Web viewAppeal to FC on question of law from AAT (s 44(1) AAT Act) ... (Bond) Intermediate step is insufficient unless expressly required by statute

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Administrative Law Index

Alternative Remedies1. Human Rights Mechanisms

a. Australian Human Rights Commissioni. Sex/ disability – resolved discriminatory conduct through conciliations

ii. Cannot make binding declarationsb. International instruments

i. Binding incorporated instruments eg CEDAW (women); ICERD (race)ii. Remedy through the courts

2. Political Processes/Mediaa. Raise awareness via through letter writing/petitions to the minister or mediab. Action via the principle of accountability, promote fair decision making which affects public interestsc. While it may encourage fair administrative decision making in general, does not directly overturn

specific decision3. Ombudsman

a. Investigates complaints (s 5(1)(a) OBA) & own motion (1)(b)i. Documents are protected (s 35(8)) & informal (s 7A)

ii. Same powers as Royal Commission (ss 9, 13,14)iii. Public sector jurisdiction (s 5)

b. Report of recommendations on merits, law & fact to an agency (s 15) or PM & parliament (s 16, 17)c. No determinative powers – toothless tiger, cannot alter decisionsd. Discretion to decline investigation if alternative method of review available (s 6)

4. Judicial Reviewa. Review limited to errors in law (Greens v Daniels)b. Cannot ‘strait-jacket’ the discretion of the executive (Brennan 2.1.4E)c. Discretion to refuse relief where adequate alternative provision made for review (s 10(2)(b)(ii) ADJR)

Eg informal expeditious admin tribunal is preferred unless inadequate (Bragg)5. Internal Review

a. Review of merits by office in same agencyi. Established by administrative action or statute, regular practice required (Re Uniway)

ii. Quick, relatively inexpensive; but adds a layer of complexity (Re Wolstencroft)b. If alternative statutory scheme is available, IR cannot be relied upon (Meschino)

6. Judicial Appeal [FC]a. Appeal to FC on question of law from AAT (s 44(1) AAT Act)b. Not as wide in terms of grounds of review

Review by AAT1. AAT provides an independent quasi-judicial review mechanism of law, fact and merits (Maher)2. Scope of merits review

a. Standingi. Individuals

1. By or on behalf of any person whose interest are affected by the decision (s 27(1))2. Cannot be general member of the public (Control investment)

ii. Organisations1. Incorporated or not (s 27(2))2. Real or genuine relationship (Control) to objects or purpose (s 27(2))3. Excludes decisions made before org was formed (s 27(3))

iii. Joining parties – allowed if interest are affected (s 30)b. Reviewable decision

i. In the purported exercise of powers conferred by the enactment (s 25 AAT Act)ii. Not limited to ‘lawful exercises of power’ or ‘honest belief of lawful exercise’ (Lawlor)

c. Powers of AATi. ‘All the powers and discretions conferred by enactment’ on original DM (s 43(1))


1. Question is what is the correct or preferable decision (Drake No 1)2. ‘Stand in the shoes of the original DM’ to make the correct decision re law & fact,

and the preferable decision re discretion (Shi)ii. Can affirm, vary, set aside, or remit decision

iii. Decisions made in fair, just economical, informal, quick manner (s 2A)3. Contemporaneous Review

a. Merits review is de novo, the tribunal is not restricted to the material before the DM (Shi)b. Responsibilities for the decision

i. DM no longer has authority to tamper with decision submitted to AAT (Re Bloomsfield)ii. Tribunal can relinquish power to agency (s 26)

iii. Parties can withdraw app (s 42A); tribunal can recognise consent settlement (s 42C)a. Change in law

i. No transition prov: law at date of tribunal decision (Kavvadias)1. Refusing a licence (Costello)2. Development and planning approval (Robertson)3. Contingent right (based on discretion) – mere hope or expectation

ii. Exception of accrued rights (s 8 AIA, Esber)1. Includes social security claims (Circkovsky)

4. Evidence & fact findinga. Not confined by judicial rules of procedure and evidence, wide discretion (s 33(1))b. It can inform itself as it thinks appropriate (Pochi)c. No side has the onus (McDonald)d. Civil burden proof on the balance of probability (Smith)

i. Depends on seriousness of allegation and gravity of consequences (Briginshaw)5. Appeal to FC on question of law (s 44(1))

Documents for AAT Review1. Documents in possession

a. Official reports, figures, income, balance sheetsb. Statements of characterc. Videos, recordings, photosd. Letter from DM, application to DM & Tribunal

2. Submission of new evidencea. Tribunal is not restricted to the material before the DM (Shi)a. Change in factual matrix

i. Fresh evidence not before DM (ss 38, 39, 40)1. REFUSAL of a benefit, new evidence of conduct up to tribunal date (Jebb)

ii. Except where there is a temporal element (Shi)1. CANCELLATION of a benefit, cannot use new evidence of conduct b/w date of

cancellation and the tribunal decision; need to reapply (Freeman)3. Reasons for decision

a. Any person entitled to review may request DM in writing for a written statement of reasons containing material questions of fact and the evidence within 28 days (s 28 (1))

b. DM must lodge document of reasons within 28 days of receiving the request (s 37)c. Content

i. Link between outcome and facts (Military Rehab)ii. Level of understanding required to adequately disclose intellectual process (Garret)

iii. Use clear language directed at relevant audience (Telstra v ACCC)iv. Length – reflex complexity of decision, economical, informal, quick (Ansett v Wraith)

4. Party submissionsa. There is consistence upon full and early disclosure of document except - manipulation of evidenceb. Video evidence should be disclosed (Taxation Appeals)

5. FOI Exemptionsa. FOI Act allows access to government documents in line with the principles of transparencyb. Workings of government


i. Cabinet documents s 34(2)ii. Defence, international relations, national security (s 33)

iii. Policy formulation & adverse to public interest (s 36)c. Third party interests - Confidential informants (s 37); Trade secrets, business information (s 43A)d. Legal interests - Legal professional privilege (s 42)e. Other Grounds - lost documents (24A); unreasonable diversion of resources (s 24(1))

Arguments for Merits Review1. Procedural Fairness

a. Parties must have a reasonable opportunity to present their case and inspect documents on which the tribunal proposes to reach a decision (s 39)

b. Wide discretion to procedure and evidence (s 33(1)(a)) does not exclude principles of NJ (Hayes)c. Duty to grant adjournment

a. To call a witness (Sullivan)b. Discharged if opportunity to call witness was rejected; or did not ask to call one

d. Duty to enquire exists (Azzi)e. Provision of other party submission

i. Although no statutory req of making all party documents available; there is consistence upon the full and early disclosure of document except - manipulation of evidence (Hayes)

ii. Video evidence should be disclosed (Taxation Appeals)2. Interpretation of Statute

a. Literal approach – natural and ordinary meaning (Cooper Brookes)b. Purposive – construction that promotes purpose/object is preferable (s 15AA(1) AIA)c. Subject matter & interests

i. National security – expansive (Woodward)ii. Socially desirable or obnoxious – wide/narrow (Bradbury)

iii. Affect rights – will not be construed as absolute and unfettered (FAI)iv. Interference with immunities & fundamental rights – express words required (Coco)

d. Extrinsic materiali. Confirm intended meaning (s 15AB(1)(a) AIA), resolve obscurity & ordinary meaning is

manifestly absurd (s 15AB(1)(b))ii. Includes explanatory memoranda, second reading speeches, parliamentary materials (AB(2))

iii. International law has interpretive input but does not override domestic law (AB(2)(d))e. CL presumptions

i. No extra-territorial operation (Jumbunna)ii. Presumed not to violate international law obligations (Teoh)

iii. Rebuttable by words of statute (8.3.17)f. Implied incidental power

i. Powers consequential to those expressly conferred (Great Eastern Railway)ii. Power must complement not supplement (Shanahan)

3. Subordinate Legislationa. Rule in writing made by executive pursuant to authority delegated by legislature (s 5(1) LIA)b. Cannot appropriate money/impose taxes, seriously impact rights, change old policies, create offence

with significant criminal penalties, amend act (Leg Handbook 2000); except Henry VIIIc. Legality - Ultra vires – parent act or other legislation; Constitutional compatibilityd. Test of substantive invalidity – Tanner Test

i. Construe the parliament’s intention re power to make regulations (parent)ii. Ascertain scope and legal effect (regulation)

iii. Is it within the ambit of power conferred?1. Regulate/Prohibit distinction – can prohibit absolutely or conditionally (Foley)2. Means/End distinction – where statute provides means, cannot adopt a different

means to reach the same end; purposive (Paull v Munday)3. Unreasonableness – used for ordinary meaning (Australia Fisheries)4. Proportionality – to purpose and ends; re Wednesbury unreasonableness (Tanner);

lead to arbitrariness, injustices, or partiality (Fisheries)e. Accountability & procedural requirements


i. Public consultation (s 17), no consequences for failure to consult (s 19)ii. Lodged & registered in Federal Register (s 28); else invalid (s 31, 32)

iii. Must publish in Gazette, if on or after commencing day (s 56)iv. Tabled in parliament (s 38)v. Instrument automatically repeals after 10 years unless renewed (s 50)

4. Government policya. Default is to apply policy and only depart cautiously and sparingly if compelling reasons (Drake No 2)b. Reasons to depart

i. Inconsistent with statute (Murspyores)ii. Produce unjust or Wednesbury unreasonable decision (Drake No 2)

c. Application of Quota formulasi. Different standards applied to decisions reviewed/ not reviewed, effect on other industry

participants (Jetopay)ii. Look at characteristics of industry, availability of resources, nature and capacity of applicant

for consistency – balance of public/industry good


JR Remedies Flow Chart

Error within Jurisdiction Jurisdictional Error Others

Declaration Injunction Certiorari S 16 ADJR Act [FC] Not confined by lims

inherent in const writs (Conyngham)

Not ‘uncharted course without legal ref pts to steer’ (Johns v ASC)

Legality/merits – where residual exists should remit (Conyngham)

Prohibition Mandamus

JA s 39B(1A)(a) [FC] Ancillary to Const s

75 [HC] Supplemented by

JA s 32 [HC]

JA s 39B(1A)(a) [FC]

Const s 75(v) [HC] Supplemented by

JA s 32 [HC]

Ancillary to JA s 39B [FC]

Ancillary to Const s 75 [HC]

Complemented by JA s 32 [HC]

JA s 29B(1) [FC] Const s 75(v) [HC] Via JA s 32 for grounds in s 75 [HC]

Declare rights Remit Quash Direct to do/ not do Direct making of decision

(1)(c) [Decision] (2)(a) [Conduct] (3)(b) [Failure]

(1)(b) [Decision] With directions

(1)(a) [Decision] From date which

court specifies

(1)(d) [Decision] (2)(b) [Conduct] Justice within law (3)(c) [Failure]

(3)(a) [Failure]

Cth is a party Constitutional Matter Cth Parl Laws Associated Jurisdiction (Fed)

Accrued Jurisdiction (State/CL)

Class Actions Criminal Proceedings(No remedy)

Const s 75(iii) [HC] JA s 39B(1A)(b) [FC]

Const s 75(i) [HC]

JA s 39B(1A)(c) [FC]

FCA Act s 32 [FC] Inherent [FC] Arising from same facts

& relating to same matter (Edensor)

Damages (Park Oh Ho)

FCA Act Pt IVA [FC]

FCA s 33C [FC]Sub common issues of law n fat arising the same way

ADJR s 9A JA s 39B(1B)-(1F)



JR by FC/FMC under ADJR1. Standing

a. s 3(4) - Aggrieved person: interests adversely affected by s 5 – decision or s 6 – conducti. Must be personal benefit or detriment (McGuirk)

ii. Can be similar to large seg of pop (Dyson)iii. Mere emotional/intellectual concern insufficient (ACF)iv. No requirement of direct LEGAL affect (Power Engineers)v. Private right or special damage to public right (ACF)

b. Action cannot be oppressive, vexatious, or abuse of power (Bateman’s Bay)2. Procedure: s 11

a. Application set out grounds, lodge with Registry in a reasonable period (or 28 days)b. Apply under ADJR & JA simultaneously

3. Power to stay in operation of a decision being challenged (ss 15/15A)4. Reasons for Decision

a. s 13(1) – Person who applies to FC can request in writing from the DM for a written statement of reasons containing material questions of fact and evidence

i. (2) – DM must respond on 28 days, or (3) provide reasons why not entitled in 28 yearsii. (5) – DM can refuse request if app not made within 28 days/reasonable time

iii. (11) Section 13 apply s 28 applies, reasons already given, excluded by Sch 2b. s 13A(1) Excludes: Info about personal/business affairs supplied in confidence, containing trade

secret, required by enactment, contrary to statute to releasei. Applies even if statement would become false or misleading

ii. Does not affect power of FC/FMC to make order for discovery5. Jurisdiction

a. s 3(1) ‘Decision of admin character made...under an enactment’ unless excluded by Sch 1b. s 3(2) ‘Report or recommendation made under enactment shall be deemed as a decision’

i. Decision 1. Does not include mere thought process, req overt act eg verbal or written

communication of the conclusion or no action where otherwise definite action would have been taken (Ricegrowers)

2. Read restrictively: final and operative decision (Bond)3. Intermediate step is insufficient unless expressly required by statute4. Intermediate steps and findings can expose considerations for reasons

ii. Findings of Fact 1. No more than step along the way, unless required by statute (Bond)2. Reviewable if ultimate decision depends on finding of fact or made without evidence

(ss 5(1), (f), (h) ADJR)iii. Administrative Character

1. Not legislative or judicial (Burns)2. Rule of general app (legislative); application to specific cases (admin) (Roche)3. Public notification, consultation (Roche)4. Instrument is not conclusive (Tooheys)

iv. Under an Enactment 1. Excludes decisions made under executive/prerogative power or contract2. Enactment can include subordinate legislation3. Test (Tang)

a. Expressly or implied authorised by the enactmentb. Must affect legal rights or obligationsc. Authority to do what can be done under general law is insufficientd. Relationship cannot be voluntary, eg student uni

c. s 3(5) Conduct for the purpose of making a decision including things preparatory, taking of evidence or holding an inquiry

i. Conduct: Procedural not substantive, does not extend to intermediate steps (Bond)d. s 4 Will operate notwithstanding anything in existing laws (overrides privative clauses)e. s 9A Excludes decisions made during the criminal process, esp committal proceedings


JR by FC under Judiciary Act

1. s 39B(1) Mandamus/prohibition/injunction is sought against a Cth officer:a. 1A(a) Where Cth is seeking an injunction/declarationb. (b) Arises under the Cstn or its interpretationc. (c) Arises under any laws made by Parliament

2. Jurisdictiona. ‘An officer of the Cth’

i. Statutory corporation (Edensor)ii. FC Judge (WA NFL)

iii. DOES NOT include President of the Senate (Re Reid)b. ‘Arising under any laws made by the Parliament’ - requiring the right to owe its existence to the

federal law or depend on it, rather than merely touch on the interpretation of fed law (R v CCCA)c. s 39B(1B)-(1-F) excludes criminal proceedings

JR by HC1. Constitution s 75 Original jurisdiction in:

a. (i) Matter arising under interpretation of Constb. (iii) Cth is a partyc. (v) Mandamus, prohibition or an injunction sought against an officer of the Cthd. s 76(ii) Arises under any laws made by Parliament

2. Judiciary Acta. s 32 power to grant all remedies with respect to legal/equitable claim to determine all matters

connected to cause of actionb. s 38 Exclusive jurisdiction to issue writ of mandamus or prohibition against officer of Cth (except FC)

3. Jurisdictiona. ‘An officer of the Cth’

i. Statutory corporation (Edensor)ii. FC Judge (WA NFL)

iii. DOES NOT include President of the Senate (Re Reid)b. ‘Arising under any laws made by the Parliament’ - requiring the right to owe its existence to the

federal law or depend on it, rather than merely touch on the interpretation of fed law (R v CCCA)

Migration Act & States1. State courts

a. SC Act s 23 – court shall have all the jurisdiction necessary for the administration of justice in statesb. Federal Jurisdiction (FJ)

i. Const s 77(iii) – Cth Parl can invest state court with FJii. Judiciary Act ss 39(2), 68 – confers FJ on state courts in civil and criminal matters brought

under Cth lawsiii. Judiciary Act ss 38, 39 – can only grant injunctions against Cth officeriv. ADJR s 9 – where reviewable under AJDR (injunction), state courts have no jurisdiction

2. Cross Vesting Actsa. Integration via:

i. State courts vested with FJii. HC appellate jurisdiction to hear appeals from FC /SC of state (s 37 Const), with special leave

iii. Parallel legislation enacted in each state legislature (Cross-vesting Act)3. Migration Act

a. Pt 8 - Review of decision on migrant entry or refugee claims, substitutes ADJR and JAb. Pt 8 & 8A – Limitations on class actions and time limits


General Justiciability1. Standing – must be parties to litigation

a. Limited to Legal rights and interests (CCSU)2. Legality/Merits distinction

a. Where residual discretion remains with primary DM, court should remit rather than declare (Guo)b. Can only uphold lawfulness, fairness or reasonableness of decision; distinguished from appeal which

allows a court to substitute a decision3. Nature of issue

a. Immediate real matters – hypothetical questions/ no legal remedy = no matter (McBain)b. Prerogative power YES – justiciability turns on nature of decision rather than stat/prerog (CCSU)c. National Security NO – responsibility of exec not courtsd. Cabinet NO – bound by the political sanctions, inappropriate for court to interfere (Peko)

i. Confidentiality of proceedings = barrierii. However , no general principle that decisions made in public interest/ politically controversial

are immune from JR (Central Metals)e. International Treaties NO – widely regarded as non-justiciable (Peko)

i. Entering into a treaty (Peko)ii. Annexation of territory (takeover) (NSW v Cth)

iii. Breach of international obligations (TWS v Fraser)iv. Adequate protection of citizens abroad (Re Limbo)v. However , justiciability depends on if court must extend function to domains such as political

sanctions (Re Ditfort)f. Foreign relations NO

i. Act of State Doctrine prevents courts from being judicial in ‘no mans land’, unless infringement of HR (Hicks)

ii. However , s 61 Const – executive power to protect citizens overseas (reviewable)4. Public / Private divide

a. Public exercises of power are justiciable (statute, subord), not contractual power (Datafin)b. ‘Under an enactment’ for ADJR Act – provides yardstick (General Newspapers)c. Governmental nature of power

i. Exercise of public law functions, with public law consequences; public duty (Datafin)ii. [Panel] is not a ‘remarkable body above the law’ but one with indirect support of a periphery

of statutory powers and penaltiesiii. Self regulating bodies wield enormous power, thus should be subject to JRiv. Governmental power integrated or woven into the fabric of public regulation, surrogate

organ of the government, or but for its existence a government body would assume control (Aegon Life Insurance)

d. Public/Private Companiesi. > 50% owned by government, subject to admin law except re commercial activities

undertaken in competitive market (ARC Report)ii. GBE would not be subject to real competition unless its participation in mkt is free from any

special government immunities or protectionsiii. Cannot impose public law obligations on private company while accommodating pursuit of

its private/commercial interest (NEAT)e. Rights and expectations - public duty affecting rights of citizens (Datafin)

5. Limits on justiciabilitya. Civil, criminal, extradition proceedingsb. No right to benefit, nor duty to consider conferring benefitc. Urgent decisionsd. Polycentric factors eg distribution of sourcese. Alternative dispute resolution is availablef. Affect on third partiesg. Where discretion of DM is wideh. Policyi. Not final or operative



JR Remedies2. Certiorari

a. Grounds: jurisdictional error, breach of NJ, fraud, error of law within jurisdiction (Craig)b. Criteria: Body of persons has legal authority to determine questions affecting rights of subjects

having to act judicially, act in excess of their legal authority (Electricity Commissioners)i. Legal authority

1. Includes statutory & prerogative (Lain)2. Does not include non gov bodies exercising public sector power (equitable prefd)

ii. Apparent or discernable effect on rights of subjects (Hot Holdings)1. No legal effect = nothing to quash, eg some preliminary steps

iii. Required to act judicially1. Doctrine of NJ extends to administrators, courts and tribunals (Ridge)

c. Error of law WITHIN jurisdiction ‘on the face of the record’(Shaw)i. Record contains documents which initiate proceedings and adjudication, but not evidence or

reasons (unless tribunal chooses to incorporate)1. Merely introductory or incidental reference to reason in judgement does not allow

all or part of reasons to become part of the record (eg “reasons given” “accordingly”) (Craig)

2. Reasons must be mentioned as integral part of the order (eg “as set out in”)ii. Affidavit evidence is permission if granted on grounds of want of jurisdiction (Shaw)

iii. Court may amend record by discarding, constructing or completing the material (Craig)d. Parties to the action

i. Does not issue against SC (16.2.13)ii. HC can grant against FCA or Family Court as judges are ‘officers of the Cth’ (Const s 75)

iii. Cannot issue against Governor (as rep of the Crown) (FAI)iv. Can issue against ministers and executive officers

e. May be ousted by a privative clausef. Will not issue of alternative remedy available (Ainsworth)

3. Prohibitiona. Jurisdictional error only, breach of NJ (16.3.1)b. No requirement of apparent or discernable effect upon rights, can apply to:

i. Preliminary decisions (Ainsworth)ii. Decisions affecting third party rights (16.3.4)

4. Mandamusa. Public duty imposed by statute excludes:

i. Duties imposed by international law (16.4.5)ii. Executive policies

iii. Government statutory obligations of private nature: contractual (Fairfax)b. Discretionary duty

i. Non-discretionary duty – can order lawful making of decisionii. Discretionary – only compel fresh decision

1. Cannot compel exercise of discretion in a particular way (Randall)2. Can be used to guide re-exercise of power

iii. Exceptional circumstances where can direct discretion in particular way:1. DM is required by statute to act a particular way in particular circumstances thus

no residual discretion remains (Royal Insurance)2. Improper or capricious exercise of discretion

c. Cannot be granted if a more convenient, satisfactory remedy exist (Ozone Theatres)


5. Injunctiona. Equitable remedy, mandatory or prohibitory, public/private, coercive but flexibleb. Granted in an interim (granted at any stage if just or convenient) or perpetual form (Tooheys)

i. Based on evidence of probability that plaintiff is entitled to relief (Tooheys)ii. Party suffer irreparable injury for which damages will b inadequate compensation

c. Public interesti. Public interest criteria is enabling not restrictive (not exclusive) (Bateman’s Bay)

ii. Public interest may be vindicated by party with sufficient interest in matter (eco detriment)iii. Party unless restrained will continue to break the law for his or her own advantage to the

possible disadvantage of other members of the public in locality (Cooney)d. Will not issue of alternative remedy available (Fairfax)

6. Declarationa. Equitable, non-coercive, conclusive statement (res judicata – cannot be relitigated b/w same parties)b. Can be sought on behalf of group/class citizens with same interests (Dyson)c. Can be sought during tribunal proceedings (Forster)d. Effective to:

i. spell out consequences of unlawful admin action (Park Oh Ho)ii. Matters to be addressed by DM upon reconsideration of invalid decision (Greens v Daniels)

iii. Forestall or annul unlawful action (Croome)iv. Invalidity of regulation (Evans)v. Can be effective at preparatory stage where certiorari cannot quash (preferred for error

within jurisdiction) (Ainsworth)e. Ineffective in:

i. Transferring expired licence (Perder)ii. Appeal period has expired (Punton)

iii. To prompt admin/leg change, but provide no direct consequences for parties (Gardener)7. Discretion to refuse relief

a. There is a firm presumption in admin law in favour of granting a remedy if a review error est. b. Discretionary grounds, even where review ground is breached (16.9.1)

i. Inexcusable delay by application to commencing proceedingsii. Ineffectiveness or futility of granting a remedy (CONCLUSION SZBYR)

iii. Existence of a more convenient and satisfactory alternative remedy (OUTSET)iv. Acquiescence by application in or waiver of a breachv. Unwarranted prejudice to the interests of the parties

vi. Competing public interest (eg fragmentation of criminal law committal proceedings)vii. Stopping an imminent national election

viii. Circumvent statutory requirements eg special leave (Heinrich), even at expiry of right NAUVix. Criminal justice process excluded from jurisdiction of FC

8. Privative Clausesa. Protects invalidity, prevents courts from pronouncing on lawfulness of admin actionb. Types (Effective/Ineffective)

i. No appeal - ‘final and conclusive’ NO (Hockey)ii. Denial of specific remedy – YES where does not deny JR generally (Houssein)

iii. Denial of JR – NO (Plaintiff S157)iv. Time clauses – NO if provision unnecessarily curtails ability to see relief under

Constitution s 75(v) (Bodruddaza)1. Can require extension of period (Plaintiff S157)

v. Wide discretionary powers – ‘if X is satisfied’ YES (Connell)vi. Effect as if enacted by Parl

vii. Deem valid all things based on evidence or proofc. Relating to Constitution

i. Assumed that parliament did not intend privative clause to protect ‘manifest’ errors (S157)ii. s 75(v) cannot be ousted completely by privative clause (Bodruddaza)

iii. Purpose to oust HC jurisdiction requires unmistakable and unambiguous language


JR Grounds1. ADJR Act s 5(1)

(1)(c),(d) – (c) Jurisdictional Error (d) not authorised by enactment (1)(e),(f) – (e) Error within Jurisdiction (f) whether or not on the face of record

o s 5(2)(a) Irrelevant considerationo (2)(b) Relevant considerationo (2)(c) Unauthorised purposeo (2)(e) Ministerial directionso (2)(f) Policyo (2)(g) Wednesbury unreasonableness

o (1)(j) Otherwise contrary to lawo (2)(j) abuse of power

o (1)(h) No evidenceo s 5(3)(a) matter required by lawo (3)(b) based on non-existent fact

o (1)(a),(b) – (a) Natural Justice (b) Procedures required by law (2)(d) discretionary power in bad faith (2)(h) the exercise of power is uncertain (1)(g) Fraud

2. ADJR Act s 6 – Conduct (as above)3. ADJR Act s 7 – Failure to make a decision4. Three stages of decision making

a. Fact finding (QOF) (Melbourne Stevedoring) EXCEPT:i. ‘Asking the wrong question’; ‘Applying the wrong test’ (QOL) (Azzopardi)

ii. No evidence/ relevant materials required by statute (QOL) (Pozzolanic)b. Rule stating (Construction of legislation)

i. Ordinary or technical meaning (QOF) (Pozzolanic)ii. Technical legal meaning, uncertain meaning or composite phrase (QOL)

c. Rule application ( Applying legislation to facts) (QOL) (Azzopardi)5. Decision, Conduct, Failure

i. Decision 1. Does not include mere thought process, req overt act (Ricegrowers)2. Read restrictively: final and operative decision (Bond)3. Intermediate step is insufficient unless expressly required by statute

ii. Findings of Fact: Step along the way, unless required by statute, unless no evidence (Bond)iii. Conduct: Procedural not substantive, does not extend to intermediate steps (Bond)iv. Failure: No action where otherwise definite action would have been taken (Ricegrowers)a

Jurisdictional Error1. If jurisdictional error is found, the decision will be void (Bhardwai)2. Remedies

a. Statutory appeal (s 44 AAT) (Craig)b. Judicial Review

i. Prohibition to prevent excess of jurisdictionii. Mandamus to compel fresh exercise of jurisdiction

iii. Certiorari to quash proceedingsiv. Declaration that order of proceedings is a nullity

3. Jurisdictional fact (JF) s 5(1)(c),(d)a. Power to make decision conditional upon occurrence of fact or circumstance (Timbarra)

i. Presumption against court’s jurisdiction being dependant on a JF (Basket Shoes)b. Test – objectivity and essentiality of the fact (Timbarra)c. Exceptions


i. Statute contains words regarding mental state: ‘opinion, belief, satisfaction’ii. Course of inquiry

Error within Jurisdiction1. If error within jurisdiction is found, the decision is voidable2. Remedies

a. Statutory appeal (s 44 AAT) (Craig)b. Judicial Review

i. Ancillary certiorari to quash decision on face of recordii. Injunction/declaration – Declare decision invalid, injunction to prevent acting on decision

iii. All remedies under ADJR s 16 – need not be on face of record3. No evidence

a. Common lawi. No evidence to satisfy essential statutory element (Melbourne Stevedoring)

ii. Some evidence, even insufficient evidence is enoughb. ADJR s 5(1)(h) OR s 5(1)(f) error of law

i. s 5(3)(a) required by law – clear legal intent (Chen); foundation of decision (Raj)ii. s 5(3)(b) based on non existent fact; NO fact exists not lack of evidence

iii. Not limited to evidence before DM (Curragh)4. Unauthorised delegation s 5(1)(e)

a. ‘A delegate cannot delegate’ no longer practical (Re Reference)b. Categories

i. Principal retains authority even if delegated (AIA s 34AB(d))ii. Delegate by written instrumt signed by principal, with authority of legislation (Re Reference)

1. Can act independently and sign own nameiii. Agent on behalf of principal (O’Reilly)

1. Subject to direction of principal2. Generally at CL signed in own name with authority; cannot further delegate3. Delegation of signature not invalid where it is a practical necessity4. Authority of agent ceases when principal leaves office

iv. Admin assistant1. Assistance to DM without formal authorisation: conduct research, interview,

prepare a briefing paper (Alvaro)2. Obligation of DM to consider all relevant matters cannot be performed by assistant

(Peko-Wallsend)5. Breach of statutory requirement s 5(1)(e)

a. Test: Intention of legislature that breach of condition would invalidate decision (Project Blue Sky)b. Substantive s 5(2)(a)(b)

i. Preliminary state – order declaration/injunction for compliance with condition essentialii. Later stage – uncertain if court will declare that final decision is tainted by earlier defect

c. Procedural step required by statute s 5(1)(b)i. Certiorari to quash decision (Prosner)

6. Applications of executive policy s 5(2)(f)a. Decision cannot be reached by automatic, inflexible application of policy (Ipec-Air)b. Legal relevance of policy

i. Must not be incompatible with legislation, or colour/confine discretion (Greens v Daniel)ii. Public notification requirement (FOI Act s 10)

iii. Enhances consistency, predictability, fairness (Drake No 2)c. Weight and influence

i. DM must keep an open mind to relevant considerations (s 5(2)(b), British Oxygen)7. Ministerial directions s 5(2)(e)

a. Minister cannot dictate decision to be made (Ipec-Air)b. Issues of fact (Evans):

i. Evidence req to prove if DM reached independent decision OR acted behest of a minister


ii. Taking into account ministerial directions or policy is different from automatic followingc. Issue of law

i. Mandamus can be order where decision was not independent (Ipec-Air):ii. Policy lawfully followed if required by clear and unambiguous language of statute (Ansett)

iii. Limited to ‘personal discretionary power’ (s 5(2)(e))8. Unauthorised purpose s 5(2)(c)

a. Construction of statutory purpose; express or implied (Schlieke)i. Special categories devoid of purpose (still reviewable for fraud/irrelevant)

ii. Kirby in Avel prefers literal meaning where purposive prod uncertaintyiii. Conflicting purposes eg social, environmental, economic – est hierarchy (Project Blue Sky)

b. Actual purpose for decision – issue of facti. Presumption of regularity – only inferred if evidence cannot be reconciled with proper

exercise of power (BHP Billiton)ii. Power used improperly does not thereby vanish, can still serve legit purpose (Schlieke)

iii. Purpose = end sought, distinct from motive (means) (South Sydney Rugby)iv. Multiple purposes

1. Real purpose may be disguised, limited evidence to support ulterior purpose, legislation support multiple purposes, multi member body (BHP Billiton)

2. Multiple purposes, some unauthorised, not necessarily be invalid (Schlieke)3. Unauthorised purpose must be the substantial or dominate purpose (Samrein)

9. Irrelevant matters s 5(2)(a)a. Criteria of relevant by construction

i. Language, purpose, object, subject matter, nature of power, character of DM (Peko)ii. Emphasis on character of DM & nature of decision

iii. Legal presumption against advancement of personal interest (Ipec-Air)iv. Consider international conventions (Teoh), anti-discrimination legislation (Browning)v. Unius est exclusio alterius (express mention does not exclude alternatives) (McKinnon)

b. Unconfined discretion & public interesti. ‘Entirely’ does not mean arbitrary unlimited power, means unconfined except in so far as

subject matter, scope, purpose (O’Sullivan)ii. Public interest taken into acct unless positively excluded (McKinnon)

c. Matters that were consideredi. Evidence: reasons statement, irrelevant policy statement or briefing paper (ACF v Forestry)

ii. May pick up red herring & turn it over & put it down – so long as it does not affect decisioniii. Insignificiant – no effect (Peko)iv. Absence of reasons where there is no duty does not equate to irrationality (Lonrho)(FOI)v. No reasons – court may infer DM has no good reason (Osmond)

d. Deprive applicant of possibility NOT probability of a favourable decision (Lu)10. Failing to consider relevant matters s 5(2)(b)

a. Obligation to consideri. Expressed or implied by state from subject matter, scope, purpose (Peko)

ii. Exists particular where there is adverse impact on interestsiii. Unconfined discretion – obligation not readily implied (Sean Investments)iv. May be obliged to ensure material is factually accurate; merits (Lu)

b. Failure to consideri. Constructive knowledge of evidence applies; ignorance does not protect decision (Peko)

ii. Consideration can be ongoing until final decisioniii. A single irrelevant consideration can invalidate, unless insignificantiv. Summary & analysis may be undertaken by subordinate (Sean Investments)

c. Degree of considerationi. May be satisfactory to mention matter in statement of reasons (Sean) OR

ii. Require a ‘proper genuine and realistic consideration of all relevant matters’ (Hindi)iii. May infer with merits (Bruce v Cole); adopt intermediate approach (Leghaei)iv. Failure to conduct inquiry to obtain rel info: Bound to enquire to determine if info is

credible, significant, & adequate reason for non-disclosure (Peko)


11. Unreasonableness s 5(2)(g); (1)(j) & (2)(j)a. CL – Standard ‘so unreasonable that that no reasonable body could have come to it’ (Wednesbury)b. Covers: fact finding & application; relevant/irrelevant, NJ (Bond)c. Capricious/disproportionate/discriminatory choice of power – substance of decision (Edelsten) (2)(j)d. Duty to inquire: relevant/available info (Prasad), not up to date (Tickner), obvious omission(Videto)e. No duty: one source is sufficient (Clancy), opportunity for submission given (Ford), depending on the

knowledge, capacity, edu, legal rep of applicant (Joseph), further enquiry is futile (SZAI)

Natural Justice s 5(1)(a),(b)1. Doctrine of NJ

a. CL NJ applies unless excluded by statute by manifestation of contrary intention (Miah)b. What is required is a fair hearing, not a fair outcome (SZBEL)c. Ensures relevant consideration, impartiality, public confidence to avoid practical injustice (Lam)d. Possibility of successful outcome denied, not probability that breach was material (Aala)e. Applies to decisions under statute & some prerogative (Jarret)

2. Probative evidence – findings based on arbitrary or irrational evidence3. Duty to inquire – when applicant has a disadvantage, or information has obvious gaps4. Prior Hearing Rule

a. ‘Hear the other side’, prior notice of decisive information & right to reply by submission (s157)b. Express statutory exclusion required (Haouchers)c. Factors and Circumstances

i. Existence of statutory procedure does not evince intention to exclude other NJ req (Miah)ii. Applies to public & private matters

iii. Urgency – less emphasis on NJiv. De novo review may imply NJ req intended to be excluded or modifiedv. Nature of power & character of DM excludes:

1. Cabinet, some prerogative eg international relations (Peko), Governor (FAI), subordinate leg, policy & planning (O’Shea)

2. Private law function of gov (Snapper Island)3. Unfettered discretion conferred by statute (FAI)

vi. Nature of interest, subject matter1. Individual interest, not as members of community (Kioa)2. Person liberty, status, preservation of livelihood & reputation, proprietary3. Cancellation or refusal to renew an existing application (FAI)4. Not applicable to a denial of a hope or advantage

vii. Existing rights & interests: direct, immediate effect on comm/personal/financial interests (Peko)viii. Legitimate expectation

1. An actual subjective expectation (Lam)2. Limitations

a. Distinguished from mere hope (Haoucher)b. Gives right to NJ, not to enforcement of expectation (Quin)

3. Prospective right includes:a. Government promise to specific person (Cole)b. Public statement of government policy eg ratified treaty (Teoh)c. Expectation of renewal of licence (FAI)d. Expectation that established interest/liberty will not be taken away (Heatley)e. Beneficial recommendation will not be overturned (Haoucher)f. Established course of practice (Quin)g. Opportunity to demonstrate statutory criteria for benefit or concession (Re HK)h. Tribunal claims to seek further evidence before making decision (NAFF)

4. Excludesa. Ombudsman recommendation (Metera)b. Appointment of a person to conduct an investigation (Ryan)c. Statutory DM process not directed to individuals (Geelong)d. Practice or assurance that has been terminated by exec (Save the Showground)


d. Elementsi. Prior notice generally in writing (Andrews v Mitchell)

1. Date & and place of hearing (Cooper)2. Sufficient time to put up case (Polemis); obtain material to rebut (Ansell)

ii. Disclosure of information1. Opportunity to deal with adverse/prej information that is credible, rel, sig (VEAL)2. Information that cannot be dismissed BEFORE making decision, not LATER chosen to

express reasons for decision reachediii. Opportunity to comment – rebut by submission (Alphaone) comment new information (O’Shea)iv. DM can act on recommendation if he is appraised of all rel material in order to evaluate

recommendation & understand force of representations (Alridge)v. Conduct in hearing

1. Written submissions sufficient unless matters of credit, reputation, inconsistence, experts & witnesses involved (White)

2. No NJ to legal representation, depends on seriousness & complexity or disadvantage, can be excluded by state (Cains v Jenkins)

3. Cross examination not required unless proceedings analogous to court proceedingsvi. Delay

1. Reasonable time required to review & make decision making rel considerations (NAIS)2. Breach where delay denied party opportunity to present case

vii. Duty to inquire1. No obligation to provide advance warning/sources, or invite applicant to improve on

material (SZEGT) mere right to reasons & review (O’Shea)5. Bias Rule

a. ‘No one can be judge in their own cause’; free from actual or appearance of bias, preconceptionsb. Applied rigorously to judicial officers and tribunal members, but to a lesser extent to ministers so as not

to inhibit application of government policy (10.5.3)c. Consequences: DM not allowed to participate, or decision is invalidd. DM should be slow to accept call for disqualification for bias, encourages ‘judge shopping’ (Centro)e. Actual Bias

i. DM’s mind so closed to persuasion that argument against the view is ineffective (Jia)f. Apprehension of bias/Prejudgment

i. Double might test (Ebner) – ‘a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the decision’

1. Fair minded observer must know facts & common things (Johnson v Johnson)2. Aware of pressure on adjudicators to act impartially3. Not complacent, nor unduly sensitive or suspicious

ii. The question is whether the DM’s mind is blank or open to persuasion (Jia)iii. Preconceived opinions & their expression do not constitute bias, does not follow that evidence

will be disregardediv. Prejudicial comments must be considered in context (Johnson v Johnson)v. Expression of early views should be capable of being seen as tentative (Vakauta)

vi. Trend of decision making does not equal bias, more than stat probability required (Gallagher)g. Cases disqualification for bias (Webb)

a. By interest – direct or indirect, pecuniaryb. Conduct – published statement, in the course or outside of proceedingsc. Association – direct or indirect relationship, experience/contact with parties of proceedingsd. Extraneous information

h. Examples of circumstancesa. Communication privately with one party (Re JRL)b. DM is fact-finder, prosecutor and judge (Qurban)c. DM has views that suggest they may prejudge outcome (Koppen)d. DM exhibits towards a party or a witness strong animosity/hostility or partiality/favouritisme. Close family, personal profession relationship with party eg lawyer (Gordon)f. DM has financial interest (Centro)

http://lawcorners.wordpress.com/note: failures to disclose shares is no more than matter of prudence & practise, not a legal requirement that automatically invalidates decision/disqualifies judge (Ebner)

g. Vicarious Liabilityi. Assessed by nature of association, freq of contact, nature of interest (Hot Holdings)

ii. Biased officers must play significant role in decision makingiii. Close, influential or dominate relationship required b/w officer & DM

i. Defences to biasa. Necessity or consent – limited membership eg association, small jurisdiction (Vakauta v Kelly)b. Waiver – DM declares possible bias, failure to object ‘at earliest opportunity’ = waiver unless

bias is serious (Smits v Roach); prelim statement can be ‘cured’ (Johnson)