ADMIN LAW LECTURE 4
Focus on JR
JR over admin action -> i.e. over decisions and conduct of the exec
Primarily (but not exclusively) in relation to decisions taken under statute or under an enactment
What is being done today, in the broader context of:
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Grounds of JR
Requirements that have to be satisfied in order for a party to make an application for review
The remedies
Procedural Fairness/Natural Justice -> Arguably the most important ground for JR
Elements of PF (its underlying justification and rationale)
Circumstances where the principles of PF apply
After overcoming the those threshold issues -> content of what PF is and core elements of a fair
hearing
Where do the grounds for JR fit?
Standing rules filter out vexatious actions
Grounds for JR
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Illegality
Legal Unreasonableness
Procedural unfairness
Common Law and Judicial Review Act has 18 different grounds for JR, which can fit under these 3
broad categories listed above
Remedies
2 kinds: Common Law (writs) and Statutory
CL remedies available in states where there is no JR act
Ultra Vires -> did the decision maker have the power? If they did, have they exceeded the limits of
their power (express or implied)?
UV covers Illegality and Legal Unreasonableness
Procedural Unfairness:
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Breach of Natural Justice
Failure to observe procedures required by law
Statute plays an important role in governing what fairness demands
When a decision is so erroneous that it is classified as jurisdictional, in law, it is equal to there being
no decision at all. -> Void ab initio
Dignitarian/Intrinsic approach -> Lord Reed’s judgment Osborn (on the slide)
Importance of Procedural Fairness
Increase the likelihood of the best decision being reached on the merits -> Better procedures are
more likely to provide better outcomes
Promotion of public confidence in our courts
Osborn v The Parole Board (UK case)
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Case involved prisoner’s rights
SC considered the circumstances in which the parole board was required to hold an oral
hearing before deciding on whether or not a prisoner should be released on license or
transferred to an open prison
No legislative guidance on whether or not an oral hearing was required
Single member of the parole board, decided on the papers before him/her that, 3 prisoners,
including Osborn, should not be released; Requests for oral hearings had been denied
JR of the decision to deny oral hearings raised 2 grounds:
1) Breach of article 5 of the European convention of Human rights -> In UK, there is a
Human Rights Act 1998 -> Act gives effect to a regional human rights treaty (the
European convention of human rights) -> this enables individuals to plead human rights
in litigation
2) Based on common law -> denying a prisoner an oral hearing is procedurally unfair
Lord Reed rejected an approach that was primarily based on utilitarian or instrumental grounds. He
accepted that in principal, PF could enhance admin decision making, but he rejected an approach
that was primarily based on instrumental reasoning.
Instead, Lord Reed advocated a non-instrumental conception of PF, which focused on the inherent
dignity of the individual -> Respect the human dignity of prisoners by deeming them capable of
explaining themselves
Lord Reed’s judgment is supported by empirical evidence. Research dictates that if you allow
prisoners to participate in the making of decision directly affecting them, they are more likely to be
accepting of those decisions -> i.e. adverse decisions are more likely to be accepted
Because PF is recognised as a fundamental CL right, a principle of statutory construction (principle of
legality) comes into play. -> in short, if parliament wants to exclude this fundamental CL principle, it
can only do so with the clearest possible terms/language
In contrast with the SC, HCA is yet to identify what the principle rationale for PF is. International
Finance and Condon cases provide several justifications (intrinsic, constitutional etc) as being
relevant
Statutory bodies which exercise administrative powers that function quasi-judicially are subject to PF
principles
Cooper v Wandsworth BW:
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WBW was the relevant statutory body; invested with statutory power under the Metropolis
Land Management Act
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Purported in pursuance of s76 of act, WBW demolished Mr Cooper’s house, because he had
not been given permission to build
Cooper claimed this decision was made before first, affording him an opportunity to be
heard
House Of Lords held:
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WBW’s reliance on statutory powers was no shield to an action in private law for trespass
The coercive statutory powers available to WBW were read by the court as subject to a
qualification; an unstated but implicit qualification that Mr Cooper be afforded an
opportunity to be heard
Legislation was silent on this question; Court read in PF requirements
Therefore, WBW had acted without lawful justification
This case established that the duty to act fairly extended to administrative bodies with powers to
affect the rights of individuals
A broader duty upon administrative bodies to act fairly in the making of decisions of an
administrative character was identified in Ridge
Ridge v Baldwin:
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A chief constable was dismissed from office, allegedly due to corruption
Relevant statutory committee here was the Watch Committee
WC took the relevant disciplinary action on Ridge, pursuant to statutory powers
WC dismissed Ridge, purportedly under s191 of the Municipal Corporations Act
Prior to taking this action, Ridge was not given notice about the allegations and was denied
of an opportunity to be heard
House of Lords held that this decision to of the WC to dismiss Ridge was invalid. House of Lords
found that the respondents (WC) were bound by principled of PF/NJ as WC’s function was analogous
to a court, analogous to a judge’s role when imposing a penalty on a person (i.e. quasi-judicial).
Consider the consequences for Ridge:
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Reputational damage
Pension entitlements were adversely affected because he was dismissed on allegations of
corruption (property interest)
The graver the consequences, all the more PF will be required
If the decision is going to affect the community at large PF principles are not going to apply in the
same way. Community at large is not going to be entitled to an individual oral hearing
Banks v Transport Regulation Board of Australia
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Taxi Driver; Licensing case
TRB was the statutory body
TRB acted under statutory authority to revoke Mr Banks’ taxi license, purportedly under s32
of the Transport Regulation Act (Victoria)
No grounds, no particulars were provided in respect of that cancellation decision
Barwick CJ expressed agreement with what Lord Reed said in Ridge
“Not only has Parliament not given any indication in the statute that the Board shall not be required
to act judicially and be immune from supervision in the exercise of its administrative discretion, but
it has specified with some precision, the matters which the Board should be satisfied with before
granting the statutory power” -> Parliament has not evinced an intention to exclude PF principles
PF can only be excluded by legislation with the clearest terms, specifically displaying an intention by
parliament to exclude PF
FAI Insurance v Winneke
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FAI held a license, under s72 of the Workers Compensation Act, which had been renewed
annually for over 20 years.
They had been given the power to provide and settle, where appropriate, workers
compensation insurance claims in Vic
In Dec 1980, FAI applied for another 12-month renewal of their license
Subsequently, in May 1981, Minister decided that FAI’s license was not going to be renewed
because the Victorian Government at the time didn’t think FAI had financial assets to settle
potential insurance claims
Government advised the then Governor in Council not to renew the license under the act
Strictly speaking, this is not a case about legal rights being affected because FAI had no right
to have their license renewed.
FAI argued that once a license is granted and is capable of renewal, there is an expectation
of renewal, which carries with it a right to be heard before renewal is refused as nonrenewal could mean serious financial loss for a party/business. Non-renewal could also
affect a business’ reputation because a view is reached an articulated about that business’
financial standing and their fitness to hold a license
Matter went on appeal from the Vic SC to HCA
HCA held that:
Where a person/corporation has held a license or an approval of somekind and is then to be
deprived of that license, PF is owed before action is taken. This is because the decision affect s the
party, strips them of their property rights, right to carry on a business under the terms of the
approval/license
Kioa v West:
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2 Tongans about to be deported because their temporary visas had expired, vulnerable to
deportation as unlawful non-citizens
Jason Kioa and his wife were non-citizens who had permission to remain within Aus as
temporary entrants
They had a daughter who was an Australian citizen
Immigration Minster cancelled Kioa’s visa after he stayed beyond the expiration period of
the visa
Kioa argued that the decision to deport him had been reached in a way that had breached NJ
principles, contrary to s5(1) of the ADJRA; No opportunity to respond to adverse material
relied upon by delegates of the Minister
This a case of statutory JR, although our understanding of NJ is through common law
Majority of the HCA held that the Tongans were in fact entitled to NJ even though they had no legal
right to remain.
Why did PF/NJ apply here?
Relevant decision maker (Minister’s delegate) decided to reject Kioa’s application for another
temporary entry permit on the basis of prejudicial information. Said information was obtained from
a 3rd party and never been put to Kioa for him to respond
Kioa’s case is important as the court said NJ/PF applies to decision making that goes beyond
adversely affecting property rights. Where a range of other interests may be adversely affected in a
direct and immediate way, NJ an PF can apply.
Although Kioa had no right to continue to stay in Aus, the interest that was affected was the interest
he had in obtaining another license to remain in Aus to be part of a family unit
Government has, of late, flatly rejected govt arguments that PF doesn’t apply to non-statutory
discretionary decision making processes affecting non-citizens in circumstances where their
underlying human rights are being affected. Relevant HCA decision is M61
Plaintiff M61:
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From 2009, there was an upturn in the number of asylum seekers from countries including
but not limited to Sri Lanka
One of the measures the govt used to cope with this was to “excise” some of the Northern
Territories, including Christmas Island
Excision laws were an attempt to “divorce” Australia’s physical territory from the Migration
Act (i.e. even though you would have arrived in Australia, you would not be entitled to
certain protective provisions in the Migration Act that governed refugee status adjudication
What rights were owed to asylum seekers who had arrived irregularly, in circumstances where
extensively they weren’t subject to critical provision in the Migration Act that governed refugee
status determination? Were those extensively non-statutory decision-making processes conditioned
by PF requirements? -> Heart of the issue
Pg 45 of the learning guide -> the informal, non-statutory process
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The Sri Lankas alleged the determination process was tainted/flawed
Government argued that they were not obliged to afford the applicants PF in this context (a
context of non-statutory, highly discretionary decision-making process); They went further
to say that this exercise of non-statutory power did not prejudice any right
HCA found that the refugee status assessment processes were, in fact, undertaken in order to inform
the Minister about whether or not he should exercise the statutory power. HCA said the government
simply could not “divorce” these people from the act in the way in which they tried to. They also said
that as the conduct of these assessment enquiries prolong the applicants’ time in detention and
deprive them of their freedom, the rights/interests of the applicants were directly affected by the
refugee status assessment process.
Minister for Immigration v WZARH
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This appears to be the current stance
An appeal to the principle of legality
What does fairness demand in the particular circumstances?
The court will not likely accept government assertions that the legislation displaces principles of PF.
Only plain words of necessary intentment-> Conclusion from Ex parte Miah and Saeed
Ex Parte Lam:
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Criminal deportation matter
The question here was: whether the immigration department’s failure to stick to a particular
line of inquiry that it had foreshadowed that it would pursue amounted to a breach of PF?
Lam claimed that his legitimate expectations how the matter would proceed had been
frustrated
Court held that fairness might require a decision-maker to be to its verbal/written
assurances. It might be required to adhere to its representations about the adoption of a
particular procedure
On the facts, Lam had not lost the opportunity to present his case and to be heard. He
hadn’t suffered a detriment. There was no practical injustice.
Alternatively, had Lam altered his conduct on the reliance of the representations made by
the immigration department, there would have been practical injustice.
It was established that if an applicant is not sufficiently informed of the case that he/she has
to meet, that is enough to establish practical injustice, without the applicant having to prove
what he would/could have done has he been informed about that part of the case
Fair hearing requirements:
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Notice
Temporal and substantive elements
Applicants must have adequate time to prepare their case and have adequate disclosure of the case
to be made
ADMIN LAW LECTURE 5 (WEEK 6)
Apprehended bias:
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Common used grounds because actual bias is such a high threshold to overcome and pleas
successfully
Bias rules are flexible -> their application depends on the nature of the decision maker
Leading authority on bias: MIMA v Jia Legeng
MIMA v Jia Legeng:
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Involved an argument about whether actual bias was present
HCA said you cannot hold a Minister of state to the same high standard of detachment that
you would were the decision maker a judge or a quasi-judicial body (tribunal etc)
Case involves the rights an interest of a non-citizen
Exercise of discretionary power under s501 of the Migration Act (which enables a Minister to
either refuse or cancel a visa on adverse character grounds
Minister had gone on radio an expressed concerns about the approach of the AAT to certain
deportation matters, in particular one matter in relation to the setting aside the visa
cancellation decision with respect to Mr J
Tribunal had remitted back to Minister to re-determine. Tribunal decided that its not the
most preferable decision to cancel Mr J’s visa, it hasn’t substituted its own decision in.
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Minister (even on the re-determination) decided to cancel Mr J’s visa
The issue before the reviewing body: Was the Minister’s decision to cancel Mr J’s visa
vitiated by actual/apprehended bias due to his conduct?
Minister’s radio comments had indicated that, broadly, he considered non-citizens who had
served a prison sentence to be of bad character
Mr J’s Lawyers argued that this demonstrated pre-judgment by the Minister
HCA disagreed
HCA held that there was no disqualifying bias on the facts of this case. The backdrop for the HCA’s
decision was this constitutional principle – Principle of responsible government (relatedly, ministerial
responsibility
Bias rules are flexible -> their application depends on the nature of the decision maker -> Ministers
are elected officials who are answerable/accountable to the public -> they don’t have to refrain from
making public statements/ or refrain from doing certain things that would get other kinds of decision
makers in trouble
If you were charged with a problem scenario:
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Identify the decision maker
If there is a suggestion of a conflict of some kind, standards apply less stringently to a
Minister of state
Association between decision-maker and Party before them may give rise to apprehended
bias (“AB”)
Conduct of public decision-makers may give rise to AB
Vakauta v Kelly:
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Matter involving apprehended bias on the part of a trial judge
SC reviewing the conduct of a trial judge in NSW
Trial judge had been uncomplimentary about 3 medical witnesses who were giving evidence
in the trial (referred to them as an “unholy trinity”)
Claim for AB was made and subsequently, the reviewing court found that there were
grounds for AB by reason of the way the judge conducted himself in the course of the
hearing
Conduct can give rise to a disqualifying bias. So too can associations
Royal Commissioner Heydon case:
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Questions about his alleged Conflict of Interest (“CI”) arising from his association the Liberal
Party
Commissioner Heydon had recently retired from the HCA
In deciding on whether or not to excuse himself from the Royal Commission, Heydon had to
step into the shoes of the “fair-minded lay observer” (the common man”) -> the “double
might” test
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Heydon was asked to give a lecture on Sir Garfield Barwick (Legal History lecture) to a local
Liberal Party association in NSW
He agreed to give this lecture and it was for the purpose of raising funds for the Liberal Party
Heydon claimed that he only realised that the event was going to be a fundraiser at a later
date and upon gaining that understanding, Heydon had excused himself from the event
Heydon did not find that there were grounds for him to be disqualified/ grounds for him to
step down from the commission (look at paras 26-38 of link on BB for Heydon’s reasons)
Reasons:
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Speech, although made in a political party gathering, was not of political content/ not a
political speech
Agreeing to give a speech at a political party’s event does not mean the he agreed with the
views of the political party
Although it might seem ridiculous that Heydon is the one who is judging/analysing/performing the
test on himself, that’s how its conventionally been done
The test for establishing (the “double might” test) apprehended bias is if the fair minded lay
observer might reasonably apprehend that the decision maker (in this instance, judge) might not
bring an impartial mind to the resolution of the matters before him/her
In Isbesta, a local council officer was subjected to the DM test
3 steps:
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the identification of what it is said might lead a [decision-maker] to decide a case other than
on its legal and factual merits [id. relevant factor].
how does that relevant factor cause deviation from a neutral evaluation?
is the apprehended deviation from neutrality be virtue of that factor reasonable?
Isbesta:
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Case about a seemingly dangerous dog
Local council officer determined that judicial charges should be laid against dog’s owner
Council officer instructed council lawyers to prosecute charges under the Domestic Animals
Act 1994
After dog’s owner had pleaded guilty to the charges, council officer in question subsequently
became a member of 3 person council panel, to decide if the dog should be destroyed under
s84; CO participated fully in the decision of the panel
Panel recommended that dog be destroyed
HCA had to decide if CO was inhabiting and discharging incompatible roles; because of his
involvement in the prosecution of the dog owner and subsequently participating in the
panel hearing
Having participated in the prosecution, did it give rise to apprehended bias?
DM test:
Might a person in a lay persons’ position reasonably apprehend that a person in the officer’s
position had an interest in stage 1 that could in fact affect their decision making and taint
proceedings in stage 2?
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HCA found that CO was discharging incompatible roles
If a superior court of law found that an inferior court of law had exercised its powers in a way that
went beyond the court’s jurisdiction (i.e. beyond its authority), this failing would be characterised as
a jurisdictional error.
Simple Ultra Vires
First aspect -> was the decision making authorised? Section 5/6(1)(d) of the ADJRA -> practical
application to the rule of law
Coco v The Queen:
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About decision making authorised by a judge; executive action extensively authorised by a
judge
Mr C was convicted of offering a bribe to a Commonwealth Officer (contrary to Crimes Act
1914)
Mr C’s conviction hinged on evidence that had been gleaned from telephone conversations
which had been tape recorded
Taping was possible by installing listening devices in Mr C’s premises
Police pretended to be telecom employees and purportedly acting in furtherance of an
approval granted by a judge (pursuant to s43 of the Invasion of Privacy Act), which provided
that a judge could grant an approval to the police to use a listening device
HCA examined whether the Invasion of Privacy Act supported the covert action of the police. They
found that s42(3) of the act did not extend to authorising and enabling the police to install a device
via unauthorised entry onto private premises
Thus, evidence had been improperly obtained and hence, inadmissible. Mr C’s conviction was
quashed.
Goldie v Commonwealth: (LG page 71)
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Decision-maker who, seemingly acted without the requisite power
For rule of law to be maintained, we must insist that those who exercise coercive power
show valid justification for their actions
This illustrates how particular statutory provisions may become enlivened where a decision
maker reaches/has a particular state of mind
Immigration officer purported to detain a person because they knew/reasonably suspected
that said person was an unlawful non-citizen (a non-citizen lacking a passport/visa)
Had the immigration official lawfully exercised their powers of arrest and admin detention?
Or was decision to arrest and detain unauthorised?
In the latter circumstance, Goldie would have been falsely imprisoned
State of mind provision can be satisfied by reliance on relevant material to sustain belief,
otherwise the suspicion is unreasonable, the exercise of power unauthorised and ultra vires:
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On the facts, Fed Court found the official had relied on incorrect and outdated computer
records -> relevant file information held about Goldie had been ignored -> followed
therefore that immigration official’s suspicion was not reasonably held
Statutory powers may be conditional upon a decision maker attaining a particular state of mind as
pre-requisite of a lawful exercise of power. (state of mind or formation of a belief)
Section 189 of the Migration Act -> permits the administrative detention of non-citizen, potentially
for prolonged and indefinite periods -> relevant power considered in Goldie
O’Reilly Case v Commissioner for the Bank of Victoria: (leading case of unlawful delegation)
Was this sub-delegation lawful?
HCA recognised the principle of practical administrative necessity (‘Carltona principle’).
This was a case about statutory construction. HCA was prepared, effectively, to imply a power to
sub-delegate, pursuant to a written, formal authorisation
Tickner v Chapman (Hindmarsh Island case) (1995) 57 FCR 451 -> LG 76-78
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Case concerns admin decision to promote and protect aboriginal heritage
Specifically concerns the exercise of a declaratory power to prohibit construction activities in
the area of Hindmarsh island
It turned on whether relevant notice provisions had been complied with
Minister had failed to consider relevant considerations
Extended Ultra Vires
Wednesbury case:
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W set conditions for APPH for use of a cinema on a Sunday
Relevant act was the Cinematographic Act of 1909 -> enabled relevant public bodies to grant
licenses subject to conditions the authorities deem fit to impose
W saw fit to grant a license to the plaintiffs in this case, subject to the condition that kids
under the age of 15 shouldn’t be admitted to Sunday performances
Court had to consider, in JR proceedings, whether this condition was an abuse of power
(unreasonable exercise of discretionary power)
A decision would be tainted if the decision maker gave regard to irrelevant considerations
ADMIN LAW LECTURE 6
Meaning of Error of Law is different when you look at it through Common Law or through the JR
statute (ADJRA).
As with earlier lecture, the concept of Jurisdictional Error has not been exhaustively defined by the
court. Note: Course materials can guide as to the meaning, but cannot provide definitive meaning
because the HCA has deliberately left it open to give itself flexibility going forward, giving the
concept room to evolve and/or enlarge
Ordinarily questions of fact are not before the court in judicial review -> Limited exceptions such as
Jurisdictional fact error -> Plaintiff M70
Jurisdictional error
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Common Law (Craig v South Australia)
Australian Constitution (s75(5))
Legal consequences of a jurisdictional error -> for the purposes of obtaining a remedy at common
law or under the constitution
ADJRA 1977 ss5(1) and 5(2) -> codified grounds for review from APPH v Wednesbury
Minister for Immigration v Lee -> important case because it’s the HCA’s view on how Wednesbury is
to be applied here in Australia
Minister for Immigration v Lee
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Looks at the meaning of unreasonableness in a broad sense as a concept capable of
encompassing different types of reasoning errors by an administrative decision maker, but
not only does Wednesbury incorporate missteps in reasoning, it can also refer to a decision
that is absurd.
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So even where a reviewing court cannot detect an error of reasoning, it might still find that
the decision that is perverse/absurd unfathomable.
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Majority in this case are not quite able to identify how the Migration Review Tribunal erred,
but they’ve said it could be one of these two ways, but whichever it is, the outcome is
absurd and that [the failure to adjourn, in this case] is an unreasonable decision
Error of law (in common law) has a narrower application than it does as per s(5)(1)(f) and s6(1)(f) of
the ADJRA
Historically, prerogative writs (certiorari etc) were used to correct legal errors (errors of law on the
face of the record or jurisdictional errors made by inferior courts). It enabled superior courts to
quash a decision that was tainted or to restrain an inferior court from exceeding its jurisdiction.
What do we mean by “error of law on the face of the record? What is the record?
Kirk’s case -> helps to understand what is mean by error of law on the face of the record
Kirk v Industrial Court of NSW
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HCA was reviewing the decisions made by the Industrial Court of NSW
Decision by IC was responsible for the criminal prosecution of an employer under the
Occupational Health and Safety Act
Said decision appealed to HCA
HCA exercised its appellate jurisdiction (as per s73 of the constitution)
2 Questions before the HCA in this case:
1) Had the IC misconstrued the Occupational Health and Safety Act? [Statutory
Misconstruction]
2) Had the IC Mis stepped in its application of evidential rules?
On the facts, the person accused of a particular crime had been permitted to give evidence on behalf
of the prosecution.
HCA determined that there had been both an error of law on the face of the record and a
jurisdictional error. They granted remedies and relief on that basis.
Here, decision in lower court (IC) was quashed by superior court (HCA) as per its power under s73 of
the constitution.
Historically, the record did not include the reasons underpinning a decision. An expansive reading of
the meaning of “record” was rejected in Craig v South Australia as well.
HCA [in Kirk]: (paragraph [18])
“The conclusion that the record of court does include its reasons confines the availability of
certiorari.” -> what does this mean?
At common law, this means that the decisions of inferior courts and tribunals are treated as final and
conclusive unless there is an error of law on the face of the record or, in the alternative, decisions of
inferior courts and tribunals are treated as final and conclusive unless it can be argued that there is a
jurisdictional error.
This requirement that the error of law be on the face of the record is NOT a requirement under the
ADJRA -> what does this mean?
In terms of JR over administrative action, this means that the whole of the administrative decision
makers record including their reasons can be called up by the court engaging in JR. It increases the
litigants’ prospects of identifying a relevant legal error (specifically reasoning errors)
Section 5(1)(f) and Section 6(1)(f) are frequently invoked/commonly employed ground for review. ->
what does this mean?
It tends to cover situations where there is an allegation that the decision maker has misconstrued a
statutory provision (a word or a phrase). So, error of law tends to reflect grievances around the
administrative decision maker’s interpretation of a statutory provision or where there has been a
violation of some established legal principle
What does “a violation of an established legal principle” mean?
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It might mean that the administrator has applied the wrong standard of proof; or
Erroneously imposed a legal onus on one party
Distinction between questions of fact and questions of law and interrogate the proposition that,
ordinarily, the courts are not engaged in reviewing fact finding errors.
This distinction drawn between legal and factual errors means typically that error made at the factfinding stage of administration are not ordinarily are not ordinarily susceptible to JR.
Brennan J in Waterford v Commonwealth:
“There is no error of law in making a wrong finding of fact in the course of reaching a final or
ultimate administrative decision”
Following the decision in Australian Broadcasting Corporation v Bond, Mason J noted that generally
findings of fact and inferences of fact were not reviewable under the ADJRA unless the error of fact
could properly be regarded as an error of law.
There are two ways that errors of fact might be reviewable therefore under the ADJRA. Specifically,
if an error of fact can properly be characterised as an error of law, that admits the possibility of
review under s5(1)(f). Alternatively, it may be that a particularly grave factual error may be
reviewable under s5(1)(h).
So, in terms of our understanding of the ADJRA, we have to understand that the general proposition
that fact finding is not ordinarily reviewable is subject to these 2 qualifications.
Certain facts may be reviewable as errors of law.
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Where there is a complete absence of evidence to support an essential factual finding
(Stevedoring case)
Where there is no evidence (s5(1)(h), s6(1)(h) and amplified in s5(3))
Queen v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co
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HCA considered whether particular facts existed that were preconditions of the valid
exercise of power by the Industry Board
IB had statutory powers to cancel/suspend a company’s registration as an employer of
stevedore workers if (and only if) they were satisfied with the following:
1) That the employer was unfit to continue to be registered; or
2) Alternatively, the employer had acted improperly in such a manner whereby the
performance of stevedoring operations had been interfered with
In this particular matter the IB had received a complaint against the Melbourne company and
commenced an enquiry into the fitness an propriety the Melbourne Stevedoring company,
potentially with a view to exercising their coercive statutory powers
But the HCA intervened and restrained the actions of the IB through the writ of prohibition (a
restraining order) to restrain the board from continuing with its enquiries into the fitness and
propriety of the Melbourne stevedoring company. -> why?
There was no material/evidence before the board that enlivened their coercive powers under the
Stevedoring Industry Act. Simply, there was no case that existed on the facts for the exercise of their
statutory powers in relation to the Melbourne Stevedoring company.
The statutory test in s5(3)(a) is whether there was no evidence from which the decision maker could
be reasonably satisfied a particular matter was established.
This stat test appears even more easier to satisfy than the common law test -> The stat test asks not
whether there was a complete absence of evidence/material to support essential factual findings
but rather whether there was no evidence from which a decision maker could be reasonably
satisfied a fact was established.
So under this stat test, it may be that there were some albeit meagre evidence to support a factual
finding. But adopting s5(3)(a), a JR in court might find that there was insufficient evidence and that
the decision maker could not therefore reach the requisite state of reasonable satisfaction.
Section 5(3)(b), by contrast, is a harder hurdle for litigants to overcome. Section 5(3)(b) applies to a
broader range of factual findings than s5(3)(a). That is to say, it applies to factual findings other than
those that are essential prerequisites for the lawful exercise of the particular statutory power. But
the particular findings of fact must be critical to the decision that has been made and a litigant must
establish that the fact relied on/upon did not exist
Plaintiff M70 -> ‘Malaysian Declaration’ case
Anisminic v Foreign Compensation Commission
House of Lords, in this case, identified a broader conception of jurisdictional error. They treated
jurisdictional error as a malleable concept
FCC was the administrative body in Anisminic
FCC had the authority to adjudicate compensation claims by British companies who had property
confiscated abroad.
In this case, Anisminic, a British company, was seeking compensation for damage done to their
mining property during the Israel-Egypt conflict in the 1950s.
The decisions made by the FCC were protected by a privative clause. Said decisions were not to be
questioned/reviewed by any court (according to the privative clause)
Jurisdictional Error, if found, makes the decision null. Nullity means the decision never existed. This
circumvents the privative clause as if the decision never existed (according to law) the privative
clause has no decision to work on.
In Anisminic, there was an alleged statutory misinterpretation
HoL found that upon a proper construction of the legislation in question, the Foreign Compensation
Act, the FCC has erred by making enquiries they had no right to make. They had taken into account,
ultimately based their decision on, irrelevant considerations. HoL said that the FCC has misconstrued
the legislation on which their jurisdiction depended
Anisminic destroyed the distinction between jurisdictional and non-jurisdictional errors (IN THE UK).
All legal errors were “jurisdictional”. THIS IS NOT THE POSITION IN AUSTRALIA
Craig v South Australia
-
An error of law was not a jurisdictional error
Therefore, JR should not have resulted in the quashing of the judge’s order
HCA did affirm the rationale of Anisminic with respect of the broader notion of jurisdictional error as
it applies to administrative bodies. But it maintained a narrower meaning and operation with respect
to judicial bodies
Commonwealth Law Reports (CLR) [185] -> 1995 case (Craig) -> Page 176 -> HCA explains when an
inferior court falls into jurisdictional error and how that is different from administrative bodies
Plaintiff S157
HCA held that a purported decision of the Refugee Review Tribunal, which had involved a failure to
accord natural justice to a refugee claimant was not a decision protected by the privative clause
because the nature of the error was so grave. The breach of natural justice was a fundamental error
and hence was characterised as a jurisdictional error. Hence the decision was a nullity in law.
ADMIN LAW LECTURE 7
Recap on course so far
Review under Part 3 AND Right to reasons under Part 4 of the JR act have equivalent provisions in
the ADJRA
Part 5 of the JRA has no equivalent in the ADJRA
Part 5 of the JRA (the Qld Act) is trying to bring in the traditional remedies
Traditional remedies:
-
Common Law (Constitutional Writs -> formerly the prerogative writs -> mandamus,
prohibition and/or certiorari)
Equitable remedies (declarations and injunctions)
Whereas the ADJRA does not deal with the traditional remedies. Instead,
The ADJRA provides
-
Statutory orders for review
What do you have to show the court before the court agrees that it has jurisdiction to hear your
application for JR?
Multiple Remedies available:
-
Remedies available under the act
Remedies available under common law
Multiple Sources of jurisdiction:
-
Statutory judicial review schemes
Constitution s75(v)
Judiciary Act s39(b)
Inherent Jurisdiction of the State Supreme Court in Qld (to issue declarations and injunctions
etc)
Currently, the state of affairs it to raise the grounds of review and “suggest”/recommend/ask for the
required remedy
Applicants can seek review under:
-
The ADJRA itself (statutory orders for review if you can make out a reviewable ground)
Traditional remedies (Common Law and Equitable – refer to above)
Or apply for both combined
Essentially, the implementation of the ADJRA was seen as being successful, in terms of making more
JR more available, enhancing accountability on the part of the admin branch of government
18 different ways in which a decision maker can go wrong, in a sense of making a legal error a
reviewable error. -> said 18 ways covered in ADJRA s5 (decisions) and s6 (conduct) -> JRA s20
(decision) and s6 (conduct)
Note:
ADJRA s5 -> standing requirement (locus standi) -> need to be in a specific relationship with the
decision such that you are sufficiently affected by it -> “aggrieved by a decision”
JRA s16(1) -> just because similar provisions in ADJRA and JR are worded slightly differently (highly
likely due to different legislative drafting practices) said similar provisions are not to be
construed/interpreted differently
JRA s16(2) -> comparative table of similar provisions in JRA and ADJRA
JRA:
Review ot be done by SC
4 possibilities to seek review (as opposed to the 3 possibilities in the ADJRA)
-
Part 3 of the JRA (statutory order of review)
Part 5 of the JRA (prerogative orders)
Combining Part 3/Part 5 -> potentially able to receive both orders
Traditional Equitable remedy (SC’s inherent jurisdiction)
Section 7 and Section 22 only applies if there was a duty to make a decision
Meaning of “decision to which this act applies” -> section 4 of the JRA
Section 4 requirements only apply to part 3. Part 5 review does not have any of these jurisdictional
requirements
Neat Domestic Trading
-
Shouldn’t construct/interpret any of these provisions without reference to the others (i.e.
should not be construed in isolation)
No specific definition in either JRA or ADJRA of “a decision of administrative character”
Sections 5 (a list of things that qualify as a decision) and 6 of the JRA (the equivalent in ADJRA is s3(2)
and s3(3))
ADMIN LAW LECTURE 9
Ss20-22 in the JRA = ss5-7 in the ADJRA
JRA:
“decision to which this act applies” -> s4
Section 4(a) -> decisions made under an enactment
Section 4(b) -> decisions made under non-statutory schemes
ADJRA
“decision to which this act applies” -> s3(1)
No further definition of “decision of an administrative character” in both the JRA and ADJRA
Neat Domestic Trading
-
Shouldn’t construct/interpret any of these provisions without reference to the others (i.e.
should not be construed in isolation)
Understand these provisions as interrelated
The meaning of any one should inform our understanding of the meaning of the other
“these provisions” -> “decision”, “administrative character” or “under an enactment”
Case law does say that it is possible for a decision to be of both administrative and legislative
character at the same time.
Whether a decision is of administrative character and therefore reviewable under the ADJRA/Part 3
of the JRA -> is it administrative as opposed to legislative/judicial?
Vast majority of cases -> the decision will one of the 3 only (administrative/legislative/judicial)
Focus on the character of the decision, not the subject matter of the decision -> Evans v Frieman
Although the status of the decision maker is relevant, it is not conclusive in determining if the
decision is of administrative character. -> Owen v Menzies
QCAT is a court -> Owen v Menzies
QCAT, apart from MR, does settle minor civil disputes. In doing so, it acts like a court. But that does
not mean that every decision made by QCAT is of a judicial nature. QCAT makes administrative
decisions as well
Making new laws and changing new laws -> Legislative decisions
Binding decisions -> conclusive, legally authoritative determinations about the legal rights and
obligations of the parties before the court -> Judicial decisions
Administrative decisions also apply legal rules to particular cases to come to results. But what they
don’t do is lay down authoritative legal conclusions that are binding on the parties and spell out
their legal rights and obligations
Legislative decision is constructing a statutory scheme. Administrative decision is how to
execute/administer that scheme.
Resort Management Services Ltd v Noosa Shire Council
Noosa shire council proposed amendment to town plan
◦
L, A, or J?

Answer: Administrative
That’s because the Shire Council is not actually changing the law. What is present on the fact is not a
change to the law, but a proposal to change the law. That was considered to be a part of what the
NSC was doing when it was administering the town plan.
Court said that administering the town plan involves looking for ways in which it might be changed
and proposing changes
Aerolineas Argentinas v Federal Airports Corporation
Federal Airports Corporation decides to impose charge on all aircraft using certain airports, to cover
security costs
◦
L, A, or J?

Answer: Administrative
Court found the decision to be administrative largely because of the extent of executive control over
the decision to impose the charge.
Minister for Industry and Commerce v Tooheys Limited
Ministerial decision regarding entry of particular goods
These decisions referred to as ‘bylaws’
◦
L, A, or J?

Answer: Administrative
Regardless of the term “bylaws”, there was no making or changing of new law. Only application of
law was happening
Queensland Medical Laboratory v Blewett
Ministerial decision to amend schedule to Health Insurance Act; ie, decision to adopt a new schedule
of medical fees
◦
L, A, or J?

Answer: Legislative
Schedule was amended -> changing of laws -> thus, legislative decision
LEGISLATIVE DECISIONS
◦
Indicia:
(See RG Capital Radio; and Schwennesen)

the decision in question determined the content of a general rule;

the decision was subject to parliamentary control;

the decision was not subject to executive variation or control; and

there was an absence of merits review in respect of the decision
(See Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee)

the decision determines the future lawfulness of conduct;

public consultation was an important element in the process leading to the
decision; and

the decision was an important part of a national system of controls designed
to ensure a uniform approach by the Commonwealth, states and territories

The decision changes the law
(Blewett)

[Contrast steps preparatory to the changing of the law (generally
administrative – Resort Management v Noosa Shire Council)]
Section 4(b) has not been successfully argued in Qld. Its utility is suspect.
End of 1st half
It is not enough to be able to say that the decision can ultimately be traced back to some enactment,
as there is a high likelihood that there will one/some enactment that will be related. Some more is
required.
What other sources of power authorize executive decision making?
-
Prerogative powers (residual powers of the Crown)
Constitutional powers (s61 of the Constitution)
Decisions made under these 2 sources of power are not reviewable under the ADJRA/Part 3 of the
JRA
JUDICIAL REVIEW ACT
Section 3
“enactment” means an Act or statutory instrument, and includes a part of an Act or statutory
instrument…
Acts Interpretation Act 1954 (Qld)
Section 36
In an Act …
“statutory instrument” has the meaning given by the Statutory Instruments Act 1992.
Statutory Instruments Act 1992
Section 7 - Meaning of “statutory instrument”
(1)
A “statutory instrument” is an instrument that satisfies subsections (2) and (3).
(2)
The instrument must be made under—
(a)
an Act; or
(b)
another statutory instrument; or
(c)
power conferred by an Act or statutory instrument and also under power conferred
otherwise by law.
Example of paragraph (c)—
An instrument made partly under an express or implied statutory power and partly under the Royal
Prerogative.
(3) The instrument must be of 1 of the following types—

a regulation

an order in council

a rule

a local law

a by-law

an ordinance

a subordinate local law

a statute

a proclamation

a notification of a public nature

a standard of a public nature

a guideline of a public nature

another instrument of a public nature by which the entity making the instrument
unilaterally affects a right or liability of another entity.

Dismissal of university lecturer

“[I]mmediate or proximate source of the power to make the decision?”
◦

ie, “direct” link between decision and enactment
Held: Decision was made under the contract of employment, not “under an enactment”
Australian National University v Burns
Dismissal of university lecturer
Employment could be terminated on grounds of “permanent incapacity”, as specified in his
employment contract. Prof Burns was very ill when ANU decided to terminate his employment.
“[I]mmediate or proximate source of the power to make the decision?” -> test to see if decision was
made under an enactment.
◦

ie, “direct” link between decision and enactment
Held: Decision was made under the contract of employment, not “under an enactment”
Hawker Pacific Pty Ltd v Freeland
Government department decision to enter into contract for purchase of aircraft
No express provision setting out a power to contract (same test applied in Berkeley)

Held: Decision to enter contract not “under an enactment” but rather under/via executive
power
Australian Capital Territory Health Authority v Berkeley Cleaning Group Pty Ltd
Test in Hawker Pacific applied.
Contract awarded after tender process
Express statutory provision setting out the general power to contract (distinguishing from
Hawker Pacific)

Held: Decision to enter contract was under an enactment
HCA in Tang, expressly disapproved of the decision in Berkeley. The Berkeley decision appears to be
not good law today.
Griffith University v Tang
Decision was not made under Griffith Uni Act
Decision was not made under subordinate legislation made by the university council
Decision was made in line with policies implemented by the Academic Committee
Although, the AC was made because of provisions in the act, the connection between the decision
and the enactment is not sufficient enough

Test for “under an enactment”
◦
Gleeson CJ:

◦
Does the decision derive its force or effect from the enactment?
Joint judgement:

1) Is the decision expressly or impliedly required or authorised by the
enactment?
Note: 4 possible combinations
-
Expressly required
Impliedly required
Expressly authorised
Impliedly authorised
Any of the combinations will do. Not need for all for to be satisfied.

2) Does the decision itself confer, alter or otherwise affect legal rights or
obligations?
Both 1) and 2) have to be satisfied for there to be a decision under an enactment
(“…and in that sense the decision must derive from the
enactment”)

The decisions of the University committees “had no impact upon matters to
which the University Act gave legal force and effect.”
Contract terms affect the right and liabilities of the parties, not the decision to enter into them.
ADMIN LAW LECTURE WEEK 10
Anghel v Minister for Transport
Scope of s4(b) JRA -> what qualifies as a non-statutory scheme/program?
Important because if what you are seeking to review is not a decision under an enactment, you can
still seek Part 3 review under the JRA if you can show it is a decision made under a scheme/program.
Derrington J held in Anghel that “scheme/program” does not have to be continuous/ongoing. It can
be a one-off project.
If this is the case, why was the applicant unsuccessful? Derrington J was prepared to find that there
was a decision under a non-statutory scheme/program. Applicant’s case failed on the merits. When
it came to showing a reviewable ground of error, the applicant wasn’t able to do so.
Standing – only the most appropriate person can commence proceedings
Whether a party has standing depends on the court’s view of the connection between that party’s
interest and the subject matter of the dispute -> where do you stand in relation to the decision
under review?
Question of standing takes priority over question of whether “decision was of administrative
character”.
Brennan J in McHatten v Collector of Customs (1977)
“A decision which affects the interests of one person directly may affect the interests of others
indirectly. Across the pool of ( ) interests, the ripples of affection may widely extend. The problem
which is inherent in the language of the statute is the determination of the point beyond which the
affection of interests by a decision should be regarded as too remote.
Clear personal interest -> best fulfilment of standing
Mackay conservation group v
(the Adani Carmichael coal mine case)
-
Project approved by the Federal Environment Minister in July 2014
Mackay conservation group (“M”) challenged the decision to go ahead with the contract
M was successful in their challenge
On what grounds? Why did M have standing?
It was argued that the Federal Minister did not have regard to an approved conservational advice
regarding the impact of the development on this particular listed species (the lizard on the slide and
something known as the ornamental snake)
Minister did not have regard to the advice he needed to look at under the Environment Protection
and Biodiversity Conservation Act (“EPBCA”).
M had standing BECAUSE s487 of the Environment Protection and Biodiversity Conservation Act
specifically provides for it. Ordinarily, without s487, because it was so removed and concentrated
only in Qld, it would have had standing
Note: Individual statutes can alter the question of who has standing to review certain decisions
Here, s487 expands the scope of bodies/parties that can seek review of decisions made under the
EPBCA
Bill to amend (remove) s487 form the EPBCA did not pass, it lapsed. Thus, s487 is still operational.
The test of standing will vary slightly depending on the remedy sought.
Public right -> right conferred on the public at large
Private right -> right conferred on to an individual
Why is it important to make the distinction between public and private rights?
As a general rule, where a public right is at stake, it is for the Attorney-General (“AG”) to seek to
vindicate/protect that public right. The AG has unquestioned standing.
Exceptions to this general rule (as in Boyce v Paddington Borough Council)
-
If a private right is also affected along with the public right
‘Special damage’ -> Even if no private right is affected, one can sue without power from the
AG if he/she suffered special damage in respect of the public right
“a plaintiff can sue without joining the AG….
ACF v Commonwealth
-
-
A tourist development -> resort
Australian Conservation Foundation (“ACF”) challenged the decision to proceed with the
construction of the resort on the grounds that there was a failure to comply to the
Environmental Protection Impact Proposals Act
ACF was found not to have standing
Special Damage test from Boyce gets recast as Special Interest test
-
Gibbs J -> special damage cannot be limited to actual pecuniary/financial loss. Furthermore,
the words “peculiar to himself”, as in Boyce, DO NOT MEAN that the only the plaintiff (and
no one else) is to have suffered the damage. The expression “special damage peculiar to
himself” should be regarded as equivalent to meaning having a special interest in the subject
matter of the action
-
‘Special interest’ test: (as per Gibbs J)
o
Interest greater than “that which any member of the public has in upholding the
law”
o
More than a “mere emotional or intellectual concern”
This why ACF fails. Court found that ACF had a mere emotional/intellectual concern
If the AG does so on their own accord (commence actions regarding a public right) -> Ex Officio
If AG provides their assent/consent to another party to proceed in their name -> the party given the
AG’s permission is a Relator, who is now able to bring the claim (which they otherwise would not
have had the standing to do)
As a Relator, you are an agent of the AG and the AG retains control over the litigation. AG could
bring the litigation to and end at any moment.
“At the present day, it may be somewhat visionary for citizens in this country to suppose that they
may rely upon the grant of the Attorney-General’s fiat for protection against ultra vires action of
statutory bodies for the administration of which a ministerial colleague is responsible.” – Bateman’s
Bay (Gaudron, Gummow, Kirby JJ)
Why is it visionary to expect the AG to perform this role zealously?
Conflict of interest
Onus v Alcoa
Alcoa is a private organization that will be running the aluminium smelter
Applicants in this case are 2 members of an indigenous group, who are alleging that the construction
of the aluminium smelter is going to violate a particular piece of legislation (Archaeological and
Aboriginal Relics Preservation Act)
The act prohibits the destruction of relics and its alleged that the construction of the smelter is going
to destroy many aboriginal relics found in the area. Relics which the applicants say have great
meaning to them
Initial question before the court is “is there a private right at stake?”. If the act confers on these
applicants a private right that is potentially violated by the decision, then there is no issue with
standing. Court concludes that this is not the case
Thus, the applicants are seeking to vindicate a public interest. Here, the court needs to ask “are they
applicants with standing?” in light of them having a special interest in the subject matter of the
decision. The court finds in favour of the applicants (they do have standing).
Why? (considering ACF was found not have standing)
Court’s view that the connection in Alcoa, between the interests of the applicants and the subject
matter of the dispute is more proximate and the importance of the concern/interest at stake has
more weight -> Because relics are of cultural/traditional value -> relics were used to teach younger
members of the indigenous group about their culture -> thus, this is more than an emotional and/or
intellectual concern -> thus they have a greater interest in the subject matter of the decision that
ACF did in their case
Note:
Animals’ Angels v Secretary, Department of Agriculture (2014) 228 FCR 35 at [121]:
“standing requires a sufficient interest, not one which is a unique interest or the strongest interest
compared with others who may have an interest.”
ADJRA
Section 5 -> “aggrieved by decision”
Section 6 -> “aggrieved by conduct”
Section 7 -> “aggrieved by failure to decide”
What does it mean to be “aggrieved”? -> section 3(4) -> “person whose interests are adversely
affected”
-
By the decision (section 3(4)(a))
By the conduct/failure (section 3(4(b))
Sections 5 and 6 of the ADJRA is mirrored onto ss20 and 21 of the JRA respectively
Section 3(4) of the ADJRA is mirrored onto s7 of the JRA
Broadbridge v Stammers
-
-
Closure of postal office
Postal employee was not to lose his job, but it was suggested that he be transferred to
another location far away from where he currently resided (near the postal office to be
closed down)
Court deemed that postal employee had standing because
He was directly and immediately affected
He had more interest than an ordinary member of the public regarding the closure of the
post office
Convergence between the test for standing for equitable remedies (declarations and injunctions)
and the test for standing where the applicant is seeking judicial review pursuant to statutes
Before Argos, it was relatively unclear where and to what extent these tests converged.
In Argos, HCA assented/consented that the test have converged
“there is a measure of broad agreement as to locus standi both for legal and equitable remedies in
public law. In that situation, it would be strange result if the ADJRA posited (replaced) by the concept
of a person aggrieved, some narrower criteria. It also has to be borne in mind that the ADJRA is
ambulatory in its operations, essentially remedial and draws within its scope a diverse and extensive
collection of decision making processes.” -> too strict criteria will undermine the act
Gummow J in Australian Institute of Marine and Power Engineers v Secretary, Department of
Transport (“Marine Engineers case”)
Argos:
-
-
Revolves around a decision that is made to develop land for the purpose of constructing a
shopping centre in Canberra
3 applicants
First 2 applicants were business in an adjacent shopping centre (argument was that they had
a direct financial/commercial/business interest here)
If the construction of the shopping centre proceeded, it would be likely that their income
will decrease because of the competition
3 applicant was a landlord that rented commercial space in the adjacent shopping centre
First 2 applicants found to have standing in light of their business interests.
3rd applicant did not have standing because the potential effect on his interest was too
speculative/too remote -> the possibility of his tenants going out of business and them not being
able to pay the rent, the potential inability to find new tenants -> all his concerns are not definitive->
“might” is not direct/sufficient enough
ACF v Minister for Resources [2nd ACF case]
-
Decision to grant a company a license to export woodchips
It was challenged on the ground that the decision violated a provision in s30 of the
Australian Heritage Commission Act
ACF, this time, is successful in meeting standing requirements
Why are they successful here? (when they failed in the previous case)
-
In this case, the ACF has a purpose which is directly related to the subject matter of the
decision
that is, the ACF is concerned with the conservation of the environment in Australia. The
exportation of woodchips involves logging (processing of raw timber into woodchips). This
activity is counter-productive to what the ACF wants to protect
-
It was found that part of ACF’s purpose was “to reconcile the use and exploitation of
resources with the conservation of the natural environment”
Davies J -> public perception has changed -> community values which Steven J said were relevant in
Alcoa have changed an evolved since the first ACF case
North Coast Environmental Council (1994)
NCEC is a smaller body than the ACF
Is a regional body as opposed to the ACF
Has lesser government funding than the ACF
However, NCEC is deemed to have standing
Sackville J focuses on whether NCEC is a ‘peak’ body
‘peak’ -> one that is national in scope and has this umbrella structure. Nonetheless, NCEC was found
to be a peak body because of the government recognition awarded to North Coast
Save the Ridge (2004)
◦
Crispin J

Criticises Chesterman J’s approach in North Queensland
Too liberal to say that you have standing because your application would not be an abuse of process
-> Crispin J
Right to Life (1995)
The issue was whether the Right to Life organisation had any standing
Right to Life were an anti-abortion group who sought challenge a decision to allow the importation,
into Australia, of the Morning After Pill for the purposes of clinical trials
◦
Lockhart J: government recognition not “a factor of any real significance”
◦
Consider how government recognition was important in North Coast; the decision in
this case casts some doubt on how relevant the factor of government recognition
really is.
ADMIN LAW LECTURE 11
Right to reasons -> right to request reasons -> decision maker does not have to automatically
provide reasons -> why? -> balance between:
-
Administrative efficiency
Concerns with fairness and transparency
It might also be that internal merits review is available
ADJRA -> s13
JRA (Part 4) -> s32 -> definition of “decision to which this part applies” (in s32) is found in s31
 s33(4)(a) -> application for reasons have to be made within 28 days of notified of the
outcome/decision made
 s33(1) -> decision maker has to provide reasons within 28 days of the receipt of the
application for reasons
o
DM may give notice it believes the requester is not entitled to reasons (s
33(2)(a))
o
DM can seek an order under s 39 that it applicant is not entitled to reasons
Reasons:
-
Allows an understanding of why the decision was made
Transparency allows for an increase in public confidence
Public can be confident that decision was neutral/unbiased
Make an informed decision about appeal/JR
-
Increased likelihood of better decisions at first instance when decision makers are aware
that their decisions could come under scrutiny
Content of ‘written statement’
-
-
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500
o
findings on material questions of fact;
o
reference to the evidence or other material on which the findings were based;
o
DM’s understanding of the relevant law
o
Application of the law to the facts
Length? Context dependent.
Exceptions
s 35
-
“relates to the personal affairs or business affairs of a person, other than the person making
the request”
“confidential”
s 36
-
contrary to the public interest (at the discretion of the AG, who has to certify that reasons
for decisions are contrary to public interest)
s 37
◦
“false or misleading”
Costs—application for reasons for decision
50 On an application to the court under part 4 in which the respondent to the application is
the person to whom a request was made under section 32 for a statement in relation to a
decision, the court—
…
(b) may only order that the applicant pay the costs of the
respondent—
(i) if the applicant is wholly unsuccessful in obtaining the
relief sought; and
(ii) if the application—
(A) does not disclose a reasonable basis; or
(B) is frivolous or vexatious; or
(C) is an abuse of the process of the court.
Costs will only be ordered against you if you satisfy (b)(i) and at least one of (ii)(A), (B) or (C)
Discovery/Disclosure -> procedures in civil litigation -> discover information in the possession of
other parties to the litigation
FOI request -> request under a legislation (Freedom of Information Act; Right to Information Act) ->
allows you access information in the possession of, for the most part, public/governmental bodies ->
minor exception at federal level (independent contracts that are in certain contracts with the Cth
government)
Disadvantage of making a request for reasons pursuant to Part 4 of the JRA is that access to the raw
evidence is not available. However, if no reasons provided, right to reasons compel decision maker
to provide reasons which may not have existed until that point
Right to reasons and FOI requests can be complimentary by cross referencing reasons
provided/evidence referenced to in right to reasons with raw evidence provided in FOI requests ->
may help identify grounds for JR (improper exercise of power/ irrelevant considerations etc)
Time limits for judicial review
Part 3

Written notice of decision given?
◦
If so, s 26(1), (2), and (5) apply
◦
If not, s 26(3) and (4) apply


Ie, ‘reasonable time’ -> court will judge what counts as a reasonable time
Period within which application must be made
26 (1) An application to the court for a statutory order of review in relation to a decision that
has been made and the terms of which were recorded in writing and set out in a document
that was given to the applicant (including a decision that a person purported to make after
the end of the period within which it was required to be made) must be made within—
(a) the period required by subsection (2); or
(b) such further time as the court (whether before or
required period) allows.
after the end of that
(2) The period within which an application for a statutory order of review is required to be
made is the period beginning on the day on which the decision is made and ending 28 days
after the relevant day.
26(5) -> 28 day time limit may not necessarily start on the day the decision was made. But it could
start on the day notice was given (notice for reasons, notice that applicant is not eligible to receive
reasons etc)
Related case: Hoffman
Factors the court will consider when determining if its justifiable why an applicant has applied
outside the time limit of 28 days:
-
What is fair and equitable in the circumstances (according to Hoffman)
Is any prejudice occasioned to the decision-maker?
Is it unfair to the decision maker in particular?
Is it in the public interest?
Merits of a substantial application for review itself
-
ADJR Act: Schedule 1
Exclusions from judicial review
JR Act: Schedule 1 (Parts 1 and 2)
s 18(2):
… this Act does not—
(a) affect the operation of an enactment mentioned in schedule 1, part 1; or
(b) apply to decisions made, proposed to be made, or
enactment mentioned in
schedule 1, part 2.
required to be made, under an
Schedule 1, part 1 -> “enactments that provide for non-review or limited review of decisions” -> JR
does not affect the operation of those acts. If in those acts, there are some ouster/privative clauses
which prevent the courts from conducting JR on certain decisions JRA does not disable those ouster
clauses
Schedule 1, part 2 -> “enactments to which the act does not apply” -> lists a whole series of acts and
if a decision is made under one of those acts, that decision is not reviewable
Section 11 JRA -> if JR application made along with another application, Court will dismiss other
application
Section 12 JRA -> if you have sought review under Part 3 or Part 5, the SC can dismiss an application
for JR, if you have sought/could seek review via some other means
Section 13 JRA -> language has changed from permissive to mandatory -> “must”
Section 48(1) -> court has the power to summarily dismiss if any of factors mentioned in the
subsections are true
Section 49(1)(d) seems more advantageous than s49(e)
S49(1)(d) -> costs indemnified are only those from the date of the order
S49(2) -> factors to consider in determining costs
“any person associated” -> can include person who has become a party to the case via a joinder
ADMIN LAW LECTURE WEEK 12
ADJRA s16 is the equivalent of JRA s30
JRA s41(1) -> Prerogative writs (mandamus, certiorari and prohibition) are no longer to be issued by
the court
JRA s41(2) -> court can grant relief/remedy which has the same nature and effect as mandamus,
prohibition and certiorari -> ONLY if a prerogative writ would have been available to your case in a
time where the JRA had yet to be passed
Why is this so?
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Simplifies the procedures in procuring the writs but still provides the same relief that writs
provided at common law
Writs are documents issued in the name of and with the authority of the Crown
Certiorari -> supervise the jurisdiction of lower/inferior courts -> operates on decisions/findings and
reports -> quash and set aside
Prohibition -> remedy that prohibits conduct
Mandamus -> compels a decision to be made in a situation where no decision has been made ->
remedy a situation where a decision maker has failed to exercise a duty to make a decision
Practice is to address the writs as “Constitutional Writs” instead of “Prerogative Writs”.
Why?
Re Refugee Review Tribunal; Ex Parte Aala
The reason is because s75(v) of the constitution explicitly confers on the HCA the original jurisdiction
to hear matters where what is sought is prohibition, mandamus or injunction against an officer of
the commonwealth. Certiorari is not explicitly mention in s75(v). Nonetheless, HCA considers itself
to have jurisdiction to grant certiorari in cases where its ancillary (providing support) to the
operation of another writ.
E.g. Having to quash a decision before issuing mandamus to compel a fresh decision to be made
Federal Court of Australia (FCA) has the same jurisdiction to grant these writs -> s39B Judiciary Act ->
s39B confers original jurisdiction on the Federal Court in matter where prohibition, mandamus or
injunction against an officer of the commonwealth is sought.
How do we distinguish between “inferior courts of record” and “superior courts of record”?
The jurisdiction of the DM is found exclusively in the terms of a particular empowering statute. If, so
it is an inferior court and is subject to the writs. -> Queensland District Court, Family Court, Industrial
Court
If the jurisdiction of the DM is a matter of “basic constitutional doctrine” -> superior court -> HCA,
State Supreme Courts
Federal Court is understood to be an inferior court -> its decision can be quashed by certiorari
Atkins LJ’s “formula” in The Electricity Commissioners is of limited utility today. It is not applied as
strictly. Relaxation of these requirements when it comes to the “affecting the rights of subjects”
(Ainsworth), particularly in the availability of prohibition.
Still have to start from here, and progress and talk about how the court’s approach has evolved
Quashing the decision -> nullifying the decision; taking away its legal effect
What is the “record”?
Craig v SA
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Craig (C) was charged in an SA District Court with 3 offences involving a motor vehicle.
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Trial judge ordered that a trial be stayed until legal representation was provided to C
State applied to SC to quash the decision of the district court to issue the stay
HCA held that:
If there was any legal error in this case, it wasn’t a jurisdictional error nor was there an error of law
on the face of the record.
What does this mean for the applicant in their application to have certiorari issued? Certiorari will
not be issued. Need to prove to the court that there has been either a jurisdictional error or a nonjurisdictional error of law on the face of the record,
Hot Holdings Pte Ltd v Creasy
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This case involves the Mining Act of WA which conferred the discretion on the Minister to
grant exploration licenses
Under the stat scheme, the minister was to make a decision to accept/refuse applications
for the licenses
Before doing so, a mining warden was to provide the minister with a report containing a
recommendation on whether to grant/refuse the application
According to the scheme, the warden’s report should address a particular issue in the event
of multiple applications, i.e. which application had priority
Priority was determined by chronology of applications
If multiple applications were made at the same time, a ballot was to be held to determine
who’s application is to be accepted
In this case, 8 applications were lodged within 51 seconds of each other. Warden decides to
conduct ballot
HCA held that:
Certiorari is available to quash the warden’s decision to conduct the ballot
Why is certiorari available here? The decision to conduct the ballot did not in itself affect anyone’s
legal rights. But it was going to result in a particular party having a priority in a application of one of
these licenses. Said priority was going to be conveyed in the report given to the minster. Essentially,
effect of the ballot was going to be hugely consequential to the ultimate decision of who gets the
license
Mandamus not generally granted if there are other remedy that will suffice -> “last resort remedy”
ADMIN LAW FINAL LECTURE
Coco v The Queen
Facts: Mr Coco was convicted of offering to bribe a Commonwealth officer. The conviction hinged
on evidence gleaned from telephone conversations that were tape recorded via a listening device
which was installed by police officers posing as Telcom employees. The police were purportedly
acting in pursuance of an approval granted by a judge under a stature which provided that a judge
could grant approval to ‘use a listening device.’
Issue: Parliament does not intend to interfere with fundamental rights and freedoms unless
expressly stated. Limitations on incidental powers.
Held: The High Court held that the power to approve the use of a listening device did not extend to
approving the installation of a device by unauthorised entry onto private premises.
Lim v Minister of Immigration
“Courts should favour a construction as far as the language of legislation permits that is in
conformity and not in conflict with Australia’s international obligations, some of which are Human
Rights obligations”. -> This is true as a general principle.
BUT
Al-Kateb v Goodwin
There is a presumption here that the legislation is in conformity with Aus’ international obligations
but that presumption can be rebutted. But that presumption can be rebutted by clear words in the
relevant statute -> its only a principle of construction/interpretation. It doesn’t foreclose the
possibility that legislation will allow action that violates Australia’s international human rights
obligations.
Procedural Fairness:
Teoh:
Unincorporated treaty ratified by Aus
Fact that AUs had ratified the treaty gave rise to an expectation that if a decision maker intended to
act inconsistently with the requirements of the convention, then PF would require that the person
affected should be given notice and an adequate opportunity of presenting a case against the taking
of such a course of action -> this does not mean all breach of human rights equates to breach of
procedural fairness -> PF only focuses on the breach of methods/ways in which cases are to
handled/commenced/proceeded with etc; it is not concerned with the substantial
outcome/judgement in the case
HOWEVER
Lam:
Criticised the reasoning in Teoh.
An international convention ratified by the executive branch but never enacted via legislation by the
legislative branch should determine the extent of what PF requires in the circumstances of a
particular case.
The problem with this is that if this were true, then we would be cutting the legislature out of the
picture, which would not be democratic. Essentially, the legislature would not have a say in what
constitutes as PF in the circumstances simply because the executive has decided to ratify a treaty as
opposed to incorporate it into domestic law
Non-justiciability -> certain decisions are not justiciable regardless of their effects
Standing requirements -> even if you are concerned with a decision which affects human rights, you
cannot appeal against it etc if you don’t meet standing requirements -> reducing the number of
people who can commence an action -> reducing the number of cases which the court will hear ->
reduce the number of opportunities for a court to support a human rights claim
Privative clauses -> These exclude JR of certain decisions (some of which we might think violate
human rights)
If executive has used specific language to limit Human Rights in certain aspects via legislation, if the
courts are trying to uphold Human Rights by not giving effect to the clear intention of parliament, it
could be seen/construed that the court has:
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begun to usurp the executive branch’s role in conducting MR because it seems like the
Courts are searching for the correct and preferable outcome
begun to usurp the role of the legislative branch because its not giving effect to the
legislation passed by the legislature which has this particular effect
What’s examinable and what isn’t?
Everything after (and including) Lecture 4 and Tutorial 4 are examinable in the final exam
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Go through diagrams in the LG (summarise all the material covered since week 8)
Is review under PART 3 potentially available?
Relevant sections -> ss20,21 and 22
S20 -> Decision
S21 -> seeking to review conduct (provided the conduct was preparatory in the making of a decision)
-> fleshed out in Bond
S22 -> failure to decide
Do we have a decision to which the act applies? // Do we have a conduct that was preparatory to
the making of a decision?
3-step analysis (section 4)
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Decision/Conduct
“Administrative Character”
Under
an enactment; OR
non-statutory program
Standing requirement -> aggrieved -> s7
Even if all these jurisdictional requirements were met, the decision might not be reviewable because
JR is excluded -> s18(2) of the JR Act, Schedule 1 (whether schedule 1 provided for whether the
decision for which review was excluded or limited in some way) and Ouster/Privative clause in the
legislation
Finally, time limits -> s26 -> has the application made out of time?
All these was just to ensure that review was even potentially available to begin with
It is only after this where grounds for review should be discussed.
Is review under PART 4 potentially available?
Right to reasons part under JRA
Similar to that in Part 3, but with different sections
Schedule 2 -> outlines certain decisions for which we can’t request reasons
Potential Exceptions
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Information which the decision maker would ordinarily be expected to provide
Which the decision maker could withhold (in light of ss35 and 36)
No statement might be required at all in situations set out in s37
Is review under PART 5 potentially available?
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Prerogative orders