DIPLOMA IN LAW
LEGAL PROFESSION
ADMISSION BOARD
LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
09 ADMINISTRATIVE LAW
SUMMER SESSION 2015-16
This Guide includes the Law Extension Committee’s course information and teaching program and the
Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading
“Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the
NSW Admission Board Rules 2015.
Course Description and Objectives
Lecturer
Assessment
March 2016 Examination
Lecture Program
Weekend Schools 1 and 2
Texts and Materials
Compulsory Assignment
Assignment Question
Prescribed Topics and Course Outline
1
1
1-2
2
3
4
5-6
6
6
7-93
1
LAW EXTENSION COMMITTEE
SUMMER 2015-16
09 ADMINISTRATIVE LAW
COURSE DESCRIPTION AND OBJECTIVES
Administrative law is a branch of public law that is concerned with the legal control of decisions and
actions of governmental agencies and officials, and those of non-governmental bodies which affect the
public.
In Australia today, governmental and non-governmental regulation - at federal, state and local
government levels - impinges on most areas of life. Notable examples include social security,
education, immigration, broadcasting and television, public sector employment, industry and
commerce, exploration and mining, ownership and use of property, occupational licensing, town
planning and the environment.
The emphasis of the course is on the principles and procedures of administrative law relating to the
review of such governmental and non-governmental administrative action.
At state and local government levels, these principles and procedures are to be found mainly in the
common law of judicial review. This includes the grounds of judicial review - denial of natural justice,
ultra vires, jurisdictional error and error of law - and the judicial remedies - prohibition, certiorari,
mandamus, injunction and declaration. Administrative review is by the Ombudsman and the
Administrative Decisions Tribunal. Freedom of Information legislation has also been enacted.
At federal level, a comprehensive system of review is provided by statute. This involves judicial
review by the Federal Court of Australia and administrative review by the Commonwealth
Ombudsman and the Administrative Appeals Tribunal. Freedom of information legislation has also
been enacted.
The fundamental objective of the course is to give students an understanding of the various principles
and procedures and their practical application.
This will be achieved primarily by means of an analysis of the relevant decided cases, legislation, and
academic writings.
LECTURER
Mr Frank Esparraga, BJuris LLB (UNSW), LLM (Syd)
Frank is a lawyer who has worked in Sydney and Canberra in both State and Federal Government
Departments, including the NSW Attorney-General's Department and the Independent Commission
Against Corruption. He has also been a part-time member of the Consumer, Trader and Tenancy
Tribunal and been in private practice. He is a committee member of the Australian Institute of
Administrative Law; a committee member of the International Bar Association and a judge of the VIS
International Arbitration Moot and the International Client Consultation Competition. His speciality is
administrative law. He also teaches Alternative Dispute Resolution and has also taught Contracts,
Torts, Evidence and Litigation at the University of Sydney, UTS and University of NSW. He is a senior
lecturer at the School of Law, University of Notre Dame Australia, Sydney. In 2015, Frank commenced
writing a book and a PhD on The Teaching of Legal Ethics.
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and
learning program, the first step of which is to ensure that you have registered online with the LEC in
each subject for which you have enrolled with the Board. This gives you access to the full range of
learning resources offered by the LEC.
2
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow
the instructions. Detailed guides to the Webcampus are contained in the material distributed by the
LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s
performance in a subject in order for the student to be eligible to sit for the examination, conducted by
the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for
examinations. However, a category of “deemed eligible” has been introduced to offer students whose
assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances
students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the
examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC
engages the LPAB’s Examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Specific supporting evidence must be
provided. Assignments that are more than ten days late will not be accepted. Late assignments attract
a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined
in the Guide to the Presentation and Submission of Assignments. Prior to the examination,
assignments will be returned to students and results posted on students’ individual results pages of
the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their
eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in
that subject will be included in the Revising Examiner’s review. The final examination mark is
determined in accordance with this review. Assignment marks will not otherwise be reviewed.
MARCH 2016 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics. Candidates will be
expected to have made a study of the prescribed materials in relation to those topics and to have
analysed cases referred to in the Law Extension Committee's course outline.
All enquiries in relation to examinations should be directed to the Legal Profession Admission Board.
Examination Prize
A cash prize is awarded each session to the student with the best examination result in Administrative
Law. The prize is named the H L and W G Spencer Prize for Administrative Law.
3
LECTURE PROGRAM
Lectures will be held on Wednesdays from 6.00pm to 9.00pm. From 25 November to 16 December
2015 they will be held in Carslaw Lecture Theatre 275 (CLT 275). All other lectures will be held in New
Law School Lecture Theatre 024 (New LSLT 024). This program may be varied according to need.
Readings are suggested to introduce you to the material to be covered in the lecture, to enhance your
understanding of the topic, and to encourage further reading. You should not rely on lectures alone.
WEEK
1
11 Nov
Introduction to Administrative Law
KEY READING
Creyke, McMillan & Smyth Ch 1 & 5
Esparraga & Ellis-Jones Ch 1
2
18 Nov
Rule Making
Creyke, McMillan & Smyth Ch 6
Esparraga & Ellis-Jones Ch 2
3
25 Nov
Decision Making in Tribunals
Creyke, McMillan & Smyth Ch 3
Esparraga & Ellis-Jones Ch 3 & 5
4
2 Dec
Judicial Review: Procedural Fairness
Creyke, McMillan & Smyth Ch 10
Esparraga & Ellis-Jones Ch 4, 6–9
5
9 Dec
6
16 Dec
TOPIC
Merits Review and Administrative
Tribunals
Judicial Review: The Framework
Creyke, McMillan & Smyth Ch 3
Esparraga & Ellis-Jones Ch 3 & 5
Creyke, McMillan & Smyth Ch 2
Esparraga & Ellis-Jones Ch 7 & 8
Study Break: Friday 18 December 2015 – Sunday 10 January 2016
7
13 Jan
8
20 Jan
9
27 Jan
Legislative Scope and Purpose and
Grounds of Judicial Review
Jurisdictional Error and Invalidity
Reasons for Decision and Freedom
of Information
Creyke, McMillan & Smyth 9-14
Esparraga & Ellis-Jones Ch 7
Creyke, McMillan & Smyth Ch 1216
Esparraga & Ellis-Jones Ch 8
Creyke, McMillan & Smyth Ch 19 &
21
Esparraga & Ellis-Jones Ch 11
10
3 Feb
Ombudsmen and Privacy
11
10 Feb
Standing and Privative Clauses
Creyke, McMillan & Smyth Ch 4 &
20
Esparraga & Ellis-Jones Ch 10 & 12
Creyke, McMillan & Smyth 18 & 16
Esparraga & Ellis-Jones Ch 8 & 9
12
17 Feb
Judicial Review Remedies
Creyke, McMillan & Smyth Ch 17
Esparraga & Ellis-Jones Ch 9
4
WEEKEND SCHOOLS 1 AND 2
There are two weekend schools primarily for external students. Lecture students may attend on the
understanding that weekend schools are primarily for the assistance of external students.
It may not be possible to cover the entire course at the weekend schools. These programs are a
general guide, and may be varied according to need. Readings are suggested to introduce you to the
material to be covered in the class, to enhance your understanding of the topic, and to encourage
further reading. You should not rely on lectures alone.
Weekend School 1
TIME
MAJOR TOPICS
KEY READING
Saturday 28 November 2015: 4.00pm – 8.00pm in New Law School Lecture Theatre 026
(New LSLT 026)
4.10pm-5.20pm
Introduction to Administrative Law
5.30pm-6.35pm
Rule Making
6.45pm-8.00pm
Decision Making in Tribunals
Creyke, McMillan & Smyth Ch 1 & 5
Esparraga & Ellis-Jones Ch 1
Creyke, McMillan & Smyth Ch 6
Esparraga & Ellis-Jones Ch 2
Creyke, McMillan & Smyth Ch 3
Esparraga & Ellis-Jones Ch 3 & 5
Sunday 29 November 2015: noon – 4.00pm in New Law School Lecture Theatre 026 (New
LSLT 026)
12.15pm-1.25pm
Judicial Review: Procedural Fairness
1.30pm-2.40pm
Merits Review and Administrative Tribunals
2.45pm-3.55pm
Judicial Review: The Framework
Creyke, McMillan & Smyth Ch 10
Esparraga & Ellis-Jones Ch 4, 6–9
Creyke, McMillan & Smyth Ch 3
Esparraga & Ellis-Jones Ch 3 & 5
Creyke, McMillan & Smyth Ch 2
Esparraga & Ellis-Jones Ch 7 & 8
Weekend School 2
TIME
MAJOR TOPICS
KEY READING
Saturday 30 January 2016: 4.00pm – 8.00pm in New Law School Lecture Theatre 026
(New LSLT 026)
4.10pm-5.20pm
Legislative Scope and Purpose
Grounds of Judicial Review
and
5.30pm-6.35pm
Jurisdictional Error and Invalidity
6.45pm-8.00pm
Reasons for Decision and Freedom of
Information
Creyke, McMillan & Smyth 9-14
Esparraga & Ellis-Jones Ch 7
Creyke, McMillan & Smyth Ch 12-16
Esparraga & Ellis-Jones Ch 8
Creyke, McMillan & Smyth Ch 19 &
21
Esparraga & Ellis-Jones Ch 11
Sunday 31 January 2016: noon – 4.00pm in New Law School Lecture Theatre 026 (New
LSLT 026)
12.15pm-1.25pm
Ombudsmen and Privacy
1.30pm-2.40pm
Standing and Privative Clauses
2.45pm-3.55pm
Judicial Review Remedies
Creyke, McMillan & Smyth Ch 4 & 20
Esparraga & Ellis-Jones Ch 10 & 12
Creyke, McMillan & Smyth 18 & 16
Esparraga & Ellis-Jones Ch 8–9
Creyke, McMillan & Smyth Ch 17
Esparraga & Ellis-Jones Ch 9
5
TEXTS AND MATERIALS
Course Materials
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Supplementary Materials in Administrative Law (available via the link to Law Library in the Course
Materials section of the LEC Webcampus)
Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Prescribed Materials
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Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions Tribunal Act 1997 (NSW)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Archives Act 1983 (Cth)
Australian Information Act 2010 (Cth)
Australian Information Commissioner Act 2010 (Cth)
Freedom of Information Act 1982 (Cth)
Freedom of Information Amendment (Reform) Act 2010 (Cth)
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth)
Freedom of Information Act 1989 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Government Information (Information Commissioner) Act 2009 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Interpretation Act 1987 (NSW)
Migration Act 1958 (Cth)
Ombudsman Act 1976 (Cth)
Ombudsman Act 1974 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)
Privacy Act 1988 (Cth)
Privacy Amendment (Private Sector) Act 2000 (Cth)
Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth)
Subordinate Legislation Act 1989 (NSW)
Surveillance Devices Act 2007 (NSW)
Telecommunications Act 1997 (Cth)
Workplace Surveillance Act 2005 (NSW)
Recommended Texts
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Creyke, R & McMillan, J & Smyth, M Control of Government Action: Text, Cases and
Commentary, 4th ed. LexisNexis, 2015
Esparraga, F & Ellis-Jones, I, Administrative Law Guidebook, Oxford University Press, 2010
Reference Materials
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Aronson & Groves, Judicial Review of Administrative Action, 5th ed. Thomson Reuters, 2013
Cane & McDonald, Cases and Materials for Principles of Administrative Law, 2nd ed. OUP, 2013
Douglas & Head, Douglas and Jones’s: Administrative Law, 7th ed. The Federation Press, 2014
Lane & Young, Administrative Law in Australia, Thomson Reuters, 2007
Pearce, D, Administrative Appeals Tribunal. 3rd ed. LexisNexis Butterworths, 2013
Reilly, Appleby, Grenfell & Lacey, Australian Public Law, OUP, 2011
Robinson, M, Judicial Review: The Laws of Australia, Thomson Reuters, 2014
Pearce and Argument, Delegated Legislation in Australia, 4rd ed. LexisNexis, 2012
6
LEC Webcampus
Once you have registered online with the LEC, you will have full access to all the facilities on the LEC
Webcampus including links to Administrative Law cases and legislation in the Course Materials
section.
COMPULSORY ASSIGNMENT
In Administrative Law, there is only ONE ASSIGNMENT. This assignment is compulsory and
must be submitted by all students. Students must submit the assignment by the due date. A
pass mark is 50%. Refer to the Guide to the Presentation and Submission of Assignments for
the assignment grading and assessment criteria. Students who fail to satisfy the compulsory
requirement will be notified through the Results screen on the Webcampus before the
examination period of their ineligibility to sit the examination in this subject. The maximum
word limit for the assignment is 3000 words (inclusive of all footnotes but not bibliography).
The rules regarding the presentation of assignments and instructions on how to submit an assignment
are set out in the LEC Guide to the Presentation and Submission of Assignments which can be
accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting
an assignment.
The completed assignment should be lodged through the LEC Webcampus, arriving by 11:59pm on
the following date:
Compulsory Assignment
Monday 25 January 2016
(Week 9)
ASSIGNMENT QUESTION
To obtain the Administrative Law assignment questions for the Summer Session 2015-16,
please follow the instructions below:
1.
Register online with the LEC (see page 27 of the Course Information Handbook for detailed
instructions). Once you have registered, you will have full access to all the facilities on the
LEC Webcampus.
2.
Then go into the Webcampus, select the Course Materials section and click on the link to
the assignment questions for this subject.
7
PRESCRIBED TOPICS AND COURSE OUTLINE
Week 1 Introduction to Administrative Law
INTRODUCTION TO ADMINISTRATIVE LAW
Texts:
Creyke, McMillan & Smyth
Ch 1 & 5
Esparraga & Ellis-Jones
Ch 1
Accountability
This section traces the historical foundations of Australian administrative law and introduces a theme
of increasing significance – accountability across the public/private divide. From one perspective, the
purpose of administrative law is to safeguard the rights and interests of individuals and corporations in
their dealings with government agencies. Another perspective is to define the values or principles that
administrative law is designed to uphold, often described as “openness, fairness, participation,
accountability, consistency, rationality, accessibility of judicial and non-judicial grievance procedures,
legality and impartiality”.
The aim is to provide an understanding of key concepts and issues, aimed at an awareness of nonjudicial accountability processes through:
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The growth of administrative law;
The creation of specialist tribunals and ombudsmen;
The impact of giving reasons for decisions, privacy and freedom of information;
The impact of the growth of information technology on decision-making; and
The concept of outsourcing of government services.
The values referred to above have underpinned the growth of administrative law, particularly since the
1970s. Over the same period, however, public administration has undergone profound changes,
adopting the discourse, methods and commercial imperatives of private sector corporate
management. The first wave of change in public administration is often referred to as the “new
managerialism” and the second wave (associated with the Hilmer reforms) “market bureaucracy”.
These changes have given rise to tensions between public administration and administrative law.
The traditional view of administrative law is that it should aim to bolster the rule of law, and ensure the
accountability of Executive government to the will of Parliament and, at least indirectly, of the people.
In practice, the courts sometimes thwart the will of Parliament while professing to uphold it. The trend
of judicial activism in immigration law cases during the late 1980s and early 1990s exemplifies a liberal
view by the courts of the rights of refugees and other visa applicants which was clearly at odds with
the bipartisan view of Federal Parliament that a more restrictive approach was required. Every time
the courts handed down a pro-rights decision, Parliament effectively nullified it by amending the
Migration Act.
Non-judicial Accountability and Administrative Law – What is it about?
Administrative law is concerned with the delivery of administrative justice according to law. The core
elements of administrative justice are lawfulness, fairness and rationality in the exercise of public
power. They are not mutually exclusive. They blend into each other. They are central to any just
process of official decision-making.
There are two main goals of administrative law: to redress individual complaints; and to improve the
quality of decision-making, to the advantage of the many who seek redress from Government.
For some people, administrative law relates to the control of government power with the main object
being to protect individual rights. Others place greater emphasis upon rules designed to ensure that
8
administrators effectively perform their tasks. Others see accountability as the principal objective of
administrative law and a sufficient end in itself. For many who hold the latter view, a key sub-goal is to
foster participation by interested parties in the decision making process. For many, resort to
administrative law, especially by groups of citizens is as much a form of public protest as a means of
obtaining redress. As Geoffrey Robertson once said, “the most fundamental right of all is the right to
challenge the State, under a legal system which allows the possibility of winning.”
Growth of Administrative Law
The growth of administrative law in Australia has been a theme of the present age. The institutions
that embody the Commonwealth Government's commitment to administrative law - the Ombudsman,
the Administrative Appeals Tribunal, the Federal Court, and numerous other review bodies, were
established by Parliament mostly in the 1970s, at a time of concern about the development of big
government in Australia and its impact on the citizen.
Two innovations stood out: the antiquated procedures and concepts of the past, with their prerogative
writ origins, were largely being submerged; and the dominant focus of administrative law on judicial
review was being downplayed as alternative methods of review by tribunals and Ombudsman were
established.
The parliamentary reform agenda broadened quickly in the 1980s to incorporate an additional premise
for government accountability to the citizen, public disclosure of government documents and the
control of government information handling. That broader theme was implemented by the enactment
of the Freedom of Information Act 1982 (Cth) and the Privacy Act 1988 (Cth). In the 1990s there was a
different reform emphasis but with similar objectives, best reflected in the development by government
agencies of customer service charters and complaint procedures.
These developments have given rise to a system of administrative law that on any world comparison
is comprehensive, advanced and often, but not always, effective. It is a system that is now
underpinned by three broad principles:
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administrative justice, which at its core is a philosophy that in administrative decision-making
the rights and interests of individuals should be properly safeguarded
executive accountability, which is the aim of ensuring that those who exercise the executive
(and coercive) powers of the state can be called on to explain and to justify the way in which
they have gone about that task, and
good administration, which is the principle that administrative decision-making should conform
to universally accepted standards, such as rationality, fairness, consistency, and
transparency.
The essence of administrative law is that it falls to courts, tribunals and independent review bodies to
adjudicate disputes between individuals and corporate entities (as plaintiffs) and government agencies
and officials (as defendants). Viewed in that sense, the review bodies play a neutral and disinterested
role, of resolving each individual dispute according to law. The structural dynamic, however, is that the
review bodies and the government face each other every time an action is commenced. Their
relationship, accordingly, is ongoing and lively. There is tension inherent in the relationship and, in
nearly every age, that tension has given rise to conflict.
Creating the Legislative Framework
A pivotal stage in the development of Commonwealth administrative law was the tabling in Parliament
in 1971 of the Report of the Commonwealth Administrative Review Committee, commonly known as
the Kerr Committee after its Chairman, Sir John Kerr, then a judge of the Commonwealth Industrial
Court. The Kerr Committee had been appointed in 1968 by the Gorton Government with restricted
terms of reference that envisaged a limited and catch-up phase of law reform. Three years later the
Committee presented a plan for an entirely new system of administrative law that rested upon a fresh
vision of the role that external review agencies should play in safeguarding the rights of the public in
relation to executive decision-making. The aspiration of the Committee was “the evolution of an
Australian system of administrative law”.
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The Kerr vision was subsequently endorsed in a modified form by two committees appointed by the
McMahon Government in 1971, and which reported in 1973. The elements of the scheme proposed in
the Kerr report were then largely implemented by Parliament in three Acts.
The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) established two bodies - an
Administrative Appeals Tribunal to undertake merit review of a general range of Commonwealth
decisions, and an Administrative Review Council to perform a research, advisory and coordination
function.
The Ombudsman Act 1976 (Cth) established an Ombudsman to investigate complaints of
maladministration by Commonwealth government agencies.
The Administrative Decisions (Judicial Review) Act 1977 (Cth) conferred upon the newly-created
Federal Court a reformed jurisdiction to undertake judicial review of Commonwealth decision-making.
Each of those Acts also affirmed the existence of a new legal right, that a person aggrieved by a
government decision should be entitled upon request to be given a written statement of the reasons
for the decision.
Administrative Law Development
The interaction of legislative followed by judicial change can best be illustrated by two examples from
the period. Those to be discussed are the judicial review of immigration decision-making (the
dominant field of administrative law activity in recent times), and judicial implementation of
international human rights norms (probably the most talked-about aspect of contemporary
administrative law).
The role that legislative changes may have played in instigating the transformation of judicial attitudes
cannot be overlooked. Three changes stand out. One was the creation in the ADJR Act of a statutory
right to the reasons for a decision. In Kioa v West, the first decision of the High Court to decide
unequivocally that natural justice applied to immigration decision-making, a majority of judges referred
to this change as the most important development that warranted a change to the common law
principles as to when natural justice applies. The second legislative initiative was the substantial
rewrite in 1989 of the Migration Act 1958 (Cth), most particularly to replace the Minister's unfettered
discretionary powers of immigration control with a specific and detailed code of criteria to be met by
those making decisions under the Act. The third change to underpin the developments was the
creation by Parliament of the Immigration Review Tribunal and the Refugee Review Tribunal. The
recognition in that way by Parliament that an administrative law process should be followed in
immigration decision-making has coincided with an intensification by the judiciary as to what that
process entails.
Reasons for a Decision
A contentious topic, that encapsulates some of the issues in this debate but which goes to the core of
non-judicial accountability, has been the scope of the administrative obligation to provide a written
statement of the reasons for a decision. In origin this was a statutory obligation, one of the important
reforms introduced by the ADJR Act and the AAT Act. It was not long before there was a serious
judicial attempt to extend the reform, and to formulate a broader common law obligation upon
administrators to provide written reasons.
Administrative Law Impact on the Public Service
Administrative law has impacted on the executive arm of government. There has been a
transformation of the Australian Public Service in the last generation. Management reforms have
placed a much greater emphasis on results. The last decade has seen much stronger focus placed on
value-for-money in service provision; explicit reporting on outputs and outcomes rather than input and
process; the adoption of new information technology; improved client focus; and the introduction of
systemic measurement and evaluation of corporate and individual performance. The changes have
led to a more productive APS. It has been argued often that they have markedly improved the
efficiency with which we manage public resources and the effectiveness with which we apply them to
achieve outcomes in the public good.
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Outsourcing of Government Services
Reference was made earlier to the growth of the outsourcing of Government services. One of the main
challenges for administrative law is to maintain accountability, including transparency of process and
review of decision making, in the new world of competitive delivery of government services.
Information Technology and Administrative Law
This modern development has had a major impact on administrative law. Information technology has
in different ways both simplified and complicated public service life. New technologies have been
employed to save time and improve the quality and consistency of our outputs. However, the sheer
quantity of information available through new technologies, most obviously the Internet, has
bombarded public servants. Technology has also sped up the delivery of advice and services. In a
world of real-time policy development, electronic transactions and service delivery by telephone and email, the need to keep file notes and retain records has become more, not less, important.
We must be wary of allowing the use of expert systems to diminish the skills of decision-makers.
There is a danger of turning our decision-makers into data processors or electronic clerks. Corporate
knowledge may be lost if there is an over-reliance on experts systems in decision-making.
National Security Legislation Issues
Selected Readings
Legal Research – General
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Australian Law Online
AustLII databases
Australasian Government Publications Guide GovPubs
Australasian Legal Information Institute AustLII
Legislation
Acts Interpretation Act 1901
Administrative Appeals Tribunal Act 1975
Administrative Decisions (Judicial Review) Act 1977
Administrative Decisions (Judicial Review) Regulations 1985
Administrative Decisions Tribunal Act 1997 (NSW)
Auditor-General Act 1997
Australian Courts Act 1828
Border Protection (Validation and Enforcement Powers) Act 2001
Commonwealth Authorities and Companies Act 1997
Australian Information Act 2010
Australian Information Commissioner Act 2010
Freedom of Information Act 1982
Freedom of Information Act 1997 (NSW)
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Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009
Freedom of Information Amendment (Reform) Act 2010
Freedom of Information Amendment (Reform) Regulations 2010
Freedom of Information (Miscellaneous Provisions) Regulations 1982
Federal Court of Australia Act 1976
Federal Court of Australia Regulations 1978
Federal Magistrates Act 1999
Financial Management and Accountability Act 1997
Government Information (Public Access) Act 2009 (NSW)
Human Rights and Equal Opportunities Commission Act 1986
Independent Commission Against Corruption Act 1988 (NSW)
Ombudsman Act 1976
Ombudsman Act 1974 (NSW)
Privacy Act 1988
Privacy Amendment (Private Sector) Act 2000
Privacy Amendment (Enhancing Privacy Protection) Act 2012
Royal Commissions Act 1902
Selected Texts
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Aronson & Groves, Judicial Review of Administrative Action, 5th ed. Thomson Reuters, 2013
Cane & McDonald, Cases and Materials for Principles of Administrative Law, 2nd ed. OUP, 2013
Douglas & Head, Douglas and Jones’s: Administrative Law, 7th ed. The Federation Press, 2014
Lane & Young, Administrative Law in Australia, Thomson Reuters, 2007
Pearce, D, Administrative Appeals Tribunal. 3rd ed. LexisNexis Butterworths, 2013
Reilly, Appleby, Grenfell & Lacey, Australian Public Law, OUP, 2011
Robinson, M, Judicial Review: The Laws of Australia, Thomson Reuters, 2014
Pearce and Argument, Delegated Legislation in Australia, 4rd ed. LexisNexis, 2012
Selected Articles
Bayne, P - `Administrative Law and the New Managerialism in Public Administration' (1989)
58 Canberra Bulletin of Public Administration 39
Caiden, G - Career Service - An Introduction to the History of Personnel Administration in the
Commonwealth Public Service of Australia 1901-1961 (Melbourne University Press, and
Cambridge University Press, 1965) 435
Cane, P – “The Making of Australian Administrative Law” in P Cane (ed),Centenary Essays for
the High Court of Australia, LexisNexis Butterworths Australia, 2004
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Coghill, K - ‘Ministers in Office: Preparation and Performance' - Parliament and the Public
Interest. Lectures in the Senate Occasional Lecture Series, 2000 (June 2001)
Creyke, R & McMillan, J - `Executive Perceptions of Administrative Law - An Empirical Study
(2002) 9 Australian Journal of Administrative Law, 167-168
Crock, M - 'The impact of the new administrative law on migrants', (1989) 58 Canberra Bulletin
of Public Administration 150
D'Ascenzo, M - `Simplifying Tax Administration in a Complex World: The Challenge of Infinite
Variety, speech given to the Australasian Tax Teachers Association Conference The Pursuit
of Simplicity - Simply Impossible, University of Queensland, Brisbane, 22-24 January 2007
Dicey, A V – “Introduction to the Study of the Law of the Constitution”, 10th Edition, Macmillan,
1959
Freeman, R - “Private Parties, Public Functions and the New Administrative Law” (2000) 52
Administrative Law Review 813
Gleeson, Chief Justice Murray - `Outcome, Process and The Rule of Law', Administrative
Appeals Tribunal 30th Anniversary, 2 August 2006
Gardiner, D G - 'Policy review reviewed: the pubescent state of the "new" administrative law',
[1988] Queensland University of Technology Law Journal 123
Harlow, C & Rawlings, R – Law and Administration, Cambridge: Cambridge University Press,
3rd ed, 2009
Jinks, B - 'The "New Administrative Law": some assumptions and questions', (1982) 41
Australian Journal of Public Administration 209
Kennedy, P - `Recollections of a Line Manager (2001) 8 Australian Journal of Administrative
Law 201
Kyrou, E - `Administrative Law: A Sunrise Industry for the Legal Profession?' in (1989) 58
Canberra Bulletin of Public Administration 98
Mason, A - 'Administrative review: the experience of the first twelve years', (1988-89) 18
Federal Law Review 122
Mason, A – ‘The Kerr Report of 1971: its continuing significance’, Inaugural Whitmore Lecture
delivered at the AGM of the Council of Australasian Tribunals, NSW Chapter, 19 September
2007
McMillan, J - Parliament and Administrative Law - Commonwealth Parliamentary Library
Research Paper 13 2000-01 (7 November 2000)
Monographs
AIAL Forum - The AIAL Quarterly Journal (Nos. 23-28)
Bottomley, S. Government Business Enterprises and Public Accountability through Parliament
– Cth Parliamentary Library Research Paper 18 1999-2000 (11 April 2000)
McMillan, J. Parliament and Administrative Law - Cth Parliamentary Library Research Paper
13 2000-01 (7 November 2000)
13
Mulgan, R. Politicising the Australian Public Service? - Cth Parliamentary Library Research
Paper 1998-99 (10 November 1998)
Papers presented at a Parliamentary Workshop, October 1989:
Session 1
An Overview of the Scrutiny System by Watchers and Watched
Uhr J, Estimates Committee Scrutiny of Government Appropriations and Expenditure: Nature,
Purpose and Effects;
Keating M, The Standpoint of Finance: More than a Watching Brief - Australian Senate Papers on Parliament Series
McMullan R, A Government Senator's Standpoint: Value for Money or Watching Ministerial
Backs?;
Coates J, A Finance and Public Administration Perspective: Complementing the Estimates
Scrutiny Process
Session 2
Questions and Answers Session: 'Are There Too Many Watchers and Not Enough
Managers?' - A panel of the Speakers, chaired by Peter O'Keeffe
Session 3
The Theory and Practice of Public Accountability - the Views of Key Practitioners
Taylor J, Auditing public expenditure and the estimates process: the role of the AuditorGeneral;
Tickner R, Parliament, the Public Service and Accountable Management'
Mulgan, R. Politicising the Australian Public Service? - Cth Parliamentary Library Research
Paper 1998-99 (10 November 1998)
Proceedings of the 'National Administrative Law Forum' - The Annual AIAL Conferences
Saunders, C. The Role of the Administrative Review Council - Australian Senate - Papers on
Parliament Series - Unchaining the Watch-Dogs, Parliament House, Canberra (March 1990)
Smith, P. Red Tape and the Ombudsman - Australian Senate - Papers on Parliament Series The Senate and Good Government, and Other Lectures in the Senate Occasional Lecture
Series (May 1999)
Spry, M. Procedural Fairness and the Right to Dismiss a Senior Public Servant Parliamentary Library Research Note 3 1999-2000 (24 August 1999)
Taylor, J. Parliament and the Auditor- General - Australian Senate - Papers on Parliament
Series - Republicanism, Responsible Government and Human Rights (August 1995)
Taylor, J. Auditing Public Expenditure and the Estimates Process The Role of the AuditorGeneral - Australian Senate - Papers on Parliament Series (October 1989)
Taylor, J. The Auditor-General - Ally of the People, the Parliament and the Executive Australian Senate - Papers on Parliament Series - Unchaining the Watch-Dogs, Parliament
House, Canberra (March 1990)
14
1987 Conference - Administrative Law: Retrospect & Prospect published in 1989 in 58 Canberra
Bulletin of Public Administration - reflected on ten years' of the `new administrative law' (Retrospect
and Prospect collection). A number of paper-givers reflected on the reluctance to embrace these
administrative law developments:
D Pearce `The Fading of the Vision Splendid? Administrative Law: Retrospect and Prospect'
21, 24;
Pat Brazil `1987 Administrative Law Seminar' 13;
P Bayne `Administrative Law and the New Managerialism in Public Administration' 39, 41;
L Curtis `Crossing the Frontier Between Law and Administration' 55;
D Volker `The Effect of Administrative Law Reforms: Primary Level Decision-Making' 112,
113;
A Rose `Judicial Review and Public Policy: A Comment' 75
Volker, D. `Just do it - How the Public Service Made it Work' (2001) 8 Australian Journal of
Administrative Law 204
Wilenski, P. ‘Competing Values in Public Administration’ in Public Power & Public
Administration (Hale & Iremonger, 1986) Ch 2.
Willheim, E. `Recollections of an Attorney-General's Department Lawyer' (2001) 8 Australian
Journal of Administrative Law 154
Selected Caselaw
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
R v Lancashire CC ex parte Huddleston [1986] 2 All ER 941
R v Mackellar: Ex parte Ratu (1977) 137 CLR 461
Salemi v Mackellar (No 2) (1977) 137 CLR 396
Simsek v Macphee (1982) 148 CLR 636
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 47 CLR 492
Selected Readings - National Security Legislation Issues
Alonso, R and Reinares, F - Terrorism, Human rights and Law Enforcement in Spain. Terrorism and
Political Violence 17:265-278 Winter 2005
Attorney-General's Portfolio Security Environment Update, Budget 2006-2007, Parliament House
Canberra.
Baker, M - "The Western European Legal Response to Terrorism" 13 Brooklyn Journal of International
Law 1
Ball, H - The USA Patriot Act of 2001: Balancing Civil Liberties and National Security: A Reference
Handbook. Santa Barbara, CA, ABC-CLIO, 2004
Banks, W - “United States responses to September 11” in V Ramraj, M Hor and K Roach (eds), Global
Anti-Terrorism Law and Policy (Cambridge University Press, Cambridge, 2005)
15
Barak, Aharon - “A Judge on Judging: The Role of a Supreme Court in a
Democracy” (2002) 116 Harvard Law Review16
Beinisch, Justice Dorit - “The role of the Supreme Court in the fight against terrorism” (2004) 37 Israel
Law Review 281
Bonhoeffer, D - Letters and Papers from Prison, abridged edition (London, SCM Press, 1981)
Borgu, A - Understanding Terrorism: 20 Basic Facts. Australia Strategic Policy Institute, September
2004
Brennan, F G - "Australia and the Rule of Law" [2003] Australian International Law Journal 1
Brennan, F - ‘Countering the Terrorist Threat to Human Rights and the Australian Identity’ (Speech
delivered at James Cook University, Sydney, 25 May 2004).
Bronitt, S - "Constitutional Rhetoric v Criminal Justice Realities: Unbalanced Responses to
Terrorism?" (2003) 14 Public Law Review 69
Bronitt, S & Stellios, J - ‘Sedition, Security and Human Rights: “Unbalanced” Law Reform in the “War
on Terror”’ (2006) 30 Melbourne University Law Review 923.
Bugg, T - ‘President’s Address: The State of the Profession’ (Speech delivered at the 35th Australian
Legal Convention, Sydney, 25 March 2007)
Committee on the Office of the Ombudsman and the Police Integrity Commission, Parliament of New
South Wales, Report on the Inquiry into Scrutiny of New South Wales Police Counter-Terrorism and
Other Powers (2006)
Cowdery, N - ‘Terrorism and the Rule of Law’ (Paper presented at the Criminal Lawyers Association of
the Northern Territory Conference, 28 June 2003)
Dershowitz, A - Why Terrorism Works: Understanding the Threat and Responding to the Challenge
(Scribe Publications, Melbourne 2002)
Dershowitz, A - Preemption: A Knife that Cuts Both Ways (2006)
Dobson, K - "The Spanish Government's Ban of a Political Party: A Violation of Human Rights?" 9:2
New England Journal of International and Comparative Law 637 (2003)
Faul, D and Murray, R - The British Dimension: Brutality, Murder and Legal Duplicity in N. Ireland
(November 1980), The Castlereagh File and Violations of Human Rights in Northern Ireland, 19681978
Golder, B & Williams, G – “What is ‘Terrorism’? Problems of Legal Definition”, (2004) 27 UNSWLJ 270
Goldsmith, Lord - "Terrorism and Individual Liberty: The Response of the State" (2003) International
Bar News 8 (edited version of an address at the ABA conference 2003 at San Francisco)
Goldsmith, Jack L – The Terror Presidency, W. W. Norton & Company, 2007
Hancock, N - ‘Terrorism and the Law in Australia: Legislation, Commentary and Constraints’
(Research Paper No 12, Parliamentary Library, Parliament of Australia, 2002)
Head, H - ’Counter-Terrorism’ Laws: A threat to Political Freedom, Civil Liberties and Constitutional
Rights (2002) 26 (3) Melbourne University Law Review 682
Head, M - "Another Threat to Democratic Rights" (2004) 29 Alternative Law Journal 127
Hocking, J - “Protecting Democracy by Preserving Justice: ‘Even for the feared and Hated’” (2004) 27
(2) (2004) University of New South Wales Law Journal 319
16
International Court of Justice, Advisory Opinion on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, unreported, 9 July 2004
Kee, R - Trial and Error: The Maguires, the Guildford Pub Bombings and British Justice (London,
Hamish Hamilton, 1986)
Kerr, D - "Australia's Legislative Response to Terrorism" (2004) 29 Alternative Law Journal 131
Kirby, Hon Justice M – “Australian Law – After 11 September 2001”, (2001) 21 Australian Bar Review
253
Kirby, Hon Justice M - “Judicial Review in a time of terrorism- Business as Usual” (Speech delivered at
the University of the Witwatersrand School of Law & South African Journal of Human Rights,
Johannesburg South Africa, 25 November 2005)
Lanyi, G - ‘Bringing Spies to Account — The Advisory Report of the Parliamentary Joint Committee on
ASIO, ASIS and DSD on the ASIO Legislation Amendment (Terrorism) Bill 2002’ (2002) 10 Australian
Journal of Administrative Law 68
Lynch, A & Williams, W - What Price Security? (Sydney, University of New South Wales Press, 2006)
Lynch, A & Reilly, A - ‘The Constitutional Validity of Terrorism Orders of Control and Preventative
Detention’ (2007) 10 Flinders Journal of Law Reform 105
Nassar, J R - Globalization & Terrorism: The Migration of Dreams and Nightmares, Lanham, MD,
Rowman & Littlefield Publishes, Inc, 2005
O’Neill, N & Rice, S & Douglas, R - Retreat from Injustice: Human Rights Law in Australia, (2004) (2nd
ed), Federation Press, NSW
Parliamentary Joint Committee on ASIO, ASIS and DSD, Parliament of Australia, An Advisory Report
on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002
(2002)
Protecting Australia Against Terrorism 2006: Australia’s National Counter-Terrorism Policy
&Arrangements - Department of Prime Minister and Cabinet Submission to the Senate Legal and
Constitutional Legislation Committee on the Provisions of the Anti-Terrorism Bill (No.2) 2004, Human
Rights and Equal Opportunity Commission, Australia.
Ramraj, V - “Terrorism, risk perception and judicial review” in V Ramraj, M Hor and K Roach (eds)
Global Anti-Terrorism Law and Policy (Cambridge University Press, Cambridge, 2005)
Reza, S - "Unpatriotic Acts: An Introduction" 48 New York Law School Law Review 3 (2004)
Ricketts, A - ‘Freedom of Association or Guilt by Association: Australia’s New Anti-Terrorism Laws and
the Retreat of Political Liberty’ (2002) 6 Southern Cross University Law Review 133
Rose, D - Guantanamo: The War on Human Rights, New York, The New Press, 2004
Ruddock, P MP, - “Australia’s Legislative Response to the ongoing threat of terrorism” (2004) 27(2)
University of New South Wales Law Journal 254
Scalia, Justice A, - “The Rule of Law as a Law of Rules” (1989) 56 University Chicago Law Review
1175
Steyn, Lord - "Guantanamo Bay: The Legal Black Hole" (2004) 53 ICLQ 1
Tham, Joo-Cheong, - “ASIO and the rule of law” (2002) 27 Alternative Law Journal 216
United States. Congress - House of Representatives. Committee on Government Reform.
Subcommittee on Human Rights and Wellness. Decades of Terror: Exploring Human Rights Abuses in
17
Kashmir and the Disputed Territories. Hearing. 108th Congress, 2d session, May 12, 2004.
Washington, GPO, 2004
Walker, C - "50th Anniversary Article: Terrorism and Criminal Justice - Past, Present and Future"
[2004] Criminal Law Review 311
Warbrick, C - "The European Convention on Human Rights and the Prevention of Terrorism" (1983)
32 International Comparative Law Quarterly 82
Wattellier, J - "Comparative Legal Responses to Terrorism: Lessons from Europe" 27 Hastings
International and Comparative Law Review 397
Williams, G - ‘One Year On: Australia’s Legal Response to September 11’ (2002) 27 Alternative Law
Journal 212
Williams, G - ‘Australian Values and the War against Terrorism’ (2003) 26 University of New South
Wales Law Journal 191
Selected Caselaw – National Security
A v Secretary for the Home Department [2005] 2 AC 68
Ajuri v IDF Commander in West Bank (2002) 56 (6) P.D. 352
Al-Kateb v Godwin (2004) 219 CLR 562
Australian Communist Party v Commonwealth (1951) 83 CLR 1
Baader and Ors v Germany (1978) 14 DR 64
Barberà and Ors v Spain (1988) 11 EHRR 360
Beit Sourik Village Council v The Government of Israel [HCJ 2056/04] 2 May 2004
Borochov v Yefet (1983) 39(3) P.D. 205
Brogan & Ors v United Kingdom (1988) 11 EHRR 117
Diana v Italy [1996] ECHR 13
Dietrich v R (1992) 109 ALR 385
Fox and Ors v United Kingdom (1990) 13 EHHR 157
Guzzardi v Italy (1980) 3 EHRR 333
Haneef v Minister for Immigration and Citizenship [2007] FCA 1273
Hussain v Minister for Foreign Affairs [2008] FCAFC 128
Ireland v United Kingdom (1978) 2 EHRR 25
Jabbour v Hicks [2008] FMCA 178
Jabbour v Thomas [2006] FMCA 1286
Johnson v Eisentrager 339 US 763
Klass vFederal Republic of Germany (1978) 2 EHRR 214
Lawless v Republic of Ireland [No 3] (1961) 1 EHHR 15
18
Liversidge v Anderson [1942] AC 206
Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203
Mohamed v President of the Republic of South Africa 2001 (3) SA 893
Olmstead v United States 277 US 438
Padilla v Rumsfeld 124 SCt 2711 (2004)
Public Committee Against Torture in Israel v The State of Israel (1994) 53 (4) P.D 817
R v Lodhi (2006) 199 FLR 354
Rasu v Bush 542 US 1 (2004)
Re Woolley (2004) 225 CLR 1
Rumsfeld v Padilla 542 US 426 (2004)
Secretary of State for the Home Department v M [2004] EWCA Civ 324
Sorby v Commonwealth (1983) 152 CLR 281
Thomas v Mowbray [2007] HCA 33
Traljesic v Attorney-General of the Commonwealth [2006] FCA 125
Central Parliamentary Reviews and Inquiries on Anti-Terrorism Legislation

The Report of the Security Legislation Review Committee (Sheller Report), convened on an
ad hoc basis in 2006;

The Flood Inquiry and Report into Australian Intelligence Agencies, commissioned in 2004,
which reported on the operation and accountability of the central intelligence agencies;

In 2005, the PJCIS, formerly the Parliamentary Joint Committee on ASIO, ASIS and DSD,
conducted a review required under the Intelligence Services Act 2001, of the ASIO Act 1979
compulsory questioning and detention provisions. This followed the expiration of an original
three-year sunset clause. This report was required to be cleared by the Attorney-General
before tabling in Parliament, so perhaps unsurprisingly the relevant provisions were reenacted in June 2006, and the review has proposed the next review be conducted in 2016;

The Anti-Terrorism Act 2005 (No 2) was reviewed by COAG in 2010 under an agreement
providing for 5 year review. In the meantime, Schedule 7 of that Act which revised the law of
sedition, as well as Part IIA of the Crimes Act 1914, were referred to the Australian Law
Reform Commission (ALRC) for inquiry. The ALRC reported in mid-2006, however, the
Attorney-General is yet to respond to this 'urgent' report;

In 2007, the PJCIS commenced review provisions governing the listing of terrorist
organisations under Division 102, specifically s102.1A(2) of the Criminal Code.

In May 2013, the COAG Review of Counter-Terrorism Legislation was released.

In May 2013, the Independent National Security Legislation Monitor’s First Report was
released by its author Bret Walker SC.
19
Week 2 Rule Making
RULE MAKING
Texts:
Creyke, McMillan & Smyth
Ch 6
Esparraga & Ellis-Jones
Ch 2
Sources of Law
The topic of rule and policy making invites discussion of public participation – an important value
underpinning administrative law. But what is its rationale? At what stage should the public be invited to
participate – before or after the agenda is set? Who does, can and should participate? What
mechanisms should be put in place to facilitate participation?
Legislation made by the administration exercising power delegated by Parliament is generally called
delegated or subordinate legislation, but there is a wide variety of labels to describe particular
legislative instruments. In NSW, the term “statutory rule” is used to describe regulations, by-laws, rules
or ordinances made, approved or confirmed by the Governor, and subject to the rule-making
requirements in the Subordinate Legislation Act 1989 (NSW), Interpretation Act 1987 (NSW) and
Legislation Review Act 1987 (NSW). In the Commonwealth, the rule-making requirements in the
Legislative Instruments Act 2003 (Cth) apply to “legislative instruments”, defined as an instrument “of a
legislative character” made in the exercise of a power delegated by Parliament. An instrument is said
to be of a “legislative character” if: (see s 5)
 it determines the law or alters the content of the law, rather than applying the law in a
particular case; and
 it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation,
creating a right, or varying or removing an obligation or right.
An important concern is the accountability of administrators for the rules, quasi-legislation and policies
that they make. Primary legislation is made in Parliament by our elected representatives. Delegated
legislation is not. This requires us to explore theories of democracy that may legitimise administrative
rule making and to examine existing accountability mechanisms in the light of these theories.
Legislative Instruments Act 2003 (Cth)
On 1 January 2005, the Acts Interpretation Act 1901 (Cth) was repealed in conjunction with the
commencement of the Legislative Instruments Act 2003 (Cth). Prior to the commencement of the
Legislative Instruments Act 2003 (Cth), most delegated laws had to be published under the Statutory
Rules Publication Act 1903 (Cth) or notified in the Commonwealth Gazette.
In 1992, the Administrative Review Council in its Report Rule Making by Commonwealth Agencies,
recommended that all delegated legislation be:
 subject to consultation before making; and
 drafted to a certain standard; and
 made public and accessible; and
 tabled in the Parliament; and
 subject to disallowance and sunsetting.
The Legislative Instruments Act 2003 (Cth) largely adopted these recommendations and effectively
adopted the parliamentary scrutiny provisions of the Acts Interpretation Act 1901 (Cth). The Legislative
20
Instruments Act 2003 (Cth) substantially re-enacted the parts of section 46A and Part XII of the Acts
Interpretation Act 1901 (Cth) that dealt with regulations and disallowable instruments and extended
their operation to all legislative instruments. It also established a comprehensive regime for the
management of Commonwealth legislative instruments by:
(a)
creating a concept of legislative instrument that focuses particularly on what an instrument does
instead of what it is called (Part 1); and
(b)
encouraging high drafting standards to promote the legal effectiveness, clarity and intelligibility
of legislative instruments(Part 2); and
(c)
requiring rule-makers to undertake appropriate consultation before making legislative
instruments (Part 3); and
(d)
improving public access to legislative instruments by establishing the Federal Register of
legislative Instruments (Part 4); and
(e)
establishing improved mechanisms for parliamentary scrutiny of legislative instruments (Part 5);
and
(f)
enabling the prompt repeal of legislation that is no longer required (Part 5A); and
(g)
establishing mechanisms for the review and sunsetting of legislative instruments (Part 6).
The manner in which an instrument is made subject to parliamentary scrutiny was changed. An
instrument will only be caught by the new regime if it is of a legislative character and is or has been
made in the exercise of a power delegated by Parliament (s 5). A number of instruments have been
exempted from the regime (s 7) and other instruments, though required to be tabled, have been
exempted from disallowance (s 44). This new regime captures more instruments and subjects them to
parliamentary scrutiny.
Since 1 January 2005, all Commonwealth legislative instruments, to be enforceable, are required to be
registered on the Federal Register of Legislative Instruments. The Register is administered by the
Office of Parliamentary Counsel, an independent statutory authority accountable to the AttorneyGeneral and may be found at its website. The Statutory Rules Publication Act 1903 (Cth) was
repealed from 1 January 2005 and, as a consequence, the Statutory Rules series has ceased.
Regulations are now numbered as part of a new Select Legislative Instruments series and appear on
the Register.
Other types of legislative instruments are primarily drafted within government agencies and approved
by Ministers or delegates. These instruments also appear on the Register.
Subsection 38(1) of the Legislative Instruments Act 2003 (Cth) provides, that where an instrument is
legislative in character, it ‘shall be delivered to each House of the Parliament to be laid before each
House within six sitting days of that House after the registration of the instrument’. Under s 38(3), if
any legislative instruments are not laid before each House within that time, they cease to have effect.
Changes to the Legislative Instruments Act 2003 (Cth)
The Legislative Instruments Act 2003 (Cth), as noted above, commenced in 2003 and as such,
subordinate legislation would start sunsetting from early 2015, with the Office of legislative Drafting
and Publishing identifying numerous pieces of legislation due to sunset in 2016 and 2018. In order to
deal with this, the Legislative Instruments Act 2003 was amended by the Legislative Instruments
Amendment (Sunsetting Measures) Act 2012. This amending Act was designed to:
 automatically repeal spent instruments and provisions;
21
 clarify the sunsetting dates of repeal for particular categories of instruments; and
 enable thematic reviews of instruments by enabling the Attorney-General to align sunsetting
dates of instruments.
The amending Act thereby, automatically repeals instruments that are no longer required and which
have done their job. The first regulation under the amending Act was the Attorney-General’s (Spent
and Redundant Instruments) Repeal Regulation 2013, which repealed 1005 spent and redundant
instruments in the Attorney-General’s portfolio.
The Legislative Instruments Act 2003 (Cth) was reviewed in 2008 and found to have fundamentally
changed the thinking by which legislative instruments were made, published and reviewed. Section 60
of the Legislative Instruments Act 2003 (Cth) requires that the Act be reviewed again in 2017.
Legislation and Delegated Legislation
Statutes
Subordinate or Delegated Legislation
















Regulations
Statutory Rules
Disallowable Instruments
Ordinances
Local laws
Proclamations
By-laws
Declarations
General Orders
Directions
Operational Plans
Policy Directions
Program Standards
Instructions
Codes of Practice
Guidelines
Making Delegated Legislation – Procedural Controls
Antecedent publicity
Drafting
Consultation
Regulatory Impact Statements
Notification and Publication
Sunsetting
Parliamentary Scrutiny of Delegated Legislation
Tabling before Parliament
Scrutiny Committees
Other Parliamentary Committees
The Need for Parliamentary Scrutiny
Statutory Interpretation
The Role of Tribunals in Interpreting Statutes
General Approaches to Interpretation
Use of Extrinsic Materials
The Role of Legal Presumptions
22
A method for interpreting a statute
Caselaw
Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee 1945, 72 CLR 37
Blackpool Corporation v Locker [1948] 1 KB 349
Carbine v Powell (1925) 36 CLR 88
Esber v Commonwealth of Australia (1992) 174 CLR 430 – Accrued Substantive Rights
Giris Pty Ltd v Commissioner of Taxation (1969) 119 CLR 365 – Limits on Delegation
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 –
Review of Delegated Legislation
R v Toohey (Aboriginal Land Commissioner); ex p Northern Land Council (1981) 151 CLR 170
Roche Products Pty Limited v National Drugs and Poisons Schedule Committee (2007) 163
FCR
Thorpe v Minister for Aboriginal Affairs (1990) 26 FCR 325 – Tabling Requirements
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46
CLR 73 – Legislative Power
Watson v Lee (1979) 144 CLR 374 – Publication Rules
Selected Readings
ARC - Rule-Making by Commonwealth Agencies, Report No 35, AGPS Canberra, 1992
Argument, S. 'ARC Report No.35: Rule Making by Commonwealth Agencies', (1992) 12
Australian Institute of Administrative Law Newsletter 386
Argument, S. 'Quasi-legislation: greasy pig, Trojan horse or unruly child?' (1994) 1 Australian
Journal of Administrative Law 144
Attorney-General’s Department – March 2009, Review of the Legislative Instruments Act 2003
Australian Government 2007, Best Practice Regulation Handbook, Canberra
Bourke, S. 'Subordinate rule making: an historical perspective', (1991) 27 Admin Review 8
Hayhurst, J D and Wallington, P. 'The parliamentary scrutiny of delegated legislation', [1988]
Public Law 547
Mowbray, G A and Bourke, S. 'Rule Making in Commonwealth agencies', (1991) 66 Canberra
Bulletin of Public Administration 151
Orr, R & Briese, R. ‘Don’t Think Twice? Can Administrative Decision Makers Change Their
Minds?’ (2002) 35 AIAL 11
Pearce, D.C. ‘Legislative Quality Control by Scrutiny Committees-Does It Make Administration
Better?’, Report of the Third Congress of Australian Delegated Legislation Committees, Perth,
21-23 May, 1991
Pearce, D.C. & Argument, S. Delegated Legislation in Australia, 2005, LexisNexis, Sydney
23
Pearce, D.C. & Argument, S. Statutory Interpretation in Australia, 5th ed, 2001, Butterworths,
Sydney
Report of the Committee on Ministers’ Powers 1932, Cmnd 460, The Donoughmore Report
Tomasic, R. 'Formalised consultation, delegated legislation and guidelines: "new" directions in
Australian administrative law?', (1989) 58 Canberra Bulletin of Public Administration 158
Whalan, D.J. 'Scrutiny of delegated legislation by the Australian Senate', (1991) 12 Statute
Law Review 87
Williams, D. 'Subordinate legislation and judicial control', (1997) 8 Public Law Review 77
Young, P.W. 'Rule making by Commonwealth agencies', (1992) 66 Australian Law Journal
479
Issues for Discussion
1. On 15 October, the Commonwealth Government Gazette includes a notification of the making
of a regulation under the Customs Act 1901 (Cth). Assume that the regulation has been
lawfully made. The regulation states that the book titled The Shame of the Night is a prohibited
import.
The regulation has been tabled in the senate but not in the House of Representatives.
Matthews seeks to import a copy of the book on 14 November of the same year. Advise
Matthews as to the consequences of the failure to table the regulation in the House of
Representatives.
2. The Customs (prohibited Imports) (AAT Repeal) Regulations repeal regs 4A(4) – (9) and (11)
– (12) of those regulations. The amending regulations are notified in the Gazette of February
this year and commence on this date.
In October of last year, Joseph Braggs applied for permission to import the book How to Build
a Rocket Launcher in Your Home in Ten Easy Lessons but permission was refused on 5
February this year.
Joseph comes to you for advice as to his means of redress, including whether he can apply
for review before the Administrative Appeals Tribunal (AAT). What is your advice? What would
your advice have been if the decision had been made on February 1?
Legislation
Acts Interpretation Act 1901 (Cth)
Subordinate Legislation Act 1989 (NSW)
Interpretation Act 1987 (NSW)
Legislation Review Act 1987 (NSW)
Legislative Instruments Act 2003 (Cth)
24
Week 3 Decision Making in Tribunals
DECISION MAKING IN TRIBUNALS
Texts:
Creyke, McMillan & Smyth
Ch 3
Esparraga & Ellis-Jones
Ch 3 & 5
Decision Making Processes
Determination of Preliminary Questions
Decisions by Majority
Timing Issues
Formal Requirements of a Decision
Delays in Handing Down Decisions
Burden and Standard of Proof
Using Tribunal Knowledge
Structuring Decision Making
Making Findings of Fact
Assessing Credibility
Evaluating Expert Information
Weighing Evidence
Reasons
Costs
Orders
Finality
Future Amalgamation of Tribunals
In May 2014, the Commonwealth Attorney-General announced the government’s intention to
streamline and simplify the merits review tribunal system. The Tribunals Amalgamation Bill 2014 was
introduced into the Parliament in December 2014. Its aim is to merge the Administrative Appeals
Tribunal (AAT), the Social Security Appeals Tribunal (SSAT), the Migration Review Tribunal (MRT)
and the Refugee Review Tribunal (RRT) into a single tribunal, to be called the Administrative Appeals
Tribunal (AAT). The Veterans’ Review Board (VRB) and the Classification Review Board (CRB) would
not be included in the amalgamation. Subject to the passage of legislation, the amalgamated tribunal
would commence operations on 1 July 2015.
The government envisages that this amalgamation will save $20.4 million over a four-year period and
that the amalgamation will:
25
 further enhance the efficiency and effectiveness of the Commonwealth merits review jurisdiction
and support high quality and consistent government decision making;
 generate savings through shared financial, human resources, information technology and
governance arrangements;
 provide for greater utilisation of members’ specialist expertise across subject matters and
facilitate the sharing of expertise between members and staff; and
 retain the successful features of each of the tribunals as currently constituted.
At the time of writing, the proposed legislation had not yet been passed.
Refugee Law Amendments
In December 2014, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum
Legacy Caseload) Act 2014 (Cth), introduced major changes to the Migration Act 1958 (Cth), including
the establishment of a new statutory body, the Immigration Assessment Authority (IAA), which will
form part of the Refugee Review Tribunal (RRT). Comprising a Principal member of the RRT, a senior
reviewer and other reviewers, it will offer a shorter form of review that only considers written
submissions, without a formal hearing. As at June 2015, the IAA, having advertised for new members,
had not appointed any new members.
Selected Readings
Texts
Forbes, J.R.S. Justice in Tribunals (2002) Federation Press, Sydney
Vrij, A. Detecting Lies and Deceit: The Psychology of Lying and the Implications for
Professional Practice (2000) John Wiley, Chichester, New York
26
Guides
Administrative Review Council – Practical Guidelines for Preparing Statements of Reasons,
2000 Revised 2002
Administrative Review Council – Commentary on the Practical Guidelines for Preparing
Statements of Reasons, 2000 Revised 2002
Selected Articles
Goldberg, Justice A. ‘When are Reasons for Decisions Considered Inadequate?’, (2000) 24
AIAL Forum 1
Kirby, Justice M. ‘Ex Tempore Judgments – Reasons on the Run’, (1995) 25 Western
Australian Law Review 213
Kirby, Justice M. ‘On the Writing of Judgments’, (1990) 64 Australian Law Journal 691
Kitto, Sir Frank, ‘Why Write Judgments?’, (1992) 66 Australian Law Journal 787
Raymond, J.C. ‘The Architecture of Argument’, (2004) 7 The Judicial Review 39
Young, Justice P. ‘Fact Finding’, (1998) 72 Australian Law Journal 21
27
Week 4 Judicial Review: Procedural Fairness
JUDICIAL REVIEW: PROCEDURAL FAIRNESS
Texts:
Creyke, McMillan & Smyth
Ch 10
Esparraga & Ellis-Jones
Ch 4, 6-9
Grounds of Judicial Review:
1. THE IMPLICATION PRINCIPLE
Cooper v Board of Works for the Wandsworth District (1963) 143 ER 414
Ridge v Baldwin [1964] AC 40
Kioa v West (1985) 159 CLR 550
State of South Australia v O’Shea (1987) 163 CLR 378
Annetts v McCann (1990) 170 CLR 596
Re Minister for Immigration and Multicultural Affairs; Ex p Miah (2001) 206 CLR 57
Jarratt v Commissioner of Police for New South Wales [2005] HCA 50 (8 September 2005)
2. THE CONCEPT OF LEGITIMATE EXPECTATION
Attorney-General for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 (For the sequel,
see: Haoucher v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD
487; aff’d (1993) 120 ALR 362 (Full Fed Ct)
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 (12 February
2003)
3. STAGES AT WHICH PROCEDURAL FAIRNESS SHOULD BE AFFORDED
3.1 Advisory reports and recommendations
Annetts v McCann (1990) 170 CLR
Ainsworth v Criminal Justice Commission (1992) 66 ALJR 271
28
3.2 Where Statute Provides a Hearing, Code of Procedure or Right of
Appeal
Twist v Randwick Municipal Council (1976) 136 CLR 106
Marine Hull & Liability Co Ltd v Hurford (1985) 62 ALR 253, aff’d (1985) 67 ALR 77
State of South Australia v O’Shea (1987) 163 CLR 378
Re Minister for Immigration and Multicultural Affairs; Ex p Miah (2001) 75 ALJR 889
Calvin v Carr [1980] AC 574
4. POSSIBLE QUALIFICATIONS TO THE IMPLICATION PRINCIPLE
4.1 National Security
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
4.2 Urgency
South Australia v Slipper [2004] FCAFC 164
Marine Hull & Liability Co Ltd v Hurford (1985) 62 ALR 253, aff’d (1985) 67 ALR 77
5. CONTENT OF THE HEARING RULE
5.1 Must the Person who Decides Hear?
White v Ryde Municipal Council [1977] 2 NSWLR 909
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
5.2 Notice & Disclosure
Bond v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646
Kioa v West (1985) 159 CLR 550
Re Minister for Immigration and Multicultural Affairs; Ex p Miah (2001) 75 ALJR 889
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] HCA 72 (6 December 2005)
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (15
December 2006)
5.3 The Hearing
Sullivan v Department of Transport (1978) 20 ALR 323
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (14
December 2005)
5.4 Representation
Cains v Jenkins (1979) 28 ALR 219
29
5.5 Rules of evidence and cross-examination
O’Rourke v Miller (1985) 156 CLR 342
Bond v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646
6. REASONS FOR A DECISION
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; reversing [1984] 3
NSWLR 447
7. PROBATIVE EVIDENCE
Mahon v Air New Zealand Ltd [1984] AC 808
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
See also:
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 (12 February
2003)
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA
30 (17 June 2003)
8. THE RULE AGAINST BIAS
8.1 Pecuniary Interest
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Hot Holdings v Creasey [2002] HCA 51 (14 Nov 2002)
8.2 Reasonable Apprehension of Bias
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Stollery v Greyhound Racing Control Board (1972) 128 CLR 509
Re Macquarie University; ex parte Ong (1989) 17 NSWLR 113
Vakauta v Kelly (1989) 167 CLR 568
Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310
Luck v University of Southern Queensland [2014] FCAFC 135
Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60
SZOUO v Minister for Immigration [2015] FCCA 1430
8.3 Actual Bias - Domestic Bodies
30
Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161
Dale v New South Wales Trotting Club Ltd [1978] 1 NSWLR 551
8.4 The common law principle of necessity and statutory exclusion
Builders’ Registration Board of Queensland v Rauber (1983) 47
ALR 55
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
8.5 Waiver
Vakauta v Kelly (1989) 167 CLR 568
9. EFFECT OF BREACH OF PROCEDURAL FAIRNESS & DISCRETION OF COURT
Kioa v West (1985) 159 CLR 550
Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (4 February 2003)
Re Refugee Review Tribunal; Ex parte Aala (2001) 75 ALJR 52
10. ROYAL COMMISSION INTO TRADE UNIO GOVERNANCE AND CORRUPTION
In March 2014, a Royal Commission into Trade Union Governance and Corruption was established
under former High Court Justice, Dyson Heydon. In August 2015, four groups of persons representing
Trade Unions, presented applications for disqualification on the ground of apprehended bias. The
applications centred on the contention that the Royal Commissioner in April 2014, had accepted an
invitation to deliver the Sixth Annual Sir Garfield Barwick Address in August 2015, This event had
been organised by the Lawyers Branch and the Legal Policy Branch of the NSW Division of the Liberal
Party of Australia. As such, the contention was that this might cause the fair-minded lay observer
reasonably to apprehend that the Royal Commissioner might not bring an impartial mind to the
resolution of questions to be examined at the Royal Commission.
Ten days later, the Royal Commissioner, in a 67-page decision, rejected the Trade Unions’
submission that his agreement to deliver the Address met the legal test of apprehended bias. The
Trade Unions decided not to challenge this decision in the Federal Court.
The Royal Commission’s deadline for delivery of its findings and recommendations is 31 December
2015.
Supplementary Materials
Allars, M. ‘Citizenship Theory and the Public Confidence Rationale for the Bias Rule’, (2001)
18 Law in Context 12
ALRC – ‘Equality Before the Law: Women’s Equality’, Report No 69, 1994
Batskos, Mick, ‘Natural Justice and the Constitution of Tribunal Membership’ (1998) 16 AIAL
Forum 22
Beazley, Justice M. ‘The Scope of Judicial review’, Paper presented at Joint Seminar on
Legality of Administrative Behaviours and Types of Adjudication, Xian, 11-13 April 2006
Bhuta, N. ‘Justice Without Borders? Prosecuting General Pinochet’ (1999) 23 Melbourne
University Law Review 499
31
Bradford, A. ‘Casenote: Johnson v Johnson’, (2000) 10 Journal of Judicial Administration 73
Curtis & Resnik ‘Images of Justice’, (1987) 96 Yale Law Journal 1727
Fraser, Ron, ‘Developments in Administrative Law’ (2005) 47 AIAL Forum 42
Graycar, R. ‘The gender of judgments: some reflections on “bias”’(1998) 32 UBC Law Review
32
Henry, G. ‘Pinochet: In Search of the Perfect Judge’ (1999) 21 Sydney Law Review 667
Heydon, Justice J. D. ‘Practical Impediments to the Fulfilment of Judicial Duties’, Keynote
Address delivered to the National Judicial Orientation Programme, Sydney, 13 October 2003
Hunt, Lesley, ‘Cross Cultural Issues - Implications for Procedural Fairness’ (1999) 20 AIAL
Forum 13
Ipp, D.A. ‘Judicial Impartiality and Judicial Neutrality: Is there a Difference?’ (2000) Australian
Bar Review 212
Kenny, Susan, ‘Recent Developments in Administrative Law - The Law Relating to Bias’
(1998) 18 AIAL Forum 23.
Papro, Vincenzo Salvatore, ‘Review of Collegiate Decisions: Judicial Protection for “Pissants”’
(2005) 47 AIAL Forum 65
Podger, Andrew, ‘Legal Implications of Values-Based Management - Observations on Hot
Holdings Pty Ltd v Creasy’ (2003) 39 AIAL Forum 32
Prince, Peter, ‘Developments in Administrative Law’ (2007) 53 AIAL Forum 1
Spry, Max, ‘Hot Holdings Pty Ltd v Creasy: Comment’ (2003) 39 AIAL Forum 40.
Sully, Brian, ‘Bias in Court/Tribunal Proceedings: Some Reflections’ (2007) 55 AIAL Forum 3
Thiagarajan, Premala, ‘Disqualification of Judges for Pecuniary or Proprietary Interests in the
Outcome of Litigation’ (2003) 38 AIAL Forum 13
32
Week 5 Merits Review & Administrative Tribunals
MERITS REVIEW & ADMINISTRATIVE TRIBUNALS
Text Book:
Creyke, McMillan & Smyth
Ch 3
Esparraga & Ellis-Jones
Ch 3 & 5
Introduction to the Topic
In this unit we spend a considerable amount of time studying judicial review. This is not only because
judicial review is of constitutional importance, but because we need to read a large volume of cases in
order to understand what the courts are doing, on the basis of which we can try to develop theoretical
perspectives. However, in terms of providing an accessible and effective avenue of accountability, we
readily acknowledge that the courts are and will remain marginal. There are constitutional limits on the
scope of judicial review and remedies available.
There are limits on the availability of information and on the evidence which may be adduced in court.
And of course litigation depends on there being someone who has the standing and resources to bring
government unlawfulness to the attention of a court. Further, a successful judicial review application
may be a Pyrrhic victory for the applicant – the government may re-make the same decision, avoiding
the legal errors identified by the reviewing court. And judicial review may not bring about systemic
administrative reform.
We should not allow interest in the function of the courts to distract us from far more effective and
democratic means of holding government accountable. Here, we focus on tribunals and access to
information. In an introductory unit, we cannot canvass the vast array of tribunals, nor explore in detail
impediments to open government. However, we emphasise the importance of other forms of
accountability and hope to stimulate your interest in cultivating them.
A Note on Tribunals
Tribunals are statutory creations and form part of the administration. There is a vast array of tribunals
performing a range of functions – appellate, supervisory, regulatory, investigative, law reform etc.
Tribunals in the Westminster system defy categorisation.
We have chosen to concentrate on two tribunals – the Commonwealth Administrative Appeals
Tribunal (AAT) and the Ombudsman – both of which deal with disputes between individuals or
corporations and government. The AAT is an example of an adjudicative tribunal and the Ombudsman
is an example of an investigative tribunal. They can be contrasted in terms of their procedure, their
access to information and the outcomes they can deliver. But they have both proven very effective in
terms of accountability. If an administrative tribunal is able to deal with a dispute, it is likely to offer a
speedier, less costly, more informal and ultimately more effective avenue through which to resolve the
dispute than judicial review by a court. Note, however, that persons with a grievance against
government can only complain to a tribunal if one exists and has jurisdiction over the matter, and the
person has standing.
Merits Review
The AAT was established in 1976 as part of the “New Administrative Law” reforms at Commonwealth
level. For Westminster systems, its establishment marked a new direction in reform by creating a
generalist merits review tribunal. Although it does not have a general jurisdiction to review all
Commonwealth administrative decisions, it does have wide-ranging jurisdiction.
The AAT exercises ‘merits review’ – it must decide for itself what is the correct and preferable
decision, on the material before it. It has the power to remake the decision being appealed and
substitute its decision for that of the primary decision-maker (or first-tier review body). In doing so, it
can depart from government policy if that policy does not produce the correct or preferable decision in
the individual case. Importantly, it has a high degree of independence from the government
33
department or agency whose decision is being reviewed. We shall draw your attention to recent
attempts by the federal government to radically restructure the AAT in a way that would substantially
undermine its independence. The legislation to restructure the AAT was blocked in the Senate.
1. THE ROLE OF TRIBUNALS
Overview of merits review – informal, internal, external
2. SPECIALIST AND GENERALIST TRIBUNALS
Statutory Framework
Nature of Decisions
Physical Setting
Culture and Practices
Legal Representation
Agency Representation
Types of Applicants
Formal/Informal
Adversarial/Inquisitorial
3. COMMONWEALTH ADMINISTRATIVE APPEALS TRIBUNAL
Administrative Appeals Tribunal Act 1975
3.1 Powers of the AAT in relation to application for review
AAT Act ss 41, 42A, 42B, 42C, 43
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1980) 2 ALD 634
3.2 Jurisdiction
AAT Act ss 3(3), 25
Ombudsman Act 1976 s 10
Re Adams and Tax Agents’ Board (1976) 1 ALD 251 (AAT)
Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Advisory opinions: AAT Act s 59
3.3 Membership and organisation of the tribunal
AAT Act ss 6-8, Part III
3.4 Who may apply for review of a decision?
AAT Act s 27
AAT Act s 30(1A) (joinder)
Re Control Investment and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74
Re Gay Solidarity Group and Minister for Immigration and Ethnic Affairs (1983) 5 ALD 289
34
3.5 Right to obtain reasons for decision that is reviewable
AAT Act s 28
3.6 Tribunal’s access to information
AAT Act ss 36, 36A, 37, 38
3.7 Pre-hearing procedure
AAT Act s 27A (notice of reviewable decision)
AAT Act s 29 (lodging application for review)
AAT Act s 33(1A) (directions hearing)
AAT Act ss 37, 38 (T documents)
AAT Act s 34 (preliminary conferences)
AAT Act s 34A (mediation)
AAT Act s 35A (telephone hearings)
3.8 Hearings before the tribunal
Representation: AAT Act s 32
Legal or financial assistance: AAT Act s 69
Public hearings & restrictions on disclosure of evidence: AAT Act ss 35, 36, 36A
Opportunity to present case: AAT Act ss 33, 35, 39, 40
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Sullivan v Department of Transport (1978) 1 ALD 383, 402-403
Australian Postal Commission v Hayes (1989) 87 ALR 283
3.9 Review by the Federal Court
AAT Act s 44
Director-General of Social Services v Chaney (1980) 31 ALR 571
Judiciary Act s 39B, ADJR Act
Australian Postal Commission v Hayes (1989) 87 ALR 283
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
4. NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL
Administrative Decisions Tribunal Act 1997 (NSW)
Administrative Decisions Legislation Amendment Act 1997 (NSW)
35
Selected Readings – Articles
Adler, M – ‘Tribunal Reform: Proportionate Dispute Resolution and the Pursuit of
Administrative Justice’, (2006) 69 Modern Law Review 958
Anderson, J - 'Something old, something new, something borrowed: the New South Wales
Administrative Decisions Tribunal', (1998) 5 Australian Journal of Administrative Law 97
Aronson, M - 'An Administrative Appeals Tribunal for New South Wales: expensive legalism,
or overdue reform?', (1993) 52 Australian Journal of Public Administration 208
Bailey, P – ‘Is Administrative Review Possible Without Legalism?’, (2001) 8 Australian Journal
of Administrative Law 163
Bayne, P – ‘Tribunals in the System of Government’, (1990) 10 Papers on Parliament 1
Bedford, N and Creyke, R - Inquisitorial Processes in Australian Tribunals (Australian Institute
of Judicial Administration, 2006)
Brennan, Sir Gerard – ‘The Anatomy of an Administrative Decision’, (1980) Sydney Law
Review 1
Bostock, C – ‘The Effect of Ministerial Direction on Tribunal Independence’, (2011) 66 AIAL
Forum 33
Campbell, E & Groves, M – ‘Enforcement of Administrative Determinations’, (2006) 13
Australian Journal of Administrative Law 121
Cane, P – Merits Review and Judicial Review: The AAT as Trojan Horse’, (2000) 28 Federal
Law Review 213
Cane, P - Administrative Tribunals and Adjudication (Hart Publishing, 2009) Ch 5
Cane, P – ‘Judicial Review in the Age of Tribunals’, [2009] Public Law 479
Carney, T - 'Welfare Appeals and the ARC Report - To SSAT or not to SSAT: Is that the
Question?', (1996) 4 Australian Journal of Administrative Law 25
Carstairs, M & Anderton, A – ‘The Social Security Appeals Tribunal: 25 Years of Responding
to Challenge’ in Finn, C (ed), Administrative Law for the New Millenium, AIAL, Canberra, 2000
Certoma, L - 'The Non-Adversarial Administrative Process and the Immigration Review
Tribunal" (1993) 4 Public Law Review 4
Creyke, R – ‘The Criteria and Standards for Merits Review by Administrative Tribunals” in
Creyke & McMillan (eds), Commonwealth Tribunals: The Ambit of Review, 1998, Centre for
International and Public Law, ANU, Canberra
Creyke, R – ‘Tribunals: Divergence and Loss’, (2001) 29 Federal Law Review 403
Creyke, R - 'The Impact of Judicial Review on Tribunals--Recent Developments' (Paper
presented at the Fifth Annual AIJA Tribunals Conference, Melbourne, 6-7 June 2002)
Creyke, R – ‘The special place of tribunals in the system of justice: How can tribunals make a
difference?’, (2004) 15 Public Law Review 230
Creyke, R - "Administrative Tribunals" in Matthew Groves and H P Lee (eds), Australian
Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press,
2007) 77
Creyke, R - 'Administrative Justice--Towards Integrity in Government' (2007) 31 Melbourne
University Law Review 705
36
Dawson, P – ‘Tenure and Tribunal Membership’, (1997) 4 Australian Journal of Administrative
Law 140
Douglas, Justice P – ‘How Should Tribunals Evaluate the Evidence?’, 7th Annual AIJA
Tribunals Conference, Brisbane, 11 June 2004
Dwyer, J - 'Fair Play the Inquisitorial Way: A Review of the Administrative Appeals Tribunal's
Use of Inquisitorial Procedures" (1997) 5 Australian Journal of Administrative Law 5
Esparraga, F - 'Procedure in the Administrative Appeals Tribunal' in John McMillan (ed),
Administrative Law: Does the Public Benefit? (Australian Institute of Administrative Law, 1992)
386
Forgie, S – ‘Commonwealth Tribunals: Past, Present and Future’, Queensland Law
Symposium, 3 March 2000
Harsel, J - 'Tribunals in the System of Justice: The Need for Independence', (1997) 4
Australian Journal of Administrative Law 200
Hill, G – ‘State Administrative Tribunals and the Constitutional Definition of “Court”’, (2006) 13
Australian Journal of Administrative Law 103
Leeming, M - 'Courts, Tribunals and the Separation of Powers in Australia and Canada',
(1997) 8 Public Law Review 143
Marks A,- 'Outsourcing and Administrative Law in the Commonwealth Public Sector', (1996)
79 Canberra Bulletin of Public Administration 104
Martin, W – ‘The Development of State Tribunals’, (2004) 84 Reform 19
Mason, K – ‘The Bounds of Flexibility in Tribunals”, (2003) 39 AIAL Forum 18
McMillan, J (ed) – Administrative Law: Does the Public Benefit?, Australian Institute of
Administrative Law Forum, AIAL, Canberra, 1992
McMillan, J - 'The role of administrative review bodies: a commentary', (1999) 58 Australian
Journal of Public Administration 76
Mullen. T – ‘Representation at Tribunals’, (1990) 53 Modern Law Review 230
Nand, J - 'Judicial power and administrative tribunals: the decision in Brandy v HREOC',
(1997) 14 AIAL Forum 15
O’Connor D - “Appearing before the AAT: a non-adversarial approach” NSW Bar Association
Seminar 1999
Orr, R & Briese, R – ‘Don’t Think Twice? Can Administrative Decision Makers Change Their
Minds?, (2002) 35 AIAL 11
Osborne, G – ‘Inquisitorial Procedure in the Administrative Appeals Tribunal – A Comparative
Perspective’, (1982-83) 13 Federal Law Review 150
Pearson, L – ‘Policy, Principles and Guidance: Tribunal Rule-Making’, (2012) 23 Public Law
Review 16
Raff, M - 'Reviewing government decisions: courts and tribunals', (1992) 17 Alternative Law
Journal 85
Rose, A - 'The role of administrative review bodies', (1999) 58 Australian Journal of Public
Administration 65
37
Schoombee H, - 'Privatisation and Contracting Out - Where are we going?', (1998) 87
Canberra Bulletin of Public Administration 89
Shaw, JW - 'The Administrative Decisions Tribunal: a lengthy gestation', (1998) 18 AIAL
Forum 1
Shaw, J W - 'The Administrative Decisions Tribunal of New South Wales', (1999) 6 Australian
Journal of Administrative Law 155
Simpson, J - 'Procedures for a Tribunal's purpose', (1996) 21 Australian Law Journal 118
Swain, PA - 'Critical or marginal? The role of the welfare member in administrative review
tribunals', (1999) 3 Australian Journal of Administrative Law 140
Thackeray, V – ‘Inconsistencies in Commonwealth Merits Review’, (2004) 40 AIAL Forum 54
Thawley, T - "Adversarial and Inquisitorial Procedures in the Administrative Appeals Tribunal'
(1997) 4 Australian Journal of Administrative Law 61
Topperwien B - “Relaxed Evidentiary Rules in Veterans’ Legislation: an Empirical Analysis”
paper delivered at Veterans’ Law Conference 2004
Wikeley, N – ‘Decision Making and the New Tribunals’, (2006) 13 Journal of Social Security
Law 86
Young, P - 'Tribunals', (1997) 71 Australian Law Journal 658
Selected Readings – Monographs
ARC – Review of Commonwealth Merits Review Tribunals: Discussion Paper, 1994
ARC – Better Decisions: Review of Commonwealth Merits Review Tribunals: Report No. 39,
1995
ARC – What Decisions Should be Subject to Merits Review? (1999)
ARC – Internal Review of Agency Decision Making: Report No. 44, 2001
ARC – A guide to Standards of Conduct for Tribunal Members, 2001
ARC – Report on the Council of Australasian Tribunals: Report No. 45, 2002
ALRC – Review of the Adversarial System of Litigation: Federal Tribunal Proceedings: Issues
Paper No. 24, 1998
ALRC – Managing Justice: A Review of the Federal Civil Justice System, Report No. 89, 2000
38
Week 6 Judicial Review: The Framework
JUDICIAL REVIEW: THE FRAMEWORK
Texts:
Creyke, McMillan & Smyth
Ch 2
Esparraga & Ellis-Jones
Ch 7 & 8
1. JURISDICTION OF THE COURTS
1.1 High Court: “Constitutional writs”
Commonwealth Constitution 1900 s 75(iii) & (v)
Judiciary Act 1903 (Cth) s 44
1.2 Federal Court
ADJR Act
Judiciary Act 1903 (Cth) ss 39B, 44
Federal Court of Australia Act 1976 (Cth) s 32
Federal Court Rules O 54A
1.2.1 ADJR Act: Decisions Subject to Review
ADJR Act s 3(1) and Schedule 1
Migration Act 1958 (Cth) Part 8
1.2.2 What is a Decision?
ADJR Act s 3(2), (3), (5) and ss 5, 6, & 7
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Right to Life Association (NSW) Inc v Secretary, Commonwealth Department of Human
Services and Health (1995) 128 ALR 238
Kelson v Forward (1995) 60 FCR 39 Electricity Supply Association of Australia Ltd v
Australian Competition and Consumer Commission (2001) 113 FCR 230
Edelsten v Health Insurance Commission (1990) 27 FCR 56
1.2.3 Of an “Administrative Character”?
Evans v Friemann (1983) 35 ALR 428
1.2.4 “Under an enactment”?
ADJR Act s 3(1) (“enactment”)
Australian National University v Burns (1982) 43 ALR 25
General Newspapers Pty Ltd v Telstra (1993) 117 ALR 629
39
Neat Domestic Trading Pty Limited v AWB Limited [2003] HCA 35 (19 June 2003)
Griffith v Tang [2005] HCA 7 (3 March 2005)
1.3 State and territory courts
Supreme Court Act 1970 (NSW)
ADJR Act ss 8, 9; Jurisdiction of Courts (Cross-vesting) Act 1987
Re Wakim; Ex parte McNally (1999) 163 ALR 270
Administrative Law Act 1978 (Vic)
Administrative Decisions (Judicial Review) Act 1989 (ACT)
Judicial Review Act 1991 (Qld)
Judicial Review Act 2000 (Tas)
2. JUSTICIABILITY: DECISIONS THAT A COURT MAY DECLINE TO REVIEW
R v Toohey (Aboriginal Land Commissioner); Ex p Northern Land Council (1981) 151 CLR
170 at 219-221 (Mason J) and 282-283 (Wilson J)
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372
Council of Civil Service Unions v Minister for the Civil Service (“GCHQ”) [1985] AC 374
Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218
State of South Australia v O’Shea (1987) 163 CLR 378
Griffith v Tang [2005] HCA 7 (3 March 2005)
3. JUSTICIABILITY: PUBLIC/PRIVATE
Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242
R v Panel on Take-overs and Mergers; Ex parte Datafin plc [1987] 1 QB 815
Neat Domestic Trading Pty Limited v AWB Limited [2003] HCA 35 (19 June 2003)
Griffith v Tang [2005] HCA 7 (3 March 2005) Sydney Training Depot Snapper Island Ltd v
Brown (1987) 14 ALD 464
Legislation
Administrative Decisions (Judicial Review) Act 1977
Federal Court of Australia Act 1976
Judiciary Act 1903
Migration Act 1958
Migration Litigation Reform Act 2005
40
Selected Readings
Bayne, P. 'The common law basis of judicial review', (1993) 67 Australian Law Journal 781
Bayne, P. 'Justiciability: the Report of the Administrative Review Council (ARC)', (1989) 63
Australian Law Journal 767
Bayne, P. 'Reform of judicial review? A new model', (1996) 79 Canberra Bulletin of Public
Administration 65
Bennett, D. 'The assimilation of judicial review to review on the merits', (1989) 58 Canberra
Bulletin of Public Administration 94
Black, The Hon. Justice M. 1995, ‘The courts and the individual’, Paper presented to the
Australian Institute of Judicial Administration conference ‘Courts in a Representative
Democracy’, Melbourne
Blackshield, T. 'The Constitution and judicial review', (1999) 74 Reform 40
Brennan, Sir Gerard, 'The Purpose and Scope of Judicial Review' in Michael Taggart (ed),
Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 19
Campbell, C. 'An examination of the provisions of the Migration Legislation Amendment Bill
(No. 4) purporting to limit judicial review', (1998) 5 Australian Journal of Administrative Law
135
Cane, P. ‘Merits Review and Judicial Review – the AAT as a Trojan Horse’, (2000) Federal
Law Review 213
Crock, M. 'Judicial review and Part 8 of the Migration Act: necessary reform or overkill?',
(1996) 18 Sydney Law Review 267
Dyzenhaus, D. and Taggart, M. 'Judicial review, jurisprudence and the Wizard of Oz', (1990) 1
Public Law Review 21
Mason, Sir Anthony, 1994, ‘The importance of judicial review of administrative action as a
safeguard of individual rights’, Australian Journal of Human Rights, vol. 1, no. 1, p. 8.
McMillan, J. ‘Judicial Review of the Work of Administrative Tribunals – How Much is Too
Much?’, Address by the Commonwealth Ombudsman, 13th Commonwealth Law Conference,
Melbourne, 14 April 2003
Walker, C. 'Review of the Prerogative: The Remaining Issues' [1987] Public Law 62
Wheeler, F. 'Judicial Review of Prerogative Power In Australia: Issues and Prospects' (1992)
14 Sydney Law Review 432, 433–5
Zines, L. 'Constitutional aspects of judicial review of administrative action', (1998) 1
Constitutional Law and Policy Review 50
41
Week 7 Legislative Scope & Purpose and Grounds of Judicial Review
LEGISLATIVE SCOPE & PURPOSE and
GROUNDS OF JUDICIAL REVIEW
Texts:
Creyke, McMillan & Smyth
Ch 9-14
Esparraga & Ellis-Jones
Ch 7
Introduction to the Topic
Legislation can never adequately address all the situations to which it will be applied. To decide
whether a situation comes within the scope of an Act, it is often necessary to look beyond the
language of the Act, at the context and purpose of the Act and often, at the legal setting in which the
Act is to operate. One can then begin to examine the major possible grounds of judicial review.
Statutory Interpretation
Commonwealth:
s 15AA of the Acts Interpretation Act 1901
New South Wales:
s 33 of the Interpretation Act 1987
Victoria:
s 35(a) of the Interpretation of Legislation Act 1984
Queensland:
s 14A of the Acts Interpretation Act 1954
Tasmania:
s 8A of the Acts Interpretation Act 1931
South Australia:
s 22 of the Acts Interpretation Act 1915
Western Australia:
s 18 of the Interpretation Act 1984
Australian Capital Territory:
s 11A of the Interpretation Act 1967
Grounds of Review
Creyke & McMillan emphasise three major grounds of review:
• The requirement that statutory powers be exercised for an authorised
or “proper” purpose
• The requirement that irrelevant matters are not taken into account
• The requirement that relevant matters are taken into account.
With regards to the ground of improper purpose, the reviewing court will imply what the proper and
improper purposes are: see R v Toohey (Aboriginal Land Commissioner); Ex p. Northern Land
Council. The ground is made out if it is established objectively that the decision achieves a purpose
extraneous to the enabling legislation.
Bad faith is a separate ground of review that requires proof of personal fault or dishonesty (e.g.
personal wrongdoing, dishonesty, malice, corruption, fraud, including fraud of a third person) but it is
very difficult to prove and thus bad faith is a rarely used ground of review.
Where multiple purposes are achieved, the ground of improper purpose can become complex. The
High Court has chosen to apply the so-called “motivating purpose” test. That is, the question to be
asked is whether the power would have been exercised but for the improper purpose: see Thompson
v Randwick Municipal Council and Samrein Pty Ltd v Metropolitan Water, Sewerage & Drainage
42
Board. Only the power which has been conferred for that purpose can be used: see Schlieske v
Minister for Immigration & Ethnic Affairs.
Relevant and irrelevant considerations for a decision-maker may be multi-faceted with any
combination of legal issues, factual material, or policies. Like the improper purpose ground of review,
review on grounds of relevant and irrelevant considerations does not depend on relevancy being
expressly addressed in the empowering legislation.
If the empowering legislation does expressly address the issue, the reviewing court will still need to
decide whether the legislation is exhaustive or only inclusive. Even if the empowering Act is unclear or
even silent, the reviewing court will imply which considerations must be taken into account, which
considerations must not be taken into account, and which matters may be taken into account or
disregarded without the administrator being wrong in law: see especially Mason J’s judgment in
Minister for Aboriginal Affairs v Peko-Wallsend Ltd.
Wednesbury Unreasonableness
The unreasonableness ground of review, commonly referred to as “Wednesbury unreasonableness”,
see Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 needs to
be dealt with care because it may lure the reviewing court into evaluating the factual basis or the
“merits” of an exercise of discretion. This is something which a reviewing court must not do.
Unreasonableness can have any number of meanings. It is, however, an independent ground of
review. Difficult questions are likely to be examined. Is the court making a judgment about the
reasonableness of the substantive decision or the rationality of the decision-maker? Is the court
weighing the various options available to the administrator?
The High Court in a series of recent decisions has signalled that review on grounds of
unreasonableness (“Wednesbury unreasonableness”) is confined to the substantive decision – the
outcome of an exercise of discretion. The decision may, for example, be unreasonable because it
violates accepted moral or community standards or results in unequal or inconsistent treatment of
similar cases. However, the High Court has indicated that Wednesbury unreasonableness should not
be used where the complaint is that the decision-maker was irrational or illogical. At the same time,
the High Court appears to be recognising a separate ground of review for extreme irrationality; see Re
Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002. Many a commentator
has concluded that the scope of review for unreasonableness is very sensitive to shifts between
judicial activism and restraint.
The issue of proportionality may also need to be examined, in that the decision lacked reasonable
proportionality. In South Australia v Tanner, the High Court was willing to ask whether delegated
legislation was disproportionate to the end to be achieved and thus invalid.
Subsequently however the High Court has emphasised that proportionality is not an independent
ground of review and the High Court has confined the reasoning in Tanner to judicial review of
delegated legislation, and then only to legislative powers that are “purposive” (i.e. operates for a
particular purpose) rather than legislative powers which operate on a particular subject matter; see
Cunliffe v Commonwealth (1994) 124 ALR 120 at 176-8.
It may also be necessary to consider whether a decision can be set aside as invalid where the
decision-maker has failed to seek out relevant material. If so, it is not an independent ground of review
but a type of unreasonableness, or a failure to have regard to relevant material.
Normally, the reviewing court will confine its consideration to the material that was actually or
constructively before the decision-maker (with respect to constructive knowledge, see Minister for
Aboriginal Affairs v Peko-Wallsend). However, reviewing courts have been prepared to receive
evidence that there was material readily available and centrally relevant which a reasonable decisionmaker would have inquired into – for example, information which up-dates the facts or information not
within the knowledge of the applicant; see Prasad v Minister for Immigration and Ethnic Affairs (1985)
65 ALR 549 at 561-563.
43
Unreasonableness
This ground rests on the premise that:
“…when a discretionary power is statutorily conferred on a repository, the power must
be exercised reasonably, for the legislature is taken to intend that the discretion be so
exercised.”
Kruger v The Commonwealth (1997) 190 CLR 1, 36 per Brennan J. Adopted also by
Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR
611, 650
Categories of unreasonableness include:

that the decision was devoid of plausible justification
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

the giving of excessive or inadequate weight to a consideration
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

making an erroneous finding of fact on a point of importance
GTE (Australia) v Brown (1986) 14 FLR 309

failure to have proper regard to departmental policy or representation
Nikac v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65

the unnecessarily harsh effect of the decision
Edelsten v Wilcox and FCT (1988) 83 ALR 99

failure to give genuine, proper and realistic consideration to a matter including making
adequate inquiry as to facts
Although according to Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs
(1985) 159 CLR 550, 570, ‘[t]he circumstances in which a decision will be invalid for
failure to inquire are…strictly limited’

demonstrable inconsistency with other decisions;
Kruse v Johnston [1898] 2 QB 91; Fares Rural Meat and Livestock Co Pty Ltd (1990)
96 ALR 153

discrimination without a rational distinction.
The Council of the City of Parramatta v Pestell (1972) 128 CLR 305
‘Unreasonableness’ is, accordingly, a broad head of judicial review, with the potential to stem
executive excess by filling gaps not covered by more specifically stated grounds. Empirical research
suggests that this ground is one of the most frequently relied on by applicants, and that it is upheld in
the courts in 21.1% of cases.
Acting for an Unauthorised (or Improper) Purpose
The common law position has been entrenched in paragraphs 5(2)(c) and 6(2)(c) of the AD(JR) Act.
44
Bad Faith and Fraud
The common law position has been entrenched in paragraphs 5(2)(d) and 6(2)(d) of the AD(JR) Act.
Considering Irrelevant Matters and Failing to Consider Relevant Matters
The common law position has been entrenched in paragraphs 5(2)(a) and 6(2)(a) of the AD(JR) Act.
No Evidence
The common law position has been entrenched in paragraphs 5(1)(h) and 5(3); 6(1)(h) and 6(3))of the
AD(JR) Act.
Proportionality
Attempts have been made to move away from the language of unreasonableness in an effort to
provide greater clarity and consistency in reviewing administrative discretion. Proportionality, for
example, has been suggested as a ground of reviewing administrative action.
Grounds of Judicial Review:
1. ACTING FOR AN UNAUTHORISED (OR IMPROPER) PURPOSE
Municipal Council of Sydney v Campbell [1925] AC 338
R v Toohey (Aboriginal Land Commissioner); Ex p. Northern Land Council (1981) 151 CLR
170
Thompson v Randwick Municipal Council (1950) 81 CLR
Samrein Pty Ltd v Metropolitan Water, Sewerage & Drainage Board (1982) 41 ALR 467
Schlieske v Minister for Immigration & Ethnic Affairs (1988) 79 ALR 554; aff’d (1988) 84 ALR
719
2. BAD FAITH & FRAUD
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
Minister for Immigration and Multicultural Affairs v SBAN [2002] FCAFC 431
3. CONSIDERING IRRELEVANT MATTERS
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Roberts v Hopwood [1925] AC 578
Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997
Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1
Ex parte S F Bowser & Co; Re Municipal Council of Randwick (1927) 27
SR(NSW) 209
4. FAILING TO CONSIDER RELEVANT MATTERS
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363
45
Tickner v Chapman (1995) 57 FCR 451
Hindi v Minister for Immigration & Ethnic Affairs (1988) 16 ALD 526
Prasad v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550
5. WEDNESBURY UNREASONABLENESS & IRRATIONALITY
Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (“Wednesbury”) [1948]
1 KB 223
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA
30 (17 June 2003)
5.1. Examples
Parramatta CC v Pestell [1972] 128 CLR 305
Edelsten v Wilcox (1988) 83 ALR 99
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 112 ALR 211
Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549
Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121
5.2 Unreasonableness and the Duty of Inquiry
Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 esp at 561-563
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Luu v Renevier (1989) 91 ALR 39
5.3 Proportionality
State of South Australia v Tanner (1988) 166 CLR 161
Cunliffe v Commonwealth (1994) 124 ALR 120 at 176-8
Selected Readings
Statutory Interpretation
Bayne, P. 'Judicial review of questions of fact', (1992) 66 Australian Law Journal 96
Brennan, G. 'The role of the judge', (1997) 3 Judicial Review 65
Le Sueur, A.P. 'The judges and the intention of Parliament: is judicial review undemocratic?',
(1991) 44 Parliamentary Affairs 283
Pearce, D.C. & Geddes, R.S. Statutory Interpretation in Australia, 5th ed, 2001, Butterworths,
Sydney, Ch 3
Woolf, H. 'Judicial review: the tensions between the executive and the judiciary', (1998) 114
Law Quarterly Review 579
46
Grounds of Review
Airo-Farulla, G. ‘Rationality and Judicial Review of Administrative Action’ [2000] MULR 23;
(2000) 24 Melbourne University Law Review 543
Creyke, R. and Hill, G. ‘A Wavy Line in the Sand: Bond and Jurisdictional Issues in Judicial
and Administrative Review’ Federal Law Review Vol 26 No 1 (1998)
Gageler, Stephen ‘The Legitimate Scope of Judicial Review’ (November 2001) 21(3)
Australian Bar Review 279
Mason, Sir Anthony, Judicial Review: A View from Constitutional and Other Perspectives
Federal Law Review Vol 28 No 2 (2000)
McMillan, J. 'Developments under the ADJR Act: the grounds of review', (1992) 20 Federal
Law Review 50
McMillan J, 'The Foundations and Limitations of Judicial Review' Gilbert and Tobin Centre of
Public Law - Constitutional Law Conference (15 February 2002)
Morabito, V. and Barkoczy, S. 'Restricting the judicial review of income tax assessments: the
scope and purpose of Schedule 1(e) of the Administrative Decisions (Judicial Review) Act
1977 (Cth)', (1999) 21 Sydney Law Review 36
Sidebotham, N. ‘Judicial Review: Is There Still a Role for Unreasonableness?’ E Law Murdoch University Electronic Journal of Law, Vol 8, No 1 (March 2001)
Willheim, E. 'Ten years of the ADJR Act: from a government perspective', (1992) 20 Federal
Law Review 111
Unreasonableness
Allars M. Australian Administrative Law, Cases & Materials, Butterworths 1997
Blake, C. and Sunkin, M. 'Immigration: appeals and judicial review', [1998] Public Law 583
Crock, M. 'The impact of the new administrative law on migrants', (1989) 58 Canberra Bulletin
of Public Administration 150
McEvoy, T. 'New flesh on old bones: recent developments in jurisprudence relating to
Wednesbury unreasonableness', (1995) 3 Australian Journal of Administrative Law 36
Panetta, Rossana ‘Wednesbury Unreasonableness: Judicial or Merits Review?’ (2002) 9(4)
Australian Journal of Administrative Law 191
Tongue, S. 'Fairness in administrative decision-making: the Immigration Review Tribunal
model', (1996) 9 AIAL Forum 44
No Evidence
Bowman, B. 'Judicial review - "no evidence"', (1984) 14 Manitoba Law Journal 195
Keith, K.J. 'The Erebus case in the Privy Council', [1984] New Zealand Law Journal 35
Proportionality
Jowell, J. & Lester, A. ‘Proportionality: Neither Novel Nor Dangerous’ in Jowell, J. & Oliver, D.
New Directions in Judicial Review (Stevens, London, 1988)
47
Week 8 Jurisdictional Error and Invalidity
JURISDICTIONAL ERROR and INVALIDITY
Texts:
Creyke, McMillan & Smyth
Ch 12-16
Esparraga & Ellis-Jones
Ch 8
Introduction to the Topic
Judicially reviewable errors committed by administrative decision-makers (including Ministers and
public servants) are traditionally categorised as "ultra vires". Judicially reviewable errors committed by
lower courts and tribunals are usually referred to as "jurisdictional errors".
Jurisdictional errors may be either jurisdictional errors of law or errors in finding a fact whose existence
is a condition precedent to jurisdiction. These latter types of factual errors are usually referred to as
the "jurisdictional fact" doctrine.
In addition, non-jurisdictional errors of law may be judicially reviewable in exceptional circumstances,
where the error appears on the face of the record of the court or tribunal. Such errors are usually
referred to as "errors of law on the face of the record". After many efforts by various judges to expand
the scope of error of law on the face of the record (mostly by expanding the definition of "the record"),
the High Court has now drastically curtailed the scope for review of non-jurisdictional errors of law.
We will also examine the "jurisdictional fact" doctrine and "errors of law on the face of the record". We
will also look at the (often confusing and unclear) distinction between questions of law and questions
of fact. Since the fact/law distinction delimits the boundaries of judicial review (as opposed to merits
review), we necessarily have to be able to distinguish questions of fact from questions of law. We will
now focus on jurisdictional error.
Traditional Doctrine
Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47
R v Gray; Ex parte Marsh (1985) 157 CLR 351
Dickinson v Perrignon [1973] 1 NSWLR 72
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Non-jurisdictional Errors of Law
The Anisminic Doctrine
The practical effect of the decision of the House of Lords in Anisminic was to abolish the distinction
between jurisdictional error and error of law for administrative tribunals in England.
Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C.147
Ridge v Baldwin [1963] 2 WLR 935
Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222
Pearlman v Keepers and Governors of Harrow School [1979] QB 56
Re Racal Communications Ltd [1981] AC 374
48
O'Reilly v Mackman [1982] 3 WLR 1096
R v Hull University Visitor; Ex parte Page [1993] AC 682
Boddington v British Transport Police [1998] 2 All ER 203
The Australian Approach to Anisminic
R v Liquor Commission of the Northern Territory; Ex parte Pitjantjatjara Council Inc (1984) 31
NTR 13
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953)
88 CLR 100
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
Craig v South Australia (1995) 184 CLR 163
R v Gray; Ex parte Marsh (1985) 157 CLR 351
Abebe v Commonwealth (1999) 162 ALR 1
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Error of Law under the ADJR Act
The debate and confusion surrounding jurisdictional and non-jurisdictional errors of law, errors of law
on the face of the record etc., has no application at all to judicial review under the Administrative
Decision (Judicial Review) Act 1977 (Cth). Section 5(1)(f) provides for review on the ground "that the
decision involved an error of law, whether or not the error appears on the record of the decision".
Section 6(1)(f) provides an effectively identical review ground where administrative conduct (rather
than the decision itself) is being challenged.
Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238,
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Selected Readings
Airo-Farulla, G. Rationality and Judicial Review of Administrative Action - [2000] MULR 23
Bath, V. 'The judicial libertine - jurisdictional and non-jurisdictional error of law in Australia',
(1982-83) 13 Federal Law Review 13 807
Beaton-Wells, C. 'Judicial Review of Migration Decisions: Life after S157', (2005) 33 Federal
Law Review 141
Crock, M. ‘Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?’
(1996) 18 Syd LR 267
Crock, M. "Abebe v Commonwealth; Minister for Immigration and Multicultural Affairs v
Eshetu" [2000] MULR 6
Gageler, S. "The Legitimate Scope of Judicial Review" Australian Bar Review (3) November
2001 : 279-291
49
Leigh, L.H. 'Time limit clauses and jurisdictional error', [1980] Public Law 34 808
Markson, H.E. 'Jurisdictional error', (1980) 130 New Law Journal 1137
Mason Sir Anthony, The High Court as Gatekeeper - [2000] MULR 31
50
Week 9 Reasons for Decisions and Freedom of Information
REASONS FOR DECISIONS
and FREEDOM OF INFORMATION
Texts:
Creyke, McMillan & Smyth
Ch 19 & 21
Esparraga & Ellis-Jones
Ch 11
General Introduction
The Report of the Senate Select Committee on a Certain Maritime Incident, extracted in Creyke &
McMillan Ch1, emphasises that a critical ingredient of effective accountability and public participation
is the securing of sound information.
In this topic we examine both the legal avenues for obtaining information about government decisions
and policies, and more generally about the information government holds. We also examine the notion
of administrators giving reasons for decisions in light of the fact that there is no duty at common law
for administrators to give reasons for decisions.
It is stating the obvious that it is difficult if not near impossible, to bring an action for judicial review if
an applicant does not how or why a decision was reached. Hence, the importance of reasons for
decisions and mechanisms for obtaining information held by government.
The High Court in Osmond’s case refused to create a common law duty and left it to Parliaments to
create a duty to give reasons. There will be an examination of two general statutory duties – s13 of the
ADJR Act (Cth) and s 28 of the AAT Act (Cth).
There will also be an examination of accessing information through Freedom of Information (FOI)
legislation, which has been enacted in all jurisdictions in Australia.
Such legislation provides access to documents, as distinct from reasons or government information
more generally, as well as policies which impact on the public to be disclosed. FOI legislation reverses
the presumption in favour of secrecy by creating a legal right of access to documents in the
possession of government. This right however is subject to a range of exemptions and exclusions. A
large body of case law has developed around these exemptions, particularly as governments have
been slow to embrace openness.
1. REASONS FOR DECISIONS
1.1 COMMON LAW
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656: reversing [1984] 3
NSWLR 447
1.2 ADJR ACT
ADJR Act, ss 13, 13A, 14 and Schedule 2
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 74 ALJR 1105
1.3 OTHER STATUTORY DUTIES
Administrative Appeals Tribunal Act 1975 (Cth) ss 28, 37, 38, 43(2), (2B)
Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183
51
Acts Interpretation Act 1901 (Cth) s 25D
AAT Act Statement of Reasons
Under s.28 of the AAT Act a person who is entitled to apply to the AAT for a review of a decision may
request the decision maker to provide a:





statement
in writing
setting out findings on material questions of fact
referring to the evidence or other material on which those findings were based, and
giving the reasons for the decisions.
A request for a statement of reasons must be made within 28 days of the receipt of the decision in
writing.
The decision maker has 28 days to provide the statement of reasons.
The applicant has a further 28 days from the sending of a request for a statement of reasons in which
to lodge an AAT application for review of the decision.
ADJR Act Statement of Reasons
Under s.13 of the ADJR Act certain persons are entitled to apply to the decision maker for a statement
of reasons similar to a s.28 statement under the AAT Act.
A request for a statement of reasons must be made within 28 days of the receipt of the decision.
The decision maker has 28 days from receiving the request to provide a statement of reasons.
The applicant has a further 28 days from the making of the request for a statement of reasons to
commence Federal Court proceedings under the ADJR Act.
A person cannot apply for a statement of reasons when:



the person could have applied for a statement of reasons under the AAT Act;
the decision complained of contained or was accompanied by a statement of reasons; or
the decision is included in the classes of decisions in Schedule 2 of the ADJR Act.
Exclusions in Schedule 2 of the ADJR Act include decisions:

relating to the administration of criminal justice, including:
o the investigation or prosecution of persons for any offence against a law of the
Commonwealth;
o requiring the production of documents, the giving of information or the summoning of
persons as witnesses;
o decisions in connection with the institution or conduct of proceedings in a civil court,
including decisions that relate to or may result in the bringing of such proceedings for
the recovery of pecuniary penalties arising from contraventions of Commonwealth
law.
Rationale for the Giving of Reasons
At common law, courts are required to give reasons for their decision. Reasons are necessary on at
least two grounds - to enable the parties to understand the basis of the decision and to enable any
right of appeal to be exercised.
52
In the executive sphere, however, there is no such obligation - there is no general common law right to
reasons. Public Service Board v Osmond (1986) 159 CLR 656. Hence, any provisions for reasons
have to be introduced by statutory provisions. There are, in fact, four sets of such provisions. The two
major ones, which we discuss as noted above, are the Judicial Review Act 1977 and the AAT Act
1975.
Public Service Board v Osmond (1986) 159 CLR 656
Re Palmer and Minister for ACT (1978) 23 ALR 196
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Collins v Repatriation Commission (1980) 48 FLR 198
Australian Telecommunications Corporation v Davis (1991) 30 FCR 467
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500
Wu Shan Liang v Minister for Immigration (1995) 57 FCR 432
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Benefits for the Giving of Reasons
First, the practice of providing statements of reasons has the potential to improve the quality of
primary decision-making.
Secondly, providing statements of reasons can be seen as part of a general due process requirement.
Thirdly, statements of reasons assist applicants in their consideration of whether to exercise their
rights of review or appeal.
Fourthly, statements of reason assist tribunals and courts in providing merits and judicial review.
Finally, the practice of providing statements of reasons may promote public confidence in the
administrative process by disclosing the reasoning process of decision-makers to the public.
What are Adequate Reasons?
There is no succinct answer to this question. It is a matter of degree. Judges differ on this issue.
Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635
Politis v Federal Commissioner of Taxation (1988) 2 ATC 5029
Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233
Dornan v Riordan (1990) 24 FCR 564
Kermanioun v Comcare [1998] 1529 FCA
Kandiah v Minister for Immigration and Multicultural Affairs [1998] 1145 FCA
What are the Essential Requirements?
Once again, there is no definitive answer to this question, although as mentioned earlier, where the
obligation is imposed by statute, ‘substantial compliance’ is sufficient.
53
Dodds v Comcare Australia (1993) 31 ALD 690
Kermanioun v Comcare [1998] 1529 FCA
The ARC Guidelines for Preparing Statements of Reasons
This 2002 booklet aims to provide a succinct, user-friendly set of guidelines on preparing appropriate
statements of reasons, based not only on what the Council considers to be the desirable policies, but
also on the terms of relevant Commonwealth legislation, and taking account of court and tribunal
decisions.
Eight questions or checkpoints are asked as follows:
• One, does the decision-maker have an obligation to provide a statement of reasons?
• Two, even if an obligation exists, can the decision-maker refuse to provide a statement of reasons?
• Three, assuming an obligation, what does the decision-maker need to show in the statement of
reasons?
• Four, what should the decision-maker do if other or better reasons are identified after the decision is
made?
• Five, how should a statement of reasons be prepared?
• Six, what should the decision-maker do where recommendations or reports are used, and where
submissions are made, in coming to the decision?
• Seven, how does the decision-maker deal with instances where confidential information has been
used?
• Eight, is the statement the decision-maker prepared an adequate statement?
Introduction – Freedom of Information
The Freedom of Information Act 1982 ('FOI Act') was the subject of report by two inter-departmental
committees and by the Senate Standing Committee on Constitutional and Legal Affairs in 1979, was a
focus of vigorous public debate, and was enacted in 1982.
Prior to the commencement of the FOI Act, access to information held by the Commonwealth
Government or its agencies was, generally speaking, a matter of discretion. It would appear that in
many areas the norm was for people to be refused access. The FOI Act was a response to that
situation.
This section will introduce you to Commonwealth Freedom of Information obligations which allow a
person access to government documents. It also requires that government agencies publish
information about their operations and powers as they affect members of the public. They are also
required to make public their manuals and other documents used in making decisions and
recommendations affecting the public. Further, unless a document comes within an excepted or
exempted category under some legislation, agencies must permit access to documents in their
possession.
Firstly, the Freedom of Information Act 1982 (Cth) (“the Act”) will be evaluated at the practical level on
whether applicants in fact do obtain access to the documents they request. Secondly, the Act will be
assessed on whether it achieves its stated objectives or how functional it really is.
We will initially examine the objectives of the Act in order to provide perspective. Next, we will examine
the limitations which impinge on access. These will be found in the definitions of key terms, exemption
provisions, diversion of resources provisions and the provisions which provide agency discretion.
54
We will also identify structural and cultural obstacles to access. As such, we will also examine the
complex application procedures; the costly and lack of quality control procedures and the endemic
culture of secrecy. With this background, we will examine recent case law, statistical analysis and
reform proposals.
There have also been major reforms in Freedom of Information legislation since 2010 which will be
discussed in detail.
Objectives of Freedom of Information (FOI)
The objectives of FOI are to provide an understanding of key concepts and issues aimed at
expanding citizens’ rights in accessing government information through:



The imposition of a duty on government agencies to publish or make available, certain
relevant information about the operations of departments and public authorities;
the creation of a general right of access to agency-held documents; and
the ability of a person’s right to annotate or amend personal records relating to that
person, which are held by government agencies.
Arnold v Queensland (1987) 13 ALD 195
Searle Australia v Public Interest Advocacy Centre (1992) 36 FCR 111
News Corp, News Corporation v National Companies and Securities Commission (1984) 6
ALD 83
Bodies Covered by the Act
An agency is defined (Freedom of Information (Miscellaneous Provisions) Regulations 1982 (Cth),
Schedule 2; and Re Brennan and Australian Capital Territory Law Society (1984) 6 ALD 428) to mean
a department or prescribed authority. A department is further defined and embraces all the Public
Service departments except those concerned with the administration of the Parliament. Whereas the
concept of prescribed authority is more complicated and has four major elements, as follows:

A body is a prescribed authority if it is an un-incorporated body, established for a public
purpose pursuant to an Act. However, certain bodies which would fall within the definitions are
specifically excluded (Sch 2 Pt 1).

A prescribed authority may be a body established by the Governor General, a Minister or a
government controlled body.

A person is a prescribed authority if they hold or perform duties of an office established by an
enactment. Certain such persons are specifically excluded pursuant to Sch 2 Pt 1 of the Act.

A person is a prescribed authority if they hold or perform the duties of a Governor General or
ministerial appointment declared by the regulations to be a prescribed authority.
2014-2015 Reforms
Following the 2014–2015 Budget, the Commonwealth Government announced sweeping changes
which would undo many of the reforms introduced since 2010, with the major aim being to make
financial savings.
The major reform was the disbandment of the Office of the Australian Information Commissioner
(OAIC) from 31 December 2014. The OAIC’s functions are now split between four agencies as
follows:
 freedom of information policy advice, guidance and annual statistics will be administered by the
Attorney-General’s Department
55
 the right to external merits review of FOI decisions by government agencies and ministers will
lie directly to the Administrative Appeals Tribunal (AAT)
 complaints about FOI administration by government agencies will lie directly to the
Commonwealth Ombudsman
 unresolved FOI review applications and complaints before the OAIC will be transferred to the
AAT and the Commonwealth Ombudsman.
Selected Caselaw – Freedom of Information
Accident Compensation Commission v Croom (1991) 2 VR 322
AWB Limited v Cole (2006) 235 ALR 307
Comcare v Foster (2006) 150
Commonwealth v John Fairfax & Sons Ltd (1980) 32 ALR 485
Commonwealth of Australia v Dutton (2000) 102
Department of Employment, Workplace Relations and Small Business v Staff Development
and Training Company (2001) 114
Esso Australia Resources Ltd v Commissioner for Taxation (1999) 201 CLR 49
Lansing Linde Ltd v Kerr (1990) 21 IPR 529
Maksimovic and Attorney-General's Department [2008] AATA 1089
Mann v Carnell (1999) 201 CLR 1
Michael McKinnon v Secretary, Department of Treasury [2006] HCA 45
Osland v Secretary to the Department of Justice [2008] HCA 37
Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Re Aldred and Department of Foreign affairs and Trade [1990] AATA 833
Re Anderson and Department of Special Minister of State [1984] AATA 478
Re Binnie and Department of Agriculture and Rural Affairs (1987) VAR 361
Re Bunting and Minister Immigration and Multicultural and Indigenous Affairs [2006] AATA
145
Re Callejo and Department of Immigration and Citizenship [2010] AATA 244
Re Doulman and CEO of Customs [2003] AATA 883
Re Dunn and the Department of Defence [2004] AATA 1040
Re Dykstra and Centrelink [2002] AATA 659
Re Edelsten and Australian Federal Police [1985] AATA 350
Re Environment Centre NT Inc and Department of the Environment, Sport and Territories
[1994] AATA 30
56
Re Fisse and Secretary, Department of the Treasury [2008] AATA 288
Re Ford and Child Support Registrar [2006] AATA 283
Re Gold and Australian Federal Police and National Crime Authority [1994] AATA 382
Re Haneef and Australian Federal Police [2009] AATA 51
Re Hocking and Department of Defence [1987] AATA 602
Re Howard and Treasurer of Commonwealth (1985) 7 ALD 626
Re James and Australian National University [1984] AATA 18
Re Kamminga and Australian National University [1992] AATA 84
Re Lander and Australian Taxation Office [1985] AATA 296
Re Maher and Attorney-General’s Department [1986] AATA 16
Re Maksimovic and Australian Customs Service [2009] AATA 28
Re Maksimovic and Attorney-General's Department [2008] AATA 1089
Re Mangan and The Treasury [2005] AATA 898
Re McKinnon and Department of Prime Minister and Cabinet [2007] AATA 1969
Re McKnight and Australian Archives [1992] AATA 225
Re Murphy and Australian Electoral Commission [1994] AATA 149
Re Murphy and Queensland Treasury [1995] QICmr 23
Re News Corporation Limited v National Companies and Securities Commission (1984) 5
Re Nitas and Minister for Immigration and Multicultural Affairs [2001] AATA 392
Re O’Donovan and Attorney-General’s Department [1985] AATA 330
Re Petroulias and Others v Commissioner of Taxation [2006] AATA 333
Re Public Interest Advocacy Centre and Department of Community Services and Health and
Searle Australia Pty Ltd (No 2) [1991] AATA 723
Re Rees and Australian Federal Police [1999] AATA 444
Re Russo v Australian Securities Commission [1992] AATA 228
Re Slater and Cox (Director-General of Australian Archives) [1988] AATA 110
Re Throssell and Australian Archives [1987] AATA 453
Re Toomer and Department of Agriculture, Fisheries and Forestry and Ors [2003] AATA 1301
Re Young and Commissioner of Taxation [2008] AATA 155
Secretary, Department of Foreign Affairs v Whittaker (2005) 143
Shergold v Tanner (2002) 76 ALJR 808
57
Secretary, Department of the Prime Minister and Cabinet v Haneef (2010) 52 AAR 360
Secretary, Department of Workplace Relations & Small Business v Staff Developments &
Training Centre Pty Ltd (2002) 76 ALJR 808
Tillmanns Butcheries Pty Ltd v Australasian Meat Employees Union & Ors (1979) 27 ALR 367
Waterford v Commonwealth of Australia (1987) 163 CLR 54
Nature of FOI Requests Received
Since 2000–01, agencies have reported separately the number of FOI access requests received for
documents containing personal information and for documents containing ‘other' information. A
request for personal information means a request for documents that contain information about a
person who can be identified. A request for ‘other' information means a request for all other
documents, such as documents concerning policy development and government decision making.
Number of FOI Requests Received
Between 1 December 1982 (the date of commencement of the FOI Act) and 30 June 2011,
Commonwealth agencies received a total of 906,639 requests.
Chart 1.1 shows the total number of requests for each year since the commencement of the Act in
1982. (The FOI Act operated for only seven months of the 1982-83 year.)
58
Table 1.1 provides a comparison of requests received in the last four years.
TABLE 1.1 TOTAL FOI REQUESTS RECEIVED: 2007-08 to 2010-11
2007-08
2008-09
2009-10
2010-11
29,019
27,561
21,587
23,605
Although there has been a general decline in the number of FOI requests received by agencies since
a peak in 2003-04, the number of requests received in 2010-11 was 9.3% higher than in 2009-10.
A breakdown of the types of requests shows a significant increase in the number of non-personal
requests received, as discussed below.
Since the commencement of the FOI reforms in November 2010, agencies have reported anecdotally
that the number of requests for documents and information, both within and outside of the FOI Act,
has increased. This may be due in part to greater awareness of the right of access under the FOI Act
and of information rights generally following the commencement of the FOI reforms and the
establishment of the OAIC.
Breakdown of statistics: personal information and other information
Since 2000-01, agencies have reported separately the number of FOI access requests received for
documents containing personal information and for documents containing ‘other' information.
A request for personal information means a request for documents that contain information about a
person who can be identified. A request for ‘other' information means a request for all other
documents, such as documents concerning policy development and government decision-making.
Chart 1.2 shows the total number of personal and other requests received by agencies in 2010-11.
Consistent with the results from previous years, the large majority of requests (19,504 or 82.6%) are
for documents containing personal information.
The percentage of such requests as a total of all requests received has decreased from 87.2% in
2009-10. Some of this decrease can be attributed to system and process improvements in some
larger agencies that have led to the release of personal information outside of the FOI Act.
Details of requests received
Centrelink, the Department of Immigration and Citizenship (DIAC) and the Department of Veterans'
Affairs (DVA) continue to receive the majority of requests (71.0%). Commonly, requests to these
59
agencies are from customers or clients seeking access to documents containing their own personal
information. Chart 1.3 shows these agencies' share of the total number of requests received by all
agencies in 2010-11.
The top five agencies in terms of number of FOI requests remained the same as those in 2009-10:
DIAC, DVA, Centrelink, the Australian Taxation Office (ATO) and the Department of Human Services.
Centrelink received 3,780 requests in 2010-11: 743 (16.4%) fewer than in the previous year, and
6,495 (63.2%) fewer than in the year before that. This decline in request numbers can be at least
partly attributed to Centrelink's continuing policy commitment to providing customers access to their
own personal information outside the processes of the FOI Act, where appropriate.
The following departments reported significant increases in the number of requests for other
information compared to the previous year:









Attorney-General's Department (346% increase)
Department of the Treasury (179% increase)
Department of Foreign Affairs (178% increase)
Australian Customs and Border Protection Service (160% increase)
Australian Federal Police (148% increase)
Australian Securities and Investments Commission (116% increase)
Department of the Prime Minister and Cabinet (100% increase)
Department of Finance and Deregulation (91% increase)
Department of Defence (67% increase)
The four agencies in the top 20, that were not in the top 20 last year (Treasury, Australian Customs
and Border Protection Service, the Department of Finance and Deregulation, and the Department of
Climate Change and Energy Efficiency), moved into this list due to the significant increase each
department experienced in the number of other requests made in 2010-11.
Two possible reasons for this significant increase in requests for other (non-personal) information are:
the abolition of application fees (from 1 November 2010), and a greater awareness of access rights
due to the introduction of the FOI reforms.
60
Fees and charges collected since the commencement of the FOI Act
Year Number Application Internal Total fees
of
fees
review
collected
requests received
fees
(A)
received
received
1982–
83*
1983–
84
1984–
85
1985–
86
1986–
87
1987–
88
1988–
89
1989–
90
1990–
91
1991–
92
1992–
93
1993–
94
1994–
95
1995–
96
1996–
97
1997–
98
1998–
99
1999–
2000
2000–
01
2001–
02
2002–
03
2003–
04
2004–
05
2005–
06
2006–
07
Charges
notified
5,576
$0
$0
$0
$3,069
19,227
$0
$0
$0
$22,247
32,956
$0
$0
$0
$32,226
36,512
$0
$0
$0
$113,043
29,880
$69,500
$0
$69,500
$129,392
27,429
$148,030
$5080
$153,110
$228,214
24,679
$130,400
$4120
$134,520
$233,642
23,543
$163,180
$3320
$166,500
$190,378
24,929
$216,365
$4040
$220,405
$167,296
28,247
$233,760
$4560
$238,320
$223,743
33,804
$309,766
$8120
$317,886
$329,602
36,547
$336,139
$4345
$340,484
$348,101
37,367
$374,396
$5704
$380,100
$289,226
39,327
$413,044
$4022
$417,066
$308,608
30,788
$237,839
$5760
$243,599
$284,391
32,590
$258,092
$5580
$263,672
$386,726
33,484
$271,026
$6540
$277,566
$308,689
31,784
$256,172
$5340
$261,512
$552,038
35,439
$89,815
$5780
$95,595 $1,099,380
37,169
$91,684
$5600
$97,284
$825,779
41,481
$104,059
$5626
$109,685
$928,124
42,627
$95,507
$7324
$102,831 $1,287,010
39,265
$101,924
$5720
$107,644
41,430
$161,203
$8010
$169,213 $1,700,801
38,787
$147,966
$6765
$154,731 $1,508,409
$943,429
Charges Total fees
collected
and
(%) (B)
charges
collected
(A+B)
$2,067
(67.35%)
$13,535
(60.84%)
$21,977
(68.20%)
$75,464
(66.76%)
$91,990
(71.09%)
$159,760
(70.00%)
$121,951
(52.20%)
$143,498
(75.38%)
$131,309
(78.49%)
$176,128
(78.72%)
$226,723
(68.79%)
$241,075
(69.25%)
$206,687
(71.46%)
$200,166
(64.86%)
$116,223
(40.87%)
$130,193
(33.67%)
$168,989
(54.74%)
$173,649
(31.46%)
$126,052
(11.47%)
$198,551
(24.04%)
$150,636
(16.23%)
$268,947
(20.90%)
$251,297
(26.64%)
$333,341
(19.60%)
$240,458
(15.94%)
$2,067
Total cost
(C)
Fees and
charges
collected as
% of total
cost
([A+B]/C)
$7,502,355
0.03%
$13,535 $15,106,511
0.09%
$21,977 $16,496,961
0.13%
$75,464 $15,711,889
0.48%
$161,490 $13,336,864
1.21%
$312,870 $11,506,931
2.72%
$256,471 $10,494,376
2.44%
$309,998 $10,373,321
2.99%
$351,714
$9,921,772
3.54%
$414,448 $12,723,097
3.26%
$544,609 $12,702,329
4.29%
$581,559 $13,977,360
4.16%
$586,787 $11,955,482
4.91%
$617,232 $14,564,562
4.24%
$359,822 $15,972,950
2.25%
$393,865 $12,191,478
3.23%
$446,555 $13,066,029
3.42%
$435,161 $14,035,394
3.10%
$221,647 $14,415,406
1.54%
$295,835 $17,387,088
1.70%
$260,321 $18,398,181
1.41%
$371,778 $20,189,136
1.84%
$358,941 $22,860,022
1.57%
$502,554 $24,903,771
2.02%
$395,189 $24,936,178
1.58%
61
2007– 29,019 $141,638
$9133 $150,771
08
2008– 27,561 $165,226 $10,228 $175,454
09
2009– 21,587 $203,572
$8040 $211,612
10
$72,236
2010– 23,605
$68,449
$3787
11
Total 906,639 $4,788,752 $142,544 $4,931,296
$2,683,042
$1,739,706
$3,177,732
$3,207,827
$23,251,87
0
$368,077 $518,848 $29,474,653
(13.72%)
$262,544 $437,998 $30,358,484
(15.09%)
$305,178 $516,790 $27,484,129
(9.60%)
$536,318 $608,554 $36,318,030
(16.72%)
$5,442,783 $10,374,07 $498,364,739
(23.41%)
9
* 7 months only
In 2011-12, more than 22,000 FOI requests were determined at an average cost of $ 1876 per
request.
Selected Readings – Articles – Reasons for Decisions
Bayne, P. 'Reasons, evidence and internal review', (1991) 65 Australian Law Journal 101
Bayne, P. 'The inadequacy of reasons as an error of law', (1992) 66 Australian Law Journal
302
Bradley, A.W. 'Openness, discretion and judicial review', [1986] Public Law 508
Burnett, R. 'The giving of reasons', (1983-84) 14 Federal Law Review 157
see also Gyles, R. 'Commentaries', (1983-84) 14 Federal Law Review 182
see also Volker, D. 'Commentaries', (1983-84) 14 Federal Law Review 178
Goldring, J. 'Reasons for decisions: does Nanny know best?', (1986) 11 Legal Service Bulletin
165
Katzen, H. 'Inadequacy of reasons as a ground of appeal', (1993) 1 Australian Journal of
Administrative Law 33
Kelly, D. St.L. 'The Osmond case: common law and statute law', (1986) 60 Australian Law
Journal 513
O'Brien, D. 'Statements of reasons for administrative decisions: ex post facto or pars rei
gestae', (1990) 1 Public Law Review 217
Richardson, G. 'The duty to give reasons: potential and practice', [1986] Public Law 437
Thawley, T. 'An adequate statement of reasons for an administrative decision', (1996) 3
Australian Journal of Administrative Law 189
Zipser, B. 'Revisiting Osmond: In search of a duty to give reasons', (1998) 9 Public Law
Review 3
Selected Readings – Reports/Monographs – Reasons for Decisions
Administrative Review Council 1991 - Review of the Administrative Decisions (Judicial
Review) Act: Statements of Reasons for Decisions, ARC, Canberra
1.76%
1.44%
1.88%
1.68%
2.08%
62
Administrative Review Council 2002 - Practical Guidelines for Preparing Statements of
Reasons, ARC, Canberra; Administrative Review Council 2002, Commentary on the Practical
Guidelines for Preparing Statements of Reasons, ARC, Canberra
Selected Readings – Articles – Reports – Texts – Inquiries - Freedom of Information
Allars, M - 'Interim results of a study of the impact of the NSW FOI Act' - (1995) 56 Freedom of
Information Review 18
Ardagh, A - 'Freedom of information: what does it mean for Australians?' - (1991) 8 Australian
Library Review 371
ALRC Report No 77/ARC Report No 40—December 1995
ALRC Report 112 – Secrecy Laws and Open Government in Australia - 2010
ANAO Report 57 - Administration of Freedom of Information Requests – 2003-2004
Bannister, Judith, ‘McKinnon v Secretary, Department of Treasury . The Sir Humphrey Clause.
Review of Conclusive Certificates in freedom of Information Applications’, [2006] Melbourne
University Law Review 30
Batskos, M – Putting the “O” Back Into FOI – (2000) 25 AIAL Forum 1
Bayne, P – ‘The Objects of the Freedom of Information (FOI) Acts and their Interpretation’
(1995) 2 Australian Journal of Administrative Law 114
Benjamin, Solomon, R Bhuvaneswari, P Rajan and Manjunatha, Bhoomi: 'E-Governance', Or,
An Anti-Politics Machine Necessary to Globalize Bangalore?, CASUM-m Working Paper,
January 2007
Bishop, K - 'Openness in public administration: can the Government keep a secret?' - (1997) 5
Australian Journal of Administrative Law 35
Breit, R., Henman, P & Snell, R. (2012) ,Towards a Qualitative Approach to Evaluating
Access to Information Legislation (September 7, 2012). CPRafrica 2012/CPRsouth7
Conference, Port Louis, Mauritius, September 5-7, 2012
Brown, S – Freedom of Information - (2000) 25 AIAL Forum 6
Caldwell, I - 'Compelling public interest vs public curiosity' - (1996) 61 Freedom of Information
Review 5
Clapton, Genevieve, Max Hammond and Nick Poole, PSI reuse in the cultural sector: Final
report, Curtis + Cartwright report to the European Commission, May 2011
Commercial Exploitation of Europe's Public Sector Information (Final Report), Pira
International for the European Commission Directorate General for Information Society,
October 2000
Commonwealth Ombudsman Report—Needs to Know—June 1999
Commonwealth Ombudsman – Administration of the Freedom of Information Act 1982 in
Australian Government Agencies, March 2006
Coppel, P – The FOI Act 1982 and the FOI Act 2000 (UK): Are There Lessons We Can Learn
From Each Other? – (2006) 49 AIAL Forum 1
63
Corbin, Chris, A review of indicators used in PSI studies (Version 4, Reference paper),
European Commission Public Sector Information Group, November 2009
Corbin, Chris, Public Sector Information: Economic Indicators and economic case study on
charging models, (Version 2, Final Report), European Commission Public Sector Information
Group, August 2010
Darch, C and Underwood, P. (2010) Freedom of Information and the Developing World: The
Citizen, the State and Models of Openness. Oxford UK: Chandos
Dekkers, Makx, Femke Polman, Robbin te Velde and Mark de Vries, MEPSIR - Measuring
European Public Sector Information Resources: Final report of study on exploitation of public
sector information - benchmarking of EU framework Conditions, report for the European
Commission, June 2006
Ebrahim, Alnoor, and Rangan, V Kasturi, The limits of non-profit impact: A contingency
framework for measuring social performance (Working Paper 10-099), Harvard Business
School, May 2010
eGovernment Economics Project (eGEP) - Measurement Framework Final Version, report by
RSO SPA and Luiss Management for the eGovernment Unit, Directorate-General Information
Society and Media, European Commission, May 2006
Fraser R – ‘Where to Next with the FOI ACT? The Need for FOI Renewal – Digging In, Not
Giving Up’ – (2003) 38 AIAL Forum 57
FOI Guidelines - Fundamental principles and procedures: Guidelines for those involved in
processing FOI requests.
FOI Guidelines - Exemptions sections in the FOI Act (31 December 2005):
exemptions in the FOI Act
Outline of
FOI Guidelines - FOI Section 26 notices: Statements of reasons
FOI Guidelines - Reporting and disclosure obligations of agencies
FOI Guidelines - Review of FOI decisions
Garcia Almirall, Pilar, Montse Moix Bergadà and Pau Queraltó Ros, The Socio-economic
Impact of the Spatial Data Infrastructure of Catalonia, European Commission Joint Research
Centre, Office for Official Publications of the European Communities, 2008
Government 2.0 Taskforce, Engage: Getting on with Government 2.0, December 2009
Green, A – ‘Vexatious Applications Under FOI’ – (2004) 41 AIAL Forum 41
Harpur, P – ‘FOI Disclosure of Private Sector Tender Information’ – 2004 National
Administrative Law Forum 130
Houghton, John, Costs and Benefits of Data Provision: Report to the Australian National Data
Service, Centre for Strategic Economic Studies, Victoria University, September 2011
Lamble, S – ‘Freedom of Information, a Finnish Clergyman’s Gift to Democracy’ – (2002) 97
FOI Review 2
Lichtenstein, Jesse, 'Why open data alone is not enough', Wired, 28 June 2011
McKinnon, M – FOI, Conclusive Certificates, Public Interest and Security - 2004 National
Administrative Law Forum 159
64
McKinnon, Michael "Treasury blocks FOI bid for tax reform files", The Australian, March 1112, 2006
McKinnon, Michael "Mandarins stall FOI requests", The Australian, March 14, 2006
McMillan, J – “The FOI Landscape After McKinnon”, Public Administration Today, April-June,
2007
Moore, Matthew "High cost of freedom", Sydney Morning Herald, March 18 2006
Moss, Irene - Report of the Independent Audit into the State of Free Speech in Australia (31
October 2007)
Nader, Ralph – “Freedom of Information: the Act and the Agencies”, (1970) 5 Harvard Civil
Rights – Civil Liberties Law Review” 1
Newbery, David, Lionel Bentley and Rufus Pollock, Models of Public Sector Information
Provision via Trading Funds, report to the Department for Business, Enterprise and
Regulatory Reform and HM Treasury, February 2008
Noveck, B. (2009) Wiki Government: How Technology Can Make Government Better,
Democracy Stronger, and Citizens More Powerful, Brookings Institution Press, Washington,
DC
OECD Recommendation of the Council for Enhanced Access and More Effective Use of
Public Sector Information [(2008)36]
Office of the Australian Information Commissioner, Principles on open public sector
information, report on review and development of principles, May 2011
Office of Management and Budget, Open Government Directive, Memorandum for the Heads
of Executive Departments and Agencies (M-10-06), Executive Office of the President, 8
December 2009
O'Hara¸ K, Transparent government, not transparent citizens: A Report on Privacy and
Transparency for the Cabinet Office, September 2011
Open Government and Public Value: Conceptualising a portfolio assessment tool, Center for
Technology in Government, University at Albany, May 2011
Paterson, M – “Transparency in the Modern State: Happy Birthday FOI or Commiserations?” –
(2004) 29 Alternative Law Journal 10
Pizer, J - 'Refusal to process a freedom of information request: a practitioner's guide' - (1998)
87 Canberra Bulletin of Public Administration 116
Senate Legal and Constitutional Legislation Committee—Inquiry into FOI (Open Government)
Bill 2000—April 2001
Scheelong, Alexander and Philipp Girrger, Government 2.0 in beta phase: an analysis of
eParticipation and web 2.0 applications of Germany's 50 largest cities and 16 federal states,
Public sector study series, June 2010
Smith, B - 'The demise of FOI in New South Wales' – (1994) 49 Freedom of Information
Review 2
Smith, B - 'The further demise of FOI in NSW' - (1994) 52 Freedom of Information Review 45
Smith, M – ‘Recent Developments in Freedom of Information Law’ – (2003) 38 AIAL Forum 43
65
Snell, R. (2000) “The Kiwi Paradox - A Comparison of Freedom of Information in Australia and
New Zealand, Federal Law Review, 28 (3), 575-61
(2002), "Freedom of Information and the delivery of diminishing returns or how spin doctors
and journalists have mistreated a volatile reform," in The Drawing Board: An Australian
Review of Public Affairs, 3 (2), 187–207
(2006), “Freedom of Information Practices“ in Agenda A Journal of Policy Analysis and
Reform 13 (4), 291-307
(2007), “Failing the Information Game,” Public Administration Today, January-March, 5-9
The commercial use of public information, (Report OFT861), UK Office of Fair Trading,
December 2006
The Power of Information: An independent review by Ed Mayo and Tom Steinberg,
commissioned by the UK Cabinet Office, June 2007
Thompson, Clive, 'How information can fuel jobs', Wired, 29 March 2011
Timmins, P. (2012) ‘It’s clear FOI isn’t working properly’, Australian Financial Review 27
September, 2012
Wadhwa, Vivek, 'The coming death of open government', The Washington Post, 22 June 2011
Weiss, Peter, Borders in Cyberspace: Conflicting Public Sector Information Policies and their
Economic Impacts (Summary report) US Department of Commerce, National Oceanic and
Atmospheric Administration, National Weather Service, February 2002
Zappalà, Gianni, Solving social problems and demonstrating impact: A tale of two typologies
(Briefing Paper 5) Centre for Social Impact, University of New South Wales, February 2011
Other Reviews of State-based FOI
Australian Capital Territory Auditor-General Report—The Freedom of Information Act - Report
No.12 2001
Committee on the Office of the Ombudsman and the Police Integrity Commission (NSW)—
First report on the inquiry into access to information, December 2002
FOI Independent Review Panel, The Right to Information: Reviewing Queensland’s Freedom
of Information Act, June 2008 – Response, August 2008
New South Wales Auditor-General Report—Performance Audit, Freedom of Information,
August 2003
New South Wales Ombudsman, Review of the Freedom of Information Act 1989, November
2008 – “Opening up Government” Special Report, February 2009
Rath, A – Freedom of Information and Open Government, NSW Parliamentary Library
Research Service, Background Paper No. 3/2000
Schwarz, Nerissa – Report on the Operation of the South Australian Freedom of Information
Act 1991, Parliamentary Intern Report prepared for Nick Xenophon MLC, 2007
66
Selected Media Articles – Freedom of Information
Costello, Peter - "Economic reform Directions and the Role of The Public Service", Speech for
the Australian Public Service Commission Ministerial Conversations, Parliament House, 2
November, 2005
Faulkner, Senator John – Media Release 22 July 2008, FOI Reform
Faulkner, Senator John – Media Release 24 March 2009, FOI Reform
Kerr, Christine – “Faulkner Plan to Change Government Culture to Disclosure under FOI”, The
Australian, 24 March 2009
Marris, S - ‘Labor fails first FOI test as inflation query blocked’, The Australian (Sydney), 2
May 2008
McKinnon, Michael - "Treasury blocks FOI bid for tax reform files", The Australian, March 1112, 2006
McKinnon, Michael - "Mandarins stall FOI requests", The Australian, March 14, 2006
Merritt, C - ‘Pattern of FOI Secrecy Emerges’, The Australian, 22 March 2007
Moore, Matthew - "High cost of freedom", Sydney Morning Herald, March 18 2006
Moore, Matthew – “Sweeping Changes to FOI Laws”, Sydney Morning Herald, 24 march 2009
O'Keefe, Brendan, "ABC appeals FOI decision", Australian, November 16, 2005
Overington, Caroline – “State of Secrecy”, The Australian, 24 March 2009
Owen, Michael – “Public’s Right to Know is Kept in the Dark”, The Advertiser, 22 July 2008
Related reports







Scrutinising government: administration of the Freedom of Information Act 1982 in Australian
Government agencies - Commonwealth Ombudsman (2006)
Administration of freedom of information requests - Australian National Audit Office (2004)
Inquiry into the Freedom of Information Amendment (Open Government) Bill 2000
The Parliament of the Commonwealth of Australia, Senate Legal and Constitutional
Legislation Committee (2001)
Needs to know: own motion investigation into the administration of the Freedom of Information
Act 1982 in Commonwealth agencies - Commonwealth Ombudsman (1999)
The contracting out of government services - Administrative Review Council (1998)
Open government: a review of the federal Freedom of Information Act 1982 - Australian Law
Reform Commission, Administrative Review Council (1995)
Legislation
Archives Act 1983
Australian Information Act 2010
67
Australian Information Commissioner Act 2010
Freedom of Information Act 1982
Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009
Freedom of Information Amendment (Reform) Act 2010
Freedom of Information Amendment (Reform) Regulations 2010
Freedom of Information (Miscellaneous Provisions) Regulations 1982
Australian Capital Territory - the Freedom of Information Act 1989
New South Wales - the Government Information (Public Access) Act 2009
Northern Territory - the Information Act 2003
Queensland - the Right to Information Act 2009
South Australia - the Freedom of Information Act 1991
Tasmania - the Right to Information Act 2009
Victoria - the Freedom of Information Act 1982
Western Australia - the Freedom of Information Act 1992
Related Websites
QLD - Department of Justice and Attorney-General
QLD - Office of the Information Commissioner
WA - Office of the Information Commissioner
NSW - Attorney General's Department
VIC - Department of Justice
SA - State Records of South Australia
TAS - Department of Justice
ACT - Chief Minister's Department
ACT - Department of Justice and Community Safety
NT - Office of the Information Commissioner (Northern Territory)
68
Week 10 Ombudsmen and Privacy
OMBUDSMEN and PRIVACY
Texts:
Creyke, McMillan & Smyth
Ch 4 & 20
Esparraga & Ellis-Jones
Ch 10 & 12
Legislation - Ombudsman
Auditor-General Act 1997
Community Justice Centres Act 1983 (NSW)
Courts (Mediation and Arbitration) Act 1991
Family Law Act 1975
Farm Debts Mediation Act 1994 (NSW)
Financial Management and Accountability Act 1997
Independent Commission Against Corruption Act 1988 (NSW)
Law Enforcement Integrity Commissioner Act 2006
Legal Aid Commission Act 1979 (NSW)
Ombudsman Act 1976
Ombudsman Act 1974 (NSW)
Protected Disclosures Act 1994 (NSW)
Public Service Act 1999
Whistleblowers Protection Act 2001 (Vic)
Legislation - Privacy
Archives Act 1983
Australian Passports Act 2005
Census and Statistics Act 1905
Charter of Human Rights and Responsibilities Act 2006 (Vic)
Commonwealth Electoral Act 1918
Corporations Act 2001
Data-matching Program (Assistance and Tax) Act 1990
Human Rights Act 2004 (ACT)
Income Tax Assessment Act 1936
69
Migration Act 1958
Privacy Act 1988
Privacy Amendment (Private Sector) Act 2000
Privacy Amendment (Enhancing Privacy Protection) Act 2012
Taxation Administration Act 1953
Telecommunications Act 1997
Telecommunications (Interception) Amendment Act 1987
New South Wales
Government Information (Information Commissioner) Act 2009 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)
State Records Act 1998 (NSW)
Workplace Surveillance Act 2005 (NSW)
Victoria
Information Privacy Act 2000 (Vic)
Health Records Act 2001 (Vic)
Charter of Human Rights and Responsibilities Act 2006 (Vic)
Queensland
Information Standard 42
Information Standard 42A
Queensland Health Quality and Complaints Commission Act 1992 (Qld)
Health Services Act 1991 (Qld)
Western Australia
Information Privacy Bill 2007
South Australia
Cabinet administrative instruction
Code of Fair Information Practice
70
Tasmania
Personal Information Protection Act 2004 (Tas)
Charter of Health Rights and Responsibilities
Australian Capital Territory
Health Records (Privacy and Access) Act 1997 (ACT)
Human Rights Act 2004 (ACT)
Northern Territory
Information Act 2002 (NT)
Code of Health and Community Rights and Responsibilities
1. OBJECT OF AN OMBUDSMAN INVESTIGATION AND GROUNDS WHICH MAY BE RELIED ON
IN REPORT
Ombudsman Act 1976 s 15
Chairperson, Aboriginal and Torres
Ombudsman (1995) 134 ALR 238
Strait
Islander
Commission
v
Commonwealth
2. JURISDICTION: DEPARTMENT, “PRESCRIBED AUTHORITY” AND “MATTER OF
ADMINISTRATION”
Ombudsman Act 1976 ss 3(1), 3AB, 5(1)
Ombudsman Regulations
Complaints (Australian Federal Police) Act 1981
Other Jurisdictions for noting:
Ombudsman Act 1974 (NSW)
Police Regulation (Allegations of Misconduct) Act 1978 (NSW)
3. DISCRETION NOT TO INVESTIGATE A COMPLAINT
Ombudsman Act 1976 s 6
Administrative Arrangements between Ombudsman and President of AAT
4. LODGING OF COMPLAINTS
Ombudsman Act 1976 s 7
5. INVESTIGATIVE POWERS
Ombudsman Act 1976 ss 9, 13, 14
71
6. SANCTIONS AVAILABLE TO THE OMBUDSMAN
Ombudsman Act 1976 ss 8(10), 15, 16, 17 and 19
Chairperson, Aboriginal and Torres
Ombudsman (1995) 134 ALR 238
Strait
Islander
Commission
v
Commonwealth
7. REPORT TO COMPLAINANT
Ombudsman Act 1976 s 12
8. REFERENCE OF QUESTIONS TO THE AAT OR FEDERAL COURT, AND JUDICIAL REVIEW
Ombudsman Act 1976 ss 10A, 11 and 11A
Freedom of Information Act 1982 s 56
Chairperson, Aboriginal and Torres
Ombudsman (1995) 134 ALR 238
Strait
Islander
Commission
v
Commonwealth
Introduction to the Topic - Ombudsmen
The term ‘ombudsman’ is widely used to describe any form of complaint-handler. In this sense, there
is a wide array of ombudsman schemes in existence, in both the public and private sectors. From the
financial sector to local government and from the removals industry to the prisons and probation
service, ombudsman-type institutions have sprung up in a great many spheres in many countries.
We will concentrate on the Commonwealth Ombudsman under the Ombudsman Act 1976 and touch
upon the NSW Ombudsman under the Ombudsman Act 1974 (NSW).
Ombudsmen investigate ‘defective administration’, or ‘maladministration’, which gives them a very
wide brief to report on a range of defects which both overlap and go beyond the matters which can be
remedied in courts and appellate tribunals.
Maladministration can be defined as an open-ended concept describing a situation where a public
body fails to act in accordance with a rule or principle that is binding on it, extends beyond legality and
also encompasses the assumption that, in their daily dealings with the public, public administrations
need to observe norms and rules of behaviour designed to ensure that citizens (and, more generally,
users) are properly treated and enjoy their rights fully.
Ombudsmen can also initiate their own investigation – for example where systemic problems become
apparent. As will be seen, other values of ombudsman review include the independence of the office;
that it is easily accessible, very inexpensive and potentially speedy; that the complainant is not
required to establish standing; and very importantly, that the ombudsman has extensive investigative
powers.
In contrast with tribunals such as the AAT, ombudsmen investigations are generally informal and
private. Ultimately the ombudsman can only make recommendations. The Ombudsman has no
determinative powers, unlike courts and appellate tribunals. Ombudsmen do however have the “power
of embarrassment” in their ability to make public reports to Parliament.
Institutional Acceptance of Ombudsmen
Across Australia, the public sector Ombudsmen receive in excess of 60,000 complaints each year
against government.
72
That total is important in its own right, as an indication of the frequency with which people turn to the
Ombudsman for assistance and the number of queries and grievances against government that are
addressed each year. In jurisprudential terms the total is significant in another way. It signifies that,
through the mechanism of the Ombudsman, the notion is now embedded in Australia that people have
a right to complain against government, to an independent agency, without hindrance or reprisal, and
to have their complaint resolved on its merits according to the applicable rules and the evidence.
Acceptance of this notion permeates both popular thinking and the practice of government.
Another sign of institutional acceptance of the right to complain in Australia is the spread of the
Ombudsman model in the private sector.
Examination of the Ombudsman Act 1976
Background
Action Subject to Review
Decision to Investigate
Grounds for Intervention
Intervention
Procedure
Investigation
Commonwealth jurisdiction
Defence Force Ombudsman
Immigration Ombudsman
Postal Industry Ombudsman
Telecommunications interception
The NSW Ombudsman
Essential Qualities of an Ombudsman
Selected Readings – Articles/Monographs – Ombudsmen
Access to Justice Advisory Committee, Access to Justice: An Action Plan (1994)
Borthwick, D. ‘As if for a thousand years...’, Valedictory Lecture, 10 March 2009
Bradley, A.W. 'The role of the Ombudsman in relation to the protection of citizens' rights',
(1980) 39 Cambridge Law Journal 304
Burton, G. 'A Banking Ombudsman for Australia', (1990) 1 Journal of Banking and Finance
Law and Practice 29
Carroll, J. and Petre, C. ‘The Increasing Role and Impact of the Commonwealth Ombudsman’,
AIAL Conference, Melbourne, 8 August 2008
Commonwealth Ombudsman ‘Twenty Years of the Commonwealth Ombudsman’, 1997
73
Del Villar, K. ‘Who Guards the Guardians? Recent Developments Concerning the Jurisdiction
and Accountability of Ombudsmen’, (2003) 36 AIAL Forum 25
Evans, R. 'Ombudsman under fire', (1996) 31 Australian Lawyer 8
Giddings, P. 'The Health Service Ombudsman after twenty-five years', [1999] Public Law 200
McLeod, R. ‘Twenty Five Years of the Commonwealth Ombudsman’, 2003, AIAL Forum No.
36
McMillan, J. ‘Administrative Law: Protection of Individuals and Community Interests’, 2006
AIAL National Administrative Law Forum
McMillan, J. ‘The Expanding Ombudsman Role: What fits? What doesn’t?’, Presentation to
Australia Pacific Ombudsman Region Meeting, Melbourne, 27 March 2008
McMillan, J. ‘Lessons for Public Administration: the Ombudsman Investigation of Referred
Immigration Cases’, (2007 July-Sept), Public Administration Today 36
Pearce, D. 'The Commonwealth Ombudsman Report', (1988) 41 Canberra Survey 1
Rudd, K. ‘Reform of Australian Government Administration – Building the Best Public Service
in the World’, John Paterson Oration, Canberra, 3 September 2009
Stuhmcke, A. 'Privatising administrative law: the Telecommunications Industry Ombudsman
scheme', (1998) 6 Australian Journal of Administrative Law 15
Stuhmcke, A. 'Evaluating Ombudsman: A Case Study in Developing a Quantitative
Methodology to Measure the Performance of Ombudsman' (2006) 10 The International
Ombudsman Yearbook
Stuhmcke, A. 'Changing Relations Between Government and Citizen: Administrative Law and
the Work of the Australian Commonwealth Ombudsman (2008) Australian Journal of Public
Administration
Stuhmcke, A. 'Transforming Government and Changing Law: the Ombudsman and Integrity
Review' in Carol Harlow, Linda Pearson & Mike Taggart (eds), Administrative Law in a
Changing State: Essays in Honour of Mark Aronson, Hart Publishing, 2008
Stuhmcke, A. ‘ “Each for Themselves’ or “One for All”?:The Changing Emphasis of the
Commonwealth Ombudsman’, (2010) Federal Law Review 143
Weerasooria, W.S. 'The Australian Banking Ombudsman scheme - recent developments',
(1992) 2 Australian Journal of Corporate Law 225
Wentworth, E. 'Australian Banking Ombudsman: consideration of Family Court matters',
(1997) 38 Victorian Family Lawyer 26
2012 ANZOA CONFERENCE - Melbourne, Australia: 30 April - 2 May 2012
“50 YEARS OF OMBUDSMAN SERVICES IN NEW ZEALAND AND AUSTRALIA - Meeting
the key challenges and addressing the hard questions”
74
October 2006—The FOI landscape after McKinnon
Text of an address by Prof. John McMillan, Commonwealth Ombudsman, to a seminar of the
Australian Institute of Administrative Law, Canberra, October 2006
October 2006—The FOI landscape after McKinnon
Text of an address by Prof. John McMillan, Commonwealth Ombudsman, to a seminar of the
Australian Institute of Administrative Law, Canberra, October 2006
21 July 2006–The role of the Ombudsman in protecting human rights
Address by Prof John McMillan, Commonwealth Ombudsman, to conference on ‘Legislatures and the
Protection of Human Rights’, University of Melbourne, Faculty of Law
10 July 2006–Launch of Postal Industry Ombudsman
Address by Professor John McMillan, Commonwealth and Postal Industry Ombudsman
15 June 2006–Open Government - Reality or Rhetoric?
Notes of a talk by Professor John McMillan to an IPAA seminar, Canberra
April 2006–Administrative Tribunals in Australia - Future Directions
Paper delivered by Professor John McMillan to the International Tribunals Workshop, Australian
National University, Canberra
28 February 2006–Opening statement to workshop on complaint handling in Australian
airports
Address by Professor John McMillan to workshop on complaint handling in Australian airports
Selected Ombudsman
Australia - Industry-based Ombudsmen
Energy & Water Ombudsman NSW
State-based scheme which investigates and resolves disputes between electricity, gas and
water customers and their energy and water companies
Energy & Water Ombudsman Victoria
State-based scheme which investigates and resolves disputes between electricity, gas and
water customers and their energy and water companies
Energy & Water Ombudsman Queensland
Independent statutory scheme which investigates and resolves disputes between Queensland
residential and small business energy customers and their providers across Queensland and
75
water
customers
and
their
providers
in
south
east
Queensland
Energy Industry Ombudsman SA
State-based scheme which investigates and facilitates the resolution of complaints from
residential and small business customers about their gas and electricity companies
Energy Ombudsman Tasmania
State-based scheme which investigates and facilitates the resolution of complaints from
residential and small business customers about their gas and electricity companies
Energy Ombudsman WA
State-based scheme which investigates and facilitates the resolution of complaints from
residential and small business customers about their electricity and gas companies
Financial Ombudsman Service
National scheme which handles disputes about banking, general insurance, financial planning,
stockbroking, life insurance, finance and lending, managed investments and mortgage and
finance broking.
Private Health Insurance Ombudsman
Produce and Grocery Industry Ombudsman
Public Transport Ombudsman Victoria
State-based scheme which deals with complaints about Victorian public transport that
members of the community have been unable to resolve directly with the public transport
operators.
Telecommunications Industry Ombudsman
National scheme which deals with complaints about telephone and internet services
Australia - Parliamentary Ombudsmen
Commonwealth Ombudsman
Takes complaints about Australian Commonwealth Government agencies
Ombudsman for the Northern Territory
Takes complaints about Northern Territory government departments and agencies
Ombudsman Tasmania
Investigates complaints about the administrative actions of government departments, councils
and public authorities (the Ombudsman Tasmania is also the Energy Ombudsman Tasmania)
Victorian Ombudsman
Takes complaints about Victorian government departments, most statutory authorities and
local government
Ombudsman Western Australia
Investigates complaints about Western Australian government departments, statutory
authorities and local governments
Ombudsman South Australia
Investigates complaints about South Australian government departments, statutory authorities
and local governments
Queensland Ombudsman
76
Investigates complaints about Queensland government departments, statutory authorities and
local governments
NSW Ombudsman
Investigates complaints about NSW government departments, statutory authorities and local
governments
Australia – Other Statutory Ombudsmen
Office of the WorkCover Ombudsman (South Australia)
Independent office which investigates complaints about the operation of the South Australian
WorkCover Scheme
Office of the Health Services Commissioner, Victoria
State office which takes complaints about providers of health services
Fair Work Ombudsman
Other – General
Asian Ombudsman Association
The Asian Ombudsman Association was established in 1996 as a non-governmental, nonpolitical, independent and professional forum for Ombudsmen in Asia. The AOA currently has
23 members from 15 countries.
Australian and New Zealand Ombudsman Association
ANZOA is a professional association for industry-based Ombudsman schemes, State and
Commonwealth Parliamentary Ombudsmen and professional services Ombudsmen.
International Ombudsman Association
The mission of the International Ombudsman Association is to support and advance the global
Organizational Ombudsman profession and ensure that practitioners work to the highest
professional standards by:





Setting standards of practice, regulatory platform and code of ethics for the Organizational
Ombudsman profession;
Assisting in the establishment of Organizational Ombudsman offices;
Providing excellent professional development resources, research and information;
Increasing awareness and understanding of Organizational Ombudsman value among
key stakeholders and the general public;
Creating strategic alliances or direct communications with other key organizations and
professionals involved in dispute resolution, governance, ethics and risk mitigation.
International Ombudsman Institute
The International Ombudsman Institute (I.O.I.) was established in 1978 as an independent
global organisation to help more than 150 independent public sector local, regional and
national Ombudsman institutions to cooperate.
European Ombudsman Association
The Association is an independent non-profit organization. Its aims are:
1. To propagate and promote the ombudsman concept;
2. To deal in a scientific manner with and conduct research on issues Relating to human
rights, civil rights and protection ombudsman activities;
77
3. To provide scientific support to local, regional, national and international ombudsman
institutions
4. To promote the exchange of experience on a national, European and international level;
5. To play in active role in the development and promotion of social, economic and cultural
rights;
6. To cooperate with local, regional, national and international institutions sharing the same
or similar goals;
7. To cooperate with the UN High Commissioner of Human Rights, the Human Rights
Commissioner of the Council of Europe, the European Ombudsman and other
international institutions with the goal of promoting and protecting human rights.
Pacific Ombudsman Alliance
A service delivery and mutual support organisation for Ombudsman and allied institutions of
countries that are members of the Pacific Islands Forum.
United Nations Ombudsman and Mediation Services
The UN Ombudsman is a designated, independent neutral who provides confidential, off the
record and impartial assistance for the informal resolution of concerns and conflicts that are
related to employment with the United Nations. The service is available to all United Nations
employees, including former employees and retirees regardless of their type of contract and
location.
Introduction to the Topic – Privacy
Do Australians Have a Legal Right to Privacy?
Legislation
Common law
Conclusion
Background to the Privacy Act 1988 (Cth)
Government Sector
Private Sector
Other Additions to the Privacy Commissioner's Jurisdiction
Functions of Privacy Commissioner
Investigations
Selected Caselaw - Privacy
Ash v McKennitt [2007] 3 WLR 194
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (Lenah Game Meats)
(2001) 208 CLR 199
Campbell v MGN Ltd [2005] 4 All ER 793
78
Coco v A N Clark (Engineers) Ltd. [1969] RPC 41
Commonwealth v Tasmania (1983) 158 CLR 1
Doe v Australian Broadcasting Corporation [2007] VCC 281
Douglas v Hello! Ltd (No 3) [2006] QB 125
Giller v Procopets [2008] VSCA 236
Grosse v Purvis (2003) Aust Torts Reports 81
Horta v Commonwealth (1994) 181 CLR 183
Hosking v Runting [2005] 1 NZLR 1
Jane Doe v Australian Broadcasting Corporation [2007] VCC 28
Kalaba v Commonwealth [2004] FCA 763
Kaye v Robertson [1991] FSR 62
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
McKennitt v Ash [2005] EMLR 10
McKennitt v Ash [2008] QB 73
Murray v Express Newspapers PLC [2007] EWHC 1908
R v Broadcasting Standards Commission ex parte BBC [2001] QB 885
Rogers v TVNZ [2007] NZSC 91
Vickery v Nova Scotia Supreme Court (Prothonotary) [1991] 1 SCR 671
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479
Von Hannover v Germany [2004] ECHR 294
Wainwright v Home Office [2004] 2 AC 406
Wilkinson v Downton [1897] 2 QB 57
Selected Readings – Articles – Reports - Privacy
ALRC – Discussion Paper 72 – Review of Australian Privacy Law, Sept 2007
ALRC – Review of Privacy (IP 31), October 2006
ALRC – Review of Privacy – Credit Reporting (IP 32), December 2006
ALRC – Report 108 – For Your Information: Australian Privacy Law and Practice, August 2008
ALRC - Unfair Publication: Defamation and Privacy, ALRC 11 (1979)
79
ALRC - Privacy, ALRC 22 (1983)
Abrams, M - ‘Privacy, Security and Economic Growth in an Emerging Digital Economy’ (Paper
presented at Privacy Symposium, Institute of Law China Academy of Social Science, 7 June
2006)
Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, ALRC 11
(1979)
Australian Law Reform Commission, Privacy, ALRC 22 (1983)
Banisar, D - Privacy and Human Rights 2000: An International Survey of Privacy Law and
Developments Privacy International at 5 May 2008
Bennett, C & Raab, C – The Governance of Privacy: Policy Instruments in Global Perspective,
Ashgate Hampshire, 2003
Bendall, A – “The Governance of Privacy: Speak Softly and Carry a Big Stick”, AIAL
Conference, Melbourne, 8 August 2008
Brandeis, Louis & Warren, Samuel – “The Right to Privacy”, 4 Harvard Law Review 193-220
(1890-91)
Bruyer, R - ‘Privacy: A Review and Critique of the Literature’ (2006) 43 Alberta Law Review
553
Butler, D - ‘A Tort of Invasion of Privacy in Australia?’ (2005) 29 Melbourne University Law
Review 339
Centre for Democracy & Technology – Seeing is ID’ing: Facial Recognition and Privacy,
December 2011
Dean, R - “A right to privacy”, (2004) 78 ALJ 114
Department of Finance and Administration – Report of the Government 2.0 Taskforce, Getting
on with Government 2.0, 2009
Department of Prime Minister & Cabinet – Issues Paper – A Commonwealth Statutory Cause
of Action for Serious Invasion of Privacy, September 2011
European Commission – General data Protection Regulation, 25 January 2012
Faulkner, Senator John – “Meeting Privacy Challenges – The ALRC and NSWLRC Reviews”,
Speech to the Cyberspace Law and Policy Centre Symposium, 2 October 2008
Gavison, D - ‘Privacy and the Limits of Law’ (1980) 89 Yale Law Journal 421
Greenleaf, G - “Tabula Rasa’: ten reasons why Australian privacy law does not exist” (2001)
24 UNSWLJ 262
Greenleaf, G, - “Privacy at Common Law – Not Quite a Dead Possum” (2002) 8(7) Privacy
Law and Policy Reporter 129
Greenleaf, G - “Private sector Privacy Act passed (at last).” (2000) 7(7) Privacy Law and
Policy Reporter 125
Hughes, Aneurin, - “A Question of Adequacy? The European Union's Approach to Assessing
the Privacy Amendment (Private Sector) Act 2000 (Cth)” (2001) 24 UNSWLJ 270
Hummerston, M – “Updating Privacy Laws: The Challenges of Technology”, AIAL Conference,
Melbourne, 8 August 2008
80
International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23
Introna, L - ‘Privacy and the Computer: Why We Need Privacy in the Information Society’
(1997) 28 Metaphilosophy 259
Katze, S - ‘Hunting the Hunters: AB 381 and California’s Attempt to Restrain the Paparazzi’
(2006) 16 Fordham Intellectual Property, Media and Entertainment Law Journal 1349
Kirby, M - ‘Privacy Protection, a New Beginning: OECD Principles 20 years on’ (1999) 6
Privacy Law & Policy Reporter 25; Charter of Human Rights and Responsibilities Act 2006
(Vic)
Narracott, M – “How Has the Private Sector reacted to the Privacy Act? – A Practitioner’s
Perspective”, ANU Public Law Weekend, Canberra, 2 November 2002
New South Wales Law Reform Commission, Invasion of Privacy, Consultation Paper 1 (2007)
New Zealand Law Commission, Privacy Concepts and Issues: Review of the Law of Privacy
Stage 1, Study Paper 19 (2008)
Office of the Privacy Commissioner - March 2005 Report - "Getting in on the Act: The Review
of the Private Sector Provisions of the Privacy Act 1988"
Phillipson, G - ‘The ‘Right’ of Privacy in England and Strasbourg Compared’ in A Kenyon and
M Richardson (eds), New Dimensions in Privacy Law: International and Comparative
Perspectives (2006) 184
Prosser, R - ‘Privacy’ (1960) 48 California Law Review 383
Singh, Rabinder and Strachan, James, - “The Right to Privacy in English Law” [2002] 2
European Human Rights L Rev 129
Stewart, Daniel – “Protecting privacy, property, and possums: Australian Broadcasting
Corporation v Lenah Game Meats Pty Ltd” (2002) 30 Fed L Rev 177
Victorian Law Reform Commission, Surveillance in Public Places: Final Report 18 (2010)
Victorian Law Reform Commission, Workplace Privacy: Issues Paper (2002)
Weatherall, K - “A Very Dynamic Issue: International Developments in Privacy in the Last 12
Months”, ANU Public Law Weekend, Canberra, 2 November 2002
Whitman, J - ‘The Two Western Cultures of Privacy: Dignity v Liberty’ (2004) 113 Yale Law
Journal 1151
Forum
2001 UNSWLJ - Volume 7, Number 1 - Valuing Privacy: Legal Protections and Exceptions




Foreword - [2001] UNSWLJ 25
Davis, Rachel
Valuing Privacy: An Overview and Introduction - [2001] UNSWLJ 1
Dixon, Tim
Privacy - in the Courts - [2001] UNSWLJ 2
Kirby, The Hon Justice Michael
The Federal Privacy Commissioner: Pursuing a Systemic Approach - [2001] UNSWLJ
3
O'Connor, Judge Kevin
81





'Tabula Rasa': Ten Reasons Why Australian Privacy Law Does Not Exist - [2001]
UNSWLJ 4
Greenleaf, Graham
A Question of Adequacy? The European Union's Approach to Assessing the Privacy
Amendment (Private Sector) Act 2000 (Cth) - [2001] UNSWLJ 5
Hughes, Aneurin
The Place of Privacy in Data Protection Law - [2001] UNSWLJ 6
Bygrave, Lee
Unprincipled Privacy: Why the Foundations of Data Protection are Failing us - [2001]
UNSWLJ 7
Davies, Simon
Privacy as a Means of Engendering Trust in Cyberspace Commerce - [2001]
UNSWLJ 8
Clarke, Roger
Office of the Australian Information Commissioner
Privacy Fact Sheet 17 – Australian Privacy Principles – January 2014
Reports to note
2008 – Australian Law Reform Commission, For Your Information: Australian Privacy Law and
Practice, Report 108 (2008)
2009 – NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009)
2010 – Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010)
2011 – ‘A Commonwealth Statutory Cause of Action for Serious Invasion of Privacy’, Issues Paper,
Department of Prime Minister and Cabinet (2011)
2012 – Lord Justice Leveson, An Inquiry into the Culture, Practices and Ethics of the Press, House of
Commons Paper 779 (2012)
2013 – Organisation for Economic Co-Operation and Development (OECD), Guidelines Governing the
Protection of Privacy and Transborder Flows of Personal Data (2013)
2014 – Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report
123 (2014)
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Week 11 Standing and Privative Clauses
STANDING and PRIVATIVE CLAUSES
Texts:
Creyke, McMillan & Smyth
Ch 18 & 16
Esparraga & Ellis-Jones
Ch 8 & 9
Standing - ADJR ACT
ADJR Act ss 3(4), 5, 6, 7
Standing - ADMINISTRATIVE APPEAL TRIBUNAL
AAT Act s 27
AAT Act s 30(1A) (joinder)
Introduction - Standing
Standing to sue - the right to commence legal proceedings - is fundamental to access our legal
system. Participation in proceedings that have commenced, either as an intervenor or as a friend of
the court, can be important in protecting rights or interests or in contributing to the quality of the
resolution of the dispute.
An applicant for review must have sufficient interest in the decision to seek review of it. In formal
language, they must have standing or locus standi.
Public interest litigation has increased in the last twenty years. This increase is closely related to the
growth in administrative and judicial review of government decisions and to an increase in the number
of statutory 'public rights'.
The increase in public interest litigation also reflects the fact that while litigation is primarily used as a
means of resolving disputes between two parties, it is also an important mechanism for clarifying legal
issues or enforcing laws to the benefit of the general community.
For example, litigation may determine, enforce or clarify an important right or obligation affecting the
community or a significant sector of the community or it may develop the law generally so as to reduce
the need for further litigation. This is often the case in proceedings testing the validity of particular
government actions or legislation.
There are also laws creating public rights, such as those in relation to the environment and consumer
protection, which rely on private enforcement as an integral part of ensuring compliance. In these
types of proceedings the courts and the legislature have developed rules of standing to allow persons
other than those whose immediate rights or interests are at stake to bring the matter to court.
The history of standing has been one of gradual extension or liberalisation of the scope for
private individuals to enforce public interest rights. There is an obvious tension here with the
doctrine of separation of powers. Traditionally, as we will see, only the Attorney-General had
standing to invoke the Royal prerogative and challenge the legality of a government decision,
unless a person's private rights were affected. The trend by courts, both in England and
Australia, towards liberalisation of standing rules certainly enhances government
accountability, but may also undermine legitimate and necessary executive powers.
Common Law
Historically, there appeared to be a number of different standing requirements because the formula for
standing varied from remedy to remedy. But the terms were fuzzy and the interests and interferences
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that they describe were not clearly marked out. So, while the words varied, in a practical sense there
was not much difference between most of these formulas. Phrases such as “person affected” and
“person aggrieved” use different words but scarcely conjure up radically different positions for an
applicant. Even if there was any difference in principle, it would be overtaken by the flexibility of the
formula in practice. Consequently, despite different formulas for standing for the various remedies, in
practice in most cases there was little, if any, discernible difference in standing from one remedy to
another. For the most part the variation was more semantic than substantive.
Prerogative Remedies
A person has standing to seek prohibition if that person was a party to the proceedings before the
tribunal or inferior court against which prohibition is sought. However, a 'stranger', who is not a party to
the proceedings, has standing only at the discretion of the court.
Prior to recent changes to the procedure and standing test for gaining judicial review in the United
Kingdom the test of standing to seek prohibition and certiorari had already undergone liberalisation by
the courts. Provided the person was not a 'mere busybody', any member of the public whose interests
were affected had standing to seek these remedies in a case of a flagrant and serious breach of the
law by a government authority which was continuing unchecked. See, for example, R v Liverpool
Corporation; Ex parte Liverpool Taxi Fleet Operators' Assn [1972] 2 QB 299; R v Greater London
Council; Ex parte Blackburn [1976] 3 All ER 184.
However, tests applying in the United Kingdom are no longer safely relied upon in Australia (see Onus
v Alcoa of Australia Ltd (1981) 149 CLR 27 at 73). Australian courts have not adopted the English test
and tend instead to use the test of whether the applicant has a 'special interest in the subject-matter of
the action', which is strictly a test of standing to seek an injunction or declaration (see later).
A person aggrieved has standing as of right to seek certiorari (see Cheatley v R (1972) 127 CLR 291).
A person aggrieved is a person who has suffered damage greater than that suffered by ordinary
members of the public. However, a stranger, who comes forward as a member of the general public
with no particular interest in the matter, has standing only at the discretion of the court. Nevertheless,
where there is a manifest want of jurisdiction, a stranger generally has standing. As in the case of
prohibition, the more liberal standing test developed in the United Kingdom is not clearly applicable in
Australia, and there is a tendency to have resort to the liberalised test of standing to seek an injunction
or declaration, namely whether the applicant has a 'special interest in the subject-matter of the action'.
A person whose 'legal specific right' is affected has standing to seek mandamus to compel the
administrator to decide, or decide again, according to law. This test of standing appears to be
narrower than that for prohibition and certiorari. However, as in the case of those remedies, the
standing test for mandamus underwent liberalisation in the United Kingdom through the development
of the notion that only a person who was a 'busybody' in relation to the action should be excluded from
seeking judicial review. A person who exercises a legal right to participate in a tribunal hearing has
standing to seek mandamus in respect of the tribunal's proceedings. See Sinclair v Mining Warden at
Maryborough (1975) 132 CLR 473.
Standing of others
Persons other than the Attorney-General have standing to seek an injunction or declaration in two
situations. The starting point of most discussions is the decision in Boyce v Paddington Borough
Council [1903] 1 Ch 109.
Special interest in subject matter of action
A second limb in Boyce's case was modified and liberalised as a result of the decision of the High
Court in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 ('ACF case').
A special interest was distinguished from a 'mere intellectual belief or concern', which did not found
standing. Although a special interest need not amount to a legal right, it was not established by the
Australian Conservation Foundation in the ACF case. The foundation was simply a group of people
sharing a common concern for the environment.
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In Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, the High Court held that an interest of a spiritual
or emotional nature may ground standing to seek an injunction. However, the special position of the
aboriginals, who were the plaintiffs in Onus, in terms of aboriginal customary law, gave them standing
where perhaps general environmental groups seek standing to restrain development in breach of
environmental and planning legislation may in some cases have more difficulty in establishing a
'special interest'.
Judicial Review Act
For proceedings under the Judicial Review Act there are three parties whose standing must be
considered. First, there is the plaintiff. To obtain review under ss5, 6 and 7, and to obtain reasons
under s13, the plaintiff must be a person who is aggrieved, that is, aggrieved by the decision, (s5)
conduct (s6) or failure to make a decision. (s7)
Second, under s12 a person may join an application for review once the application is made. To do
this they have to be a person interested. (s12)
Third, the Attorney General can also intervene, (s18) although the Attorney General intervenes as of
right. Hence, the only standing required is to be the Attorney General.
Definition: Person Aggrieved
There is an inclusive definition of “person aggrieved” in s3(4). It defines the phrases “aggrieved by a
decision,” “aggrieved by conduct,” and “aggrieved by a failure to make a decision.” In each case, a
person is aggrieved when their interests are “adversely affected” by the decision, conduct or failure to
decide.
Since this definition is merely inclusive and not exhaustive, there are two tests for standing, (i) a
person whose interests are “adversely affected,” or a (ii) person “aggrieved” in its natural sense.
Standing may be approached through either of the two phrases. As it turns out, the cases have largely
ignored the definition and focused on person aggrieved itself.
The reason for this probably lies in the similarity of the two phrases – “person whose interests are
adversely affected” semantically differs little from “person aggrieved.” Nevertheless the definition
reveals something important. The phrase “person whose interests are aggrieved” reveals clearly that
standing has two requirements, the stake or interest which the applicant has (“interest”) and a
threatened interference with it (“adversely affected”), whereas in the formula in the ss 5. 6 and 7, both
of these concepts are wrapped up in “aggrieved.”
Much of this has now been overtaken by the High Court’s action in translating just about all standing
requirements as entailing that a plaintiff seeking judicial review must have a special interest. This is
discussed below.
Decision, Conduct or Failure to Decide
While much of the attention given to standing focuses on the meaning of “aggrieved,” it is important
not to overlook that under ss5, 6 and 7 respectively an applicant for review must be aggrieved by the
relevant decision, conduct or failure to decide.
As such, standing under the ADJR Act depends upon the applicant establishing that he or she is a
'person aggrieved'. To reiterate, the ADJR Act defines a 'person aggrieved' as a person whose
interests are adversely affected by a decision or determination to which the ADJR Act applies. The
test of standing therefore depends upon the decision being justiciable under the ADJR Act. See
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. There is also a standing test for joinder
as a party to proceedings under the ADJR Act. This is a test of 'person interested' (ADJR Act section
12).
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Introduction – Privative Clauses
A ‘privative clause’ is a provision in legislation that purports to exclude or limit judicial review of
decisions made under that legislation.
Examples include clauses which:

confer wide discretionary powers on the decision-maker

restrict the kinds of inquiry a court can engage in

preventing remedies being granted by the courts

restrict the grounds for review

impose time limits on when an application for review can be sought

oust the judiciary’s ability to review decisions in a particular jurisdiction.
Hickman
The High Court appeared to reconcile conflicting principles in this area in the 1945 case of R v
Hickman, ex parte Fox and Clinton ("Hickman"). In a statement that came to be described as
"classical", Dixon J (as he then was) set out this interpretive approach:
“The particular regulation is expressed in a manner that has grown familiar. Both under
Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation
of provisions of the general nature of reg 17 is well established. They are not interpreted as
meaning to set at large courts or other judicial bodies to whose decision they relate. Such a
clause is interpreted as meaning that no decision which is in fact given by the body concerned
shall be invalidated on the ground that it has not conformed to the requirements governing its
proceedings or the exercise of its authority, provided always that the decision is a bona
fide attempt to exercise its power, that it relates to the subject matter of the legislation,
and that it is reasonably capable of reference to the power given to the body.”
What is the Hickman principle?
There is sometimes confusion about how many "limbs" of the Hickman principle there actually are.
The most common version of the Hickman principle contains only 3 limbs. A privative clause will
successfully oust judicial review only if:



1. The tribunal's decision was a bona fide attempt to exercise its power.
2. The decision relates to the subject matter of the legislation.
3. The decision is reasonably capable of reference to the power given to the tribunal.
However, some texts (e.g. Aronson & Dyer) add a 4th and 5th limb:


4. The decision does not display a jurisdictional error on its face;
5. The decision is not in breach of a specific statutory limitation on the tribunal's power which it
is reasonable to suppose Parliament intended to be supreme (i.e. the breach is not intended
to be protected by operation of the clause).
Limited privative clauses
"Finality" and "no appeal" clauses
"No certiorari" clauses (and similar)
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"Conclusive evidence" clauses
"Time limit" clauses
Limiting review grounds
Plaintiff S157 of 2002 v The Commonwealth of Australia [2003] HCA 2
The Migration Act Privative Clause
Section 474 of the Migration Act was inserted by the Migration Legislation Amendment (Judicial
Review) Act 2001 (Cth) and came into effect on 2 October 2001. It contains the following privative
clause:
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any
court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any
account.
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be
made, or required to be made, as the case may be, under this Act or under a regulation or other
instrument made under this Act (whether in the exercise of a discretion or not), other than a decision
referred to in subsection (4) or (5).
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Decisions (Judicial Review) Act 1977
Anti-Discrimination Act 1977 (NSW)
Casino Control Act 1992 (NSW)
Commonwealth Constitution 1900
Conciliation and Arbitration Act 1904
Federal Court of Australia Act 1976
Freedom of Information Act 1982
Income Tax Assessment Act 1936
Industrial Relations Act 1996 (NSW)
Judiciary Act 1903
Migration Legislation Amendment (Judicial Review) Act 2001
Migration Legislation Amendment (Procedural Fairness) Act 2002
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Selected Readings - Standing
ALRC Beyond the door-keeper: Standing to sue for Public Remedies Report No 78 (1996
AGPS)
Allars, M. 'Standing: the role and evolution of the test', (1992) 20 Federal Law Review 83
Barker, M.L. 'Standing to sue in public interest environmental litigation: from ACF v
Commonwealth to Tasmanian Conservation Trust v Minister for Resources', (1996) 13
Environmental and Planning Law Journal 186
Barnes, J. 'Standing: environmental groups get the green light', (1990) 18 Australian Business
Law Review 338
Bell, A.S. ‘Trade Rivals: Standing to Sue – a Survey of Some Recent Cases’ (1992) 9 Aust
Bar Rev 67
Brennan, T. ‘Administrative Law - the Emerging Role of Constitutional and Private Law
Remedies’ (2001) 30 AIAL Forum 41
Burmester, H. 'Standing to Sue for Public Remedies', (1997) 8 Public Law Review 3
Caldwell, J.L. 'Locus standi in administrative law', [1982] New Zealand Law Journal 21
Campbell, L. 'Who should right the public wrong? The ALRC's proposal for a test for standing',
(1997) 5 Australian Journal of Administrative Law 48
Cane, P. 'The function of standing rules in administrative law', [1980] Public Law 303
Cane, P. ‘Standing up for the Public’ [1995] Public Law 276
Cane, P. ‘Open Standing and the Role of Courts in a Democratic Society’, (1999) 20
Singapore Law Review 23
Coyle, K.A. 'Standing of third parties to challenge administrative agency actions', (1988) 76
California Law Review 1061
Duns, J. 'Winding up: standing and abuse of process', (1996) 4 Insolvency Law Journal 100
Dyer, B. ‘Costs, Standing and Access to Judicial Review’ (1999) 23 AIAL Forum 1
Enderbury, J. 'Equity and public law in the law of standing: Bateman's Bay Local Aboriginal
Council v the Aboriginal Community Benefit Fund Pty Ltd', (1999) 21 Sydney Law Review 129
Fisher, E. and Kirk, J. 'Still Standing: An Argument for Open Standing in Australia and
England', (1997) 71 Australian Law Journal 370
Flint, M. ‘Preparation for Town Planning Appeals in the ACT’ (2000) 26 AIAL Forum 49
Glindemann, R. 'Standing to sue for environment protection: a look at recent changes', (1996)
24 Australian Business Law Review 246
Harlow, C. & Rawlings, R. Pressure Through Law (London: Routledge) 1992
Rawlings, R . ‘Courts and Interests’, in I. Loveland (ed) A Special Relationship? – American
Influences on Public Law in the UK (Clarendon 1995)
Rose, A. ‘Standing to Sue for Public Law Remedies’ (1996) 11 AIAL Forum 25
Lane, P.D. 'Standing to sue for a declaration and injunction in the public interest', (1988) 18
Queensland Law Society Journal 115
88
Lynch, P. 'Representative actions in the Federal Court of Australia', (1994) 12 Australian Bar
Review 159
Mack, K.M. 'Standing to sue under Federal administrative law', (1986-87) 16 Federal Law
Review 319
Naughton, T.F.M. 'The limits of jurisdiction and locus standi in the Land and Environment
Court of New South Wales', (1991) 65 Australian Law Journal 149
Nott, S. 'The use of the relator action in present-day administrative law', [1984] Public Law 22
O'Connor, K. 'Rights to appear before tribunals', (1981) 6 Legal Service Bulletin 225
Peiris, G.L. 'The doctrine of locus standi in Commonwealth administrative law', [1983] Public
Law 52
Rose, A. 'Standing to sue for public law remedies', (1996) 11 AIAL Forum 25
Ryland, M. 'Beyond the door-keeper: standing to sue for public remedies', (1996) 69 Reform
35
Spry, M. 'A "Person Aggrieved" under the ADJR Act: three recent cases on standing', (1996) 3
Australian Journal of Administrative Law 120
Taylor, G.D.S.'Individual standing and the public interest: Australian developments', [1983]
Civil Justice Quarterly 353
Thio, S.M. Locus Standi and Judicial Review (Singapore University Press 1971)
Tokar, J.J. 'Administrative law: locus standi in judicial review proceedings', (1984) 14 Manitoba
Law Journal 209
Selected Caselaw - Standing
Allan v Development Allowance Authority (1998) 152 ALR 439
Allan v Transurban City Link Limited [2001] HCA 58
Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 121 ALR 373
Anderson v Commonwealth (1932) 47 CLR 50
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70
Australian Foremen Stevedores Assn v Crone (1989) 98 ALR 276
Bateman's Bay Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd
(1998) 194 CLR 247
Boyce v Paddington Borough Council [1903] 1 Ch 109
Byron Environment Centre v Arakwal People (1997) 78 FCR 1
Cheatley v R (1972) 127 CLR 291
Cooney v Council of the Municipality of Ku-ring-gai (1963) 114 CLR 582
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Environment East Gippsland Inc v VicForests [2009] VSC 386
Executive Council of Australian Jewry v Scully (1998) 79 FCR 537
Ex parte Richard Dixon CO/3410/96 (High Court of Justice, QB Div., Crown Office) (20 April
1997)
Fordham v Evans (1987) 72 ALR 529
Gouriet v Union of Post Office Workers [1977] 3 All ER 70
Helicopter Utilities Pty Ltd v Australian National Airlines Commission (1963) 80 WN (NSW) 48
Kioa v West (1985) 159 CLR 550
Lord v Commissioners of the AFP (1998) 154 ALR 631
Maritime Union of Australia v Honourable John Anderson [2000] FCA 850
North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1728
North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556
Ogle v Strickland (1987) 71 ALR 41
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
R v Greater London Council; Ex parte Blackburn [1976] 3 All ER 184
R. v. Inspectorate of Pollution, ex parte Greenpeace, Ltd. (No. 2) [1994] 4 All E R 329
R. v. Sec. of State for the Environment, ex parte Rose Theatre Trust [1990] 1 QB 504
Re Australian Institute of Marine and Power Engineers v The Secretary (1986) 13 FCR 124
Robinson v Western Australian Museum (1977) 138 CLR 283
Schokker v Commissioner, AFP (1998) 154 ALR 183
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995)
183 CLR 552
Sierra Club v. Morton, 405 U.S. 727 (1972)
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
Tasmanian Conservation Trust Inc v Minister (1995) 127 ALR 580
Transurban City Link Ltd v Allan [1999] FCA 1723
Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Ltd
(2000) 200 CLR 591
United States Tobacco Co v Minister for Consumer Affairs (1988) 82 ALR 509
Yates Security Services v Keating (1990) 25 FCR 1
Selected Readings – Privative Clauses
Craig, P. ‘Competing Models of Judicial Review’ [1999] Public Law 428
90
Crock, M. ‘Privative Clauses and the Rule of Law: The Place of Judicial Review within the
Construct of Australian Democracy’ in Susan Kneebone (ed) Administrative Law and the Rule
of Law: Still Part of the Same Package? (1999) AIAL 78.
Evans, S. ‘Protection Visas and Privative Clause Decisions: Hickman and The Migration Act
1958 (Cth), (2002) 9 Aust Admin L Jo 49
Kneebone, S. ‘Removing Judicial Review of Migration (Refugee) Decisions: A System in Crisis
in Need of a Holistic Approach’ (2000) 11 Pub L Rev 87
Loughton, G. ‘Privative Clauses and the Commonwealth Constitution: A Primer’, unpublished
paper delivered to the Australian Government Solicitor's Constitutional Law Forum at Old
Parliament House in Canberra on 23 October 2002.
Sackville, R. ‘Judicial Review of Migration Decisions: An Institution in Peril?’ (2000) 23 UNSW
L J 190
Selected Caselaw – Privative Clauses
Batterham v QSR Limited [2006] HCA 23
Bignell v New South Wales Casino Control Authority (2000) 48 NSWLR 462
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 234 ALR 114
Coal Miners' Industrial Union of Workers of Western Australia v Amalgamated Collieries of
Western Australia Ltd (1960) 104 CLR 437
Dan v Federal Commissioner of Taxation 2000 ATC 4350
Daihatsu Australia Pty Limited v Commissioner of Taxation [2001] FCA 588
Darling Casino Ltd v NSW Casino Control Authority (1997) 143 ALR 55
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168
Federal Commissioner of Taxation v Dalco ((1990) 168 CLR 620
Fish v Solution 6 Holdings Limited [2006] HCA 22
Foster v Aloni [1951] VLR 481
Houssein v Department of Industrial Relations and Technology (1982) 148 CLR 88
McGrath v Goldsborough Mort & Co Ltd (1931-32) 47 CLR 121
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
NAAV v Minister for Immigration and Multicultural Affairs and others [2002] FCFCA 228
North West County Council v Dunn (1971) 126 CLR 247
Osmond v Public Service Board of NSW [1984] 3 NSWLR 447
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (4 February 2003)
Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132
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The Queen v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415
R v Coldham; Ex parte AWU (1983) 153 CLR 415
R v Commissioner of Police (NT) v Holroyd (1965) 7 FLR 8
R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Whybrow & Co (1910) 11
CLR 1
R v Commonwealth Rent Controller; Ex parte National Mutual Life Assoc (1947) 75 CLR 361
R v Hickman; Ex p Fox and Clinton (1945) 70 CLR 598
R v Kirby; Ex Parte Boilermakers' Society of Australia (1956) 94 CLR 254
R v Nat Bell Liquors Ltd [1922] 2 AC 128
Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128
Shergold v Tanner (2000) 179 ALR 150
The King v Central Reference Board; ex Parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123
The King v Metal Trades Employers' Association; ex parte Amalgamated Engineering Union,
Australian Section (1951) 82 CLR 208
The King v Murray; ex parte Proctor (1949) 77 CLR 387
The King v The Commonwealth Rent Controller; ex parte National Mutual Life Association of
Australia Ltd (1947) 75 CLR 361
The Queen v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty
Ltd (1953) 88 CLR 100
The Queen v Commonwealth Conciliation and Arbitration Commission; ex parte Amalgamated
Engineering Union (Australian Section) (1967) 118 CLR 219
The Queen v Kelly; ex parte Berman (1953) 89 CLR 608
The Queen v The Members of the Central Sugar Cane Prices Board; ex parte The
Maryborough Sugar Factory Ltd (1959) 101 CLR 246
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
Woolworths Ltd v Hawke (1998) 45 NSWLR 13
Woolworths Limited v Pallas Newco Pty Limited [2004] NSWCA 422 (19 November 2004)
Selected Readings – Privative Clauses
Craig, P. ‘Competing Models of Judicial Review’ [1999] Public Law 428
Crock, M. ‘Privative Clauses and the Rule of Law: The Place of Judicial Review within the
Construct of Australian Democracy’ in Susan Kneebone (ed) Administrative Law and the Rule
of Law: Still Part of the Same Package? (1999) AIAL 78.
Evans, S. ‘Protection Visas and Privative Clause Decisions: Hickman and The Migration Act
1958 (Cth), (2002) 9 Aust Admin L Jo 49
Kneebone, S. ‘Removing Judicial Review of Migration (Refugee) Decisions: A System in Crisis
in Need of a Holistic Approach’ (2000) 11 Pub L Rev 87
92
Loughton, G. ‘Privative Clauses and the Commonwealth Constitution: A Primer’, unpublished
paper delivered to the Australian Government Solicitor's Constitutional Law Forum at Old
Parliament House in Canberra on 23 October 2002.
Sackville, R. ‘Judicial Review of Migration Decisions: An Institution in Peril?’ (2000) 23 UNSW
L J 190
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Week 12 Judicial Review Remedies
JUDICIAL REVIEW REMEDIES
Texts:
Creyke, McMillan & Smyth
Ch 17
Esparraga & Ellis-Jones
Ch 9
Introduction to the Topic
Judicial review remedies are of three types:
• The prerogative writs or orders – principally certiorari, prohibition, mandamus and habeas
corpus
• The equitable remedies of declaration and injunction
• Statutory remedies, such as those available under the ADJR Act
In addition, the “constitutional writs” are available in the original jurisdiction of the High Court under s
75(v) of the Constitution: see Re Refugee Review Tribunal; Ex parte Aala. Section 75(v) gives the
High Court original jurisdiction to grant prohibition, mandamus or an injunction against Commonwealth
officers.
There is a limited nature to these remedies in the sense that the courts must stop short of reexercising the administrator’s discretion. The remedies are also limited in the sense that compensation
is not available on judicial review. To obtain compensation or damages for unlawful administrative
action, the complaint must be framed within tort or contract. Further, all the remedies are discretionary
– they may be refused even though unlawfulness has been established.
Types of Judicial Remedies
1. THE CONSTITUTIONAL WRITS
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
2. CERTIORARI
R v Northumberland Compensation Appeal Tribunal; Ex p Shaw [1952] 1 KB 338
R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864
Craig v State of South Australia (1995) 184 CLR 163
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
3. PROHIBITION
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
4. MANDAMUS
Randall v Northcote Corporation (1910) 11 CLR 100
94
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd
(1949) 78 CLR 389
Commissioner of State Revenue (Vic) v Royal Insurance Aust Ltd (1994) 182 CLR 51
5. HABEAS CORPUS
Minister for Immigration and Multicultural Affairs v Vadarlis (2001) 110 FCR 491
6. INJUNCTION
Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty
Ltd (1998) 194 CLR 247
7. DECLARATION
Dyson v Attorney-General [1911] 1 KB 410
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR
135
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
8. ADJR ACT
ADJR Act ss 15, 16
Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528
Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637
9. DISCRETION OF COURT TO REFUSE RELIEF
Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31
NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (2001) 53
NSWLR 559
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 (14 July
2006)
ADJR Act
Probably the most important aspect of the Administrative Decisions (Judicial Review) Act 1977 (Cth)
(apart from creating a statutory right to reasons for decision) is the fact that it creates a single, allembracing and extremely flexible remedy, the "order of review", for a breach in respect of any of the
decisions or conduct covered by the Act. See ADJR Act section 16.
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GENERAL LAW
1. CERTIORARI AND PROHIBITION
Certiorari and prohibition probably remain the two most important remedies in judicial review, although
the simplicity and flexibility of the declaration certainly makes that remedy a very attractive one. Of
course, for most federal decisions the choice will be ADJR review where there is a single flexible
remedy: the "order of review". However, at State level (at least in States other than Victoria and New
South Wales ADJR-like statutes are available) and for review in the High Court's original judicial
review jurisdiction under section 75 (v) of the Constitution, the common law prerogative writs (or
orders in the nature thereof) remain critically important.
2. THE NATURE OF CERTIORARI AND PROHIBITION
Certiorari is in essence a two part remedy. The first part is an order removing the official record of the
impugned decision-maker into the superior court issuing the certiorari order. The second part is an
order quashing the impugned decision, and the record thereof. That is, certiorari is used to wipe the
slate clean.
Prohibition, on the other hand has a largely negative aspect. It prohibits the impugned decision-maker
and those relying on the decision from doing something illegal which they are about to do, or from
continuing on an illegal course of action already commenced. Accordingly, the main difference
between certiorari and prohibition is in the timing of the application to the court.
Certiorari lies for any jurisdictional error, and also for non-jurisdictional errors of law appearing on
the face of the record. Prohibition, on the other hand, lies only for actual or threatened excess of
power, but is not available in respect of non-jurisdictional error of law on the face of the record. The
reason why the writs are so confined was explained by Hayne J in Re Refugee Review Tribunal; Ex
parte Aala (2000) 75 ALJR 52 (at para 159).
3. THE DECISION MAKER MUST EXERCISE PUBLIC POWER
It is clear that public law remedies, including certiorari and prohibition, will only lie against bodies or
persons exercising public power (as opposed to private power). Thus, Ministers or departments
exercising powers of functions in relation to contractual matters would generally not be subject to
correction by prerogative writ. Similarly, the distinction between public and private power has been
critical in some dismissal or disciplinary decisions against public sector staff. A public or statutory body
might have mixed functions, some private and some public.
4. DISCRETIONARY CRITERIA FOR REFUSING CERTIORARI AND PROHIBITION
The court usually has the discretion to refuse certiorari and prohibition, even though a substantive
review ground has been established. However there has long been a debate as to whether the
discretion always exists. There are many judgments saying that there is no discretion where the
vitiating error is "manifest" (or apparent on the face of the record), and the applicant for the remedy is
a person directly aggrieved. At least in the High Court's original jurisdiction, that question appears to
have been resolved by Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 , where the
court approved the following statement by Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156
CLR 185:
"If, therefore, a clear case of want or excess of jurisdiction has been made out, and the
prosecutor is a party aggrieved, the writ will issue almost as of right [my emphasis - KAP],
although the court retains its discretion to refuse relief if in all the circumstances that seems
the proper course."
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5. MANDAMUS - ORDERS TO PERFORM DUTIES
The prerogative writ of mandamus is a judicial command addressed to and compelling the respondent
to perform a public duty. The remedy is ancient and retains significant technicalities, so that other
remedies, especially declaration are usually more attractive. However, mandamus is still frequently
granted in the High Court's original jurisdiction, pursuant to section 75 (v) of the Constitution (it is a
remedy expressly granted to the High Court). Mandamus may be expected to become even more
popular having regard to the High Court's decision in Re Refugee Review Tribunal; Ex parte Aala
(2000) 75 ALJR 52 (16 November 2000), which significantly liberalised the criteria for grant of what
are now to be referred to as "constitutional writs" (rather than "prerogative writs" where one is seeking
relief under section 75 (v)).
6. BODIES OR PEOPLE TO WHOM MANDAMUS LIES
Although one generally refers to the mandamus respondent as an "official, even a private person can
be a respondent to the extent that they bear a public duty -- see e.g. Re O'Rourke (1986) 7 NSWR 64.
Unlike certiorari and prohibition, mandamus has never generally been regarded as limited to cases
where the respondent's powers can be classified as "judicial" or "quasi-judicial". Thus, it seems that
mandamus is available in respect of a magistrate's decision on whether to commit a defendant to
stand trial, even though that decision might be immune from certiorari or prohibition.
7. THE NATURE OF THE DUTIES ENFORCED BY MANDAMUS
Mandamus lies to compel performance of a public duty which is justiciable and unperformed. A power
(discretion) is not a duty, and a statute which says "may" usually grants only a power. Mandamus is
nevertheless frequently issued in context where the statute has said "may". Whilst "may" indicates a
discretion, the repository of the discretionary power is usually under a duty at least to consider its
exercise, where an appropriate request is made and may sometimes even be under a duty to exercise
it in a particular way if there is no permissible reason indicating why should not do so. In the latter
situation the discretion has effectively run out: the repository of a discretionary power cannot exercise
or declined to exercise it on arbitrary or otherwise impermissible grounds.
8. THE EFFECT OF MANDAMUS
Generally speaking, mandamus consists of an order to do a positive act, rather than to desist from
doing something (for which prohibition or injunction would be appropriate). Generally also, the relevant
duty should not be of a continuing nature. Mandamus has no quashing effect -- if you need to quash a
decision you should seek certiorari or exercise a statutory appeal right (if available).
9. ADJR'S EQUIVALENT OF MANDAMUS
Section 7 of the ADJR Act provides:
"7. (1) Where -(a) a person has a duty to make a decision to which this Act applies;
(b) there is no law that prescribes a period within which the person is required to make that decision;
and
(c) the person has failed to make that decision,
a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply
to the Court for an order of review in respect of the failure to make a decision on the ground that there
has been unreasonable delay in making the decision."
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Section 3 (1) defines "failure" to include "a refusal to make a decision". Query therefore whether the
ADJR Act imports the common law mandamus requirement for a refusal to make a decision (as
opposed to a mere "failure").
10. DECLARATIONS
A declaratory order or judgment is simply a court's declaration or statement resolving a dispute as to
the meaning or application of the law applicable to a situation in which the applicant has a sufficient
interest. In a strictly technical sense, the order or judgment has almost no mandatory or restraining
effect at all. The orthodox view is that whilst declarations are often accompanied by consequential
relief ordering or restraining certain conduct, a mere declaration cannot be executed or enforced.
Theoretically, a declaration neither commands nor restrains action.
It is the only remedy applicable to virtually all challenges to the legality of government decisions and
conduct. Kirby J. said that the declaration's development "is one of the most important and beneficial
adventures in the administration of justice during this century" -- see Bass v Permanent Trustee Co
Ltd (1999) 161 ALR 399 at paragraph 89.
11. THE DISCRETION TO REFUSE DECLARATORY RELIEF
Lockhart J. summarised the factors governing the discretion to refuse declaratory relief in Aussie
Airlines Pty Ltd v Australian Airlines Limited (1996) 139 ALR 663 at 670-671:
"For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must
satisfy a number of tests which have been formulated by the courts, some in the alternative
and some cumulative. I shall formulate them in summary form as follows:
(a) The proceeding must involve the determination of a question that is not abstract or
hypothetical. There must be a real question involved, and the declaratory relief must be
directed to the determination of legal controversies. The answer to the question must produce
some real consequences for the parties.
(b) The applicant for declaratory relief will not have sufficient status if relief is 'claimed in
relation to circumstances that [have] not occurred and might never happen'; or if the Court's
declaration will produce no foreseeable consequences for the parties.
(c) The party seeking declaratory relief must have a real interest to raise it.
(d) Generally there must be a proper contradictor.
These other rules should in general be satisfied before the Court's discretion is exercised in
favour of granting declaratory relief."
12. INJUNCTIONS
The courts will generally only grant an injunction in public law where a statute can be characterised as
evincing an intention to grant private statutory rights. Courts are reluctant to grant an injunction to a
private person to enforce purely public rights.
Moreover, some recent High Court dicta suggest that at least some Justices see a considerably
broader and more flexible role for the injunction in public law. See, for example, Gaudron J. in Abebe v
Commonwealth (1999) 197 CLR 510 at paras 104-105:
"As appears from Bateman's Bay Local Aboriginal Land Council v Aboriginal Community
Benefit Fund Pty Ltd, equitable remedies have a continuing role in public and administrative
law. And in those areas, 'equity has proceeded on the footing of the inadequacy (in particular
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the technicalities hedging the prerogative remedies) of the legal remedies otherwise available
to vindicate the public interest in the maintenance of due administration.'
Given the potential for administrative decisions to impact on existing rights and interests, and,
also, on important and valuable statutory rights to which the individual might otherwise be
entitled, it may well be that an injunction will lie to prevent an officer of the Commonwealth
from giving effect to an administrative decision based on error, even if that error is not
jurisdictional error. ..."
Statements by various Justices in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 also
suggest an emerging broader and more flexible view as to the availability of injunction in public law.
Assuming that it is available, the remedy of injunction offers numerous advantages over other
remedies. First, being an equitable remedy it can, like declaration, be fashioned very flexibly to fit the
justice of the situation: it is not hidebound by any of the technical restrictions of the prerogative writs.
Secondly, it can be granted on an interim or interlocutory basis to restrain conduct pending the
determination of the substantive issues in the proceedings.
Selected Readings
Beatson, J. 'The discretionary nature of public law remedies', [1991] New Zealand Recent Law
Review 81 839.
Caldwell, J. L. 'Discretionary remedies in administrative law', (1986) 6 Otago Law Review 245
840.
Howell, R.H. 'An historical account of the rise and fall of mandamus', (1985) 15 Victoria
University of Wellington Law Review 127
Jenks, E. ‘The Prerogative Writs in English Law’ (1923) 32 Yale Law Journal 523
McMillan, J. 'Developments under the ADJR Act-the Grounds of Review', Federal Law
Review, vol. 20 no. 1, 1991
Selected Caselaw
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty
Ltd (1998) 194 CLR 247
Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31
Commissioner of State Revenue (Vic) v Royal Insurance Aust Ltd (1994) 182 CLR 51
Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR
135
Craig v State of South Australia (1995) 184 CLR 163
Dyson v Attorney-General [1911] 1 KB 410
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 (14 July
2006)
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Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Minister for Immigration & Ethnic Affairs v Conyngham (The Platters Case) (1986) 68 ALR 441
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Vadarlis (2001) 110 FCR 491
NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (2001) 53
NSWLR 559
Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637
Randall v Northcote Corporation (1910) 11 CLR 100
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd
(1949) 78 CLR 389
R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864
R v Northumberland Compensation Appeal Tribunal; Ex p Shaw [1952] 1 KB 338
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228