying the Boilermakers case would doubtless render the legislation invalid.

s 20 designates the judges as individuals particularly well qualified to fulfil the sensitive role that the section envisages, and confers on them a function which is not incompatible with their status and independence or inconsistent with the exercise of their judicial powers.

s 20 of the Telecommunications (Interception) Act is a valid enactment of the Commonwealth Parliament.

____________

The Telecommunications (Interception) Act was subsequently amended in 1987 to make it clear that the judge who authorised a telephone tap was doing so as a persona designata.

The validity of the new provisions was considered by the HCA in:

Grollo v Palmer (1995) 184 CLR 348

What was now considered more anxiously was whether the performance of such a role in the criminal investigation process was compatible with judicial office even for a persona designata.

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32Brennan CJ, Deane, Dawson and Toohey JJ:

The conception of persona designata has been invoked when the vesting of a non-judicial power, which could not be vested in a court consistently with Ch III of the Constitution, has been supported as a vesting of the power in individual judges detached from the courts they constitute.

The conditions expressed on the power to confer non-judicial functions on judges as designated persons are twofold:

1. no non-judicial function that is not incidental to a judicial function can be conferred without the judge’s consent.

2. no function can be conferred that is incompatible either with the judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power.

The ultimate question remains whether a particular extrajudicial assignment undermines the integrity of the Judicial Branch.

The incompatibility condition may arise in a number of different ways:

so permanent and complete a commitment to the performance of non-judicial functions by a judge that the further performance of substantial judicial functions by that judge is not practicable, or

the performance of non-judicial functions of such a nature that the capacity of a judge to perform his or her judicial functions with integrity is diminished, or

the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished.

It is an eligible judge’s function of deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible judge from the executive function of law enforcement. It is the recognition of that independent role that preserves public confidence in the judiciary as an institution.

____________

In 1996, the ‘incompatibility’ doctrine was extended considerably further in...

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1

The incompatibility doctrine was applied to invalidate the appointment of Justice Jane Mathews, a judge of the Federal Court, to prepare a report under s 10 of the ATSI Heritage Protection Act 1984 (Cth) in relation to the Hindmarsh Bridge development.

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33Matters to be dealt with included ‘the particular significance of the area to Aboriginals’ and ‘the extent of the area that should be protected.’

HCA held that the formation of opinions and the giving of advice involved in the making of the report were incompatible with the constitutional independence of the judiciary from the executive government.

The doctrine did not operate directly to invalidate Justice Mathews’ appointment, to vacate her office or to render her report a nullity. The doctrine operates primarily as a limit on federal legislative power.

Thus, in a case where a federal statute specifically authorises the appointment of a judge to undertake functions ‘incompatible’ with judicial office, the statutory provision authorising such an appointment would be invalid. The invalidity of any purported appointment would be merely consequential on the invalidity of the empowering statute.

In this instance, however, the statute made no specific provision: the reporter was identified merely as a ‘person’ nominated by the Minister. In its natural meaning a ‘person’ would include a judge.

However, since the nomination of a judge would be unconstitutional, the word ‘person’ must be read down, so as not to include a judge.

Thus construed, the provision was not invalid, but it never authorised the appointment of Justice Mathews.

Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ

The relevant category of incompatibility (from Grollo v Palmer):

‘the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her duties with integrity is diminished.’

Public confidence in the independence of the judiciary is achieved by a separation of the judges from the persons exercising the political functions of government, so no functions can be conferred on a Ch III judge that would breach that separation.

The determination of the competing interests of Aboriginal applicants and others whose pecuniary or proprietary interests are affected is essentially a political function. Decisions to be made might have to be in accordance with ministerial policy.

The separation of the Ch III judge acting as reporter from the Minister has been breached. The function of reporting is therefore incompatible with the holding of office as a Ch III judge.

Questions to ask:

1. Is the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government?

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34If it is not closely connected with the functions of the Legislature or the Executive Government, then no constitutional incompatibility appears.

2. Is the function required to be performed independently of any instruction, wish or advice of the Legislature of the Executive Government?

If no, the separation has been breached. This breach invalidates the conferral of the function.

If it must be performed independently, then ask...

3. Is any discretion purportedly possessed by the Ch III judge to be exercised on political grounds, that is, on grounds that are not confined by factors expressly or impliedly prescribed by law?

Another factor: while the presence of a judicial manner of performance is not necessarily indicative of compatibility with holding judicial office under Ch III, its absence makes it unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion.

Implications Arising From ChIII

Bills of Attainder and retrospective criminal laws

bills of attainderLegislation providing for punishment without trial.

Punishment by death.

US Constitution, Art 1, s 9 says no bill of attainder shall be passed.

The Commonwealth Constitution has no equivalent provision.

RETROSPECTIVE CRIMINAL LAWSApplies to actions in the past.

Danger that this might lead to a situation where the Parliament, rather than the courts, punishes certain conduct and certain people.

Similarly, no equivalent Commonwealth Constitution provision.

Polyukhovich v Cth

War Crimes Act in such terms as: any person who between 1.9.39 and 8.5.45….committed a war crime is guilty of an indictable offence.

The test:

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35If, for some reason, an ex post facto law did not amount to a bill of attainder, yet adjudged persons guilty of a crime or imposed punishment upon them, it could amount to a trial by legislature and a usurpation of judicial power. But if the law, though retrospective in operation, leaves it to the courts to determine whether the person charged has engaged in the conduct complained of and whether that conduct is an infringement of the rule prescribed, then there is no interference with the exercise of judicial power.

Mason CJ, Deane, Gaudron and McHugh JJ all supported the view that a bill of attainder would be invalid, because Parliament would be adjudging guilt.

Toohey J’s narrow finding (that in its application to this information against this accused, the Act was not retrospective “in any offensive way”, murder being a universal crime) meant that the legislation survived challenge 4:3.

No clear majority on whether retrospective legislation is valid or not. Mason CJ followed Kidman (1915). In the end, only 3 of 7 said retrospective legislation was valid, Brennan and Toohey JJ not addressing it.

ARBITRARY DETENTIONHCA has acknowledged that determining whether someone should be detained is generally a Q for the courts.

Theme of these cases: how broad are the exceptions? I.e. where can the executive validly detain?

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1

HCA substantially upheld the validity of amendments to the Migration Act 1958 (Cth) providing for the detention in custody of two groups of asylum seekers specifically targeted by the amendments.

The provisions would have been invalid if applied to Australian citizens: Brennan, Deane and Dawson JJ formulated a broad constitutional principle that:

*the involuntary detention of a citizen in custody may only be ordered by a court, and in consequence of a finding of criminal responsibility.*

There are some qualifications which must be made to the general proposition that the power to order that a citizen be involuntarily confined in custody is…entrusted exclusively to Chapter III Courts:

arrest and detention in custody, pursuant to executive warrant, of a person accused of crime to ensure that he or she is available to be dealt with by the courts. This committal to custody is not seen by the law as punitive or as appertaining exclusively to judicial power.

mental illness infectious disease traditional powers of Parliament to punish for contempt and of military

tribunals to punish for breach of military discipline

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36Otherwise, the citizens of this country enjoy, at least in times of peace, a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth.

This didn’t help the plaintiffs in this case because:

While an alien who is actually within this country enjoys the protection of our law, his or her status, rights and immunities under that law differ from the status, rights and immunities of an Australian citizen in variety of important respects, the most important being…the vulnerability of the alien to exclusion or deportation.

The effect is to significantly diminish the protection which Chapter III of the Constitution provides, in the case of a citizen, against imprisonment otherwise than pursuant to judicial process.

The power of the parliament includes authorizing the Executive to detain an alien in custody to the extent necessary to make the deportation effective.

This authority is neither punitive nor part of the judicial power of the Commonwealth.

The legislative power is conferred on the executive by s 51(xix) of the Constitution, allowing to deport, and detain for that purpose.

DETAINING SOMEONE PRIOR TO DEPORTATION = NON-PUNITIVE

Test developed:

“Legislative provisions requiring immigration detention will be valid laws if the detention which they require and authorize is limited to what is ‘reasonably capable of being seen as necessary for the purposes of’ deportation or necessary to enable an application for an entry permit to be made and considered”

Protective detentionIn Lim, Brennan, Deane and Dawson JJ saw ‘involuntary detention of a citizen in custody by the State as penal or punitive in character’, arising ‘only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt’, they noted a number of exceptions, including involuntary detention in cases of mental illness or infectious disease.

Kruger v Commonwealth (Stolen Generations) (1997) 190 CLR 1

Argued that the removals by the Chief Protector, as authorized under the [Aboriginals Ordinance 1918 (NT)] had involved ‘involuntary detention’ of a kind that, according to Lim and Kable, could only be ordered by a court, and hence that they had entailed an exercise of Commonwealth judicial power otherwise than by a Chapter III court.

Plaintiff’s argument rejected on the grounds that the ostensible concern of the Ordinance with Aboriginal welfare precluded any finding that the forced removal and institutional confinement of Aboriginals was ‘punitive’. Thus, any finding that it fell within the constitutionally sensitive category of ‘involuntary detention’ which requires the decision of a [Ch III] court was also precluded.

Toohey J

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37In Lim, Brennan, Deane and Dawson JJ spoke of

the general proposition that the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts.

* There are qualifications to the general proposition such that it cannot be said in absolute terms that the power to detain in custody is necessarily an incident of judicial power.

Judged by current standards, the involuntary detention of an Aboriginal pursuant to such a provision as s 16 of the Ordinance could hardly be brought within any of the recognized exceptions to the general proposition. Conscious of this, the Commonwealth submitted that the welfare and protection object of the legislation must be judged by the values and standards prevailing at the time.

A welfare purpose is evident in the legislation, at odds with the notion that the powers conferred by the Ordinance are of themselves punitive and necessarily involve the exercise of judicial power.

Gummow J

Reasonably capable of being seen as necessary for a legitimate non-punitive purpose (the welfare and protection of those persons) rather than the attainment of any punitive objective.

immigration detentionAl Kateb v Godwin (2004) 219 CLR 562

Al-Kateb arrived into Australia without a passport or visa. He was taken into detention.

When his protection visa application failed, s198(6) of the Migration Act required an officer to remove as soon as reasonably practicable an unlawful non-citizen.

However, he was ‘stateless’, and no state would take him.

He claimed he was being unlawfully detained.

HC held:

As a matter of statutory construction, the Migration Act authorizes detention even if a detainee has no prospect of being removed from Australia in the reasonably foreseeable future.

The Act was within Commonwealth legislative power.

Difference between majority/minority: whether the provisions were clear, such that the legality presumption (seen in Evans v NSW (WYD)) would apply. Here, provisions were clear, and it was not a punitive detention.

Whatever criticism some Australians make of such laws, their constitutionality is not open to doubt.

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38Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486

Behrooz, sought to argue that ‘if the conditions of detention are so obviously harsh as to render them punitive, then the detention went beyond that authorized by the act.’

No warrant for this conclusion.

For an alien, the detention is an incident of the exclusion and deportation to which he is vulnerable.

An assault in a detention centre may give rise to criminal or tortious liability, however it does not change the nature of the detention, which is still not for a punitive purpose.

[Two months later, the HC rejected another attack on mandatory immigration detention, this time from a different angle…]

Re Woolley; Ex parte Applicants M276/2003 (2004) 210 ALR 369

Argued that the regime of mandatory detention set out in the Migration Act did not apply to children.

Unanimously rejected: act expressed in clear terms, no exceptions being made for children.

Case demonstrated some opposition and criticism to the Lim test. However, it has continued to be used:

McHugh J preferred to follow Gaudron in Kruger:

It is not possible to say that, subject to clear exceptions, the power to authorize detention in custody is necessarily and exclusively judicial power.

The object for which the law authorizes or requires the detention of a person is an even stronger indication of whether the detention is penal or punitive in nature.

It is the purpose of the law that authorizes detention that is the ‘yardstick’ for determining whether the law is punitive in nature. Hence, the issue of whether the law is punitive or non-punitive in nature must ultimately be determined by the law’s purpose, not an a priori proposition that detention by the Executive other than by judicial order is, subject to recognized or clear exceptions, always punitive or penal in nature.

He explains the clear exceptions by relation to the purpose of protection.

CHARACTERISING AS PUNITIVE DEPENDS ON LOOKING AT THE PURPOSE OF THE LAW, NOT JUST SAYING THAT EXECUTIVE DETENTION IS AUTOMATICALLY PUNITIVE

What, then, is the appropriate test or principle for determining whether a law of the Parliament infringes Ch III of the Constitution when it

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39authorizes the Executive to detain an alien - or for that matter a citizen - without an order made in the exercise of judicial power?

A law that authorizes detention will not offend the separation of powers doctrine as long as its purpose is not punitive.

If imprisonment goes beyond what is reasonably necessary to achieve the non-punitive object, it will be regarded as punitive in character.

Rejected any test of ‘reasonably necessary’ or ‘reasonably capable of being seen as necessary’ for the achievement of a non-punitive purpose because ‘questions of proportionality do not arise in the Ch III context.’

LIM TEST STILL APPLIES, despite mounting criticism.

preventive detention

Evolution of the Incompatibility DoctrineBoilermakers treated Ch III of the Constitution as excluding any combination of non-judicial power with the judicial power of the Commonwealth.

Hilton v Wells accepted an exception to the Boilermakers principle: a federal judge can be appointed to perform non-judicial functions provided that those functions can be construed as assigned to the individual as a persona designate and not in the judicial capacity.

Grollo v Palmer recognized an exception to the exception: the persona designate doctrine does not apply if the functions to be performed are ‘incompatible’ with the holding of judicial office.

Wilson v Minister for ATSIA applied this principle to invalidate the appointment of Justice Jane Mathews as a reporter under the ATSIHP Act.

In Wilson, the ‘incompatibility doctrine’ was treated merely as an exception to the permissible use of the persona designate device.

However, in Kable v DPP, the reach of the incompatibility doctrine was greatly extended in a cases where no suggestion of appointment as personae designatae were involved.

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

Community Protection Act 1994 (NSW) s 5 empowered the Supreme Court of NSW to make ‘preventive detention orders’.

Under s 3(1), the provision was only for Gregory Wayne Kable.

It was held that the Act thus conferred on the Supreme Court an ‘incompatible’ function.

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40One argument depended on a ‘legislative usurpation of judicial power’, but that failed because the NSW Constitution has no strict separation of powers (Clyne v East)

Instead, a majority of the HCA invoked the ‘incompatibility doctrine’, holding that the function conferred onto the NSWSC by the CPA was ‘incompatible’ with its exercise of federal judicial power. The point was not that the Act was an inappropriate exercise of (State) legislative power, but that the function assigned to the Supreme Court was incompatible with the exercise by that court of (federal) judicial power.

Toohey J

* The issue as presented by the appellant was not one of judicial versus legislative/executive power but of incompatibility with the essence of judicial power. (diff to Boilermakers ).

In the present case, the Act requires the Supreme Court to exercise the judicial power of the Commonwealth in a manner which is inconsistent with traditional judicial process.

The act is unique and extraordinary, in that it does not define a class or category, and only has consequences for one person.

In Grollo v Palmer the Court held that the vesting in designated judges of the Federal Court of the power to issue interception warrants was not incompatible either with the judge’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power.

The Act answers that aspect of incompatibility which was defined in Grollo as ‘the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution is diminished.’

Gaudron J

State courts, when exercising federal jurisdiction ‘are part of the Australian judicial system created by Ch III of the Constitution and, in that sense and on that account, they have a role and existence which transcends their status as courts of the State.’

Ch III requires that the Parliaments of the States do not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth.

The Boilermakers doctrine prevents the Parliament of the Commonwealth from conferring judicial power on bodies other than courts and prevents it from conferring any power that is not judicial power or a power incidental thereon on the courts specified in s 71 in the Constitution.

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41It also prevents the Parliament from conferring functions on judges in their individual capacity if the functions are inconsistent with the exercise of judicial power in the sense explained in Grollo v Palmer.

Although the limitation is one relating to the conferral of powers on courts, rather than on judges in their capacity as individuals, it is, nevertheless, one that is closely related to the limitation on Commonwealth power to confer functions on judges on this and other federal courts in their capacity as individuals. In both cases, the limitation derives from the necessity to ensure the integrity of the judicial process and the integrity of the courts specified in s 71.

So was the power purportedly conferred on the SC by the Act repugnant or incompatible?

These proceedings are not proceedings otherwise known to the law. Except to the extent that the Act attempts to dress them up as legal proceedings, they do not in any way partake of the nature of legal proceedings.

They are directed to the making of a guess - perhaps an educated guess but a guess nonetheless.

Depriving liberty, not because of a breach of law, but because an opinion is formed. That is the antithesis of the judicial process, one of the central purposes of which is to protect ‘the individual from arbitrary punishment and the arbitrary abrogation of rights by ensuring that punishment is not inflicted and rights are not interfered with other than in consequence of the fair and impartial application of the relevant law to facts which have been properly ascertained.’

It is not a power that is properly characterized as a judicial function, notwithstanding that it is purportedly conferred on a court and its exercise is conditioned in terms usually associated with the judicial process.

By being dressed up as proceedings involving the judicial process, they make a mockery of that process, weaken public confidence in the process, which is a defining feature of the judicial power of the Commonwealth, and so the Act weakens confidence in the institutions which comprise the judicial system brought into existence by Ch III of the Constitution.

McHugh J

Legislatures cannot alter or undermine the constitutional scheme set up by Ch III

Courts exercising federal jurisdiction must be perceived to be free from legislative or executive interference

Although NSW has no entrenched doctrine of the separation of powers and although the Commonwealth doctrine of separation of powers cannot apply to the state, in some situations, the effect of Ch III may lead to the same result as if the State had an enforceable doctrine of separation of powers.

This Act has the tendency to undermine public confidence in the impartiality of the NSWSC.

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42KABLE PRINCIPLEA State Parliament cannot confer on a State court that exercises federal jurisdiction powers that are incompatible with the exercise of federal judicial power.

Relevant Points

State courts can exercise federal jurisdiction (the ‘’autochthonous expedient”)

Ch III establishes an integrated Australian court system The NSWSC was exercising federal jurisdiction in Kable (because in initial

stages, a constitutional argument was being relied on) Incompatibility principle extended to State Courts Kable principle is different to the Boilermakers principle.

RETREAT FROM THE KABLE PRINCIPLEBest sign of retreat:

Fardon v A-G (QLD) (2004) 210 ALR 50

Law in question:

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)

This Act authorised ‘interim detention orders’ under s 8 and ‘supervision orders’ or ‘continuing detention orders’ under s 13 to be made by QSC in relation to a ‘prisoner’. I.e. someone currently serving a sentence for serious sexual offence.

Involved a psychiatric assessment determining likelihood of reoffending; able to enforce continuing sentence if found to be so.

Fardon sentenced to 14 years for rape, sodomy and assault. Interim decision made pending his imminent release ordering a ‘continuing detention order’. Question was this valid?

Held:

Gummow J

No sharp line can be drawn between detention that is punitive and detention that is not.

Other majority judgements emphasised the difference b/w the rigorous requirements under Ch III for the exercise of judicial power and weaker requirements under Kable at State level. Fardon finds that a law which would be invalid @ federal level may still be valid @ state level.

Callinan and Heydon JJ

Court did NOT hold in Kable that a state supreme court was the same as a federal court est. under Ch III of Cth. Fed. Judicial power is not identical w/ state judicial power. Test of whether would infringe Ch III is useful, it is not the exclusive test.

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43 Six majority judges held that no doubt the detention procedures established by the Act were valid.

Gleeson CJ: The decision in Kable established the principle that, since the Cth established an integrated system of Aus courts, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which impairs its integrity and which is incompatible with its role as a repository of federal jurisdiction, is invalid. Damaged impartiality of the court which drew in substance what was a political exercise.

Act authorises and empowers the SC to act in a manner which is consistent with its judicial character. Many laws enacted by parliaments and administered by courts are the outcome of political controversy and reflect controversial political decisions. Much law is the outcome of political action.

McHugh J

The legislation that court declared invalid in Kable was extraordinary. It was ad hominem legislation to ensure Kable remained in prison. Difference b/w these two Acts is substantial. This Act directed at all persons serving sentence for serious sexual offence, not just one individual. Act is designed not to punish the prisoner, but to protect the community.

Kable = a decision of very limited application.

Kirby J (sole dissent)

The Kable principle has so far proved a weak protection against state legislation said to have intruded into the judicial function. State courts must remain at all times crucial receptacles proper to the exercise of federal jurisdiction. Kable principle forbids attempts of State Parliaments to impose on courts, namely supreme courts, functions that would oblige them to act in relation to a person “in a manner inconsistent with traditional judicial process”. Kirby also argued that continuing detention would involve retroactive punishment.

Was upheld as valid.

K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4

Application for an entertainment venue license.

Question for the commission was whether the applicant was a ‘fit and proper’ person.

Initial decision: refused application on basis of information classified by police.

K-Gen appealed for merits review in Sth Australia.

Adverse information could not be disclosed because of s 28A Liquor Licensing Act 1997 (SA).

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44Inconsistency with procedural fairness?

no breach of the Kable principle.

Totani v State of South AustraliaLegislation that court MUST make a control order on people found to be members of a motorcycle gang. Held court was being required to act as an instrument of the executive.” It is the integration of the administrative function with the judicial function to an unacceptable degree which compromises the institutional integrity of the court.

Thomas v Mowbray (2007) 237 ALR 194

Example of a court imposing a control order (person in community but w/ conditions on liberty)

Control order would assist in preventing a terrorist act.

Police suspected on reasonable grounds that Thomas had received training from alQaeda.

Admitted to training, and police thought he was a vulnerable person susceptible to radical extremist views and beliefs. He might be used as a resource for planning a terrorist attack.

Had to stay at home from midnight to 5am.

Had to report to police 3 times a week.

Couldn’t leave Australia, no explosives, no certain communications technology etc.

Court had to be satisfied on the balance of probabilities that the order was reasonably necessary and reasonably appropriate and adapted to protecting the community from a terrorist attack.

Gummow and Crennan JJ found that the tests were identifiably legal: facts, interpretation, proportionality.

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45

The ExecutiveInstitutions

- Monarchy- Cabinet and ministers- Government departments- Independent agencies and tribunals etc

Functions

- making policy- administering laws

Executive powers

- statutory- prerogative

Formation of governments

- governor-general appoints ministers (Constitution s 64)- prime minister is leader of the party with the majority in the lower

house (convention)- appointment and removal of ministers by Governor-general on the

advice of the Prime Minister

Ministers, Cabinet and The Executive Council

Constitution

- s61: the executive power of the commonwealth is vested in the Queen and is excercisable by the governor-general as the queen’s representative

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46- s62-63: there shall be a Federal Executive Council to advise the

Governor-General in the government of the Commonwealth- s64: The Governor-General is to appoint ministers and they shall

hold office during the pleasure of the Governor-General.

Governor-General/ Governor

Powers and Functions

The executive may exercise:

the prerogative powers of the Crown (that is, the powers accorded to the Crown by the common law)

the powers derived from Australia’s status as a private nation, and the powers conferred on the executive by statute.

- ceremonial - constitutional- legislative- Reserve powers

o Appointment of the Prime Ministero Dismissal of the Prime Minister

Prime Minister loses confidence of the lower house Government engages in illegality or a fundamental

breach of constitutional principle Prime Minister cannot obtain supply. The Dismissal

Whitlam Government elected 1972 Senate in Whitlam period Loans affair Senate defers supply Prime Minister dismissed

Issues Reserve power to dismiss the Prime Minister

o Confidence of the senate required?o Could Whitlam not secure supply?

Governor General did not warn Whitlam Should the Chief Justice have advise the GG?

o Judicial or non-judicial decision?o

o Dissolution of parliament

Prerogative PowersPrerogative Power

The prerogative powers of the Crown in right of the Australian Commonwealth are nowadays regarded as incorporated in s 61.

However, they may exist independently and antecedently to it.

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47The prerogatives are best understood as having their foundation in the special powers and privileges ascribed to the Crown by the common law.

Because the prerogative powers depend on the common law, they are subject to modification by statute. This may happen in two ways:

1. A statutory regime may regulate the exercise of a prerogative power, stripping it (for example) of discretionary elements and imposing criteria and procedures by which the exercise of the power is to be controlled, while still leaving the conceptual source of the power in the prerogative.

2. A statutory regime may wholly supplant or extinguish the prerogative, so that what was formerly an inherent power of the government now depends wholly on statute.

Attorney-General v De Keyser’s Hotel [1920] AC 508

The UK government had requisitioned a hotel during WWI as HQ.

The requisition was made pursuant to regulations under the Defence of the Realm Consolidation Act 1914 (UK), which provided for compensation.

The government asserted that it had acted in the exercise of a prerogative power to take property without compensation.

Unclear whether such a prerogative had ever existed, but in any case the legislative scheme governed the matter, so compensation was payable.

Sir John Simon KC

When there exists a statutory provision covering precisely the same ground, there is no longer any room for the exercise of the Royal Prerogative.

Lord Dunedin

If the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules.

The prerogative is ‘the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown’.

Lord Atkinson

It would be useless to impose legislation on the executive if it were free to disregard it.

Lord Parmoor

Whereas at one time the Royal Prerogative have legal sanction to a large majority of the executive functions of the Government, it is now restricted within comparatively narrow limits.

____________

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48The scope of the prerogative power in Australia, and the extent to which it has been displaced by statute, were central to the Tampa controversy in 2001.

Ruddock v Vadarlis (Tampa Case) (2001) 183 ALR 1

433 boatpeople were denied entry into Australia when sick on the Tampa.

At the initial hearing, North J rejected the Government’s argument that the expulsion of non-residents from Australian waters was a ‘valid exercise of prerogative power’. North J said that it was doubtful whether the supposed prerogative power had ever existed, and that whatever was the scope of the prerogative, it had been wholly supplanted by statute (Migration Act).

His decision was reversed in the Federal Court, where it was held that the rescues had not in fact been detained, and that the executive power of the Commonwealth extended to the expulsion of the rescues and to their detention for that purpose.

French J

The executive power can be abrogated, modified or regulated by laws of the Commonwealth.

Absent statutory abrogation, the executive power would extend to a power to restrain a person or boat from proceeding into Australia or compelling it to leave.

The Act confers power on the Executive; it does not take it away. Its object is control of entry, not to confer rights upon non-citizens seeking to enter Australia.

The prospect of a successful HC appeal was foreclosed by the passing of the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth).

The Iraq war also raised prerogative questions:

The Constitution does not state who can declare war for Australia or the circumstances in which Australia might go to war.

The matter is governed by the prerogative.

NOTE: Justiciability and Judicial Review of Prerogative Powers

Before CCSU, prerogative powers were not really reviewed.

That case decided that it was not the source of the power that was important, rather the subject matter.

The Principle of LegalityPrinciple: government action requires legal support

- statute- prerogative

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49Entick v Carringtom

- Search warrant had been granted according to government practice but was not supported by any law

- Government officers committed trespass

A v Hayden

- Possible offence by ASIS officers during training exercise- “It is fundamental to our legal system that the executive has no

power to authorize a breach of the law and that it is no excuse for the offender to say that he acted under the orders of a superior officer” (Gibbs CJ p540)

- Executive has no power to authorize a breach of the law, even in pursuit of national security objectives

- Note Brennan’s question about whether statute might authorize this- “No agency of the executive government is beyond the rule of law.

Prerogative PowersDicey- the ‘residue of discretionary or arbitrary authority… legally left in the hands of the crown.

List of powers from Sir John Comyns 1800-

- The King’s prerogativeo All the liberties, privileges, powers and royalties allowed by the

law to the crown. - Prerogative as to Foreign Nation

o Dominion of the whole seao Authority to send ambassadors, envoys etco Authority to make lagues, alliances

- Prerogatives in respect of the King’s own subjects in Time of Waro Sole authority to declare war or peaceo Command of the militia and all military forces

- Prerogatives which regard times of peaceo Enacting of lawso Can’t create or abolish laws without an act of parliament.o Pardonso Erection of courts, but not without an act of parliament.

Evatt’s categories:

- Executive prerogativeso Declaring war and making peaceo Entering treaties

- Preferences, immunities and exceptionso Priority as a creditoro Immunity from court processes

- Property rightso Royal metalso Ownership of the foreshore

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50Note that prerogative powers can be modified by statute (regulated or extinguished)

A-G v De Keyser’s Royal hotel Ltd 1920

- government took possession of hotel according to Defence of Realm Regulations

- compensation was required under the statutory scheme- government claimed to act under prerogative power permitting use

of property during a war without compensation- Did the statutory scheme extinguish the claimed prerogative?

o Different approaches, no clear principle emerged. o Held that the legislative scheme must prevail, so the

compensation was payableo “The prerogative… is the ultimate resource of the executive, and

when there exists a statutory provision covering precisely the same ground there is no longer any room for the exercise of the Royal Prerogative.”

Ruddock v Vardarlis (‘Tampa’ case) 2001Migration Act, s7A (inserted Sept 2001)"The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia's borders, including, where necessary, by ejecting persons who have crossed those borders."

Commonwealth ConstitutionSection 61: The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor- General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth

Appeal from a decision of North J in Fed Ct: North J had rejected government argument that ‘expulsion of non- residents from Aust waters was a prerog power’ and held that even if it were, it had been supplanted by Migration Act. Govt appealed to Full Federal Court

Appeal allowed (2:1) French J: note differences between Executive power of the Commonwealth and royal prerogative Power is subject to the limits of federalism, the Constitution and the laws made under it Here: the issue was whether, absent statutory authority, s 61 confers upon the executive power to exclude or prevent the entry of a non-citizen to Australia?

Held :

(majority: French and Beaumont JJ): The executive power extends to a power to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion The Migration Act in this respect does not evince an intention toabrogate the power The actions of the Cth were properly incidental to preventing the rescuees from landing in Australia Black CJ dissented: of the 19th century the power to exclude aliens in times of peace was not considered to be part of the prerogative

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51Sec 61 does not provide a source of such power. The Migration Act provides comprehensively for the exclusion, entry and expulsion of aliens

Until recently, assumed that exercise of prerogative power notsubject to judicial review but clear that it is:See CCSU v Minister for Civil Service (1985): referred to in Bancoult, where HL agreed that exercise of prerogative power is subject to review on grounds of legalityNote however, issues of justiciability (see eg Stewart v Ronalds: later)

Nationhood Power1975, AAP case (Victoria v Commonwealth and Hayden), Mason J had said that while not unlimited, Cth executive power included responsibilities ‘deduced from the existence and character of the Cth as a national govt’:These included: Capacity to engage in enterprises and activities peculiarly adapted to the govt of a nation and which cannot otherwise be carried on for the benefit of the nation.The nationhood power: an aspect of Cth executive power (and note also the scope of s51(xxxix): the ‘incidental’ power)Examples: AAP: established a national network of regional councils for socialdevelopment Australian National Gallery; CSIRO; National Library; Institute ofSport etc: various national institutions The Bicentenary and the establishment of the Bicentennial Authority

Section 61: The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth Section 51: the Parliament has power to make laws with respect to:– “(xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.”

Pape v Federal Commissioner of Taxation

Legislation in response to the global financialcrisisTax Bonus for Working Australians Act (No 2) 2009 (Cth)The Act provided for payments ranging from $250 to $900 for taxpayers earning up to $100,000Applicant sought declaration that the Act was invalid

Held: executive power includes a legitimate concern with ‘nationhood’ but this aspect of the power subject to the limits of federalism

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52And, all JJs rejected the use of s81 (appropriations) as a general source of power: the power to spend must be found elsewhere in the Constitution or in statutes made under it

French CJ The exigencies of national government cannot ignore both federalismand the separation of powers (at 60) (63) The executive power extends to short-term fiscal measures to meet adverse economic conditions affecting the nation as a whole where such measures are peculiarly within the capacity and resources of the Cth government‘Short term fiscal measures’ does not equate to a general power to manage the national economyGummow, Crennan and Bell JJ21(87) Referred to Mason J in AAP case re those activities peculiarly adapted to the government of a nation and which cannot otherwise be undertaken. (89) They identified this (GFC) as a relevant ‘crisis’ (cf war, natural disaster) to which a national government might respondNb: French CJ refrained from any such identification of events that might enliven the power

Hayne and Kiefel JJ: Payments validly authorised by tax power (s51(ii)) so long aslegislation appropriately read down (121)The executive’s power to spend money is not confined to expenditures made in accordance with a law made under an enumerated head of power BUT the executive’s power to spend is not unlimited(122) They rejected the national emergency analogy Would not have upheld legislation on basis of executive powercombined with s51(xxxix)Heydon J: dissented; law invalid Rejected existence of a nationhood power

Seas and Submerged Land Case Rights and powers over sea, seabed, and airspace were vestedin the Commonwealth -confirmed by Australia emerging as an independent nationTasmanian Dams Case Nationhood power could only be used for non-coercive purposes Is confined to matters in which there is no competition withthe States

Davis v Commonwealth Nationhood power enabled Commonwealth laws forbicentenary commemoration

Nationhood power first clearly elaborated upon in Davis Concerned the Bicentennial Authority: they had by legislation

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53restricted useof symbol/logo associated with Bicentennial and therefore Davis was stopped from selling his T-Shirts “200 years of suppression and depression” as they refused consentHC: held unanimously that provision for the Bicentenary was within the executive power of the CommonwealthHeld: Mason CJ, Deane and Gaudron JJ: Character and status of the Cth extends beyond external relations (ie with other countries). The nature and status of Cth as a polity can support legislative power Bicentennial Act validBut particular ban here invalid: restricted free speech and was “grossly disproportionate” to purpose of protecting bicentenary commemorationNote : Wilson and Dawson would have limited legislative powers to those enumerated (but note s51(xxxix))

Responsibility of Executive to Parliament

There are many mechanisms for keeping the executive in check.

These include:

Controls imposed by the executive upon itself:o codes of conduct issued and enforced by the PM to regulate the

behaviour of his or her ministers. Other forms:

o laws such as the Freedom of Information Act 1982 (Cth)o scrutiny provided by officers or bodies appointed under statute:

Ombudsman Auditor-General HREOC

Decision making: subject to reviewo by a tribunal (specifically the AAT)o by a court (under the ADJR Act)o under the common law

Parliament also has a key role in holding the executive to account under the conventions of responsible government.

__________

In State Parliaments, upper Houses have also asserted a more active role in the scrutiny of government.

There are FOUR aspects of executive responsibility to Parliament:

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541. Resignation2. Questioning to Ministers3. Production of Documents ordered by the House4. Examination of Witnesses

Production of Documents

Egan v Willis (1998) 195 CLR 424

Legislative Council passed a resolution calling on Egan to table certain papers or deliver them to the Clerk.

He failed to do so, since the Cabinet had earlier agreed that Ministers should decline to comply with such orders.

He was then found guilty of contempt.

Appeal on whether the subsequent resolutions made against Egan when he refused to leave were valid.

Appeal failed, matters relating to the internal affairs of Parliament were found to be justiciable in this case though, because trespass was connected with something else.

Did the Upper House have power to force him to produce the documents?

This power was ‘reasonably necessary for the exercise of the parliamentary functions’, supervising the executive being a second function of the parliament.

Test of reasonable necessity approved.

‘While the primary role of the Parliament is to pass laws, it also has an important function to question and criticise government on behalf of the people.’

_________

A week later, he was again required to table documents. He refused again, claiming that the documents were protected by legal professional privilege or public interest immunity.

Again removed, again sued, this time on basis that he could not be required to table cabinet documents (which he said were protected by PII) and legal advice (which he said was protected by LPP).

Egan v Chadwick (1999) 46 NSWLR 563

Spiegelman CJ

The court must decide what recognition should be given to a claim for public interest immunity in the context of determining the scope of a common law power to call for documents that satisfy the test of ‘reasonably necessary for the performance’ by the Legislative Council of its constitutional functions.

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55The determination of a claim for PII requires the balancing by the court of conflicting public interests:

The high constitutional functions of the Legislative Council encompass both legislating and the enforcement of the accountability of the Executive. Performance of these functions may require access to information the disclosure of which may harm the public interest. Access to such information may, accordingly, be ‘reasonably necessary for the performance of the functions of the Legislative Council.’

However, it is not reasonably necessary for the proper exercise of the functions of the Legislative Council to call for documents the production of which would conflict with the doctrine of ministerial responsibility, either in its individual or collective dimension.

A distinction has been made between:

documents which disclose the actual deliberations within Cabinet (*in this case*) and

those which are described as ‘Cabinet documents’, but which are in the nature of reports or submissions prepared for the assistance of Cabinet.

It has never been doubted that it is in the public interest that deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made.

The evidence indicates that the documents which the Legislative Council sought included documents which revealed the internal deliberations of the Cabinet.

The LC does not have the power to require the production of such documents.

(on the other hand, Spiegelman CJ rejected the claim based on legal professional privilege)

In performing the accountability function, the LC may require access to legal advice on the basis of which the Executive acted, or purported to act.

In many situations, such advice will be relevant in order to make an informed assessment of the justification for the Executive decision.

Access to legal advice is reasonably necessary for the exercise by the Legislative Council of its functions.

Another concern was that lawyer/client privilege could be manufactured very easily, and this was not to be encouraged.

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56

Executive Rule MakingThe Parliament may delegate its legislative power to the executive (Dignan)

The Parliament retains control over its delegated power.

Delegation does not amount to the abdication of legislative power.

Perhaps the most significant function conferred upon the executive by statute is the capacity to make delegated legislation, that is, rules, regulations and other subordinate legislation (now collectively known under federal law as legislative instruments).

Judicial scrutiny of such instruments to make sure they fall within the powers delegated by statute is an important aspect of administrative law.

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57The scrutiny of delegated legislation is also, at least in principle, a central element in Parliament’s control of the executive: ‘the Commissioner has at all times, as it were, a Parliamentary hand on his shoulder.’

In practice, however, the volume of delegated legislation is so vast that effective parliamentary scrutiny has fluctuated considerably.

* The rules for the making, registration, parliamentary scrutiny, periodic repeal and disallowance of delegated legislation are set out in the Legislative Instruments Act 2003 (Cth) and various NSW Acts.

Consultation processo Consultation not mandatory at Cth (s 17 LIA), failure to consult

does not affect the validity or enforceability of subordinate legislation (s 19 LIA).

o Before statutory rules may be made, a consultation process must ordinarily be undertaken in NSW (s 5 Subordinate Legislation Act 1989 (NSW)).

Rules must be registered/published on an electronic databaseo Subordinate Legislation Act 1989 (NSW)o LIA s 17

Golden-Brown v Hunt (1972) 19 FLR 438

Notice had to be placed in Government Gazette.

Only included place where the ordinance (regulation) could be purchased (by mail or over counter).

Court said that this didn’t say where it could be purchased, not clear enough, notice not valid.

Taking of effecto Only after being published in NSW (Interpretation Act 1987 s 39)o Cth: LIA ss 12 and 31.

Must be tabled in Parliament within a certain number of sitting days of being made. Note the different consequences in NSW and Cth.

o LIA s 38 (Cth): instruments must be laid before each House within 6 sitting days of that House after registration.

o LIA s 42 then allows 15 days within which notice may be given of a motion to disallow the instrument. If such a motion is passed within that time, or if the notice has not been withdrawn and the motion has not been called on for a vote, the instrument ‘ceases to have effect’.

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58o Interpretation Act s 40 (NSW).

Subordinate legislation may be disallowed by either House of Parliament. Differences in timing and effect. Once disallowed, a rule to the same effect cannot be made for a specified period. The effect of disallowance is that the statutory rule ceases to have effect from the date of disallowance, and any prior rules that it amended or repealed revive.

o Interpretation Act s 41 (NSW)o LIA ss 38, 42, 45-8. (Cth)

Staged repeal process where statutory rules, after a certain period, are automatically repealed and must be remade or abandoned.

o Subordinate Legislation Act Prt 3 (NSW)o LIA, Part 6 (Cth)

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In 1931 a protracted dispute about Senate disallowance of regulations made by the executive arose in respect to an earlier version of these provisions.

The resulting cases firmly established the constitutional validity in Australia of the British practice of delegating legislative powers to the executive government.

Victorian Stevedoring & General Contracting Co Pty Ltd v Meakes &

Dignan (1931) 46 CLR 73

The Transport Workers Act 1928 (Cth) contained an unusually broadly empowering section of legislation (s 3):

1. It authorised regulations which were to have the force of law notwithstanding anything in any other Act. That is, the Commonwealth executive was given the same power as the Parliament itself to override prior Acts of Parliament.

2. The broad general power apparently authorised any regulation whatsoever ‘with respect to’ the specified topics.

3. The act did not set up a legal regime with respect to the employment of transport workers, it merely authorised the making of the regulations. The Act set no limits and gave no guidance as to what the regulations should be.

The day after the Act took effect, statutory rules were made under s 3 to establish a licensing system for waterside workers which gave licenses only to members not from the WWF.

The HCA upheld the validity of s 3 of the Transport Workers Act in 1931.

The separation of powers doctrine was held to be no obstacle to the vesting of legislative power in the executive.

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59Dixon J

The time has passed for assigning to the constitutional distribution of powers among the separate organs of government, an operation which confined the legislative power to the Parliament so as to restrain it from reposing in the Executive an authority of an essentially legislative character.

The manner in which the Constitution accomplished the separation of powers does logically or theoretically make the Parliament the exclusive repository of the legislative power of the Commonwealth.

Evans v NSW

World Youth Day Act case.

Principle of legality: Any government action has to be supported by some legal authority.

Reference to ‘causing annoyance’ in the Act was invalid.

Principle of interpretation: ‘vague’ or ‘ambiguous’ clauses should not be allowed to interfere with human rights.

Publication RulesThose affected by subordinate legislation should be able to learn of its existence and content Watson v Lee. Case turned on legislation which has now been repealed, but significance lies in court’s interpretation of the relevant legislation.

Watson v LeeActs Interpretation Act 1901 (Cth) s 48 ␣

Regulations shall be notified in the Gazette Regulations take effect from the date of notification

Rules Publication Act 1903 (Cth) s 5(3) Notification of regulations requires a notice in the Gazette of the rules having been made and of the place where copies of them can be purchased

Held: regulations were valid even though they weren’t available at government bookshop for purchase (case failed on the evidence) Majority: notification requirement can only be complied with by their being availableMinority: substantial compliance sufficient

Regluations need to be made available to the public otherwise they are subject to regulations the terms of which they have no way of knowing.

Gibbs- substantial compliance will have take effect, at least from date the copies are made available.

Now that there is the internet, subordinate legislation is pretty readily accessible.

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60Accountability to parliament

Tabling- Legislative Instruments Act (Cth) s38

- subordinate legislation to be laid before each house within 6 sitting days of its registration with the A-G,

- ceases to have effect if not tabled within this time. - Scrutiny by Parliamentary Committee Involves assessing whether

the subordinate legislation is- in accordance with the statute- does not trespass unduly on personal rights and liberties- does not unduly make the rights and liberties of citizens dependent

upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal

- does not contain matter more appropriate for parliamentary enactment

- [see Australian Senate Standing Order 23; Legislation Review Act 1987 (NSW), s 9]

-- Disallowance by Parliament Legislative Instruments Act 2003 (Cth), s

42- - Notice of a motion in either House of parliament to disallow- A House may pass a resolution to disallow the subordinate legislation

or provision- If disallowed, the subordinate legislation or provision then ceases to

have effect.- See also Interpretation Act 1987 (NSW), s 41-

Thorpe v Minister for Aboriginal Affairs

- Challenge to election for ATSIC (as it then was) - Ps sought a declaration that the election was void because the

election rules had not been tabled in the Senate; only in the House

- Election rules were notified in the Gazette (28 July 1990) -- were tabled in House of Reps but not senate

- Election period commenced (29 August 1990) - Election rules ceased to be effective after 15 sitting days of

parliament (16 October 1990): AIA s 48 - Polling day (3 November 1990)- Aboriginal and Torres Straight Islander Commission Act 1989

(Cth) provided that elections be held in accordance with election rules ““in force at the beginning of the election period””

- Held (Fed Ct FC): election validly held in accordance with rules in effect at the beginning of the election period: fact they ceased to have effect on 16 October 1990 did not change that position.

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61- - rule that they were not tabled in time made the

regulations ineffective, but from the time they were tabled in lower house/ published they were effective and they remained effective up until they became ineffective when not presented to the senate. Between those two times the regulation was effective.

- Legislative Instruments Act 2003 (Cth)- Provides for “federal register of legislative instruments” s20. Made

available to the public. - NSW- failure to publish regulation does not make it invalid, but it will

have no effect until it Is published. - Tabling- delegated legislation must be tabled in both houses of

parliament within a certain number of sitting days.

Informal Rule MakingRefers to any set of guidelines, whether published or not, whether written down or not, that regulate or guide a series of decisions authorized by law. In orthodox legal theory, a policy is assumed to be flexible and easily changed, while the law is assumed to be relatively fixed

Green v Daniels – school leaver and the dole.

The High Court (Stephen J) asked whether the departmental guideline was no more than a ‘‘permissible instruction by the Director General to those to whom he had delegated his powers under s107(c) ... Or whether on the contrary it reveals an attempted substitution of inconsistent departmental criteria for those which the Parliament has enacted as appropriate to qualify an applicant for unemployment benefit’’ [at 467]

The High Court held that the criteria of being ‘‘unemployed’’ and of having ‘‘taken reasonable steps to obtain such work’’ ““have had superimposed upon them a requirement which prevents them from being satisfied by any school leaver during the school holidays, a period of about three months �” (at 467)␣NB: The applicant asked the Court to form its own conclusions as to her compliance with the statutory criteria␣Court made a declaration that the D-G should have considered all the circumstances of her claim and determine whether she had satisfied him of the relevant statutory matters

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62Open Government

Public Interest ImmunityCommon Law doctrine: see also now Evidence Act s130

130 Exclusion of evidence of matters of state

(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. ...(4) ... the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: (a) prejudice the security, defence or international relations of Australia, or (b) damage relations between the Cth and a State or between 2 or more States, or(c) prejudice the prevention, investigation or prosecution of an offence, or (d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law, or (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or (f) prejudice the proper functioning of the government of the Commonwealth or a State.

5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding, (b) if the proceeding is a criminal proceeding——whether the party seeking to adduce evidence of the information or document is a defendant or the prosecutor,(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding, (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication,(e) whether the substance of the information or document has already been published, (f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is a defendant——whetherthe direction is to be made subject to the condition that the prosecution be stayed.

Murrumbidgee Groundwater v Minister [2003] NSWLEC 322

Note the D-G’’s affidavit filed in support of claim for PII ␣ Context of claim? Resisting subpoena for production of documents to support claim for judicial review of Minister �’s decision: argued �‘no legitimate forensic purpose �’. A court may direct that information or a document relating to a matter of state is not to be adduced in evidence if the public interest in admitting the document is outweighed by the public interest in preserving secrecy or confidentiality

See list of principles derived from leading cases (eg Sankey v Whitlam; Alister v R; Cth v Northern Land Council)Summarised in [19]No absolute immunity from production re cabinet documents Court must weigh

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63competing elements of the public interest: a balancing test. Court has power to inspect documents, though should not do so if they clearly fall into a class that attracts immunity. Currency of the material is relevant Intended use is relevantIf personal liberty interest at stake, that is relevant (more likely to warrant disclosure)

In civil proceedings, a high level of protection will be given to:

- Records of Cabinet deliberations- Documents and communications passing between a Minister and the

head of a Minister’s department relating to cabinet proceedings- Material prepared for Cabinet- Reports relating to important matters of policy between public

servants and ministers or between senior public servants- Here documents identified in the subpoena prima facie attract public

interest immunity.

Freedom of Information legislation- ␣NB: A time of considerable flux for FOI ␣First

Commonwealth legislation 1982; NSW 1987 ␣Both undergoing significant reform 2009-2011 ␣Rationales: see Re Eccleston, 1993 Qld OIC ␣Basic principles:

- a �‘right to know �’ about government functions and operations, government contracts, internal rules and policies that affect members of the public A legally enforceable right of access to government document A right of access to personal records (and a right to correct them if inaccurate)

- Right to merits review of decisions denying or limiting access

-- Access to documents FOI Act (Cth), s 11(1) (see also GI(PA) Act

(NSW), s9)- “every person has a legally enforceable right to obtain access in

accordance with this Act to:- (a) a document of an agency, other than an exempt document; or- (b) an official document of a Minister, other than an exempt

document.”- Right to access is not affected by the reason for seeking access

(s11(2))- “Document” includes eg: any paper or other material on which

there is writing; a map, plan, drawing or photograph; and any other record of information (s4)

- Request for access FOI Act (Cth) s 15 (see also GI(PA) Act (NSW), s- 41)- Refusal of access- FOI Act (Cth) s24-24A (See also GI(PA) Act (NSW) s60)- Where agency or Minister is satisfied that the work involved in

processing the request would substantially and unreasonably divert resources

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64- Where agency or Minister is satisfied that the document cannot

be not found or does not exist-- Exempt documents

o Documents affecting national security, defence or international relations

o Documents affecting relations with the stateso Cabinet documentso Executive council documentso Documents containing agency or ministerial deliberationso Documents affecting enforcement of law and protection of public

safetyo Documents affecting personal privacyo Documents relating to business affairs.

Cabinet documents exemptiono FOI Act Cth s34o Exemption applies to documents

That have been submitted to cabinet Created for the dominant purpose of being submitted to

cabinet That are official records of cabinet That would disclose cabinet deliberations

o Cabinet exemption does not apply to information that consists of purely factual material.

- Deliberative processes exemptiono FOI Act (Cth), s47c(1)o A document that would disclose

Opinion, advice or recommendation Etc For the purpose of, the deliberative processes involved in

the functions of an agency or minister or of the government of the commonwealth

o Conditionally exempt- requires balancing of competing public interest factors.

Government Information Public Access Act (GIPA) NSW

- s5 Presumption in favour of disclosure of government informationo unless there is an overriding public interest against disclosure

- s6 Mandatory proactive release of certain government informationo 1) an agency must make the government information that is open

access information publicly available unless there is an overriding public interest against disclosure of the information

o Note- Part 3 lists information that is open access informationo 2) Open access information is to made publicly available free of

charge on a website maintained by the agency (unless to do so would impose unreasonable additional costs on the agency) and

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65can be made publicly available in any other way the agency considers appropriate.

Legally enforceable right to obtain access

Right of access to personal records: can seek to amend if incomplete, incorrect, out of date or misleading

- Request for access- FOI s15, GIPA part 4- Grounds for refusal (other than exemptions)- FOI0 ss24-24A, GIPA s60- Right to merits review of decisions denying access- FOI part 6, GIPA

part 5

Recent Changes

- Costs of FOIo Has been seen as a barrier to accesso Cth will abolish application fees and fees for personal information

and reduce fees for not-for-profit applicants- ‘Reverse FOI’

o Duty to consult third parties affected by disclosure; eg business, commercial or financial information; personal information of a 3rd Party

o 3rd party has a right to be consulted and a right of appeal/ merits review (though no right to veto)

Exemptions to Disclosure

- GIPA s14(1)o It is to be conclusively presumed that there is an overriding public

interest against disclosure in any of the government information described in schedule 1.

o Schedule 1 Overriding secrecy laws Cabinet information Executive council information Contempt Legal professional privilege Excluded information Documents affecting law enforcement and public safety.

o Schedule 2 Exempt agencies

- CTH FOIo Division 3 part IV provides for when a document is conditionally

exempt. o A conditionally exempt document is an exempt document if access

to the document would, on balance, be contrary to the public interest.

o Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document.

FOI Act reforms

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66- Some key changes

o Abolition of ‘conclusive certificates’: In both NSW and Cth; ie restoration of full merits review

Exemptions apply to those in relation to which disclosure is conclusively presumed to be contrary to the public interest.

o Public interest test; previously applied to a range of categories: now there will be a single public interest test

Cth FOI Act s11B Access is required to be given unless it would be

contrary to the public interest; Act prescribes factors to be taken into account in applying the test including

o Promotion of the objects of the acto Informing debate on matters of public

importanceo Must not take into account ‘potential loss of

confidence in, or embarrassment to government’ r might confuse people in support of non-disclosure.

GIPA: see ss13-15

o Eg Cabinet Documents- under both Acts CTH- there is no public interest test; issue is whether it falls

in one of the categories in s34 Need to identify whether it is a cabinet document Note exclusion of purely factual material from

exemption NSW- it is to be conclusively presumed that there is an

overriding public interest against the disclosure of Cabinet Information: note what constitutes cabinet information.

o Deliberative process exemption s47C1 FOI A document is conditionally exempt if it would disclose

Opinion, advice or recommendations Obtained, prepared for the purpose of the

deliberative processes involved in the functions of an agency or monoster of the govt of the cth.

Next step: apply the balancing public interest factors. NSW see also GIPA s14, Table 1)e)

-

Review of FOI decisionso Commonwealth

First step: internal review required by another person in the agency who hasn’t been involved in the decision (though not if the decision was by the Minister or principle officer)

Review by the Information Commissioner

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67 Merits Review by the AAT Appeal to the Federal Court on a question of law only Judicial review.

o NSW Internal review: more senior officer Review by information commissioner- only has power to

make recommendation Merits review by ADT Note that ADT has a review panel, AAT has a …. Appeal first goes to Appeal Panel, then there is a provision

for appeal on a question of law to Supreme Court. o In merits review, there is generally no burden of proof, but in FOI

onus is on agency to justify decision not to disclose or to limit disclosure.

10 Freedom of Information Legislation- ZagamiInformation is the lifeblood of accountability.

There are many mechanisms that contribute significantly to ‘open government’ and the flow of information to the public about the activities of government:

Public ombudsmen and other investigative bodies Legislation to facilitate ‘whistle-blowing’ Reasons for decisions in ADJR and AAT.

For much of the 20th century, courts were prepared to accept without question a certificate of a government minister stating that the production of particular documents or the supply of particular information would be contrary to the public interest.

It was not until 1968 that the English House of Lords gave the courts the power to question such certificates and to decide whether the public interest in non-disclosure outweighed the ‘public interest in the due administration of justice’, which was how in the interest in disclosure was described.

Although an obligation of decision-makers to give reasons was an integral component of the new administrative law that grew out of the Kerr Committee Report, FOI legislation was a separate initiative of the Whitlam Labour Government in 1972.

FOI allows members of the public to take the initiative in actively seeking information, and not to merely be its passive recipients.

Basic to the philosophy of FOI is a presumption in favour of disclosure.

Australian FOI is primarily concerned with access to ‘documents’, not ‘information’.

FOI applies to ‘agencies’.

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68What is an ‘agency’?

Defined broadly to include departments and prescribed authorities:

an incorporated or unincorporated body established for a public purpose by statute or Order in Council.

a company incorporated under the corporations law is not a prescribed authority.

privatised utility companies or private companies delivering public services would NOT be subject to the FOI regime.

The FOI specifies many classes of exempt documents.

The large number of categories of excluded documents and the broad terms in which they are expressed seriously undermine the credentials of the scheme as a regime of freedom of information, because they leave so much control in the hands of agencies.

The redress or appeal mechanisms in place will only marginally redress the balance of the power that such a regime strikes so heavily in favour of the bureaucracy.

Note: NSW and Cth REFORM PROCESS is underway.

(see handout for provisions)

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Freedom of Information Act 1982 (Cth)

- Extend to the community as much as possible information is given to the public.

- Section 3 Object of the Act: (1) object is to extend as far as possible the right of the Aus community to access to information in the possession of the govt of the Cth by:

(a) Making available to the public info about the operations of departments and public authorities and, ensuring rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b)Creating a general right of access to information in documentary form in the possession of ministers, departments and public authorities.

(c) Creating a right to bring about the amendment of records containing personal info that is incomplete, incorrect, out of date or misleading.

Section 36 Internal working documents

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69(1): Subject to this section; a document is an exempt document if it is a document that disclosure of which is under this Act:

(a) Would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purpose of, the deliberation process involved in the functions of the agency or Minister of or of the C/wealth; and

(b) would be contrary to the public interest. E.g. internal memos within a dept.

McKinnon v Secretary, Department of Treasury (2006) 229 ALR 187

- McKinnon was and still is FOI editor of the Aus newspaper. Sought two lots of docs from the Aus treasury. First was ‘bracket creep’ inflationary tax threshold movement. Actually taking home less after wage increases. Govt ends up with more money. Therefore when say giving back taxes, by doing nothing they are increasing money.

Govt argued under s36 was an exempt doc. Under s 55 can appeal to the AAT which will decide the matter on the merits. Date was set for the AAT hearing when Costello signed conclusive certificate provision from s 36 (3) from Act: where minister is satisfied that document that the disclosure of the doc would be contrary to the public interest, he or she may sign a cert. to the effect, so long as it remains in force, establishes conclusively that disclosure of doc would be contrary to the public interest’

- Can’t get merits review from AAT once cert is signed; however can get review on very narrow and specific grounds (set out in s 58 (5) of FOI Act). Limited to deciding whether there exists reasonable grounds for whether docu would be against public interest. Very narrow ground.

- . Majority JJ say question is very narrow, if govt gives grounds that aren’t unreasonable = end of the matter. Views of treasurer were reasonable and therefore won. No analysis of FOI etc. McCallum thinks very disappointing judgement.

Exemption under s 45: Re Kamminga v Australian National University (1992)

Sought an advanced position at the ANU and didn’t get the job. Thought one of his referees had ‘done the dirty on him’. Applied under FOI for referee reports. Here the tribunal said they were deliberatively documents containing opinion. Uni argued s 40 s (1) (C) and (d) and Uni finally relied upon s 45. Didn’t release the doc (didn’t disclose the referees reports).

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70 (1) a document is an exempt document is its disclosure under this Act would

found an action , by a person (other than an agency or the C/wealth), for breach of confidence.

In NSW, provisions are not as strong; more likely to be released

Executive Accountability- An Introduction to Administrative LawLargely a response to the limited role of judicial review, historically the only form of administrative law remedy␣States followed Cth lead (though some clear differences) ␣Further reforms␣Anti-corruption ␣Rule making ␣Human rights (Victoria and ACT)␣Public administration reforms from 1980s ␣�“New Managerialism �” ␣Corporatisation and privatisation␣Privatisation has raised particular challenges for administrative law, given that it is premised on notion of challenging public/government exercise of power: more on this in administrative law next year

Accountability- Political accountability

o Responsible governmento Parliamentary committees

- Administrative law accountabilityo Judicial reviewo Tribunals/ merits reviewo Investigative bodies- Ombudsmen and Independent

Commission Against Corruption.

Attorney-General )NSW) v Quin (1990) at 35-36 per Brennan J

- The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.

- If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.

- 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.

Judicial review is only incidentally concerned with the merits of a complaint. On review, a court will normally be concerned with whether the decision maker had the power to make the decision, whether the correct procedure was followed etc.

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71Judicial review is a process by which the courts investigate the legality of the decisions of inferiors courts, tribunals and administrative decision-makers. – can do b/c State Supreme Courts are superior courts of general jurisdiction and federal courts have constitutional and statutory jurisdiction.

Recall Green v Daniels 1977- the school leaver’s case. Plaintiff asked HC to form its own conclusions as to her compliance with the statutory criteria and declare her eligible, but on judicial review the court cannot substitute its decision for that of the primary decision maker. Judicial review: is there legal authority? Merits review: what is the correct or preferable decision?

- on the merits it wouldn’t have been valid because it superimposed extra criteria to the law.

New Administrative Law

Administrative Appeals TribunalAAT Act 1975 Cth- more accessible, merits review rather than judicial review., finality to decision

- bears resemblance to a court but operates as branch of the executive. - Members include federal judges (acting as personae designatae).

OmbudsmanOmbudsman Act 1976 (Cth)- watchdog, with wide power to investigate action that relates to matters of administration. Power is essentially persuasive, rather than remedial. Can act on a complaint or on his/her own motion.

Administrative Decisions (Judicial Review) Act 1977 Streamlines judicial review of commonwealth administrative decisions. Codifies Common Law.

Administrative Review Council

Function to carry out research and to make recommendations about matters concerning administrative review including rights of review in relation to classes of administrative decisions.

The Centrality of Statutory Interpretation

Coco v The Queen 1993

The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language.

General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.

Note that while there needs to be a clear statement of intention to do so, as a presumption, it may be displaced, and may be displaced by implication.

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72Here: no clear expression in the legislation of an ‘unmistakable and unambiguous intention” to confer power to infringe fundamental right to exclude others from property, so no power to authorize what is otherwise a trespass.

Presumption against interference with fundamental rights

- interference with personal liberty- removal of a court’s jurisdiction- taking property rights without compensation- freedom of expression.

Al-Kateb v Godwin (stateless man detained indefinitely) Gleeson judgment.

Different approached taken to the interpretation of s196 Migration Act by the HCA majority and minority.

Introduction to Judicial ReviewThe determination by courts of the legality of exercises of power by administrators and tribunals. Judicial review is confined to review of questions of law and does not extend to review of the merits of administrative action.

Does the court have jurisdiction?

- Federal?o ADJR Act? Constitutional writ? Federal Court via Judiciary Act?

- State?o Supreme Court

- Does the court have power to review (consider any privative clause and effectiveness)

- Is the applicant seeking to review legality, or change the decision?o Judicial Review vs Merits Review

- Is the decision justiciable? (can it be reviewed by a court?)- Does the applicant have standing/ sufficient interest to challenge the

decision?- Is a breach of one or more grounds of review established?

o Decisional grounds- legal error, error about jurisidictions/ statutory power

o Reasoning process grounds, eg taking into account irrelevant considerations

o Procedural grounds: natural justice/ procedural fairness/ hearing- Is a remedy available?

o Usual remedy: quash the decision.

Grounds of judicial review

- ‘ultra vires’- lack of jurisdiction- lack of procedural fairness- acting under dictation- real or apprehended bias- inflexible application of a policy

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73- taking into account irrelevant considerations; failing to take into

account relevant considerations- extraneous (improper) purpose- error of law on the face of the record- no evidence; bad faith; Wednesbury unreasonableness

o (where the excerxise of an administrative power is so unreasonable that no reasonable person could have so exercised the power. Decision must contain some quality of perversity, arbitrariness, caprice or absurdity which removes it from the class of a mere erroneous exercise of discretion. The test of unreasonableness has been codified in ADJR ss 5)1)e), 5)2)g), 6)1)e), 6)2)g).

Remedies

- Prerogative remedies, includingo Prohibitiono Mandamus- an order issued by the court to compel a public official

to perform a public duty or to exercise a statutory discretionary power.

o Habeas corpus- review decisions of justices refusing bail or imposing excessive sentences.

o Certiorari- court brings before it the decision or determination of a tribunal or inferior court to quash it on the ground of non-jurisdictional error or denial of procedural fairness.

- Equitable remedieso Injunction and declaration

- Statutory remedieso ADJR Acto Statutory reforms in the Supreme Court Act 1970 (NSW)

- Constitution s75: Commonwealth officers.

None of the remedies permits the court to remake the decision by exercising the administrator’s discretion, and there is no remedy for damages. Like review of constitutionality of legislation, judicial review may arise collaterally- eg tort, contract, defence to criminal prosecution, challenge to the admissibility of unlawfully obtained evidence.

Minister for Immigration v Haneef

- Concerned the power under the Migration Act 1958 (Cth), s501 for minister to cancel visa ifo A) the minister reasonably suspects that the person does not pass

the character test; ando B) the person does not satisfy the Minister that the person passes

the character test. o For the purposes of this section, a person does not pass the

character test if:

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74 The person has or has had an association with someone

else… whom the minister reasonably suspects has been or is involved in criminal conduct.

- Considero Jurisdiction of the courto Ground of review, statutory interpretation, proof, remedy.

Reasons for Administrative Decisions

Common LawPublic Service Board of New South Wales v Osmond (1986) 159 CLR 656

Osmond was a public servant applying for promotion to a vacant spot.

Factors in awarding the promotion: ‘greatest efficiency’, allowed for much discretion on decision-maker.

NSWCA held that the Public Service Board was obliged to give reasons and ordered PSB to do so.

HCA allowed appeal, affirmed that there is NO COMMON LAW REQUIREMENT FOR ADMINISTRATORS TO GIVE REASONS.

There is a duty on judges, not administrators.

Even those made in the exercise of a statutory discretion, and those adversely affecting the plaintiff don’t require reasons AT COMMON LAW. Only exception, if available under FOI.

Rationale? Kirby J in Minister for Immigration, ex p Palme:

- encourage decision makers to examine the relevant issues, exclude extraneous matters, apply consistency in decision making

- assist courts in conducting supervisory functions- encourage good administration- guard against arbitrariness- increase public confidence in administrative process.

Common Law right to resons?

Osmond v Public Service Board of NSW

- concerned employment appeal; dismissed by Public Service Board but no reasons given

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75- Application for declaration refused at first instance- Court of Appeal- Kirby P

o No binding authority that would require the court to hold that no right to reasons

o Public official have a duty to act justly and fairly. Normally this will require where there is a discretionary power, obligation to state the reasons for the decision

Those entrusted with discretionary decision making power will be in a position to explain their decision

Reasons are required so courts can effectively conduct appeal or judicial review.

o High Court Gibbs CJ

CA’s decision opposed to overwhelming authority No general common law rule, or principle of natural

justice, that requires reasons for administrative decisions

If there were to be such a rule, it should be introduced by legislature

Rules of natural justice designed to ensure fairness, but not after the decision has been made

o Note that since Osmond, increasing number of statutory duties to provide reasons

o And also, increasing judicial willingness to recognize certain implies statutory obligations to give reasons in relation to particular statutory powers eg if there is a right to appeal

Statutory Obligations to provide reasons

Administrative Decisions (Judicial Review Act) s13

o Judicial review, duty to give reasons on request, person must have standing to apply for review

o Reasons: a statement in writing setting out Findings on material questions of fact Statement must refer to the evidence or other material on

which the findings re based Give the reasons for the decision

- Administrative Appeals Tribunal Act s28- - same requirement- Administrative Decisions Tribunal Act s49- NSW Supreme Court, Practice Note SC CL3 para 3

o Applies where judicial review proceedings have been taken to challenge the decision of a public body or public official.

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76Limits on duty to provide reasons- ADJR Act s13

- no duty to provide reasons if request can be made under the AAT Act s2B

- confidential information- where the statement would be false or misleading if it did not contain

the confidential informationo Nothing in this section affects courts power to make an order for

the discovery of documents or to require the giving of evidence or the production of documents to the court.

- Public interest immunity. - Defence Force, migration Act, Attorney-General- national security,

Criminal Justice, Minister for Finance- consolidated revenue, Particular Boards- commercial activities, Reserve Bank.

Judicial Review of Administrative Decisions

Sources of judicial review- Supreme Court Act 1970 (NSW)

o S23: the court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales

o S69: the court has jurisdiction to grant any relief or remedy by way of writ, whether of prohibition, mandamus, certiorari or of any other description

Constitutional writs

o Constitution S75 In all matters…. V) in which a writ of mandamus or

prohibition or an injunction is sought against an officer of the Commonwealth… The High Court shall have original jurisdiction.

Judiciary Act 1903 (CTH)

o Original jurisdiction also includes any matter: In which the commonwealth is seeking an injunction or a

declaration; or Arising under the constitution or involving its

interpretation or Arising under laws made by the Cth parliament other than

criminal prosecutions.

Federal Court’s judicial review jurisdiction

o ADJR- statutory procedure for judicial review of commonwealth administrative decisions by way of application for an order of review.

To succeed in a judicial review application, an applicant must satisfy a number of distinct requirements:

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1. Does the court have jurisdiction? (i.e. does it have jurisdiction to judicially review the impugned act or decision)

2. Is the decision justiciable?3. Does the applicant have standing? (i.e. are they an appropriate person to bring the

application)4. Is a breach of one or more of the grounds of review established?

a. Decisional grounds (eg. decision maker must have jurisdiction, Wednesbury unreasonableness)

b. Reasoning process grounds (decision maker must consider relevant factors/disregard irrelevant factors)

c. Procedural grounds (bias, opportunity to be heard)5. Is a remedy available?

In Australia there are two distinguishable bodies of judicial review law - federal and state. Judicial review jurisdiction has multiple sources:

SOURCES OF JUDICIAL REVIEW

Commonwealth

Commonwealth Constitution

s 75(v) gives the High Court original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Section 75(iii) also gives the High Court original jurisdiction in any matter in which the Commonwealth is a party.

[Note: applications for ‘constitutional remedies’ are therefore limited to claims where relief is sought ‘against an officer of the Commonwealth’. This depends on some institutional nexus between the decision-maker and the government. Also, under s 75(iii), the HCA will have jurisdiction when one of the parties to a suit is ‘the Commonwealth’. Importantly, the HCA has read this phrase as capable of encompassing bodies corporate; thus statutory corporations are ‘the Commonwealth’ and government owned corporations may qualify as ‘the Commonwealth’.]

Judiciary Act

s 39B(1) gives the Federal Court jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. S 39B(1A)(c) also gives the Federal Court jurisdiction in any matter arising under any law made by the Commonwealth Parliament.

ADJR Act

Where there is a decision of an administrative character, made under an enactment, a person aggrieved by that decision may apply to the Federal Court for an order of review with respect to that decision on any of the grounds listed in s 5. Section 6 provides for the review of ‘conduct’ for the purposes of making a decision and s 7 provides for the review of a failure to make a decision. Section 13 allows reasons for the making of decisions to be obtained.

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New South Wales

State courts have what is called ‘inherent’ judicial review jurisdiction, which means that its legal source is the common law, not statute or a constitution.

Supreme Court Act 1970 (NSW)

Section 23 gives the Court all jurisdiction which may be necessary for the administration of justice in New South Wales.

Section 69 replaces the prerogative writs of mandamus, prohibition and certiorari with judgments or orders giving the same remedy or relief.

GROUNDS FOR REVIEW

The grounds for judicial review are similar both at common law and under statute, and include:

the absence of jurisdiction or authority to make the decision; the failure to provide natural justice; the exercise of power for an improper purpose; an error of law; the absence of evidence to support the decision; the taking into account of irrelevant considerations; the failure to take into account relevant considerations; the exercise of a discretionary power in bad faith; the exercise of a personal discretion at the direction or behest of another; the exercise of a discretionary power in accordance with a rule or policy without

consideration of the merits of the case; and Wednesbury unreasonableness.

e.g. Green v Daniels (1977) 13 ALR 1

Error found by court was that the policy of the Department of Social Security that school leavers were not eligible for benefits until the end of the school holidays was legally problematic/flawed.

Legislation provided that a person qualifies for unemployment benefits if they satisfy the Director-General that they are:

unemployed capable of work and have taken reasonable steps to obtain work.

Any policies must be lawful, in the sense that they must be consistent with the statutory scheme. A policy which, in effect, attempted to add a criterion to a scheme entitling a person to unemployment benefits will be held to be inconsistent with the statute.

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79The Nature of the Courts’ Review JurisdictionJudicial review was originally a product of the common law.

It is often said that the courts’ power (i.e. jurisdiction) to undertake judicial review is, in the absence of statutory or constitutional authorisation, ‘inherent’.

The purpose of review is not to usurp powers of administrators, but merely to supervise their exercise.

The meaning of this claim tends to be explored by reference to two fundamental distinctions:

1. appeal v. review,

2. judicial (legality) review v. merits review

Appeal/Review DistinctionJudicial Review:

‘is not an appeal from a decision, but a review of the manner in which the decision was made.’

potentially misleading, since although some grounds of judicial review do focus on procedure, others clearly raise matters of substance

e.g. Wednesbury unreasonableness: a decision may be held illegal where it is so unreasonable that no reasonable decision maker could have so decided.

a better characterisation of the distinction between appeal and review focuses on the idea that although appeal courts can typically substitute their own decision for that of the original decision maker, a review court cannot.

even if a court undertaking judicial review decides that there is only one legally available outcome, the court will, in most circumstances, remit the decision to the original decision-maker to be made in accordance with the law.

judicial review remedies are not designed to allow courts to substitute their own decision, the basic remedies being connected with conclusions about the legality (validity), and not the correctness of decisions.

the court’s limited remedial powers can also be seen as reflecting the traditional ‘supervisory’ rationale for judicial review under which the role of the courts, in upholding the ‘rule of law’ is to ensure those exercising powers conferred by Parliament are kept within ‘the limits of their jurisdiction’; that is, that the courts must ensure that they do not act beyond (ultra) their powers (vires).

Thus, neither branch usurps or intrudes upon the functions proper to the other.

Judicial Review/Merits Review DistinctionThis distinction emphasizes that the principles or norms of judicial review are distinct from, and more limited than, the full set of principles or norms relevant to the correctness or wisdom of the original administrative decision.

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80The legality/merits divide reflects a deeply engrained concern that judicial review should not, in the name of the ‘rule of law’, unduly colonise public administration.

According to the strict approach to the separation of judicial power at the Commonwealth level, whatever ‘merits’ questions are, they cannot be answered by judges where to do so would involve the courts in the exercise of non-judicial functions.

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

“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.”

“If, in so doing, the court avoids administrative justice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.”

“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.”

Merits: some matter of discretion, some choice that is the administrator’s duty and role to consider and resolve. Subject to political control.

THE ADJR ACT 1977 (Cth)Enacted in 1977 on the back of the publication of two influential reports criticising the existing complexity of the remedially oriented law of judicial review.

Part of the ‘Administrative Law Package’/ ‘New Administrative Law’. Also included the AAT, the Ombudsman, and FOI legislation.

The clear hope was that it would become the main vehicle for judicial review of decisions of the Commonwealth Government.

Included the entitlement to a statement of reasons in relation to reviewable decisions (s 13).

Most fundamental reform: to turn on its head the traditional approach to determining the availability o review. Prior to the enactment of the ADJR Act, the law was remedially oriented. The Act shifted attention away from the availability of particular remedies and towards whether or not a ground of review could be established.

Applications under the ADJR Act may be made either to the Federal Court or the Federal Magistrates’ Court (ss 5,6 and 7).

* The key to understanding the scope of the ADJR Act is the phrase “decision to which this Act applies”.

Applications for Review

s 5: Applications for Review of Decisions

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81A person who is aggrieved by a decision to which this Act applies...may

apply to the Federal Court or the Federal Magistrate’s Court for an order for review.

s 6: Application for Review of Conduct (e.g. reasonable apprehension of bias/partiality - a procedural matter)

s 7: Application for Review of Failure to Make a Decision

‘A decision to which this Act applies’?

s 3(1): ‘A decision to which this Act applies’ means a decision of an administrative character made under an enactment other than’ a decision by the G-G and one excluded by Schedule 1 (tax assessments, criminal process, employment, migration, security, defence...)

Thus, there must be:

a) a decisionb) of an administrative characterc) made under an enactment

(a) ‘Decisions’?ABT v Bond (1990) 170 CLR 321

Resulted in a significant restriction of the scope of the ADJR Act review.

Facts:

ABT was investigating Alan Bond and the companies he owned and controlled.

Were the companies ‘fit and proper persons’ to hold broadcasting licenses?

Conduct by Alan Bond included bribing a QLD politician, threatening business competitors etc.

Decision on the facts: neither Bond nor his companies were fit and proper persons to hold licenses.

The decision in respect to Bond was NOT a ‘decision’, it was just a step in the reasoning.

According to Mason CJ’s leading judgment, the meaning of ‘decision’ entails two elements:

I. Reviewable ‘decisions' will be final or operative and determinative. This finality element is subject to an important but often overlooked caveat. Where a statute specifically provides for the making of a decision which is a mere step along the way in the course of reaching an ultimate decision, this ‘intermediate decision’ can accurately be described as a ‘decision made under the enactment’ and is itself reviewable.Here, the Act only referred to ‘licensees’ (companies, not Alan Bond).

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82II. It is an ‘essential quality’ that decisions be substantive determinations.

This interpretive approach means that factual findings will often lack the element of finality required for there to be a ‘decision’. Furthermore, findings of fact are substantive, not procedural, which means they will not qualify as reviewable ‘conduct’ either.

[Rationale?

1. Review of factual considerations, it was feared, could transform judicial review into merits review. Might be a backdoor to introducing de novo fact finding.

2. Judicial review’s capacity to fragment and delay administrative processes is well illustrated by the facts of Bond.]

[NOTE: s 39B(1) of the Judiciary Act 1903 (Cth) plugs many of the gaps which have emerged under the ADJR Act, because its scope is not restricted by the concepts of ‘decision’ or ‘conduct’ and because it is possible for cautious applicants to plead both sources of jurisdiction.]

Decisions ‘of an administrative character’By a process of elimination, decisions which are neither legislative nor judicial will be classified as administrative.

Increasingly, the courts have relied upon considering a number of factors thought to constitute the indicia of legislative and administrative decisions, none of which can be considered determinative:

LEGISLATIVE decision ADMINISTRATIVE decisiondetermine the content of rules apply rules to particular casesparliamentary control of the decision provision for merits reviewpublic consultationbinding legal effect

R G Capital Radio Ltd v Australian Broadcasting Authority (2001) 185 ALR 573

Decisions...‘made under an enactment’

Includes decisions made under rules/regulations etc. Doesn’t include rules by non-statutory powers. Decisions made under prerogative powers cannot be challenged under the ADJR Act.

For the purposes of a problem, either it will clearly be under an enactment, or it will be analogous to the two main cases, so argue by analogy.

Non-government body under a statutory scheme of regulation

An increasing range of social and economic activity is being ‘out-sourced’, i.e. regulated by non-governmental actors.

NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277

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83NEAT wanted to export wheat, but had to get consent from WEA, and AWB had the right to veto.

s 57(3B) Wheat Marketing Act 1989 (Cth): The WEA must not give a bulk-export consent without the prior approval, in writing, of AWBI.

AWBI thus had the de facto power to protect its own export monopoly.

Issue: is this decision to veto a ‘decision made under an enactment’?

Majority of HC (McHugh, Heydon and Callinan JJ) held NO, 3:2, because the statute only provided the consequences of the decision.

The subsection ‘did not...confer statutory authority on AWBI to make the decision.’ Therefore, AWBI’s decision was not ‘made under’ the Wheat Marketing Act.

Minority (Kirby J and Gleeson CJ) said it WAS made under an enactment, more common sense, given the situation of monopoly.

This case was very close to being under an enactment, has been heavily criticized and may be ripe for overrule.

Test: if it provides for the consequences, won’t be ‘made under’ the enactment. If it gives the authority or power, then it will be.

Private decisions of government statutory authorities

Griffith University v Tang (2005) 221 CLR 89

HC stated a new test for the determination of whether a decision is made ‘ under an enactment’:The decision must be:1. ‘expressly or impliedly required or authorised by the enactment’; and 2. ‘the decision itself must itself confer, alter or otherwise affect legal rights or obligations.’

While the decision to expel Tang was in broad terms authorised by the Griffith University Act (what other source of power could there be?), the decision did not affect her legal rights and obligations. Tang ‘enjoyed no relevant legal rights and the university had no obligations under’ the legislation; the relationship was merely one of mutual consensus.

The second limb has been criticized,

JusticiabilityOverview of Judicial Review:

1. Does the court have jurisdiction? 2. Is the decision justiciable? 3. Does the applicant have standing?4. Grounds for Review:

a. Procedural grounds

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84b. Reasoning groundsc. Decisional grounds

5. Is a remedy available?

Is there a ‘matter’?Original Jurisdiction of HCA under ss 75(iii) and (v) of the Constitution refers to ‘matters’.

There must be a justiciable dispute or ‘controversy’ between the parties. It must be a dispute that can be resolved by the application of legal

standards rather than political considerations.

In Re Judiciary and Navigation Act (1921)

‘Matter’ in s 76 does not just mean legal proceedings, but rather the subject matter for determination in a legal proceedings.

There is no ‘matter’ unless there is some immediate right, duty or liability to be established by the determination of the court.

Same meaning of ‘matter’ in ss 73-77, so applies also to Federal Courts established under s 77.

Re McBain; Ex parte Australian Catholic Bishops Conference (2002)

Doctor wanted to treat a single woman under IVF in VIC. Under the existing Act, the woman had to be married.

The Catholic Bishops Conference got wind of the undermining of the Act, got permission from the Supreme Court to become a party to the proceedings.

Held that there was no justiciable issue between McBain and the ACBC.

Here, the subject matter was the purging of the record of the Federal Court. This does not represent a claim of a right, title, privilege or immunity.

The controversy is not one which comprises a ‘matter’ under s 76(i)

Is the matter justiciable?

Examples of Non-Justiciable Decisions

(look out for political nature, then make a judgement call - does it just touch on, are there many factors to consider etc.)

National security (CCSU) making of treaties defence of the country prerogative of mercy grant of honours dissolution of Parliament

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85 appointment of ministers quintessentially political questions.

Most obvious non-justiciable issues: Defence of the country/decision to go to war. Political accountability will be quite high, so courts have no role.

In the past, decisions made by the prerogative weren’t justiciable.

That changed in the 1980s with

CCSU v Minister for the Civil Service (1985).

PM made a unilateral decision to alter terms and conditions of employment of 4000 employees of GCHQ. She relied on the exercise of prerogative, claimed lack of consultation was necessary for national security.

Just because the prerogative power is derived from the Common Law does not mean it is immune from judicial review.

“But national security is the responsibility of the executive government; what actions are needed to protect its interests do not rest upon the courts of justice. It is par excellence a non-justiciable question. The judicial process is totally inept to deal with the sort of problem which it involves.” (Lord Diplock).

___________________

Thus, it was no longer the ‘status or source of the authority that was important, but the subject matter of the decision.’

R v Toohey (1981)

No Crown immunity. Look out for the exercise of a statutory power by the G-G. Look out for political Qs.

NT Govt intervened into land rights claim and declared land part of Darwin.

It was thought that making the regulations wasn’t justiciable because they were made by the Administrator of NT (the Crown). ‘Improper purpose’ ground of review.

Mason J: Prerogative powers should be able to be put to review, more about subject matter than source.

Re Ditford

Wanted circumstances of his extradition to be taken into account for his bankruptcy issue.

Govt defence was that the communications were a matter of international relations, and they should be non-justiciable.

Gummow J held the issue WAS justiciable.

Just because a case touches on a non-justiciable area does not mean it won’t be dealt with by the courts. Main claim was still about bankruptcy.

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86Have to look to the facts of each case to determine.

Thorpe v Cth (No 3)

Applicant sought three declarations

o 1: Commonwealth owes a fiduciary duty to aboriginal peopleo 2: Commonwealth should move the UN GA for an Advisory Opinion

from the ICJ regarding Aboriginal peopleo 3: Commonwealth should negotiate with the plaintiff about the

terms of resolution of the GA and associated matters

Kirby agreed with Ditford, but this case was clearly well within the realm of int’l relations.

True that the mere involvement of a political Q won’t always mean that a court lacks jurisdiction, that a controversy is not a ‘matter’ or that a cause of action lacks justiciability.

Here, the Court has no knowledge of the many issues which would have to be taken into account in deciding how it would affect Australia’s int’l relations.

Matter for the executive, not the courts.

Minister for Arts, Heritage and The Envionment v Peko-Wallsend (1987)

Listing to have Kakadu declared as having universal value. A matter that is not justiciable.

Polycentric nature of the project, political judgement on many factors, many potential adverse effects.

‘It would be inappropriate for this court to intervene to set aside a Cabinet decision involving such complex policy considerations...even if the private interest of the respondent was thought to have been inadequately considered...The matter lies in the political arena’ (Bowen CJ).

Stewart v Ronalds

Nature of the dispute focussed on the Premier’s personal view of whether Stewart had misconducted. Quintessentially a political question. Any accountability for that question is via a political, rather than judicial method.

Discretionary appointment and removal of ministers (loss of confidence etc.) = non-justiciable.

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Tribunals

Types of tribunals Recall difference between judicial review and merits review –

tribunals are merits review bodies Specialist tribunals

o E.g. small claims tribunals, residential tenancy tribunals

Second type of tribunalo Decision making power conferred on bodies which go

under a variety of names – among which is ‘tribunal’o Less like courts in that the functions they perform

characteristically involve the exercise of considerable discretion

o More like courts in that their membership frequently includes some high court judges

Administrative review tribunalo Resemble alternative courts and alternative decision

makerso Accessible and non-technical, also act within limits set

by law; also perform functions which courts will not perform

o Unambiguously executive function Hybrid tribunal

o Victorian Civil and Administrative Tribunal Replaced the AAT and a number of private law

tribunalso Adminstrative Decisions Tribunal in NSW

Exercises both public and private law jurisdiction Commonwealth has long had merits review tribunals

o E.g. Taxation Board of Review NSW examples

o Consumer Trading and Tenancy Tribunal AAT: main Cth review body, established in 1977 Has appellate/second tier jurisdiction from other tribunals

such as SSAT: has first instance jurisdiction in matters such as FOI

Independent merits review tribunals Values/purpose of independent merits review

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88o ARC, Better Decisions Report

To ensure that all decisions of government are correct and preferable

To improve the quality and consistency of government decision-making (the normative effect)

Feedback into primary decision-making Feedback into policy and legislative development

To provide a mechanism of review that is cheap, informal and quick

To enhance the openness and accountability of government

Commonwealth: Administrative Appeals Tribunal Structure and procedure of the AAT

o AAT headed by a President who is a Federal Court Judge; also presidential members, senior members and members

Recall Drake v Minister for Immigration and Ethnic Affairs: held that Deputy President could be a judge of Federal Court, but acting not in that capacity, but as persona designata (1979)

But see also Wilson v Minister for Aboriginal and Torres St Islander Affairs (1996): held that judge in this case could not perform the particular administrative tasks (reporting to Minister) as seen as incompatible with judicial functions

o Non-presidential members appointed on basis of their expertise in particular field

o Members do not have judicial tenure: issues with independence?

AAT membership and organization

o President (1): judge of the Federal Courto Presidential members (13): judges of the Federal Courto Deputy presidents (12): legal practitioners enrolled for not less

than 5 yearso Senior members (27): legal practitioners (enrolled for not less

than 5 years) or persons who have special knowledge or skillso Members (38):

Legal practitioners or at least 5 years experience in industry, commerce etc.

o Tribunal appointmentso Concerns raised regarding appointments – political biaso Appointment of agency staff to tribunals

Concern that person will favour department Risks credibility of the tribunal

o Tribunal members do not have tenure Tenure provides security from dismissal and enhances

independence

AAT jurisdiction

o Administrative Appeals Tribunal Act 1975o AAT has no general power to review – its power is statutory:

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89 S25(1)(a)

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

3(3): “decision” means making, suspending, revoking or refusing to make an order or determination

AAT has jurisdiction conferred on it by many different Cth Acts (c 400)

Majority of decisions – most common decisions are within 5 areas:

Social security Veterans affairs Taxation Cthworkers’ compensation Freedom of information

Note that depending on the conferring legislation, AAT’s exercise of its powers may be modified: see s25(6) and s25(6A)

Main function of the AAT

o Section 43(1): Tribunal’s decision on review (1) For the purpose of reviewing a decision, the Tribunal

may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and:

o (i) making a decision in substitution for the decision so set aside; or

o (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

(2) Subject to this section and to sections35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

What decisions are reviewable?

o Recall s25(1)(a): an enactment may provide … for review of decisions

o Collector of Customs (NSW) v Brian Lawlor Case concerned cancellation of a licence: however, Collector

of Customs had exceeded powers in cancelling the licence. AAT set cancellation aside: Collector appealed to Federal Court

o Bowen CJ: did the AAT have power to entertain the application? o Refers to definition of ‘decision’ in s3(3)

What is a decision

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90o Section 3 (3) Unless the contrary intention appears, a reference in

this Act to a decision includes a reference to: (a) Making, suspending, revoking or refusing to make an

order or determination; (b) Giving, suspending, revoking or refusing to give a

certificate, direction, approval, consent or permission; (c) Issuing, suspending, revoking or refusing to issue a

licence, authority or other instrument; (d) Imposing a condition or restriction; (e) Making a declaration, demand or requirement; (f) Retaining, or refusing to deliver up, an article; or (g) Doing or refusing to do any other act or thing.

Brian Lawloro Bowen CJ: at 342

The use of ‘decision’ in s 25 “simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision”

3 possible ways of interpreting a: in pursuance of a legally effective exercise of

powers b: in the honest belief that it was in the exercise of

powers c: in purported exercise of powers conferred by the

enactment Held: Interpretation ‘c’ consistent with the Act: AAT would

under this approach have power to entertain an appeal from a decision in fact made, which purported to be made in the exercise of powers under an enactment

Nothing unusual about holding that an admin decision that is legally ineffective or void is susceptible of appeal

Smithers J agreed with Bowen CJ: Deane J dissented

Who may seek review in the AAT

o Section 27 (1) ... application may be made by or on behalf of any

person or persons whose interests are affected by the decision.

(2) An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association.

o Section 30(1A): The Tribunal may, in its discretion, make any other person whose interests are affected by the decision a party to the proceedings - on application by the person

o Includes organisations affected by a decision where the decision relates to a matter included in the objects or purposes of the organisation

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91Pre-hearing procedure

o Preliminary conferences (AAT Act s 34A(1)(a)) President may direct that a preliminary conference of the

parties or their representatives be held Issues to be resolved by the AAT are discussed and

rationalized Resolution of issues at conferences

Hearings before the tribunal

o Informality and efficiency AAT must pursue the objective of providing a mechanism of

review that is fair, just, economical, informal and quick (AAT s 2A)

33 procedure of tribunal The procedure of the Tribunal is, subject to this Act

and the regulations and to any other enactment, within the discretion of the Tribunal (a)

AAT must conduct proceedings with as little formality and technicality and as much expedition as the legislation and a proper consideration of the matter permits (AAT s 33(1)(b))

AAT is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate (AAT s 33(1)(c))

Representation is permitted (s 32) The hearing shall be in public except in special

circumstances (s 35) Opportunities for parties to present case

The tribunal shall ensure that every party to a proceeding is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents which the Tribunal proposes to have regard and to make submissions in relation to those documents (s 39)

o Decision-maker must assist Tribunal (1AA) In a proceeding before the Tribunal for a review of a

decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.

o AAT Act provides for Conferences Conciliation Mediation Case appraisal Neutral evaluation

o No statutory requirement that the parties must consent to ADR; Extensive use of preliminary conferences: and note the no of cases settled/withdrawn etc

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92o Tribunal must pursue the objective of providing a mechanism of

review that is fair, just, economical, informal and quick: s 2A o AAT obliged to afford procedural fairness to parties

Question: (and consider re other tribunals: Cthand state): to what extent is a tribunal obliged to assist unrepresented party?

o Section 35 Where the Tribunal is satisfied that it is desirable to do so

by reason of the confidential nature of any matter or for any other reason, the Tribunal may order

that a hearing shall take place in private and give directions as to the persons who may be present

that the publication of evidence or of matters contained in documents be prohibited or restricted

that the disclosure of evidence or documents to some or all of the parties be prohibited or restricted

o Section 39 Subject to ss35, 36 and 36B, the Tribunal shall ensure that

every party to a proceeding is given a reasonable opportunity to present her/his case and, in particular, to inspect any documents to which the Tribunal proposes to have regard and to make submissions in relation to those documents

Powers of the AAT

o 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.

Appeals from the AAT to the Federal Court

o S44 Appeal on question of law (1) A party to a proceeding before the Tribunal may appeal

to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding

Can also appeal re standing (4) The Federal Court of Australia shall hear and determine

the appeal and may make such order as it thinks appropriate by reason of its decision.

(5) Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming

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93or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.

Shi v Migration Agents Registration Authority

o AAT made its decision on basis of information/facts that arose after cancellation decision it was reviewing.

o Federal Court and Full Federal Court upheld appeals against decision of AAT

o High Court articulated issues as: was AAT’s job to determine correct and preferable decision at time MARA made decision, or on the basis of material before it at time it undertook review?

o Kirby J: the legislation doesn’t address this question directly o Need to consider:

Nature of the tribunal : able to make decisions on the merits –such a tribunal represented a bold departure from previous law

Function of the tribunal : tribunal to undertake a full merits review therefore needs to make its own decision on all the material available

Purpose of s43 : includes power to substitute a decision or send it back; so tribunal becomes in effect primary decision maker and must make decision on ‘best and most current information’.

Nature of the decision under review : take account of particular statutory framework: here, s 303 Migration Act: clearly contemplates that circumstances might change

Esber v Commonwealth

o Issue: when law has changed between time of decision and time of review, which law is applied?

o Here: decision made in 1987; 1988 Act repealed the 1971 act. Application heard in 1991

o The determination for the tribunal is whether the decision was the correct or preferable one on the material before the tribunal

o Which law? Consider transitional provisions In the absence of express provisions, Acts Interpretation

Act provides that legislation must be interpreted on the basis that it is not intended to deprive people of rights which had accrued under the old law

The role of policy: the Drake cases

o Drake v Minister (1979) Drake was seeking to challenge a deportation decision AAT affirmed the deportation decision and took account of

government’s policy Drake challenged this

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94 Bowen CJ and Deane J:

Nb: decision for the tribunal; not whether the decision was correct or preferable on material before the original decision maker, but on the material available to it

Tribunal not bound to apply government policy, but permitted to take it into account

Govt policy is a relevant matter for original decision maker; so would not make sense if AAT could not consider it

Not desirable to frame any general statement of role policy should play

Here: AAT had not independently assessed the relevant policy and its application; remitted it

Drake No 2o Brennan J: rehearing following remittal by Federal Court o Note concern articulated (639) about the possibility of

inconsistency of decision-making when decision-making power conferred upon more than one decision-maker

o 640: ‘inconsistency not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice’

o ‘…powerful considerations in favour of Minister adopting a guiding policy’ ..

Must be consistent with statute Minister must decide each case on its merits 642: not only lawful but desirable for Minister to

promulgate policy 643: Tribunal is free to adopt different reasoning from

Minister But note connection between policy and consistency in

decision-makingo Note distinction drawn by Brennan J between judicial decision and

tribunal decision in relation to policy (643) The judgment of a court turns upon the application of the

relevant law to the facts as found; a decision of the tribunal, reviewing a discretionary decision of an administrative character, takes into account the possible application of an administrative policy.

Generally speaking, a discretionary administrative decision creates a right in or imposes a liability on an individual; a curial decision declares and enforces a right or liability antecedently created or imposed. They are different functions. The adjudication of rights and liabilities by reference to governing principles of law is a different function from the function of deciding what those right or liabilities should be. The former function rightly ignores the policies of the executive government; the latter should not.

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95o Tribunal not bound to follow policy and can’t deprive itself of

freedom to give no weight to it o BUT ‘there are substantial reasons which favour only cautious and

sparing departures from Ministerial policy …’ [644] o Tribunal should adopt a ‘practice of applying lawful ministerial

policy, unless there are cogent reasons to the contrary’ o And NB: summary at the end

NSW: the Administrative Decisions Tribunalo Under s63 of the ADT Act, ADT is to decide what is the correct and

preferable decision having regard to the material before it o ADT may exercise all the functions conferred on the primary

decision-maker o ADT may affirm, vary or set aside the decision; make a decision in

substitution, or remit the matter for reconsideration in accordance with any directions or recommendations

o Note that standing to seek review is governed by the legislation conferring jurisdiction: see s55, s4

o NSW ADT jurisdiction Original decisions (e.g. discrimination) Merits review

General (egFOI, privacy, professional discipline) Community Services Revenue Legal services division (complaints against legal

practitioners) Equal Opportunity Retail Leases

The ADT and policy

o ADT Act 1997 (NSW) Sec 64: ADT must give effect to a valid policy that has been

certified by a minister as government policy, unless the policy produces an unjust decision in the circumstances of the case

o See also VCAT Act 1998 (Vic) VCAT must apply a valid policy in reviewing a decision if a

minister has certified the authenticity of the policy, the policy was relied upon by the primary decision maker, and the policy was gazetted or known to the applicant for review

MERITS REVIEW TRIBUNALSA distinction between merits review and judicial review was introduced into Australian law by the Commonwealth Administrative Review (‘Kerr’) Committee. Its 1971 report formed the basis of a new Commonwealth administrative law system, the main components of which were:

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96 the ADJR Act, the Ombudsman, freedom of information (FOI) and the Administrative Appeals Tribunal (AAT).

The committees recommendation for the establishment of a general ‘administrative review tribunal’ rested on several propositions/rationales:

‘It has been universally accepted that judicial review by courts...must be supplemented by provision for review...on the merits of administrative decisions affecting the rights and property of the citizen.’

As a matter of constitutional law, federal courts could not be invested with jurisdiction to review the ‘merits’ of decisions that raised ‘non-justiciable’ issues because such jurisdiction involved the exercise of non-judicial power (Boilermakers)

‘The vast majority of administrative decisions involve the exercise of a discretion by reference to criteria that do not give rise to a justiciable issue.’

‘the basic fault of the [then] entire structure is that review cannot as a general rule, in the absence of special statutory provisions, be ‘obtained on the merits’ - and this is usually what the aggrieved citizen is seeking.

It followed that the proposed general ‘merits review’ body could not be set up as a ‘court’ under Chapter III of the Constitution. The committee nevertheless envisaged that it would operate, in effect, as a court substitute, which is indeed the way things turned out.

By 1971, merits review tribunals had been in existence for almost 50 years:

Federal Commissioner of Taxation v Munro (1926) 38 CLR 153

Provisions relating to the Taxation Board of Appeal were unconstitutional because they conferred judicial power on a body not established under Chapter III of the Constitution. The legislation was amended, turning the board of appeal into a board of review, giving it ‘all the powers and functions of the commissioner’ and providing that its decisions ‘shall be deemed to be assessments, determinations or decisions of the commissioner’.

These new provisions validly conferred non-judicial power on the board. It had been transformed, in modern parlance, into a merits review tribunal.

What are Tribunals?

A tribunal resolves disputes, primarily by adjudication.

A tribunal is not a court.

In the Federal context, a court refers to institutions established under Chapter III and staffed by judges who hold office in according with the security of tenure, dismissal and remuneration requirements under s 72 of the Constitution.

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97The terms and conditions of appointment of members of tribunals are a matter for parliament, whereas the power of parliament to specify the terms and conditions of appointment of judges is subject to the provisions of s 72.

[Note: in the states, separation of powers is not constitutionally entrenched like it is in Chapters I, II and III of the Cth Constitution, and is understood less strictly. As a result, the distinction between courts and tribunals is less clear-cut. What the looser concept of separation of powers enables state legislatures to do (and what the Commonwealth Parliament cannot do) is to confer both judicial and non-judicial power on both tribunals and courts.)

Tribunals vs. Courts

While the typical qualification for becoming a judge of a court is expertise as a lawyer, the expertise of tribunal members may lie in the subject matter of the tribunal’s jurisdiction - for example, taxation as opposed to taxation law.

The AAT has jurisdiction under almost 400 statutes covering a wide range of government activities.

Frequently touted (but possibly debatable) advantages of tribunals over courts are:

speed low cost informality

The AAT stands at the apex of the federal merits review system. In the areas of taxation and Commonwealth worker’s compensation, the AAT provides first-tier review.

Purposes of Merits Review

correct and preferable decision improve the quality and consistency of government decision-making (the

normative effect) provide a mechanism of review that is cheap, informal and quick. openness and accountability of government.

Where you want the matter considered afresh (de novo).

The Administrative Appeals Tribunal (AAT)

Membership and Organisation

President (1): judge of the Federal Court Presidential members (13): judges of the Federal Court Deputy presidents (9): legal practitioners enrolled for not less than 5

years Senior members (18):

o Legal practitioners (enrolled for not less than 5 years), oro persons who have special knowledge or skills

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98 Members (30):

o Legal practitioners, or o at least 5-years experience in industry, commerce, etc

[Note: concerns over political bias. Appointment of agency staff to tribunals creates a concern that the member will favour the department. Also, tribunal members do not have tenure.]

Access to Merits Review in the AAT

Two major question:

1. What can the AAT review?2. Who has standing to make an application for review to the AAT?

1. What can the AAT review?

Administrative Appeals Tribunal Act 1975 (Cth) Section 25 (1) An enactment may provide that applications may be made to the Tribunal: (a) for review of decisions made in the exercise of powers conferred by that enactment

So, in determining whether the AAT has Jurisdiction to hear an application, it is necessary to ask:

a. Does the application relate to a ‘decision’? andb. Was the decision made in exercise of a power conferred by an enactment

that confers jurisdiction on the AAT to review that decision?

a. ‘Decision’

Has been held to include ‘purported decision’.

This phrase is synonymous with ‘illegal’ (ultra vires) decision.

Does a merits review tribunal have jurisdiction to review an illegal (purported) decision and to set it aside on the ground that it is contrary to law, regardless of its merits?

The decision in Collector of Customs v Brian Lawlor (1979) 2 ALD 1 that the AAT does have such power established that although merits review tribunals (unlike courts) can review administrative decisions ‘on the merits’, this is not all they can do. Careful, merits review tribunals cannot decide questions of law ‘conclusively’, since this is a judicial function.

Jurisdiction does not require the decision to be valid. It can be illegal.

The invalidity of a decision does not preclude merits review.

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99[Why would you rather go to AAT than judicial review?

Quick, cheap, informal.

easier thresholds e.g. ‘decisions’]

The definition of ‘decision’ is in s 3(3) AAT Act .

It differs from the definition in the ADJR Act in that it only refers to a ‘decision’, not ‘the making of’ or ‘failure to make’ a decision.

Unreasonable delay will produce a decision under the AAT Act (s 25(5)).

AAT Act has no equivalent to s 6 of the ADJR Act, which makes reviewable ‘conduct [engaged in] for the purpose of making a decision.’

The distinction between conduct and decisions was important in ABT v Bond, where s 6 was used to justify giving a narrower rather than a broader meaning to ‘decision’ (i.e. something that is ‘final’ or ‘ultimate’ or ‘determinative’ or ‘operative’ - consistent with the limited nature of judicial review and would reduce the risk that decision-making processes would be unduly fragmented and delayed.)

*An important distinction*

Judicial review ordinarily does not extend to findings of fact (ABT v Bond), however ‘decision’ has a broader meaning under the AAT Act, and is more likely to cover decisions on questions of fact.

Go down AAT when it is flagged, or when it looks like it is not the correct/preferable decision. You can use it for adverse findings of fact, since this will constitute a decision for AAT purposes, not for ADJR purposes.

b. ‘...made in exercise of powers conferred by an enactment that confers jurisdiction on the AAT’

I.e. Quite obvious when jurisdiction is available, since an enactment will provide that merits review under the AAT is available.

The equivalent phrase in the ADJR Act is ‘made under an enactment’.

The ADJR Act confers on the Federal Court jurisdiction to review decisions made under Commonwealth statutes subject to any express provision to the contrary.

By contrast, the AAT has jurisdiction to review a decision only if a Commonwealth statute expressly confers jurisdiction to review a decision of that sort.

(The Federal Court has general review jurisdiction under the ADJR Act whereas the AAT only has jurisdiction to review such decisions as are expressed to be reviewable by some statute other than the AAT Act.)

2. Who has standing to make an application to the AAT?

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100 Applications and standing Administrative Appeals Tribunal Act 1975 (Cth)

Section 27 (1) Where this Act or any other enactment … provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision.(2) An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association. (not if association was formed, or the relevant matter was included in its object, after the decision was formed)

For (1), ‘person’ includes a Commonwealth agency.

Not enough to have interests, they must be affected by the decision.

Section 30

The parties to a proceeding before the Tribunal for a review of a decision are:

(a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision; (b) the person who made the decision; (c) if the Attorney-General intervenes in the proceeding under section 30A--the Attorney-General; and (d) any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A).

(1A) Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.

Who are the parties?

The person who made the decision under review is a party to the proceedings under the AAT (note, the A-G might intervene on behalf of the Cth).

Note: joining proceedings: (1A)

any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.

PROCESSPrehearing procedure

Section 34A (1)(a)

Hearing before the Tribunal

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101o Fair, just, economical, informal and quick (s 2A)

o AAT must conduct proceedings with as little formality and technicality and as much expedition as the legislation and a proper consideration of the matter permits (s33 (1)(b))

o AAT is not bound by the rules of evidence and may inform itself of any matter in such manner as it thinks appropriate (s33 (1)(c)).

o Hearing shall (subject to exceptions) be in public (s 35)

o Every party given reasonable opportunity to present his or her case and to inspect documents to which the Tribunal proposes to have regard (s 39)

Powers of the AATS 43 of the AAT Act is central to an understanding of the nature of merits review and its relationship to judicial review.

The provisions of this section encapsulate the ‘schizophrenic nature’ of the AAT, at one and the same time part of the administrative process and an external reviewer of the executive.

The section does three things:

1. It sets out the powers of the AAT in relation to a reviewed decision. It can:

a. affirm the decision (s 43(1)(a));

b. vary the decision (s 43(1)(b));

c. set aside the decision under review and either;

i. make a substitute decision, or

ii. remit the decision for reconsideration by the decision maker with directions (binding) or recommendations (non-binding).

2. It provides that when the AAT varies a decision or makes a substitute decision, the AAT’s decision is deemed to be a decision of the original decision maker as from the date of coming into effect of the original decision (s 43 (6)).

3. The power of the AAT is not to make a decision of the type under review, but to make a decision about the decision of the type under review, which may or may not be a decision to remake or vary that decision. In doing so, it is not limited to considering the material available or the reasons given by the original decision maker.

Illustrative case:

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102Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1980) 2 ALD 634

Judicial review of an AAT decision.

The AAT will ordinarily apply a governmental policy when it is reviewing a decision.

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.

An argument against applying a policy will be considered by the AAT but cogent reasons will have to be shown against its application.

Problem is when a policy is applied inflexibly or uncritically. This would mean that the tribunal is abdicating its independent function. Should not become a rubber stamp.

Shi v Migration Agents Registration Authority (2008) 248 ALR 390

‘Fresh evidence’: facts and circumstances occurring since the decision under review.

The Tribunal CAN take this into account.

The finding that he was a ‘fit and proper person’ does not have a temporal element.

Decision to be made by the AAT is not limited by what facts were before the decision-maker.

Trust Company of Australia Ltd v Skiwing [2006] NSWCA 185

Made claim under the Commercial Department of NSW ADT to hear s 52 claims.

Tribunal said it had no jurisdiction to hear claims under TPA.

ADT was not a court, couldn’t fulfil judicial functions.

Tribunal right in saying it shouldn’t entertain the claim.

Appeal from Tribunal’s Decisiono Appeal on a question of law (s 44)

Section 44 (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

o Judicial review (ADJR Act, Judiciary Act 1903 s 39B).

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103

Investigating Administrative Conduct

Ombudsman

- investigates complaints of maladministration- can investigate on own motion into administrative problems within

government agencies- Recommendary powers only. - Key features

o Independento Accessibleo Extensive investigatory powers

Ombudsman Act 1976 (Cth)

- s 5)1) sets out investigate complaints or on own motion. Action relating to a matter of administration.

- s 5)2) not authorized to investigate:o Action taken by a ministero Action consitutiting proceedings in parliament for purposes of

section 16 of parliamentary privileges acto Action taken by a justice or judge of a court created by the

parliament. - s 6) discretion not to investigate certain complaints

o Eg frivolous or vexatious complaints- s 7) complaint orally or in writing- s 8) ombudsman must notify the authority that it is being investigated

o investigation may be conducted in private and in such a manner as the ombudsman sees fit (s 8(2))

o opportunity to be given to department officers to be heard

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104- s 9) ombudsman can require a person to provide info or documents, or

answer questions- s12) ombudsman informing the complainant

o shall provide particulars of the investigationso may provide a copy of the recommendations to the complainanto shall provide a copy of the recommendations to the complainant if

the department does not take action in response to the recommendations.

- s 13) can examine people on oath- s 14) may enter Commonwealth premises to carry out investigations. - 15 Reports by Ombudsman- (1) Where, after an investigation under this Act into action

taken by a Department or prescribed authority has been completed, the Ombudsman is of the opinion:

- (a) (i) (ii) (iii)- that the action: appears to have been contrary to law; was

unreasonable, unjust, oppressive or improperly discriminatory; was in accordance with a rule of law, a provision of an enactment or a

- practice but the rule, provision or practice is or may be unreasonable, unjust, oppressive or improperly discriminatory;

- (iv) was based either wholly or partly on a mistake of law or of fact; or (v) was otherwise, in all the circumstances, wrong;

- (b)- ␣[improper purpose, relevant or irrelevant considerations

taken into account, or no reasons given]- ␣this section applies to the decision, recommendation, act

or omission constituting that action.

15 (2) Where the Ombudsman is of the opinion: (a) that a decision, recommendation, act or omission to which this section applies should be referred to the appropriate authority for further consideration; (b) that some particular action could be, and should be, taken to rectify, mitigate or alter the effects of, a decision, recommendation, act or omission to which this section applies;varied;(c) that a decision to which this section applies should be cancelled or(d) that a rule of law, provision of an enactment or practice on which addecision, recommendation, act or omission to which this section applies was based should be altered;(e) that reasons should have been, but were not, given for a decision to which this section applies; or(f) that any other thing should be done in relation to a decision, recommendation, act or omission to which this section applies; the Ombudsman shall report accordingly to the Department or

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105prescribed authority concerned.

Note: ombudsman may only recommend. If no appropriate action is taken, ombudsman may write to the Prime Minister (s16) or table a report in Parliament (s17)

NSW Ombudsman- similar in scope to the Commonwealth Act.

Corruption

The NSW Independent Commission Against Corruption

ICAC Act

Purpose: to minimize corruption in the public sector.

- investigate, expose and prevent corruption involving or affecting public authorities and public officials.

- Educate public authorities, public officials, members of the public about corruption and its detrimental effects on public administration and on the community

- Act confers on the commission special powers to inquire into allegations of corruption.

- S8- definition of corrupt conducto Conduct affecting the honest or impartial exercise of official

functions by a public officialo Conduct involving dishonest or partial exercise of official functionso Conduct by a public official involving breach of public trusto Misuse of information acquired in course of official functionso Also

Official misconduct Bribery Blackmail Obtaining or offering secret commissions Fraud Theft Perverting the course of justice

- Investigative powerso Telephone interceptionso Listening deviceso Search warrantso Production of documentso Public inquiry.

- S9- despite s8, conduct does not amount to corrupt conduct unless it could constitute or involve:o A criminal offenceo A disciplinary offence

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106o Reasonable grounds for dismissing a public officialo For ministers/ member of parliament- A substantial breach of an

applicable code of conduct- S20 investigations

o Commission may conduct off own bat, on a complaint, on a report made to it or on a reference made to it.

o May investigate even though no particular public official has been implicated

o May continue to discontinue an investigation if: Subject matter is trivial Conduct concerned occurred at too remote a time to justify

investigation Complain frivolous or vexatious.

- S21- power to obtain information- S22- power to obtain documents- S23- power to enter premises- S40- power to issue search warrant- S30- may conduct compulsory examination- S31- may hold public inquiries.

Greiner v ICAC

Gleeson CJ: there must be established objective standards which could reasonably lead to a dismissal- ICAC cannot create new grounds for dismissal from public office.

Priestley JA: Ministers can only be found corrupt where a criminal offence is involved. Compare this with s9 of the Act.

- led to amendment to s9o in the case of a Minister or MP

a substantial breach of an applicable code of conduct adopted for the purposes of this Act; or

corrupt conduct that would cause a reasonable person to believe that it would bring the integrity of the office or of parliament into serious disrepute and could constitute a breach of a law.

-

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