Using judicial review

• Essentially negative remedies … can be used:

• to protect … ANZ v Konza;

• to destroy … WA Land Authority v Minister for Sustainability etc.

• Cannot be used to create a decision … a successful applicant is most often sent back to the decision-maker.

• Procedural complications in ADJR Act … largely overcome by Judiciary Act, s 39B(1A)(c).

ANZ v Konza[2012] FCA 196

[2012] FCAFC 127

• Challenge to 2 notices issued under ITAA, s 264, requiring disclosure of information (stored in Australia) from customers’ accounts with ANZ Vanuatu

Judiciary Act 1903, s 39B(1) & (1A)(c)ADJR Act, s 5

• ANZ sought prohibition against Konza (a delegate of the Commissioner), “an officer of the Commonwealth” … s 39B(1)• ANZ claimed notices not authorised by s 264(1) – “a matter arising under a law made by the Parliament” … s 39B(1A)(c)• ANZ claimed –• notices not authorised by s 264(1), • the decision to issue notices involved an error of law, • the decision to issue notices was contrary to law, • the decision to issue notices involved an improper exercise of power and • the notices were uncertain.Raising s 5(1)(d), (e), (f) and (j) of the ADJR Act

The result

• Obligation of confidentiality cannot override s 264 … Lander J at [71]; FFC at [30]

• Disclosure would not breach Vanuatu law … Lander J at [128]; FFC at [23]

• In any event, s 264 is not subject to constraint by foreign law … Lander J at [81]-[84]; FFC at [31]-[34]

• Notices not issued for an improper purpose … Lander J at [133]; FFC at [39]-[42]

• Notice 1 not uncertain … Lander J at [186]; FFC at [50]

• Notice 2 uncertain … FFC at [63]

WA Land Authority (Landcorp) v Minister for Sustainability etc

[2012] FCA 226• Challenge to delegate’s decision to confirm that development of land

was “controlled action” under EPBC Act by reason of likely “significant impact” on protected listed species – Carnaby’s Black Cockatoo

Judiciary Act 1903, s 39B(1) & (1A)(c)ADJR Act, s 5

• Under ADJR Act, Landcorp claimed: • breach of natural justice – s 5(1)(a); • decision involved an error of law – s 5(1)(f); • irrelevant considerations taken into account – s 5(2)(a); • relevant considerations not taken into account – s 5(2)(b).

• Judiciary Act claims not developed.

The result

• Irrelevant considerations not taken into account … at [55]-[56], [59]-[60]• Relevant considerations taken into account … at [62]-[63], [71]-[72]• Natural justice denied when Department failed to reveal:• documents reflecting Department’s accumulated knowledge and

approach to assessing proposed actions... at [86]• information about other developments in the area … at [129]• an assumed deficiency in an expert’s report … at [138]