Contents
Administrative Law ........................................................................................................................................................................ 5
Old Administrative law system .................................................................................................................................................. 5
New administrative law system.................................................................................................................................................. 5
Accountability ............................................................................................................................................................................ 5
Red and Green Light Theories ................................................................................................................................................... 6
Managerialism ............................................................................................................................................................................ 6
Goals of Administrative Law ..................................................................................................................................................... 7
Kerr Committee .......................................................................................................................................................................... 7
Procedural Fairness - “natural justice” ....................................................................................................................................... 8
Judicial review ........................................................................................................................................................................... 8
Impact of admin law on the public sector, public servants ........................................................................................................ 9
Outsourcing of government services .......................................................................................................................................... 9
Impact of information technology on admin law ....................................................................................................................... 9
National security and administrative law ................................................................................................................................. 10
Role of the admin law in Australia’s military justice system ................................................................................................... 10
Rule Making and Subordinate Legislation ................................................................................................................................... 11
Types of delegated legislation (COMMONWEALTH) ........................................................................................................... 11
Appropriate form and content of good regulation .................................................................................................................... 12
Power to make delegated legislation ........................................................................................................................................ 12
Common features of delegated legislation ............................................................................................................................... 12
Accountability and scrutiny of delegated legislation ............................................................................................................... 12
Mechanisms ............................................................................................................................................................................. 13
Characteristics of good regulation ............................................................................................................................................ 13
Volume of subordinate legislation ........................................................................................................................................... 13
Reasons for “Bad” Regulation ................................................................................................................................................. 14
Definition of delegated legislation ........................................................................................................................................... 14
Examples .................................................................................................................................................................................. 14
Disallowance of regulations ..................................................................................................................................................... 15
Proliferation of quasi legislation .............................................................................................................................................. 15
Secret legislation? .................................................................................................................................................................... 16
Scrutiny of Delegated Legislation ............................................................................................................................................ 16
Regulation Impact Statements .................................................................................................................................................. 18
Office of Legislative Drafting and Publishing ......................................................................................................................... 18
Administrative Review Council ............................................................................................................................................... 18
Delegated Legislation (NSW) .................................................................................................................................................. 18
DECISION-MAKING IN TRIBUNALS ..................................................................................................................................... 21
Decision Making Processes ...................................................................................................................................................... 21
Determination of Preliminary Questions .................................................................................................................................. 21
Decisions by Majority .............................................................................................................................................................. 21
Timing Issues ........................................................................................................................................................................... 22
Formal Requirements of a Decision ......................................................................................................................................... 22
Delays in Handing Down Decisions ........................................................................................................................................ 23
Burden and Standard of Proof in Tribunals .............................................................................................................................. 23
Using Tribunal Knowledge ...................................................................................................................................................... 24
Structuring Decision Making ................................................................................................................................................... 24
Making Findings of Fact .......................................................................................................................................................... 24
Assessing Credibility ............................................................................................................................................................... 25
Evaluating Expert Information ................................................................................................................................................. 26
Weighing Evidence .................................................................................................................................................................. 26
Reasons .................................................................................................................................................................................... 26
Use of confidential information in tribunals ............................................................................................................................ 28
Listening to submissions .......................................................................................................................................................... 28
Reserving decisions .................................................................................................................................................................. 28
Costs ......................................................................................................................................................................................... 28
Orders ....................................................................................................................................................................................... 29
Finality ..................................................................................................................................................................................... 29
Procedural Fairness ...................................................................................................................................................................... 31
Introduction .............................................................................................................................................................................. 31
Ethical and instrumental justifications ..................................................................................................................................... 31
Origin of rules .......................................................................................................................................................................... 31
Failure to comply with rules of PF ........................................................................................................................................... 32
Hearing Rule ............................................................................................................................................................................ 32
The implication question .......................................................................................................................................................... 32
The exclusion question ............................................................................................................................................................. 32
The content question ................................................................................................................................................................ 33
Bias rule ................................................................................................................................................................................... 34
What does bias mean? .............................................................................................................................................................. 34
What is the test? ....................................................................................................................................................................... 34
Categories of disqualification by appearance of bias ............................................................................................................... 35
Disqualifying interest ............................................................................................................................................................... 36
Disqualification due to bias by conduct or prejudgment .......................................................................................................... 36
Disqualification due to Bias by association.............................................................................................................................. 37
Disqualification by extraneous information/Bias by communication: ..................................................................................... 38
Tribunal Members - Disqualifying themselves ........................................................................................................................ 38
Merits Review .............................................................................................................................................................................. 39
Kerr Committee Report ............................................................................................................................................................ 39
AAT Act ................................................................................................................................................................................... 39
“Standing in the shoes of the decision maker” ......................................................................................................................... 40
Standard rule ............................................................................................................................................................................ 40
Benefits of merits review ......................................................................................................................................................... 40
Objectives of the MR system ................................................................................................................................................... 41
What is a Tribunal? .................................................................................................................................................................. 41
Jurisdiction of the Tribunals ..................................................................................................................................................... 42
Tribunal powers ....................................................................................................................................................................... 42
Private Tribunals ...................................................................................................................................................................... 43
Duties or discretionary powers? ............................................................................................................................................... 43
Separation of Powers ................................................................................................................................................................ 43
Variety of Tribunals ................................................................................................................................................................. 44
Onus of proof in Tribunal......................................................................................................................................................... 45
Type of system ......................................................................................................................................................................... 45
Resolution ................................................................................................................................................................................ 46
Evidence presented at tribunals ................................................................................................................................................ 46
Policy ....................................................................................................................................................................................... 47
JUDICIAL REVIEW ................................................................................................................................................................... 49
Jurisdiction of the Courts - Administrative law ....................................................................................................................... 49
High Court: “Constitutional Writs” .......................................................................................................................................... 49
Federal Court ............................................................................................................................................................................ 49
Federal Magistrates Court ........................................................................................................................................................ 50
State and Territory Courts ........................................................................................................................................................ 50
Range of decisions subject to review ....................................................................................................................................... 50
Remedies .................................................................................................................................................................................. 50
Mandamus ................................................................................................................................................................................ 50
Prohibition ................................................................................................................................................................................ 50
Certiorari .................................................................................................................................................................................. 51
Injunction ................................................................................................................................................................................. 51
Declaration ............................................................................................................................................................................... 51
Habeas corpus .......................................................................................................................................................................... 51
Discretionary relief................................................................................................................................................................... 51
Grounds of Review .................................................................................................................................................................. 52
Time limits ............................................................................................................................................................................... 53
Decision maker under no obligation to exercise the power ...................................................................................................... 53
Broad discretionary powers ...................................................................................................................................................... 53
Privatisation of decision-making .............................................................................................................................................. 54
The Grounds of Review ........................................................................................................................................................... 54
Categories of Grounds of Judicial Review ............................................................................................................................... 55
Distinguishing between administrative, legal and judicial functions ....................................................................................... 56
Under an enactment .................................................................................................................................................................. 57
Justiciability ............................................................................................................................................................................. 57
To summarize. .......................................................................................................................................................................... 59
Legislative scope and purpose...................................................................................................................................................... 61
Statutory Interpretation ............................................................................................................................................................ 61
Two main approaches to statutory interpretation ..................................................................................................................... 61
Relevant Purpose ...................................................................................................................................................................... 61
The grounds of review ............................................................................................................................................................. 62
Unreasonableness ..................................................................................................................................................................... 62
Acting for unauthorized purpose .............................................................................................................................................. 65
Bad faith and fraud ................................................................................................................................................................... 66
Considering irrelevant matters and not considering relevant matters....................................................................................... 67
No evidence .............................................................................................................................................................................. 69
Notion of proportionality ......................................................................................................................................................... 69
Jurisdictional Error and Invalidity................................................................................................................................................ 71
Introduction to the Topic .......................................................................................................................................................... 71
The traditional doctrine of jurisdictional error ......................................................................................................................... 71
Non jurisdictional errors of law ............................................................................................................................................... 72
The Anisminic doctrine ............................................................................................................................................................ 72
The Australian Approach to Anisminic .................................................................................................................................... 73
Error of Law under the ADJR Act ........................................................................................................................................... 73
Reasons for Decisions .................................................................................................................................................................. 75
Introduction .............................................................................................................................................................................. 75
Minimum requirements for appropriate reasons for decisions ................................................................................................. 75
Three broad reasons why we need reasons............................................................................................................................... 76
What role does policy play ....................................................................................................................................................... 77
AAT Act Statement of Reasons ............................................................................................................................................... 78
ADJR Act Statement of Reasons.............................................................................................................................................. 78
Qualities to be aware of in administrative decision making ..................................................................................................... 78
Rationale for the Giving of Reasons ........................................................................................................................................ 79
Benefits for the Giving of Reasons .......................................................................................................................................... 79
What are Adequate Reasons? ................................................................................................................................................... 79
What are the Essential Requirements? ..................................................................................................................................... 80
The ARC Guidelines for Preparing Statements of Reasons ..................................................................................................... 80
Freedom of Information ............................................................................................................................................................... 83
Introduction – Freedom of Information .................................................................................................................................... 83
The law is changing – progression of FOI law......................................................................................................................... 83
Objectives of Freedom of Information (FOI) ........................................................................................................................... 84
Bodies Covered by the Act....................................................................................................................................................... 85
Documents Exempt from Access ............................................................................................................................................. 85
Statement of Reasons ............................................................................................................................................................... 86
A Right to Access..................................................................................................................................................................... 86
Recent Case Law ...................................................................................................................................................................... 86
FOI Access Requests................................................................................................................................................................ 87
Proposed changes to FOI.......................................................................................................................................................... 88
Ombudsman ................................................................................................................................................................................. 91
Introduction .............................................................................................................................................................................. 91
Development of Ombudsman................................................................................................................................................... 92
Australian Ombudsman ............................................................................................................................................................ 92
Role of Ombudsman ................................................................................................................................................................ 92
Areas of investigation and resolution of disputes ..................................................................................................................... 92
Office of Commonwealth Ombudsman ................................................................................................................................... 94
Ongoing challenges for the Ombudsman ................................................................................................................................. 95
Extraordinary additional Powers given to NSW Ombudsman ................................................................................................. 96
Essential qualities of an Ombudsman ...................................................................................................................................... 96
Privacy ......................................................................................................................................................................................... 99
Status of the term “privacy” ................................................................................................................................................... 100
Characteristics of Privacy....................................................................................................................................................... 100
Do Australians have a legal right to privacy? ........................................................................................................................ 100
How has the CL dealt with protection of privacy? ................................................................................................................. 101
Standing ..................................................................................................................................................................................... 103
Introduction – Standing .......................................................................................................................................................... 103
Common Law ......................................................................................................................................................................... 103
Prerogative Remedies ............................................................................................................................................................. 105
Standing of Others.................................................................................................................................................................. 107
Special interest in the subject matter of action ....................................................................................................................... 107
Administrative Decisions Judicial Review Act ...................................................................................................................... 108
Difference between ADJR Act and General Law .................................................................................................................. 109
Conclusion ............................................................................................................................................................................. 110
Privative Clauses ........................................................................................................................................................................ 111
Background ............................................................................................................................................................................ 112
The Hickman Principle .......................................................................................................................................................... 112
Various types of privative clauses .......................................................................................................................................... 113
Cases applying Hickman test ................................................................................................................................................. 115
Migration Act Privative Clause .............................................................................................................................................. 116
Judicial Review Remedies ......................................................................................................................................................... 119
Constitutional Writs ............................................................................................................................................................... 120
Certiorari and Prohibition....................................................................................................................................................... 120
Mandamus .............................................................................................................................................................................. 124
Equitable Remedies ................................................................................................................................................................ 126
Declaration ............................................................................................................................................................................. 126
Injunctions .............................................................................................................................................................................. 127
Administrative Law
Mechanisms to challenge government decisions.
Old Administrative law system
Prior to new “administrative law system” (30 years ago) if you wanted to question a decision impacting on you, you may:
 Write to your MP: no guarantee of success
 Sue in court: as soon as court is mentioned cost comes to mind, if you could afford it sure you could but
expensive option, especially back in those days due to administrative writs
 Contact the media: have to be a substantial issue for the media to latch onto your particular issue
 Write to the government department and say you aren’t happy with that decision, ask for an explanation (though
no duty on them to do anything about it, didn’t have to give reasons for decisions, no duty on the decision
makers to make any attempt to explain how they came about)
There was no duty to explain anything, government didn’t have to be accountable.
New administrative law system
New features introduced include:
 Specialist tribunals: New tribunals at a very high level (ie Administrative Appeals Tribunal at Commonwealth
level and Administrative Decisions Tribunal at state level)
 Legislation:
o Administrative Decision Judicial Review Act (ADJR). ADJR introduced notion that if you are a decision
maker you have to give reasons for your decisions. Public servants, decision makers, who for years
didn’t have to justify how they went about making decisions, now had to be trained as to how they go
about making decisions. Need to understand the reasoning process in reaching these decisions. Admin
law isn’t just about the ultimate decision but rather how that decision was made. Due to ADJR decision
makers now had to explain how they went about doing their job.
o Freedom of Information Act (FOIA). Every sort of file created is potentially able to be accessed by
citizens.
 Ombudsman: State and federal. One big growth industry in admin law. Now a plethora of private sector
ombudsman’s. The role they play is another means of seeking redress.
 Tribunals: not only government bodies. Many non-government tribunals such as sporting tribunals.
 Administrative Review Council (ARC). Think of the ARC as the equivalent of a law reform commission
specialising in admin law. Set up primarily to examine admin law issues and give guidance and
recommendations as to how best to tackle problems relating to admin law.
 Delegated legislation: Rules, regulations and by-laws that governments make every day, not made by
parliament but by other individuals or bodies who have been delegated the power to make those regulations.
Many rules and regulations being made by unelected officials, public servants.
Accountability
This is primarily concerned with the transparency of governments. The notion of accountability is at the heart of admin
law.
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”.
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Openness: we want, as far as is possible, government decisions to be open. We want to know how they went
about making the decisions they have made. There are always exceptions to some of the decisions that are
made that for e.g. national security reasons we will not be able to find out how the decisions were made
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Fairness: if you are challenging a decision you will get fair treatment at whatever stage of the admin law ladder
you are at. Hearing - does this mean a day in the tribunal, a few hours, etc - this may not be even going to a
tribunal, but perhaps decision made on the documents only
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Participation: who has the right to challenge? Only the person affected? Who has standing to bring action?
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Consistency: a system that provides consistency in decision making, the same type of decision for the same
facts no matter where it is made. If there are similar facts there should be consistency in the decisions made.
Must be consistent no matter where the decision is made geographically. This is important for guidance - should
be able to say that the tribunal will decide on the facts in a certain way. If there is a deviation the tribunals have
to explain why.
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Impartiality: decision makers should be unbiased.
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.
Tribunals are far cheaper options than the courts, greater access to those bodies.
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.
Red and Green Light Theories
These two theories were analysed by Harlow and Rawlins (writers) in 1984.
Red light theory: advocates that there is a strong role for the courts to review admin action. Red light theorists say the
function of admin law is to control the excesses of the state, the excesses of government. “Control any excess of state
power and subject it to judicial control” (Harlow and Rawlins). It is about stopping it, saying no don’t go any further,
stopping government from its excesses.
Green light theory: consider the function of admin law is to facilitate the operations of the state. Based on the rationale
that decision makers will function efficiently with intervention. “External control through adjudication. Minimise the
influence of the courts, with their legalistic values….” (Harlow and Rawlins).
There to assist the flow of decision making processes, not about intervening.
Probably more realistic to say “Amber”. It is very rare that admin law will be just about stopping or just about a conduit to
assist government decision making, it is usually a combination of the two
Managerialism
This is the approach to government decision making which grew from emphasis of productivity, which led to the
privatisation of many traditional public sector functions.
Examples

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Department of Veteran Affairs - has more than 10,000 employees, primarily because it used to have a
repatriation hospital everywhere. The government decided they were not in the business of running hospitals so
either sold the hospitals or had them integrated into the state hospital systems.
Prisons - recent debate in NSW whether the state should be the entity that runs prisons as it has traditionally or


whether they continue to have prisons run by private operators
Health care, aged care etc - all areas where the private sector delivers the services that were once delivered by
government.
Australian Post, Telstra etc.
In the late 1970s there was a great privatisation move as part of managerialism. This managerialist approach was very
much at odds with admin law. Why? Because managerialism treats public sector activities of government as if it is just
another business enterprise.
It is desirable for activities that provide a service to the public (in the realm of government) to measure their success not
by how well they serve the public but by notions of efficiency; doing more with less.
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.
Goals of Administrative 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.
Two main goals of admin law
1. To redress individual complaints
2. To improve the quality of decision making
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 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.”
Kerr Committee
When the new admin law started, a pivotal part of the birth of the new admin law was 1971 when the Kerr Committee
Report made its recommendations. The Kerr Committee had been appointed in 1968 primarily to look at new ways of
government dealing with decisions that were made and the challenges to those decisions in order to safeguard the
rights of individuals.
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.
1. 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.
2. The Ombudsman Act 1976 (Cth) established an Ombudsman to investigate complaints of maladministration by
Commonwealth government agencies.
3. 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.
Procedural Fairness - “natural justice”
Considerations re whether there was procedural fairness

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
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Did the decision maker act outside his/her jurisdiction? First look at the piece of legislation giving power to a
decision maker to make the decision. Where does the power come from and what is the power. Has the
decision maker acted within or outside the power?
Has the decision maker misconstrued the power in some way? How did they go about implementing the power.
Does the legislation give guidance to the decision maker regarding considerations to take into account?
Has the decision maker acted for any proper purpose? Have they decided that they will make this decision not
for the reasons the legislation allows them, but for some other ulterior motive
Has the decision maker taken relevant considerations into account, or failed to take relevant considerations into
account, or taken irrelevant considerations into account
Has a decision maker made a decision in the absence of evidence? Is there a demonstration that the end
decision can clearly be seen from the evidence. Look at Wensbury notion of unreasonable - decision is so
unreasonable that no reasonable person could have made it.
Notion of exercising a power, where most decision makers have a discretion, using the discretion without
examining the merits of the case, mechanically apply an inflexible policy, not examining the case before them
Judicial review
Before the creation of the new admin law system, the courts showed little readiness to extend legal protection to
citizens, in particular persons who did not have Australian legal status. Many statutory discretions on ministers to detain,
deport etc aliens, usually those discretions construed broadly in favour of the minister making the decision.
R v MacKellar; Ex parte Ratu (1977)

Decision involving the legal protection of offshore applicants

High court ruled 5/1 that the minister, in ordering deportation of a person who had overstayed his visitors visa, that
the minister didn’t have to observe the principles of natural justice or procedural fairness. Person could be deported
without being told why or without opportunity to give submissions re why they could stay.
Salemi v MacKellar (No.2) (1977)

Minister for immigration declared in this case an amnesty and promised resident status to any prohibited immigrant
who came forward and met requirements of good health, good character and without serious abnormality, then you
could stay.

Mr Salemi comes forward, Italian journalist, refused resident status. Argues natural justice requires at the very least
that he be told the reasons why he wasn’t being accepted and to be given an opportunity to be heard.

The high court split evenly, 3/3. 3 justices held Mr S had a right to be heard. Why, government gave amnesty and
notion of legitimate obligation, this would give him an opportunity to be heard re opportunity to be

Other 3 justices, with chief justice, held minister not under any legal obligation to observe natural justice, minister
had complete discretion to deport people.
These two cases, if they were to be decided today, would be decided very differently. It is now very clear there is an
obligation in principle to observe natural justice and procedural fairness regarding applications for migration status.
There is a whole string of migration cases imposing very strict and demanding legal requirements on immigration
decision makers regarding their duties to observe procedural fairness and natural justice to heed international treaties.
Three changes stand out as making a difference to the way the courts have turned it around (Re migration)
1. Creation of the Administrative Decisions Judicial Review Act – this created a statutory right to reasons for a
decision. We will see in Kioa v West (1984), which was the first decision of the high court that natural justice
applied to immigration decision making
2. Substantial rewrite in 1989 of the Migration Act 1958: primarily it replaced the ministers’ unfettered discretionary
powers in relation to controlling deportation, by setting out a detailed code of criteria which needed to be met by
decision makers under the Act.
3. Creation of two specialist tribunals, Immigration Review Tribunal and the Refugee Review Tribunal. This shows
parliament was recognising that it was necessary to have specialist tribunals due to the growing number of
these types of cases coming forward.
Minister of State for Immigration and Ethnic Affairs v Teoh (1995)

Important, in this case the High Court said a decision maker who makes a discretionary administrative decision
which is at odds with an international convention ratified by Australia, that decision maker is under an obligation
to inform the person affected and allow an opportunity to reply
Due to the number of international treaties Australia ratified, there is argument that just because country ratifies a treaty
doesn’t mean they have to abide by the concepts of the treaty with the laws of the land. Other view was that if a country
ratifies a treaty it is saying to the world we agree to the notions of these treaties, hence a legitimate expectation that
they will follow it in the laws of the land.
What explains these changes in judicial attitude? There was a time in the 1980s where there was a great deal of public
debate in a number of areas - broad range of enquiries into various human rights instruments and a number of treaties.
Tumultuous time within the courts.
Impact of admin law on the public sector, public servants
There has been a transformation of the Australian public service, certainly in the last generation. Whilst there was this
idea of the new managerialism, it wasn’t all about this high performance type organisation. There was a very strong
view, certainty at commonwealth level and mirrored at state level, that public servants and bureaucrats wielded
excessive control over political processes. Idea that public servants had too much power.
One of the changes that has occurred in public service in this last generation has been in relation to the idea that public
service was a lifetime job. That has changed, most public servants, particularly at middle management and higher levels
are all on contracts, so the idea of those public servants in advisory positions to governments, the idea that all public
servants in advisory positions should offer frank and honest advice to ministers may not be so plausible where they are
on a contract; not the same sense of loyalty.
Particularly recently, prime ministers have been able to say I didn’t know, no one told me. If there are advisors who are
telling the minister, the prime minister what they want to hear rather than what they should be hearing, good and bad,
then who is making the decisions.
Ministerial advisors are not public servants
Outsourcing of government services
Growth area, all sorts of issues as to who is actually responsible in the decision making process if it is a service that has
been delivered by a private sector organisation on behalf of government.
Has outsourcing been more effective? In majority of cases yes, in others perhaps not so (ie outsourcing of tunnels or
railway lines etc)
Impact of information technology on admin law
In some ways information technology has both simplified and complicated public service decision making. New
technologies implemented to save time and improve quality and consistency.
The sheer amount of information available has bombarded public servants. Yes technology has sped up, but also
creates other problems
In admin law the main development has been the introduction of rule based expert systems. Expert systems are
computing systems that, when you provide them with basic information, will draw conclusions that mimic the thought
processes of an individual decision maker.
The Administrative Review Council has done some work in this area - one of their reports is about how to go about
implementing information technology into the decision making in government
National security and administrative law
Following terrorist acts in the US, Indonesia, Spain, London etc in recent years a number of countries made major
changes to their counter terrorism laws.
In October 2001 the Australian government announced a wide ranging counter terrorism review, implemented on a
number of admin law issues. These reforms include Security Amendment Terrorism Act, new offences were created,
new regulations introduced re terrorist links, Criminal Code amendments, Suppression of Terrorist Bombing Act, Border
Security Amendment Act, Telecommunications and Inception Amendment Act.
There were also major amendments to ASIO Act (one of most controversial because of the secrecy provision under the
Act. Under the secrecy provisions it is an offence, if there is a warrant, and a person is asked to call into ASIO, as long
as the warrant is in force it is an offence to disclose anything re existence of the warrant or the fact that you have been
called in) etc..
Clearly new extraordinary powers. Admin law comes in because these are decision making powers. The commonwealth
Ombudsman plays a vital oversight role in many of these areas to provide some administrative safeguards.
Area yet to be tested, recent examples in the last couple of years re a QLD doctor and the processes he went through
under the new terrorism legislation. Bottom line in Hanneef case was procedural fairness afforded to him. “Balancing
tough laws essential component….”
Many world leaders in history pointed out in times of war parliaments are given extraordinary powers. During WW2
parliament introduced quite major reforms because the country was at war. Many leaders throughout history say it is
those particular times in history that we have to be most vigilant, if you give extraordinary powers to decision makers
that is the time there is an even greater need for protection and safeguards.
Role of the admin law in Australia’s military justice system
2005 Senate Committee Report on Military Justice System which identified serious flaws; about how the military dealt
with decision making within its own organisation, a number of cases of abuse by members of the defence forces where
there have been a number of cases of members of the defence forces committed suicide primarily due to the treatment
received while in the forces, psychological breakdown in many cases
The mechanisms were simply not there to dealt with complaints within the armed forces, totally replaced by a new
system which implements procedural fairness and natural justice within the way they deal with complaints within the
system
Rule Making and Subordinate Legislation
Subordinate legislation includes any laws or other government endorsed rules with some expectation of compliance by
government.
Governments need to deliver effective and efficient regulations; effective in identifying a problem and efficient in solving
it.
Whilst much regulation is beneficial and efficient, there are cases where this is not so, and regulations could be better
designed. Rule makers often concentrate too much on effectiveness but not efficiency. In other words, they may achieve
a particular policy goal but may not be the best means of doing so.
Each regulatory solution tends to be devised within individual government agencies - this means there is sometimes a
cumulative effect of having poorly understood impact.
Determining whether regulation meets both effectiveness and efficiency requirements you need to be aware of the
structured approach to policy developments that evaluates the costs and benefits of regulations. The benefits to the
community of any regulation should actually outweigh the cost - there should be assurance that the option chosen will
give the greatest benefits.
Watson v Lee (1979)

Stephen J explained that the history of delegated legislation reflects the tension between the needs of those
who govern and the just expectations of those who are governed.
Legislative Instruments Act 2003 - then could be said that the commonwealth parliament was doing all that it should in
over sighting delegated legislation.
The idea that we are talking about is quasi legislation that has enforcement powers but which has been made by nonelected officials, that in the main have not perhaps been truly examined by the parliament. For the day to day rules and
regulations, the parliament doesn’t have the time to examine in detail such rules and regulations.
Dennis Pearce defined delegated legislation as those instruments that laid out general rules o f conduct effective the
community at large, made by a body expressly authorised by some Act of parliament.
Types of delegated legislation (COMMONWEALTH)
The approach to delegated legislation is one which covers the vast amount of legislation that we have had. Within the
broad area there are specific terms that we sometimes give.
E.g. of quasi legislation:
 Regulation – this is the most common form of delegated legislation, used for legislation of general application that
emanates from a government department.
 Rule - tend to be piece of quasi legislation, usually of procedural formalities.
 Ordinances - usually apply to particular jurisdictional areas. Often used by local government bodies, councils
 By-laws - they usually have effect only within a particular area of responsibility of an authority, mainly state local
government bodies
 Decisions
 Declarations
 Determinations
 Directions
 Orders
They should be notified and published in full in the Commonwealth Government Gazette - if not in the Gazette,
published in the appropriate Government department website
The Legislative Instruments Act 2003 provides for uniformity for delegated legislation publishing.
More than half of the law of the Commonwealth of Australia, by volume, consists of delegated legislation rather than
Acts of Parliament.
The primary point to remember is that delegated legislation is not examined or passed by the Parliament - it may be
tabled by the parliament, either house may disallow it, but it isn’t examined as such.
Appropriate form and content of good regulation
Most important issues deal with the appropriate form and content of good regulation. Bad regulation can undermine
society’s capacity to achieve goals.
There is no such thing as a single regulatory ideal or permanent general solution to the needs of having regulations. All
regulations have both positive and negative attributes.
Australia, like most other developed countries, has two principal challenges
1. To rid itself of bad or redundant regulation
2. To ensure new regulation is good regulation
There have been some important recent developments, but there is still quite a way to go
Power to make delegated legislation
We know that the parliament can enact laws or may authorise another body to make legislation on its behalf, pursuant
to the constitution. This is feature of almost any act of parliament; it allows for the enactment of delegated legislation by
specified bodies or persons.
This authorisation by the parliament takes various forms - governor general, may be minister, public servant, whatever
form it takes this delegated legislation has the force of law just as if it were an act of parliament.
Common features of delegated legislation
1.
2.
3.
4.
5.
Authorised by the parliaments - where is the power to make this regulation, it must be in some act.
Deal with procedural details rather than the broad framework
The making of delegated legislation is notified in the commonwealth Gazette
Can be disallowed by parliament if it doesn’t approve
Available to the public
Most rules come into effect on the day they are made
Where such a piece of delegated legislation is disallowed, it (the disallowance) doesn’t operate retrospectively but rather
from the date of disallowance. Issues immediately arise that anything done in accordance with the regulation during this
period, may well be truly affected
Under the Statutory Rules Publications Act 1903 only certain delegated legislation is to be published. In those days
unless a particular instrument had been published or republished privately then no one outside the relevant agency
knew of the existence of the regulations, they were an in house thing.
Accountability and scrutiny of delegated legislation
Over time there has been a recognition of the risks in allowing laws to be made by bodies other than parliament.
Mechanisms have been developed to balance this, so that persons in authority operate within the law and are
accountable for their operations
Mechanisms
1. Senate Standing Community for the Scrutiny of Bills: reports to the senate on the appropriateness of the type of
delegated legislation
2. More involvement, in some areas, of ministers and officers in the process of making regulations
3. Provisions which provide for regulations in some instances to be notified in the commonwealth Gazette
4. Statutory Rules Publication Act 1903 updated; all statutory rules including all types to be printed and available
for sale
5. Senate Standing Community on Regulations and Ordinances: scrutinises delegated legislation by reference to a
number of criteria; is there judicial review of delegated legislation, what are their internal review mechanisms
As valuable as these checks are they have not fully provided a comprehensive detective mechanism for potential
bureaucratic excess of power
Characteristics of good regulation
What are the principal characteristics to ensure we obtain the best kind? The answer to the question what is good
regulation is a tautology, that you can’t have a good regulation.
Good regulation is regulation which, in achieving its goals, brings the greatest net benefit to the community. Net benefit
is important as it tends to indicate that regulation should be judged not only by beneficial affects but also costs in
achieving those benefits.
So there are additional tests, e.g. regulation should be the most effective way of addressing an identified problem, it
must impose the minimum burden on those affected by the regulation and it must cause the minimum amount of
collateral damage against others.
Good design features
Experience in Australia and overseas shows to meet these tests there should be certain good design features:
 Not unduly proscriptive - where possible, should be specified in terms of performance goals or outcomes
 Should be flexible enough to accommodate changing circumstances
 Clear and concise - should be communicated effectively and be accessible to those affected, but those who are
affected should be able to understand what the regulation is about
 Consistent with other laws and obligations that are around - inconsistency creates confusion
 Should be enforceable but embody some sort of discipline to allow those affected to want to follow the regulations
 Should be administered by accountable bodies in a fair and consistent manner and they should be monitored and
reviewed periodically
Volume of subordinate legislation
There are a number of indicators suggesting that the volume of commonwealth regulation continues to grow, both in the
number of Acts, and hence the amount of subordinate legislation, and the average length of legislation.
Some key indicators by volume, the most recent estimates from the commonwealth A-G department estimates that
there are more than 1,800 commonwealth Acts in force (therefore add potential number of subordinate legislation from
those acts). On average, every year there are approx 170 new acts of parliament. The number of pages per act in new
legislation in the 1990s was double that in the 1980s and triple the number passed in the 1970s. Somehow we are
adding words, more than necessary, for the acts being passed. The number of new statutory rules average nearly 1,500
per year over the last 10 years.
Reasons for “Bad” Regulation
Why do we have much “bad” regulation? Why do the efforts of government fall short of the standards that we would
want?
Again, some would say bad regulation is easier to implement. Good regulation requires a greater demand of scrutiny, a
more careful consideration of policy, a greater discussion of possible alternatives, and that in itself takes more time,
energy and resources, and hence makes it far more difficult.
Members of parliament complain about their inability to consider and digest all the material presented before them.
They say that good process is a key to getting good regulation. Good regulation just doesn’t happen, so you need a
good process. Some of the ways of doing this is to avoid conflicting objectives in regulations - conflicts between the act
giving the power and what the regulation says. Lack of community consultation is often used as an example of the way
not to go about implementing or designing regulations. Lack of monetary and lack of evaluation also reasons.
Definition of delegated legislation
The definition of legislation by the Donamore Committee (?), UK Committee in 1932; two definitions (i) operation or
function of legislative and (ii) the laws which result therefrom.
We are concerned with the laws which result therefrom.
From this, legislation is the sum total of all laws made by parliament plus all laws made by the authority of parliament.
Back in 1987 Professor Gabrielle Gance wrote “Quasi Legislation, recent developments in ….” and suggested that quasi
legislation was problematic because it is not a term of art, there has been this exponential growth of quasi legislation
and rules.
Patricia Giles, senator, referred to quasi legislation instruments as documents which empower authorities or persons to
“authorises to direct, determine, notify, order, instruct, declare, issue, publish” - these are all indicative of quasi
legislation. (not an exhaustive list)
Examples
Income tax rulings
Possibly the largest and most visible body of quasi legislation - forms of taxation rulings issued by the commission of
taxation. Initiative put into effective in 1982, as part of the obligations of the Freedom of Information Act. Intention to
fulfill the commissioners obligation to make available for public scrutiny copies of documents used by officers of the
commissioner of taxation. To date there are more than 3,000 rulings covering a wide area. Rationale was the obligation
under the FOI act. (Previously a secretive department).
The first ruling they put out, in the end they say that taxation rulings will replace memorandum and other forms of advice
relating to the interpretations of taxation.
This was expanded upon in Ruling 2,500 which said in part that rulings are issued on a regulation basis and provide
guidance on matter so are policy and instruction on tax law. Majority cover income tax law, detailed guidelines etc
affecting the public. Appropriate vehicle to clarify issues re tax law.
Therefore there is the potential to operate as law, but the department said it is neither the effect nor intent of such
rulings. In Ruling 1 they said the rulings do not supplant the terms of the law. On the one hand saying this is how we
implement the law on this issue in these area, but it is not really the law. They say really the law is the Acts of
parliament, but in effect the rulings do have the impact of law
Extreme example of what was at the time a regulation that had merit, something that wanted to achieve a position that
somehow it didn’t quite work came from Veterans Entitlements (Special Assistance Motorcycle Purchase) Regulation
2001. This was a regulation to assist veterans to purchase motorcycles. Regulation said “…veterans who have lost a leg
or both arms…”; the intention was there, but useless.
Disallowance of regulations
Disallowance of regulations on principle
1928 French (Dugit?): to refuse to obey a law which is contrary to what is right is entirely legitimate. The power to
disallow delegated legislation reflects this philosophy. In principle the use of the parliamentary disallowance power
operates as a way of dealing with potential injustice that might occur.
German (Fredrick); similar theme - cited Hitler’s rule as legal but not legitimate, because it had no basis in right and
justice. Most of the legislation was introduced through the parliament, but if you look at the administrative decrees, it
defined a Jewish person in terms of decent…An example of a type of delegated legislation emanating from an Act
passed in parliament which may be legal but not legitimate
South African Public Safety Act- it empowers members of the armed forces to enter premises without a warrant and
take such steps deemed necessary re public order – anything. Under further regulations under this act, regulation that
looks at limitation of liability which states in part that no civil or criminal proceedings instituted against the state,
members etc…you couldn’t take any action against the state downwards.
Regulation 34 of former Northern Ireland - access to any property whatsoever.
Fredrick; concluded, the authority of laws across the board rests on their reasonableness, their true justice, spoke of the
legitimacy of the statute resting upon whether it is right or not, legality resting upon it being a positive law. Legitimacy is
about right and justice and whether they are reasonable.
Proliferation of quasi legislation
Examined 192 instruments in 1949. On average, nowadays they look at 1,500 instruments per year. Early 1970s they
said usually only 3 different types of instruments they looked at. Nowadays there are 115 different types of instruments
listed. Not only the number has risen but the types has risen.
And they say the most typical problems that arise are issues such as
 drafting issues
 how comprehensive is it
 how easy to understand
 prejudicial retrospectivity
 lack of incorporation of materials that will assist in understanding regulations
 inadequate explanatory materials
 improper numbering and citation
 protection of rights
 unreasonable burdens placed on business
 inconsistency of penalty provisions for similar regulations
 inappropriate basis for fees and charges
 inadequate protection of the right to privacy
 wide discretions
 inappropriate time lines……….etc
It is appropriate to note again the Donamore Committee in 1932 in seeing this mass of quasi legislation said even the
most scientific explorer can make a map of a jungle.
Secret legislation?
The more cynical view is that the nature of quasi legislation is that it is secret legislation
In a 1998 seminar conducted by AG it was suggested that all subordinate legislation was secret or hidden because it
doesn’t reach the public eye until after it has been operative. Said increased use of quasi legislation is for the
government to avoid the parliament.
Chairman of Senate Standing Committee warned about instruments in writing. Peter O’Keefe, the clerk assisting the
Parliamentary Committee said they serve only one purpose, to create pretence that it is different from a statutory rule
thus needs different drafting etc
This thinking is not new, goes back to the UK. In Blackwell Corporation v Locker (1948) Lord Justice Scott (who
happened to be a member of the Donamore Committee in 1932, 15 years later was making the following comment
regarding Ministry of Health Circulars) “continued to wonder whether using the word circulars who keep it from being
recongised as delegated legislation”
A subsidiary of the difficulty of public gaining access to quasi legislation is the effect it has on the legitimacy of those
instruments.
In Blackwell Corporation v Locker (1948) LJ Scott, speaking of delegated legislation, said “there is one quite general
question… of supreme importance to the continuance of the rule of law under the British Constitutiton, namely, the right
of the public affected to know what the law is” (this has been cited many times, including in Australia in 1979 Watson v
Lee). LJ Scott said if the power delegated is the power to make sub delegated legislation and he exercises that power,
and there is no duty on the minister either at CL or in the legislation to publish the sub delegated legislation, then the
citizen may be unaware of the rights of him or her, the rights are known only to the maker of the quasi legislation. He
said for practical purposes the rule of law breaks down because the subject’s legal remedy is greater impaired. LJ Scott
said ignorance of the law is not a defence.
Possibility arises that the court may hold that there is an obligation to publish the law
Scrutiny of Delegated Legislation
Senate Standing Committee for the Scrutiny of Bills
Bills are subjected to scrutiny of the senate. This particular committee was formed in 1981, and examines all bills
introduced into parliament and applies 5 principles in examining the bills.
The committee has a function to report to parliament on whether the bills, as introduced, follow these 5 principles:
1. Does it trespass unduly on personal rights and liberties
2. Does it make rights and liberties, or obligations, unduly dependant on insufficiently defined administrative
powers
3. Does it makes such rights & liberties or obligations dependent upon non-reviewable decisions
4. Is there a link between the Act and power delegated? Or is it inappropriately delegated legislative power
5. Is it insufficiently subject the legislative power to parliamentary scrutiny
During the 40th Parliament, this committee was governed by the Acts Interpretation Act 1901. Under that Act regulations
and other such instruments were required to be tabled within 15 sitting days of being made and subject to disallowance.
Legislative Instruments Act 2003
On 1 January 2005 the Acts Interpretation Act was repealed in conjunction with the Legislative Instruments Act 2003
The section to keep in mind under Legislative Instruments Act is s42. S42 in effect allows any member of the House of
Representatives, within 15 sitting days after a legislative instrument is tabled, to give notice to disallow that instrument
and to show cause why it should be disallowed.
There are sometimes provisions in some pieces of legislation which allow only 5 sitting days before disallowance can
occur.
Senate Standing Committee on Regulations and Ordinances 1932
This is the main committee that oversees quasi-legislation in our parliament; it is one of the oldest committees.
Its functions are set out in Standing Order number 23, under regulation. Its main functions are to scrutinize all
regulations, ordinances and regulations made under authority of an Act of parliament which may be subject to
disapproval.
The committee has 6 members, 3 being members of the government parties, 3 members of non government parties,
with the committee chaired by a government senator.
Also an important role is played by an independent legal advisor, who reports on every instrument, makes comments,
prepares reports and attends all committee meetings.
Note subsection 3 of order 23; the Committee may say the regulations or ordinances are of such import that they should
be an Act of themselves, an Act of parliament.
Determining whether delegated legislation is in accordance with a Statute (4 principles):
1. Compliance with the enabling act: it is generally going to be the case that a regulation is going to be void if it
does not have the express authority of the Act that empowers the regulation. They look at drafting defects,
numbering and citations etc
2. Personal rights and liberties: not to place unreasonable burdens on business, fair and not unusual allowances,
protection of privacy
3. Independent review of merits: are there mechanisms in place that allow for review of decisions made under the
regulations
4. Parliamentary enactment: if regulations fundamentally changed the law then it should be an Act of parliament, if
it is overly complex and lengthy then strong argument for it to be an Act of parliament.
Each week the instruments lodged for tabling are sent to the committee’s legal advisor. The legal advisor prepares a
report on each instrument and the secretary looks at the instrument and provides feedback. Then the committee meets
and considers the instruments, the legal advisor reports; these meetings are held every Thursday morning of a sitting
week.
Then there is the scrutiny of disallowance alert. The committee has a website, after each Thursday meeting it puts out
this alert, which lists the instruments in relation to which the committee has agreed to seek further advice from the
minister. If they have an issue with one of these regulations it goes on the website and the minister and ministerial staff
responsible for the regulation are immediately notified that there is a problem.
The minister and/or his department will respond and the response is examined by the committee. If the committee is
satisfied that appropriate changes made etc, then the regulation will come off the alert.
If the minister does not satisfactorily respond the committee may write again reiterating its concerns. In recent years the
committee has also exercised its power to call in officials, witnesses, to discuss the problem at hand.
If the issue is not resolved in 15 days the Chair will give notice of a Motion to disallow the instrument thereby giving the
minister another 15 sitting days to attempt to resolve the outside issues. If at the end of the time the concerns are
addressed and an undertaking is given to amend the instrument as recommended as soon as possible, the committee
gives its notice of its intention to withdraw its notice to disallow.
This committee is so successful in this approach in the senate that the last disallowed instrument was in 1988. Ministers
don’t like to see their regulations, their department, on that website on the alert list.
Regulation Impact Statements
A modern development in this area is the introduction of RIS. RIS’s have 7 key elements:
1. What is the problem and the circumstances that give rise to the issue
2. What is the desired objective (to make a regulation to deal with the issue)
3. What are options (regulatory and non regulatory) for achieving this desired objective
4. What is the assessment of the impact  cost benefit analysis (consumers, the government and the community)
5. What consultation and processes are undertaken to consult with the community
6. What is the recommended option
7. Determine a strategy to implement and review preferred option
RIS forces policy makers to consult, work through in a consequential process to articulate the options
Office of Legislative Drafting and Publishing
This is another agency to be aware of. They are the ones that draft the instruments, regulations, proclamations, rules,
ordinances etc. Nowadays it is an electronic record of all legislative instruments.
What do they do? Primarily they give advice, initially in the production of these instruments. Given that there is an entity
to assist parliaments to draft and publish it is sometimes a wonder that there can still be problems with the quality and
standard of instruments that are published
Administrative Review Council
Note their work over the years in this area.
1990 issues paper and conference on ruling making led to a report in 1992 Rule Making in Commonwealth Agencies.
ARC made a series of recommendations in relation to regulations and it’s the usual suspects, clearer guidelines that we
need if at all possible a single explanatory way of, more readily accessible for the public
Delegated Legislation (NSW)
As in the Commonwealth, different terms are used to describe delegated legislation:
 by laws
 codes of practice
 environmental planning instruments
 guidelines
 ordinances
 regulations
 rules
Subordinate Legislation Act 1989
This Act requires preparation of a formal RIS for any proposed statutory rule. The minister responsible must ensure that
the guidelines are complied with under the SLA before any rule is made.
These RIS are similar to the Commonwealth but take into account economic, pluses and minuses, etc
Independent reviews of regulatory framework
Independent Pricing Tribunal 2005 asking to review any regulatory burden placed on the community in NSW. In 2006 it
released its final report and made 75 recommendations to reduce regulatory burden. The first 16 focused on strength
process to reduce the burden imposed, the remaining applied specifically to existing government regulations.
At the end of 2007it reported on the rest of the recommendations, government undertaken to report on the progress on
the accepted recommendations on a 6 monthly basis. Emphasis on more consultation was one of the major criticisms
and the role that the Better Regulations Office is to undertake.
Each NSW government agency has assigned to it at least an officer if not some officers in their legal/parliamentary area
that looks after the responsibilities for regulation and preparation of regulation
DECISION-MAKING IN TRIBUNALS
Decision Making Processes
Tribunals are obliged to make decisions in some ways that are comparable with those of courts; namely that they make
the decisions on the basis of the information that is presented to them, information that is available for testing in some
fashion and certainly by taking in account submissions made by person-to-person or entities that are adversely affected.
Any decision making process should not take place on the basis of prejudice or preconceived views on the issue or
issues.
Tribunals generally are empowered to act without being constrained by the formalities of evidence, the procedural
requirements that may be necessary in a court room.
An example is section 2A of the Admin Appeals Tribunal Act. It is typical for the mechanisms of procedures for decision
making that they be fair, just, economical, informal and quick. You will find most tribunals there will be a section that
deals with the mechanisms, aiming for that sort of combo.
Whilst we don’t have the rules of evidence applying in tribunals and you may want fair, just, economic, informal and
quick, that doesn’t mean it is an invitation for substandard, intellectually defective or unreasonable decisions. It is not an
invitation for decision makers to take irrelevant considerations into account or not to take relevant considerations into
account, or ultimately reveal the reasons for the decisions
Determination of Preliminary Questions
The first step to determine preliminary questions, the threshold steps that tribunals have to undertake which requires
them to consider matters such as:




Whether it is a reviewable decision
Whether a person claiming to be a party should be given party status; do they have the right to be there and
make the claim that is being made
Do we, as the tribunal under the enabling legislation, have the authority to enter into this review; does the
enabling Statute give us this authority
Needing to apply the rules of natural justice and procedural fairness
These matters need to be relevant at this preliminary and threshold level because depending on the answer to some of
these questions the matter may end there. These preliminary matters generally tend to be questions of law.
Tribunals, because of their nature, cannot make authoritative determinations of questions of law in the same way as a
court can. But they are entitled to, and have a duty to, determine questions of law for the purpose of guiding themselves
as to how they will go about making lawful decisions.
Decisions by Majority
A Tribunal usually has more than one member. In these multi-member tribunals most decisions are unanimous, but
there is no legal requirement for those decisions to be unanimous.
Where there is a division of view there are a number of ways in which those differences can be resolved. For some
tribunals there is a statutory provision that provides that the casting vote of the presiding members breaks the deadlock.
In others it says that a simple majority decides the outcome. This can be confusing for persons appearing before
tribunals if tribunals cannot come up with a decision that demonstrates a common approach.
Therefore multi-member tribunals so expend a greater effort in attempting to reach a joint decision where possible, or at
least to isolate the issues upon which they don’t agree. In those situations there will be a majority decision and a
dissenting decision. The status of each of those should be made clear to the parties.
A majority decisions should indicate that in fact it is the decision that will stand, it is the presiding decision. A dissenting
decision should refer, for clarity, to the majority decision, explain where the differences of opinion lie, state how the
dissenting decision arrived at its position, and articulate clearly how it is that the dissenting decision was arrived at; how
was a diff outcome reached?
Tribunal members should record, and do record, their dissent when they are clearly of the view that their view is
different from other members of the tribunal.
Timing Issues
Generally a decision of a tribunal comes into effect when it is published.
However there is an exception when, particularly an appellant tribunal, varies, sets aside or substitutes a decision that
may have a particular date of effect. i.e. If they are making a decision which clearly is about a certain commencement
date.
Also situations where the tribunal decides that decision comes into effect at a date in the future; the tribunal has to make
clear why this is.
In general an administrative tribunal that makes primary decisions or undertakes merits review of decisions is required
to apply the law that is in force as at the date that it makes its decisions. The tribunal simply applies the current law, not
the law that was in force at the date of the primary decision or the date on which the particular event or accident
occurred.
As always in law when you say in general that automatically applies that there will be exceptions. There are two
exceptions:
1. Where the legislation expressly or impliedly requires a tribunal to apply the law that was in force at an earlier
date. If the question (on appeal) is whether the primary decision maker breached a procedure, it has to look at
the procedure as at the time it was allegedly breached. It is looking at when the procedure took place
2. Where the matter involves accrued rights or liabilities. E.g. person applies for pension on 30 June 2010, and is
refused this pension. There is an error in the way the refusal has taken place. On 1 Sept 2010 an amendment
comes into place that restricts qualifications for that particular pension. That person under the new amendments
would not now qualify and the amending Act, does not indicate that it applies retrospectively. Clearly in this
situation that persons rights accrue when they were eligible for the pension and apply for it. So a tribunal would
be required to apply the legislation in force as at the date of the application.
Formal Requirements of a Decision
Any decision needs to have a number of formal requirements, not an exhaustive list simply an indicative one
 Somewhere in the decision there should be some indication of when and where the decision took place
 There should be some indicators as to the names of the parties who sat on the hearing
 Where it is a decision under review, what was the decision under review, who made it and when was it made
 The identity of the parties before the tribunal; the applicant and the respondent
 The identity of the main persons who appeared, particularly witnesses
 Whether, and if so by whom, the parties were represented, legal representatives
 What was the important information the tribunal took into account
 What where the findings of fact made by the tribunal
 What was the reason of the tribunal
 What ultimately was the actual decision of the tribunal and perhaps any orders made
Many tribunals developed templates etc for decisions, so many preliminary points above would be part of the pro forma,
filling in the gaps
Delays in Handing Down Decisions
Waiting for a decision can be very stressful for persons with an interest in the outcome. It is important for tribunals to be
sensitive to such matters and for decisions to be made promptly; as promptly as possible at the preclusion of the
provision of the information, the hearing of the evidence and submissions
In addition some tribunals are obliged by that legislation to deliver decisions within a specified time frame. If time frames
are not complied with or there is an inordinate delay in giving the decision, or reasons for the decision, then a court of
review may grant an order compelling the tribunal to give a decision or provide reasons for a decision
Writ of mandamus
Court order ordering a decision maker to do or not to do something. E.g. delay, seek writ of mandamus seeking the
tribunal provide the decision or reasons for the decision
Most decisions are most easily written when they are fresh in the minds of the people making the decisions
Strategies for writing decisions promptly



Use of standard paragraphs (often come in pro forma) – paragraphs which explain legislation and policies,
questions to be decided
Start preparing statement of reasons during the hearing, during the presentation of the information - not
prompting the decision, but writing parties, legislation (what it is about) etc…
Keep records of proposed findings of fact and assessment of witnesses, this aids in the recollection of issues as
time goes by
Burden and Standard of Proof in Tribunals
Generally speaking you can say there is no burden on any one at any tribunal.
However, generally the onus, the burden, of proving an assertion rests on the balance of probabilities, with the party that
is making the claim or assertion.
It becomes a difficult area, but in some instances all the tribunal has to decide is whether it is satisfied that a matter has
been established, but it is always on the balance of probabilities. Whether something is more probable or more likely
than not; civil standard of proof
There is an important qualification to this. We know there is the two standards; criminal and civil. There are going to be
tribunals where there may well be serious allegations made, and the gravity of an assertion made may in fact require a
higher level of proof than balance of probabilities.
Briginshaw v Briginshaw (1938):

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its
occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison
of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be
held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty
required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion
was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the
affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable
satisfaction is not a state of mind that is attained or established independently of the nature and consequence of
the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence
of a given description, or the gravity of the consequences flowing from a particular finding are considerations
which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction
of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite
testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates
an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would
not satisfy any sound and prudent judgment if the question was whether some act had been done involving
grave moral delinquency.
Eg allegation of criminal activity, fraud - not appropriate for a tribunal in this situation to make a finding that the person
has committed a crime, tribunals need to avoid that type of language. Why? Because if it were to use that language it
would be saying we the tribunal are making a decision on criminal guilt which is not their place. But in these
circumstances it is permissible for them to make factual findings that amount to the possible commission of a criminal
offence.
In other words, on 3 October 200, x threatened to stab y with a knife. That is a factual finding. What the happens to that
statement by prosecuting authorities is another issue. The tribunal is not making a finding of guilt, only finding on the
facts. It is tantamount to finding a commission of a crime, but that is all the tribunal is allowed to do.
Using Tribunal Knowledge
What about using the tribunals own knowledge in coming to a decision?
Tribunal members usually make decisions based on the information placed before them. Whilst tribunal members can
draw on their own general knowledge as members of the community, it really should be about the information presented
before the tribunal.
However if it is foreseeable that other materials, other than those material presented to the tribunal, are going to be
relied upon, then it would be unfair, a breach of the rules of natural justice and procedural fairness, not to let the parties
know that the decision maker is also to rely on this other knowledge and other materials.
Quite often personal knowledge, their expertise, can be used in assessing the information presented to a tribunal,
particularly regarding questioning witnesses. But that knowledge, particularly for specialist tribunals, should not form the
basis for decision making, unless the parties are made aware that that knowledge is going to be used. The tribunal has
to signify its intention; “we have other information and other knowledge, this is it and we will be taking it into account in
our decision making”
It is also legitimate for tribunal members to use other decisions of its own tribunal, published decisions of the courts,
policies, scholarly writings etc, as long as it is made clear to the parties that the information will be used.
Structuring Decision Making
It is worthwhile for a decision maker, for any decision, to separate it into 4 parts (not a magic rule but usually helpful):
1. What is the decision under review or the nature of the application?
2. What is its procedural history; how did it get to the tribunal, why is it here today?
3. What decision or order is the applicant seeking? What is being asked of the tribunal, what is being sought?
4. What is the statutory test that must be applied? What is the power of the decision maker. What is the test under
the legislation that the decision maker needs to apply?
Quite often the power exercised by a tribunal is discretionary. Particularly in situations where the power is discretionary
it is helpful to identify the factors that are relevant in the exercise of the discretion. It is worthwhile to actually detail them.
Sometimes the legislation provides criteria, a list of things that need to be looked at or examined. A list in the legislation
may not be exhaustive, simply indicative. This allows taking into account other criteria.
Making Findings of Fact
It is generally helpful to identify the matters on which findings of fact need to be made. Whether or not the fact is
material will depend on the analysis of the relevant law.
In administrative proceedings a relevant material fact is one on which the existence of a relevant power depends; that is
the threshold question. E.g. it may be the Veterans legislation, the criteria relating to what makes an individual a
veteran, what criteria to meet; that is a material fact.
Quite often that decision making process of what is and what is not a material fact, that in itself will have an element of
discretion in it.
JC Raymond wrote an article in 2004 “The Architecture of Argument” which talks about bad decision making. He lists as
a bad decision maker, a decision maker who switches between one party’s version to the other. Who writes a decision
simply as a stream of consciousness.
LOPP - the loosing parties position. Then analyse that for each issue, then apply the FLOPP - the flaw in the losing
parties position. There is a logical sequence of analysis
Assessing Credibility
Assessing truthfulness
If you are a decision maker in a tribunal you need to be aware of the consequences of any finding or adverse findings re
the creditability of a witness. Particularly if the findings of lack of credibility are made on limited evidence where there
have been few opportunities to test the evidence properly, there is a great potential for unfairness.
It is recommended that close surveying of the demeanor of the witness, and you test that by asking probing questions,
particularly when a witness is cross examined, that might be an aid to reliable decision making re credibility. If for e.g. a
witness cannot provide a coherent narrative, varies story in attempting to avoid incontinent questions, may prompt doubt
about truthfulness.
The witness may not be themselves, may not be a true demonstration of what they are truly like.
Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326, 348 (talking re witnesses in a courtroom but the same
principles apply)

“The cases seem to treat as axiomatic the proposition that a trial judge can reliably assess the credibility of a
witness simply on the basis of his or her demeanour in the witness box. But it should not be taken for granted.
Indeed, recent scientific studies cast doubt on the correctness of this view: see L Re, “Oral v Written Evidence:
The Myth of the 'Impressive Witness'” (1983) 57 ALJ 679; Australian Law Reform Commission, Evidence (ALRC
26) (1985), Canberra, AGPS, vol 1 at 452 and following. One might well agree with Lord Atkin in Société
d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The “Palitana')
(1924) 20 L1 L Rep 140 at 142 that “an ounce of intrinsic merit or demerit in the evidence, that is to say, the
comparison of evidence with known facts, is worth pounds of demeanour”: see also Hecron Ltd v Cousins
(Court of Appeal, 20 December 1990, unreported) per Kirby P. Nevertheless, I think it too late in the day to
deny the truth of the axiom which forms the basis of a considerable body of jurisprudence. It may be a fiction,
but it has the sanction of long-established authority.” (Samuels JA)
So evidence of a known fact is far more weightful than the demeanor of a person in the witness box.
If there are facts which are clearly at odds with the evidence, or evidence as presented by a witness, logically the facts
prevail over the demeanor of the person. And there is no straightforward way of detecting lying or unreliability
Non verbal can be prejudicial. It is important for the decision maker that they be cautious in applying their own
prejudices to the evaluation of the evidence. It is helpful to attempt to analyze evidence on its merits and set aside the
identity of the person who has provided the evidence.
Important to factor in what is known about the witness; background, culture, economic, social background, any other
potential motives for being unreliable. It is important to base the decision only on the evidence before the tribunal and
information before the tribunal, not the way a person looks or sounds. It is important to ignore extraneous information.
In addition it is sometimes worthwhile in the assessment of the evidence and the credibility of the witnesses to take into
account sometimes witnesses tell the truth about some things and not others
Evaluating Expert Information
What happens where there is expert information? Most tribunals receive expert evidence in one way or another. Opinion
evidence.
In so far it is evidence of fact it should be treated in the same way as any other form of information. If it simply evidence
of speculation which purports to be expert opinion evidence then that type of evidence should be accorded little weight
in the decision making process. If it assists the tribunal then it can be accepted in whole or in part.
What do the tribunals take into account?


Reflect on level of expertise of the expert: clinical or industry expertise, qualifications, backgrounds of the expert
Also identify the factual basis of the expert evidence, not just a gut feeling of the expect, but whether they have
done tests or experiments. Sometimes need to look deep into the testing that has been done, what sort of tests
took place
Weighing Evidence
Justice Peter Young (now retired) presented a paper at a judicial conference - list of common sense approaches:
 Firstly the usual is more likely to be what occurred than the unusual. Start with that premise.
 A witness who evidence suffers from no internal inconsistency is more likely to be correct than someone who
presents evidence that is not consistent.
 A witness whose evidence is consistent with other witnesses is likely to be correct
 A witness whose evidence is consistent with the documents is more likely to be correct.
Do not think there is any innate ability to spot a fraud; there is no one magic test, all observations and evidence is
important.
This notion of the opportunity to observe - difference perceptions. What Justice Young above is saying, particularly
observation evidence is all about distance, position, light, amount of time to observe, and they are important if witness is
providing that type of observation evidence.
He also says many witnesses will lie when the matter is vital or they think they can escape detection. Don’t be tricked by
advocates tricks. Take into account cultural or other influences, take into account cultural background then things which
may influence their decision ie refugee cases, there is an interpreter involved, they have to interpret every word, word
for word, not their version or what they think they want to hear. Decision maker needs to be aware of interviewee.
Cultural identification issues are important
Reasons
Why do we need reasons? People who appear before tribunals expect to receive reasons for the decisions, reasons
they can understand, as it affects their interests.
Oral reasons will often be sufficient, but often parties do have a right to written reasons. More often than not the
legislation will actually say there is a requirement to provide written reasons
Sometimes Tribunals may decline to give reasons. I.e. where no interest is affected, reasons have already been given
and nothing to add; however they seem to be extreme exceptions
Adequacy
In general more is accepted in tribunals particularly those with legal qualifications, but the reasons are primarily aimed
for the loosing party to understand. They may not accept it but they need to understand the decision. The decisions
should be extensive enough for a dissatisfied party to exercise their appeal or review rights and for a higher body to
understand the factual and legal basis for its decisions, as well as the reasoning processes, how they went about
reaching the ultimate decision.
Connhead v Parker (??)
Justice Finn:

it depends on the circumstances of the case, but the reason will be inadequate if
(1)
Appeal court can’t ascertain the reason on which the decision is based
(2)
justice is not seen to be done
Not always quantity; it is about quality.
Reasons should be
 Comprehensible
 Written for their audience: remember it is about being simple, affordable, timely, fair – provide all that in a
comprehensible way to a particular target audience
 They should be concisely written without lengthy reproductions of the evidence.
 Logical sequence
 Capable of logical explanation
 If it is legitimate for standard paragraphs and sentences to be used, as long as there has still been an analysis
of even those standard paragraphs too make sure they are used correctly
Inadequacy of reasons is one of the major grounds of appeal of tribunal decisions.
Key Elements
When we talk about reasons for decisions they key elements in the reason to member, when you read reasons for
decisions you need to look for these things, if you are the author you should address these points:
1.
Findings of material questions of fact: this will become even more important when we talk about procedural
fairness and natural justice. What made this fact “material”, as compared to another fact which is less material,
and another fact which you found irrelevant
2. Identification of the sources of evidence and information upon which such findings are made: what is the basis
upon which you have relied in order to make a decision which says this is a material question of fact, eg witness
evidence, documents, policy considerations, case law, all of the above
3. Brief reference to the law, rule, policy or principle which is applicable to the issue before the tribunal
4. Logical statement of the reasoning process engaged in by the tribunal: and what does this do? It joins the dots,
shows the connection between facts, legal principles and decision arrived at, logical sequences
5. Actual decision of the tribunal; order given etc
Material questions of fact are the ones that are essential to the decision making process. What is essential? Sometimes
the legislation will help and say take x and y factors into account. They in fact may be the essential elements to the
decision making process.
Minister For Immigration And Multicultural Affairs v Yusuf (2001)
The high court considered the meaning of the requirements of those words of “material facts”. The court there said that
it is really about the findings that the decision maker actually made. In other words, the true reason for the decision.
We will see how, if a decision maker doesn’t make a decision in that manner then one of the ways to challenge the
decision is to say there is an error of law. That doesn’t mean a decision maker has to go into detail as to why they didn’t
take into account every bit of fact and evidence.
Oral reasons
Advantages of oral reasons - the parties know, it provides prompt closure; it enables parties to sort out anomalies that
may be there and dealt with straight away; it is an effective communication method rather than waiting for written
decision
But if oral reasons are given then they should correspond broadly, and be consistent with, any eventual written reasons
provided.
Written reasons
Written reasons: another few points to note
 Where there is conflict in the evidence about the material issues, the reasons for decisions have to make it clear
as to which evidence was preferred and why. Simple example where there is expert evidence; has to be a clear
explanation re why one preferred to the other
 Decision makers in tribunals can sometimes be lured or fall into the temptation into making generalized
recommendations for reform or changes in practice. It is not always appropriate in some tribunals to use it as a
sounding board for reform. If governments, through departments that are affected by decisions in tribunals, are
worth their “salt” they will see the need and nature of reform and particular reasons and how they are handed
down
 Also the temptation to make collateral comments instead of focusing on issues at hand; like judges who in their
decision decide to give examples which end up being, not part of the decision itself but part of their way of
announcing a particular path
 Wherever possible, flowery forms of expression should be avoided. E.g. of flowery language; “where do you
now reside”, simpler to say “where do you live”
 Also need to avoid personally judgmental language.
 Employ the active voice rather than the passive; common sense
 Avoid double negatives; “the tenant did not refrain from making undue noise”
Use of confidential information in tribunals
Generally not necessary to specifically refer to information that would disclose a trade secret or where it would be a
breach of statute or CL duty to keep information confidential, endanger national security or infringe legal processional
privilege
E.g. it might clearly be unhelpful in communication between doctor and patient, where it may cause distress or
embarrassment to the patient to disclose
Listening to submissions
When listening to submissions, above where we talk about the leading of a witness or not and the body language of a
witness. Works the other way around, the body language of the decision makers is just as important. The idea of
tribunal members who are just sort of nodding to say get on with it, long sighs etc…
Reserving decisions
This is where a decision is reserved at the conclusion of the hearing (means delivered at a later time either in writing or
orally).
It is common courtesy to attempt, if the decision is in writing, that the parties receive the decision at the same time, not
one party receiving before the other.
If it is a matter of getting a lot of media attention then the parties should receive a decision before the media has access
to it.
Costs
Some tribunals have entitlement to costs. Common perhaps for costs to go to a successful party, or legislation may set
out where costs are to be allocated
It is there to compensate a party for time and expense in attending hearing, costs and disbursements of witnesses,
materials, travelling to hearing, application fees etc.
Factors to take into account
 Length of hearing
 Importance of issues decided
 Complexity of the matter
 Urgency of the matter
 Delays that may be caused due to misconduct of one of the parties may be a factor affording to the calculations
of costs
 Whether a party or both parties resisted in providing information and undertaking time consuming tactics that
weren’t necessary
Orders
The tribunal only has the power to make orders to the extent that the statute creating the tribunal provides such power.
The tribunal should only make orders within expressed terms allowed for orders within the legislation
The idea of what you may term creative orders outside terms of the legislation are risky, but again some guidelines for
orders are as follows:
 Unambiguous clear language
 What is the tribunal actually mandating should occur or should be done: particularly with decisions overturning
or varying an earlier decision of another decision making body in a lower tribunal, then it has to be precise and
clear re what it is ordering that tribunal or decision maker to do. Any variance of a decision has to be explicit and
meticulous
 If it is a task a person or party has to undertake it has to be framed in such a way that the party or person knows
what they are obliged to do, and whether a person is able to undertake that task, or perform that task
Timeframe: Shouldn’t be unrealistic timeframes for undertaking particular orders and shouldn’t be unduly onerous
Finality
Generally once a tribunal has reached a decision in respect of a matter that is the end of the matter, that tribunal cannot
revisit that decision - if there is a change of circumstances the matter has to be reviewed by another review body
There is an old notion which prescribes that once a body has discharged a statutory power or duty or exercised that
duty then that person or body has no authority to embark on that duty again
Procedural Fairness
Introduction
The concept of PF is also known as natural justice. In the history of admin law it has grown up termed NJ, in the modern
era PF has taken over, because it more aptly conveys the notion of this flexible obligation to adopt fair procedures which
are appropriate and adaptable to the circumstances of a particular case
It is all about what happens in the lead up to and throughout the decision making processes. It is not just about the final
decision but also about how that decision was reached.
PF doesn’t dictate any particular way of doing things but there are 2 essential rules of PF that any decision making body
or tribunal needs to undertake:
1. Hearing rule:
a person or body, having power to decide a matter, must give that effective person or body before them an
opportunity to state their case.
The hearing rule may simply in some instances be that the decision maker tells the person or body effected, at the
bottom of correspondence, “if you are dissatisfied with this decision contact x, phone x, write to x” etc and that may be
all that is required in those circumstances to abide by the hearing rule.
The word “hearing” doesn’t automatically mean it is about having an oral reading, presentation or opportunity in a courtlike place. In many instances a hearing is the opportunity to present the case anew but it isn’t automatically so.
2. Bias rule:
decision maker must be impartial and have no personal stake or interest in the matter to be decided.
Under the bias rule the expression that is often used is that the decision maker is disinterested in the matter. However,
when writing about this be careful - there is a big difference between UNinterest and DISinterested.
Ethical and instrumental justifications
Ethical justifications include human rights, the recognition of human dignity, showing respect for persons affected by
government decisions etc
Instrumental justifications are the practical benefits flowing from having fair procedures i.e.
 It allows the affected person to have a say in the decision making process, thus can expect the decision maker
to make more informed and considered decisions.
 It allows opportunity to participate and impartiality of decision maker promotes acceptance of the decision
Origin of rules
Rules of procedural fairness arise from the CL, they don’t come from legislation, although some tribunal statutes do
have provisions, such as the tribunal is bound by the rules of NJ or PF.
We will see that where there are instances of attempts by governments to exclude PF, but that has to be very clearly
delineated. We will see this with privative clauses; an attempt to take away or diminish some aspects of procedural
fairness
When the rules of PF are found in legislation it is just really declaring what the CL position is. The notion of PF is a CL
concept.
Failure to comply with rules of PF
Ultimately if a tribunal fails to comply with the legal requirements of PF, there are remedies that are available to those
seeking review of administrative action. If they have failed in requirements of PF then they have committed a legal error
in law and this will invalidate the decision and provide grounds for judicial review
Any application for judicial review (review by the courts of an administrative decision) may be made as soon as the
requirements of PF have been breached. The aggrieved party doesn’t have to wait for the final decision to be made; if
there is already an allegation that a breach of PF has occurred in the process of decision making then that may be the
time to seek application for judicial review.
Hearing Rule
There are 3 questions to be initially asked to see whether this rule applies in particular procedures:
1. The implication question: “Is the nature of the power one to which the hearing rule applies at CL?” This is the
initial question: is the power given to this body one to which the hearing rule applies?
2. The exclusion question: “Is the CL rule excluded or modified by statute”. If the power is there, does the
legislation say something about this CL rule being excluded or modified in some way in this particular scenario?
3. The content question “If the rules do apply, what sort of procedure do they require in a particular case?”
Depending on the type of body, the decision making body, what sort of procedures are required in that particular
body?
Decision making bodies set up their own way of doing things. Different bodies have different way of doing things and
different jurisdictions
The implication question
When does the hearing rule apply?
The CL rules of procedural fairness originated with judicial bodies, the courts, but were progressively extended to the
tribunals and other agencies that made administrative decisions.
A body will be under a duty to afford PF where it is empowered to make a decision that will affect the rights, the interests
or the legitimate expectations of persons or entities. This is a notion that goes back to Kio v Minister of Immigration
(1985)
The impact on affecting rights doesn’t have to be an impact on legal rights as such. It can include rights such as status,
property rights, livelihood, impact of reputation, or impact on legitimate or reasonable expectations
So it follows that a tribunal owes a duty of PF not only to the parties to the proceedings but also any other person whose
rights, interests or expectations can be adversely affected by the decision. We will look at this later in relation to the
notion of standing - eg if you have grandmother whose pension adversely affected and you are close to your
grandmother and thus affected yourself, would you have a right to stand on her behalf?
The exclusion question
When is the rule excluded or modified by Statute?
Parliament can modify or exclude the rule at any time but only expressly in the legislation or by necessary implication.
The CL rule may be that in some instances there is a right to legal representation, but the legislation may say in these
types of bodies there is no legal representation allowed without the authority of the tribunal.
For instance with the Consumer Trader and Tenancy Tribunal the legislation is clear in not allowing legal representation
without the authority or permission of the tribunal, as they are of the view that lawyers shouldn’t be allowed to assist.
One school of thought says lawyers should assist because they hone in on the issues and eliminate unnecessary pieces
of information and help the tribunal focus on the issues. Another school of thought thinks lawyers will nit-pick and
lengthen the time taken by tribunals by offering argument on every point.
If there is going to be some indicator that there isn’t going to be PF or an amendment to it there has to be clearly
expressed or clearly implicated in the legislation
In most pieces of legislation setting up a tribunal you will find provisions along lines of “the tribunal is to proceed with as
little formality, etc” so it allows the tribunal to set up its own procedure, it can inform itself as it thinks fit, often without the
rules of evidence. This type of legislation is telling the tribunal that you can do things the way that best fits that particular
jurisdiction.
It is uncommon to find a tribunal piece of legislation that entirely excludes the CL rules, more often they will be excluded
partially but not actually or entirely
Most statutes prescribe procedures for the tribunal to follow, some more detailed than others. There is sometimes a
checklist of things to be done, but in other cases it is a non exhaustive list and the tribunal has to add its own way of
doing things to any list in the legislation.
The content question
With the content, what does the rule require?
The main issue for the tribunal is the content of the rule; what specific procedures satisfy the requirements of giving a
fair hearing in the circumstances?
It will relate to matter such as (but this is not an exhaustive list):
 Giving reasonable notice, under the circumstances, of the hearing and also what is in issue, what is it about
 Giving parties adequate time to prepare; this requires not only reasonable time about when it is on and what it is
about, but giving adequate time to prepare. It will include potentially (if there is a hearing) the issue for a request
for adjournment (if a party cant prepare adequately they may seek an adjournment, so what does the tribunal
take into consideration)
 Deciding what form of hearing to give; oral or written submissions? Sometimes all that is needed is written
submissions and the hearing is done on the papers, not necessary for parties to attend
 Disclosing material obtained from another party or source; material from one party should have been disclosed
to the other party, if it hasn’t been then the tribunal must also make sure the other party is aware of the other
information and that it will be considered in the decision making process. This relates to the need to disclose
that material that has been forthcoming from one of the parties
 Ensuring that decisions are based on relevant and logically probative information. Probative information simply
means information that tends to logically prove something which on the surface there is a link between that
information and proving the assertion that comes with it. Issues such as, what is relevant most Another extreme
case is a party comes in and says they are dissatisfied with the decision; if they take this extreme approach the
likelihood of success will be virtually nil, do you then proceed or come up with some information to assist in the
decision making process
 Decisions about whether to allow the party to be represented. What happens in situations where there is a
tribunal that allows legal representation and one party comes in and has 3 QC or SC and the other one is
unrepresented, how far does a tribunal go towards assisting the self represented party when the other side is
loaded with Silks??
 Procedures for cross examination of witnesses. If tribunal does allow a witness, do you allow cross examination
and to what extent? Because no rules apply for evidence in tribunals
The true common threads or essential ingredients is that a person whose interests may be affected by a decision must
be given an adequate opportunity to give evidence and reasonable argument before the tribunal. This doesn’t mean an
oral hearing in every case, in some instances it will be in writing or by telephone, and that is all to satisfy CL
requirements. The others are about a person being put on notice re what can happen in the proceedings.
E.g. for a disciplinary tribunal at the very least need to have the person knowing what is being alleged, what breach is
alleged, what is the hearing and purpose – is it simply to say that was wrong, or is it “that is it, that’s the end” what sort
of sanctions imposed as an outcome etc
Bias rule
The central requirement of administrative justice is really about the decision maker being impartial and disinterested.
At the top of the list of the characteristics that you would want a decision maker is impartiality; you don’t want a decision
maker to be biased towards the other side.
An unbiased decision maker is one that is open to persuasion or to be convinced by your case, their mind isn’t closed to
that possibility, so that the matter is judged on its merits
If you maintain freedom from bias this is important to maintain public confidence in the system and in the tribunal and
accepting its decisions.
The Administrative Review Council has put out a number of papers in this area, one is Standards Guide for Tribunal
Members, which all members of a tribunal are given as part and parcel of their introduction to any tribunal. Free from
bias is an essential obligation, and ethical obligations
We will see that it is really not about actual bias, but really about an apprehension of bias in the performance of
responsibility of tribunal
What does bias mean?
Bias is a predisposition to approach issues in the case otherwise than with an impartial or unprejudiced mind.
The presence of bias may be inferred from the members behavior, statements made by the tribunal member, perhaps
by personal interests or associations, it may be simply by the way the procedure has been structured to the process
itself, they might already be biased in favour of one party.
Disqualifying bias exists if the decision maker is actually biased. But it is really more about what an observer might
reasonably apprehend of the decision maker being biased
An extreme example of actual bias is where a tribunal member simply says “well I just don’t like you”. That may be
indicative of actual bias. But usually it doesn’t happen this way, most commonly it is apprehended bias.
What is the test?
Test for apprehended bias: Whether a fair minded lay observer may reasonably apprehend that a decision maker would
bring an impartial and unbiased mind to the case, whether they have an unprejudiced mind
The vast majority of challenges to courts and tribunals under the bias rule allege apparent/apprehended bias rather than
actual bias. Reason being; apparent bias is easier to prove.
Either actual or apprehended bias will disqualify a member from being part of the tribunal unless the member discloses
the relevant facts and circumstances of the bias to the parties and they waive their right to object
If you are member of the tribunal and are in doubt that there may be an apprehended bias, you offer to step down. Then
the parties may say they are happy to proceed. If the parties say that then they can’t come back down the track and
seek to change their mind on an apprehension of bias. They may challenge on actual bias down the track, but on
apprehended bias they get only one opportunity, and if they waive it that’s it.
If it is a panel on the tribunal, the bias of a single member will disqualify the entire panel, the view being that one biased
member can influence the tribunal decisions and may lead to an apprehension that the entire panel may be biased
through the influence of the one member
Categories of disqualification by appearance of bias
In Webb v R (1994) Dean J identified 4 main categories of cases where a decision maker is disqualified by reason of the
appearance of bias or apprehension of bias:
1. Disqualifying interest
Decision maker has a pecuniary or other personal interest in the decision or outcome. This is sometimes
referred to as a conflict of interest. Common sense has a lot to do with it. If in doubt the decision maker should
disclose. I.e. banking with ANZ where ANZ is party, or driving BMW where BWM is party, or own small amount
of shares in company
2. Disqualifying conduct
Conduct of the tribunal member in the course of the proceedings or outside the hearing that can give an
apprehension of being prejudiced in relation to the issue to be decided. Common sense approach. There are
going to be comments by members of the tribunal that will be more indicative of the possibility of apprehended
bias than not
3. Disqualifying association
Appearance of bias arises from the decision makers association or relationship with people involved in the
proceedings. Common sense plays a big part. Potentially much of our judicial system or administrative system
would fall apart if common sense didn’t play a role. Majority of judges come from the bar. As barristers they
have acted for certain companies or clients. Or if they were solicitors they acted and worked for particular firms.
So then find themselves as judge or member of tribunal. Then you find parties being former clients or firms of
yours, meet and greet all the time.
4. Disqualification by extraneous information:
Has information been obtained outside the proceedings but the tribunal doesn’t let the other party know?
Information divulged to the party and then whether prior knowledge potentially disqualifies the decision maker
The bias rule works just like the hearing rule, in that it is a common law presumption that can only be displaced by clear
legislative intention that it won’t apply in particular circumstances or that it will be modified in particular circumstances,
and the reason for this is to allow flexibility in a variety of circumstances.
Exceptions
There are 3 exceptions that you need to note
1. Statutory exceptions
Statute may expressly or impliedly authorize a decision maker to determine a matter despite circumstances that
may otherwise give rise to an apprehension of bias. E.g. is where a tribunal deals with same parties on a
regular basis, they know the parties; ie landlord and tenant matters often same landlords and Strata
Management companies because they deal with a variety of tenants. Again this notion that the statute will allow
it, although they know this company, they know it because of the nature of the work
2. Waiver
Where, having disclosed information to the parties about potential apprehended bias and the parties have
waived it and said they were happy to continue, or waive right to raise issue of apprehended bias again. Only if
actual bias occurs that there could be a potential need to challenge the decision
3. Necessity
This recognizes that in some cases the tribunal member may be allowed to proceed despite appearance of bias
if otherwise the tribunal can’t perform statutory function. I.e. if the tribunal is short of member numbers, a
member of the panel who would otherwise be disqualified for bias may be able to take part in the decision
Disqualifying interest
In relation to this disqualifying interest or conflict of interest the case to note is the high court case of Ebner v Official
Trustee in Bankruptcy (2000)
Ebner v Official Trustee in Bankruptcy (2000)
 This case overruled a long line of authorities that automatically disqualified decision makers by reason of
pecuniary interest, and held that there was no longer any rule that a decision maker is automatically disqualified
by reason of a pecuniary interest in the outcome of proceedings. There is no longer an automatic
disqualification in Australia, there is now the test of reasonable lay observer, the fair minded lay observer
 Majority in this case provided a 3 step test to analyze whether a tribunal member is disqualified by reason of
conflict of interest or association:
1. Specify the interest
ie the tribunal member owns shares in company that is party to proceedings
2. Spell out a logical connection between that identified interest and the anticipated breach of the member’s
duty to decide the case on its merits.
Ie the connection may be that if the applicant company wins the case the value of the members
shareholding in the company will rise and this may result, or predispose the member to decide the case in
favour of the application company.
3. Apply test for apprehended bias
Having regard to interest and connection, would a fair minded observer reasonably apprehend that the
tribunal member may not decide the case impartially. This requires really an examination of whether there is
a realistic possibility that the outcome of the case would affect the value of the member’s shareholding.
 E.g. of this is Clenae Pty Ltd 2000 where there is a trial judge who inherits a parcel of 2,400 shares in
ANZ. He reserved judgment in a case in which ANZ was a party, it was conceded (eventually went to
High Court) that the outcome of the litigation would not have affected the value of the judges shares in
the bank so that interest would not have disqualified him. Again common sense approach
Disqualification due to bias by conduct or prejudgment
Members of tribunals by words or conduct or activities outside tribunal may engender this apprehension that they have
prejudged an issue
Happens all the time, that the parties are to be assisted if in the course of the hearing the T discloses a provision view
on the issues and directs the parties attention to the weaknesses in their case - alerts the parties to what the tribunal is
thinking, giving opportunity to persuade the T to take another view or reconsider the whole matter. Obviously care has to
be taken for expressing a provision view, particular when exposing weakness of the parties case, that eh T doesn’t give
impression that it has made up its mind before hearing finished. Usually these comments prefaced by” my provisional
view subject to…” which is indicative of where the thinking is at, at that point. Not an indication that it will be the final
decision
Another example re preconceived views about witnesses - tribunal members in some jurisdictions see the same expert
witnesses time and time again, and they will inevitably form views re the witness’s expertise and impartiality. An
example is a member who may have the opinion that a medical expert regularly brought by insurance company
invariably underestimates the workers account. It may be that the T has previously rejected the expert witness evidence.
As long as there is no prejudgment on the witness’s evidence and that the member of the T is still prepared to be
convinced one way or another, it won’t disqualify them from hearing the expert witness in that case
Now this above can be contrasted where a member has previously made findings of the credit or truthfulness of a non
expert witness called to give evidence , so in those circumstances that decision maker should not sit
Livesey v New South Wales Bar Association (1983) 151 CLR 288
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involving a member of the legal profession who was in a disciplinary issues and he called a particular witness as a
character witness, the court didn’t believe her, so she was labeled as untruthful, few years later, the same
character witness is called again before same judge in different matter. He had already labeled her in a previous
case as untruthful, so in this situation there is a reasonable app of bias.
Another eg is conduct in the hearing. If there is hostility, sarcasm, aggression, shown by a T member towards a party or
witness, these can all be seen as potential apprehended bias. In many a T where there are witnesses and cross
examining of them by members of T it is about testing the evidence. Particularly when a party is self represented there
should be particular care to ensure that the manner of questioning is not overbearing or intimidating. This may be by
constant interruption to the answers given by witnesses, or expression of disbelief.
Flippant remarks, perhaps in poor taste can give rise to apprehended bias. For many of the parties involved it is
traumatic in most instances, so it isn’t the time or place to be joking or flippant. May be instances where tensions arise
and some T members are able to give remarks to calm everyone down to ease tension, but fraught with danger to make
jokes about it. Eg of apprehended bias, a well meaning member of a tribunal, defective construction of a fence between
two neighbors, member referred to it as “the case of the shonky fence”. When that went on appeal the court found that
the allegation was unfounded and uncalled for.
Disqualification due to Bias by association
Noted before that commonly members of T have personal or professional relationship with those involved in the
proceedings either witness or parties - that relationship is in many instances unknown to that parties themselves. Gives
rise to question whether members should disclose to the parties. Not all prior associations will give rise to apprehension
of bias, nature, duration, closeness of relationship all need to be assessed. Is there a capacity for that relationship to
influence the outcome.
The Council of Chief Justice of Australia put out a guide to judicial conduct which classifies familiar relationships as 1, 2
and 3rd degree according to closeness of kinship. This is guide for judges that similarly applies to T:
1. Where parent, child, sibling, spouse, domestic partner (1st degree) judge shouldn’t sit.
2. Relatives of the 2nd degree, grandparents, grandchild, aunts, nephews, nieces, in-laws etc - judges should not
sit.
Within those guidelines about not only familial but person relationship, business relationship etc
Personal friendships of a party may be compelling for disqualification but mere acquaintance is not. Decision maker
should decide whether or not to disclose, need to classify those with whom you have a personal friendship. Is it a
personal friendship or just a passing acquaintance. May say certain friends fall into this category, and these are friends
but not really close.
Past professional associations doesn’t require disqualification unless that particular association relates to subject matter
of proceedings. A judge or tribunal member that has a current business association with a party should not sit usually, or
at least disclose the business association
At the very least, with some relationships, should be disclosed
Past association or friendship with the solicitors for other party should not give rise, common sense. However in detain
circumstances, ie judges former wife is the counsel for one of the parties should be disclosed, for the parties to decide
In most of these cases that decision is made even before it gets to hearing, the T member or judge will know who the
parties are and any legal representatives, and if any potential issue they will step down and get someone else to hear
the matter.
The fact that the witness is personally know to the T member, that in itself is not ground for disqualification unless there
is an issue about credibility of the witness.
Admin Review Council Guide focuses on perception of bias
Disqualification by extraneous information/Bias by communication:
Once hearing pending should be no communication between T member and a party or parties representative or advisor.
Again Common sense prevails - many instances where the T member have to attend a viewing, go to site, building site,
where the accident occurred, so they have to travel there, generally speaking you don’t, if you are the presiding
member, you don’t travel in the same car as either of the parties. If you are in the middle of nowhere there may not be
the luxury of a separate vehicle for everyone concerned so may have to share. Or in the court building, foyers - all
common sense
But if there is any communication between T member and party or witness in the absence of the other party that needs
to be divulged to the other party. Any communication - it may be the remember of the tribunal knows this lawyer well
and chatting about anything, it doesn’t matter, it is about the perception that if they are spotted talking by the other party
the other party doesn’t know what they are talking about so always divulge
This disclosure is really about allowing the parties to determine whether there may be grounds for disqualification,
whether to waive their right to object.
Tribunal Members - Disqualifying themselves
If a T member is going to disqualify themselves from the hearing that decision should be made at the earliest possible
opportunity
There have been cases, one particular case where after many weeks this T member finally disclosed a connection or
relationship, one case where the parties said it is fine, then went on appeal and the appeal court said you should have
disclosed, similar case where the member actually did step down, one party appealed and the court said you should not
have stepped down. The high court in Ebner case, take that as guide, proven to disclose any assoc if serious possibility
that potentially disqualified - if in doubt, disclose.
Merits Review
We know that MR takes place in Tribunal, in decision making places or bodies that are not courts.
MR is a process whereby an admin decisions of government are reviewed on the merits
“On the merits”: mean the facts, the law and the policy aspects of the original decision and are all recognized afresh,
and a new decision is made, and that new decision, either affirms or varies or sets aside the original decision which had
been made.
MR is characterized by the ability or capacity for substituting the decision of the original decision maker with the
reviewing person or body.
Courts, by contrast, review on legality or error of law (judicial review). Whilst in MR there is some attention paid to the
legal basis for a decision and to compliance with legal principles and procedures the principal issue is whether the
decision under review is substantively correct
MR is the involvement of the reviewing body, that reviewing body’s capacity to step into the shoes of the original
decision maker, and to remake that admin decision according to the merits of the individual case
Kerr Committee Report
You might recall that one of the major themes under the Kerr Committee Report was the need to develop a
comprehensive, coherent and integrated system of admin law. The committee didn’t spell out in detail the concepts
underpinning this, but was clear enough in the recommendations
The Kerr Committee – Pillars - for the need for admin law comprehensive, accessible by public, focused on substantive
and not procedural issues, access to information
The major plank of the recommendations of the Kerr committee was the establishment of a framework for the review of
decisions on their merits - “The basic fault on the entire structure is that review cannot as a general rule be obtained on
the merits and this is what a citizen is seeking…..”
Neither Kerr nor Bland Committee articulated the benefits of MR.
Kerr Committee - They said if a as a result citizens look more critically at and have a right to
challenge….efficiency…democratic society
AAT Act
Interesting to note that the term MR doesn’t appear in the AAT Act. The definition of MR has largely been undertaken by
the AATribunal itself in its decisions, and the powers of the AAT which are the source of the MR function under the AAT
can be found in s43.
S43(1) simply says:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are
conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the
Tribunal.
Tribunal must give reasons for its decision
Tribunal can either say yes we agree with the decision, or we vary it ourselves, or we set it aside, or we send it back to
the original decision maker with some recommendations as to how to go about it. Ie if the AAT decided not to substitute
the decision with its own decision, say the original decision maker took irrelevant considerations into account, it may
send back to original decision maker with recommendations ie don’t take irrelevant considerations into account.
Now this type of section, s43 AAT Act is typical of the sections found in any piece of legislation that established the
Tribunal. This doesn’t mean the AAT has a roving brief, to use the opportunity to consider new claims or new aspects of
claims which have not yet been previously taken into account. The jurisdiction of reviewing tribunals will be separate in
the statute
Justice Brenan, who was once the president of the AAT, when speaking of s43, said so the question for the tribunal is
the same question as that which faces the primary decision maker - what is the correct or preferable decision in this
case, answered by reference to the elements of the administrative decision, facts, law and appropriate exercise of
discretion. Before the Tribunal intervenes it must come to the view that the facts are diff from what they were believed to
be by the primary administrator, the law applies diff from that which the primary admin applied it, or if there be a
discretion there is a way to exercise it preferable to the way in which the primary admin exercised it
“Standing in the shoes of the decision maker”
Example in National v Repatriation Commission 1994
Conjures this notion of reviewing de nova, a new, a fresh.
It can be misleading because in stepping into the shoes of the decision maker circumstances may well have changed,
so the reviewing Tribunal may in fact be making a decision afresh, based on material not original available to the original
decision maker, and in some instances the material before the reviewing tribunal will be quite diff and may bear little
resemblance to the material before the original decision maker
Not all Tribunal are given the power to review de nova; that is set out in the specific legislation on each Tribunal.
Standard rule
The standard rule in any reviewing Tribunal is that it is going to look at the facts, the law, the policy.
Drake v Minister for Immigation and Ethnic Affairs (No.2) (1980) 2 ALD 634

Justice Deane says the question for the determination of the tribunal…correct or preferable one…the question
for determination is whether the decision is the preferable one on the material before the tribunal.
This means what is before the reviewing Tribunal now, sometimes referred to as contemporaneous review. Usually
because the applicant has produced new evidence, or changes to the law or facts or policy
Benefits of merits review
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Typically mentioned ones include that in MR the role of a reviewing Tribunal such as the AAT clarifies the meaning
of obscure legislation provisions, the Tribunal can say something about the legislation
It ensures that admin honour legislation on its terms - either affirms or not that the original decision maker
interpreted the legislation correctly in applying the legislation to the given facts
Furthers consistency in the administration - sign post and indicator for decision makers that this is the way to go
about making these types of decisions
Focuses attention on the accuracy and quality of agency manuals and guidelines - all decision making departments
have manuals and guidelines for decision makers - this is what needs to be examined and done in the decision
making process. If they get aspects of this wrong and the reviewing Tribunal comments on it then the agents or
body can correct these guidelines
Enhancing the quality of admin decisions - if you are a decision maker and know a decision is potentially to be
reviewed may spend more time on the quality of the decision that you are writing
Opportunity for full and open consideration of issues of importance - usually major issues, so opportunity for that
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issue to be openly resolved
Increasing the accountability of the decision maker - goes hand in hand with the quality for reasons for decision,
decision makers are potentially accountable of the decision that are made
Highlights problems that should be addressed by law reform, opportunity that Take if there is an ongoing issue then
a message may be sent to government that there needs to be law reform in that area
Bottom line is that MR produces not only better decisions but also better decision making
Objectives of the MR system
If you go to Admin Review Council Report, “Better decisions” - listed several objectives, these objectives really marry up
with the benefits of MR:
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Achieve correct d preferable decisions
To be accessible and responsive, opportunity for the sys to allow accessibility
Promote better quality decision making by agencies
Allow improvements to policy and legislation
Be coherent
Make efficient use of resources
Just some words on these words “correct or preferable decisions”.
The full federal court in the Drake case spoke of the determination of the AAT being whether the decision was correct or
preferable. There is a view held by many including admin review council, that the message that was being conveyed
was that a decision must be correct, but that if there is a range of decisions that could be made, all of which could be
correct, the decision maker has a choice as to which is the preferable decision. If you use the phrase correct o
preferable, it may give idea that the decision is preferable even if it isn’t correct. The correct phrase to use is CORRECT
AND PREFERABLE
Merits review also means that those persons who might benefit from a review of the decision are almost immediately
informed of their rights to seek further review if necessary. So thinking back to the notions of the new admin law, if
talking about, the words fairness, accessibility, timeliness, informality, then this is part and parcel of that, that it is almost
an immediate answer for those affect by the decision.
What is a Tribunal?
MR takes places primarily in Tribunals. So what is a Tribunal? We know that there is no one definition of Tribunal. There
is no one definition that can fully capture the range of bodies to which the term Tribunal applies, and that distinguishes
Tribunal from being courts and government decision makers.
Certainly the legal meaning of Tribunal is broader than when used in ordinary speech, because often you hear the
expression that a Court of law is a Tribunal of law, and that is reference to a court, that any official body with powers to
make decisions affecting rights are often referred to as Tribunal, but there is a certainly, at Commonwealth level,
distinction between Tribunal and courts
Under the constitution there is a clear separation of admin and judicial powers. That distinction in the states and
territories is blurred often in state jurisdiction the roles of the courts and Tribunal they do sometimes overlap, but in the
commonwealth there is a clear distinction between the two
Why would parliament choose to give powers in some instances to Tribunal rather than courts? There may be a
potential number of reasons
1. Tribunals are usually able to operate with far more flexibility and informality than courts. That in itself makes
Tribunal far more accessible to parties and saves costs, by reducing the need in many instances for parties to have
legal representation.
2. Another reason parliament may chose Tribunal, is that it can be staffed with members with specialist skills and
expertise in areas other than the law. See this all in the time in specialist Tribunal, not only AAT, so it is an attractive
forum for decision makers in specialist areas.
3.
4.
From a government perspective staffing Tribunal is far more flexible than courts, can appoint part time Tribunal
members for fixed term, whereas judges have a specific retirement age.
Government wants to be seen to be carrying out the functions of government, but independent of government
agencies. Put in place a Tribunal or series of T’s to ensure there is going to be that independence in the decision
making process and a method for review
Attempted definitions of “Tribunal”
Council of Australasian Tribunals, COAT, and their constitution attempts a definition. Peak coordinating body for
Tribunal in Australasia. Under clause 2.1 of their const, there attempt at definition is any commonwealth state territory or
NZ body who primary function involves the determination of disputes including admin review, party/party disputes, and
disciplinary applications, but which in carrying out this function is not acting as a court. So it is about determining
disputes which may include admin review, (government departments) party/party disputes (CCCT), diplomacy
applications (workplace for instance) but not acting as a court. This attempted definition leaves out bodies whose
functions are primarily regulatory, advisory, policy making - all those bodies that are also admin bodies.
Sometimes there is that overlap in state and terrorist jurisdiction - eg the Admin Appeals Court of SA, the name itself
shows an overlap. Or magistrates court in Tasmania has an admin appeals division. Under the Administrative Law Act
(Victoria) they talk about their definition in s2 “tribunal means a person or body of persons (not being a court of law or a
tribunal constituted or presided over by a Judge of the Supreme Court) who, in arriving at the decision in question, is or
are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or
more of the rules of natural justice.”. That Victoria definition attempts to exclude the courts.
Jurisdiction of the Tribunals
There is an important difference between the powers of a Tribunal and the jurisdiction of a Tribunal
The word Jurisdiction itself in this context is very much about the context in which the word jurisdiction is used.
One way of describing jurisdiction - the territory within which power extends - each state or territory has a separate
juristic in the territory itself, laws of NSW apply in the territory of NSW
Jurisdiction can also describe in a general way the types and kinds of matters that a Tribunal is authorised to decide and
thus the types of matters - ie tax jurisdiction - taxation matters and determination of taxation issues
Narrower meaning: scope of a particular power given to a Tribunal. Whenever parliament gives a power to a Tribunal it
usually sets limits on that power, and that limit may either be express, or it may be implied in the jurisdiction.
It may be about the subject matter of the power or the procedure about how to exercise.
Eg if a Tribunal sets out to determine a matter that it has no power to decide then is acting outside its jurisdiction
Another eg if the Tribunal has power to decide a matter but goes about it in an unauthorised fashion then again may be
said that the Tribunal is acting beyond its jurisdiction.
When this occurs, you may apply to the court for an order to set aside the Tribunal decision or to restrain it from making
the decision in the first place
Jurisdiction very much dependant upon the legislation
Tribunal powers
The actions that the Tribunal can take, the decisions the Tribunal can actually make within its jurisdiction
It is convention to refer to a Tribunal powers to make a decision, rather than its powers to take action, because those
actions are actually based on the decision.
Courts on the other hand have some CL powers, statutory Tribunal really only get their powers as spelled out in the
legislation
In any situation you always go back to where did the power come from, if the Tribunal is making a decision, or decision
making body is making a decision, where did it gets its power, which piece of leg said this Tribunal can undertake this
process of decision making
Sometimes powers that a Tribunal obtains may come from another act of parliament, not just the parent act, and this is
usually called an enabling or empowering act. Most powers come directly from being expressed in the legislation but
sometimes there are incidental powers coming from other pieces of legislation
Private Tribunals
We know that not all Tribunal are established by government, there are many private sector Tribunal - sporting Tribunal,
religious Tribunal, all about dealing with complaints and disputes arising under them, so called domestic Tribunal. these
different from other tribunals in that they obtain there power from the law of contract rather than legislation. In other
words there power and authority comes from the members agreement to abide by the rules of the particular organisation
or association, so they must comply with the rules of the association, but may not be subject to the general
requirements that apply to government tribunals
Duties or discretionary powers?
Some powers are duties. May say “the Tribunal shall or must do x y or z”
We know many powers given to Tribunal are discretionary powers, have to exercise some judgment or choice between
different decision outcomes or how to go about it. These discretionary powers commonly indicated by the words the
Tribunal MAY do something
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“Shall” - duty
“May” - discretionary power
Sometimes combo of the two - may be that the Tribunal has to apply a statutory standard or criteria to determine eg
whether a person is a fit and proper person to hold a license.
A Tribunal like any decision maker, has to apply relevant criteria and ignore irrelevant considerations
Sometimes the act itself setting up the Tribunal spell out the relevant considerations, and that type of discretion is said
to be fully structured, it is set out, you must do this or this
In some cases an act provides a list of matters to be considered, and is partially structured, eg these are things to take
into account where necessary
Sometimes piece of leg does not provide any criteria at all, so in that scenario the Tribunal must decide what the
relevant criteria will be before moving on.
Separation of Powers
Under our constitution there is the principle of separation of powers. We know from const law chapter 1 of constitution
talks of legislative power, parliament, chapter 2 is the executive government as the admin or executive arm of the
government, and chapter 3 is judicial power in the high court and general courts system. The high court is very clear
and strictly enforces the separation of judicial power from the other powers.
Clearly spelt out what can or cannot do
1. Only a court that is mentioned in chapter 3 can exercise the judicial power of the cth
2. Federal courts cannot exercise executive or administrative power
Boilermakers case
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High court case established those principles to hold that a Tribunal which had been established to arbitrate on
industrial disputes could not in fact fine a union that had breached an order of this Tribunal, because impositions
of fines is a judicial function, not a function that could be exercised by a non judicial body or combined with non
judicial powers. So very strict separation of judicial power from the other powers.
Courts can and do review admin decisions to see if it is a lawful decision, why, because that is an inherent judicial
function.
If the commonwealth, the parliament, wants to empower someone top review admin decision on the merits and exercise
the powers of the original decision maker it can only give that power to a tribunal, it cannot give that power to the courts.
We will see that sometimes courts do venture on merits review
Brandy v HREOC
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High court held that the powers of this commission, HREOC, too make enforceable anti discrimination
determinations was, the high court found, an unconstitutional exercise of judicial power by a non judicial body this was a commission which cannot make an enforceable judicial determination
This in itself put some limits on the powers of commonwealth tribunals
When a Tribunal reviews on the merits, stepping into the shoes of the decision maker, it does have the power to make
decisions because its decision has the same legal affect as that of the agency or dept whose decision is being
reviewed. So in that sense the Tribunal is not being given a judicial power, simply undertaking the powers that have
already been given to an admin decision maker
Variety of Tribunals
All sorts of Tribunal. Think of land use, land valuation, migration, deportation, refugee status, tax assessment,
occupation and business licensing, broadcasting, FOI, allocation of mining rights, film and literature classification,
prisoner parole, pensions, public housing, the list goes on…. They are just some of the common ones
States - accident comp, insurance, consumer credit etc
Civil claims - Sometimes Tribunal hear civil claims - Tribunal have been so successful in the main that there has been a
demand for some sort of civil claims mechanisms ad to remove it from the jurisdiction of the courts.
Some of these Tribunal don’t require for e.g. the rules of evidence to be applied
Think of what jurisdiction do they have - Some Tribunal are simply advisory, there only to give advise to government or
a minister of government eg patent and trademark attorneys professional standards board. It is an advisory board to
government advising about patents and TM, that is its sole function, just to give advice
Some Tribunal have a quasi legislative functions ie repatriation medical board re pension claims made by veterans,
guidelines.
Some are simply review bodies ie the statutory fishing rights allocation review panel - the body that makes decisions
about fishing licenses and how many fish can and can’t be caught in particular areas. Reviewing that on an ongoing
basis
Some are investigative and law enforcement- ie Australian crime commission - very precise jurisdiction as to what it is
about
Some are a combination of investigative, have hearings and make recommendations - ICAC – international commission
against corruption - sends people out and investigates, covertly or not so covertly, and on occasions has hearing on
major areas or issues, and from there can make recommendations to government
Some tribunal specialize in alternative dispute resolution - HREOC type bodies - that is very much about using ADR.
Some Tribunal deal with existing rights, or pre-existing rights. Eg national native title tribunal, looking at aboriginal land
rights
Some Tribunal are of course these party/party type bodies dealing with civil disputes and small claims, CCCT
Some are very specific, what is now the Privacy NSW (used to be the Privacy Committee) - allegations of invasions of
privacy by individuals or corps
Onus of proof in Tribunal
It is rare for legislation that establishes Tribunal to actually refer to the onus of proof
Despite this statutory silence, the general rule is that in Tribunals no party bears the legal onus of proof.
You could say that the onus really falls on the Tribunal. but again common sense would tell you that if you have a claim
and you go to a Tribunal and say I have a claim, and I don’t have to prove anything, you wont get very far
So whilst there is no onus of proof, the bottom line really is in practical terms, if you are making a claim, you will have to
provide some element of evidence to back up your claim.
Ultimately the Tribunal has to be satisfied on the balance of probabilities, civil onus of proof.
Type of system
Most Tribunal will undertake an inquisitorial approach. If you were to go to the high court for eg in our system of law,
adversarial system, it is up to the parties to represent their cases and call the court to make a decision based on the
evidence before them. That is unlike the European civil law approach, our approach is non inquisitional, the court in
itself does not play a role in the evidence that has been provided.
T, depending on which one you are at and which member is sitting at a particular Tribunal, will take either a very
inquisitorial approach, or a very laid back inquisitorial approach, but the opportunity is there for the Tribunal to ask
questions of the parties, make comments, to actively participate, so it is in the main rare that Tribunal will sit back and
just listen to the evidence to be presented.
Again put yourselves in the shoes of a Tribunal member. Would you sit back and just take in what the parties are
presenting. Tribunal is supposed to be expeditious, if a party brings boxes of material, the Tribunal would say that they
need to summarize the case and come back then because they wont listen to boxes of material. So how relaxed would
you be in sitting back
You have to be satisfied on the balance of probabilities, that is the bottom line
T also have the powers to obtain info themselves, however most Tribunal in our legal system are not resourced to
enable them to obtain info themselves. Certainly some specialist Tribunal already have a body of knowledge they may
be able to use, but in the main they wont have the resources to undertake their own enquiries, more about asking the
parties to make their own enquiries. Distinguish with civil law sys in Europe where the Tribunal are set up to undertake
whatever investigation they require.
It is very much dependant on the character of the proceedings and the character of the T
Jones v National Caldwell
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Famous passage by Lord Denning when talking about adversarial system and inquisitorial system – “in a
system of trial we have evolved in…..determine issues raised by the parties…society at large, as happens we
believe in some foreign countries….a judge is not a mere umpire to answer the question….find the truth and do
justice according to the law…advocate plays an honorable ….Lord Eldham said truth is best discovered by
powerful statements on both sides of the question, and lord green….holds the balance by the contending
parties…taking party in their disserations” - so the idea from lord Denning that it is very much about the parties
bringing the evidence forward
Resolution
Ultimately the Tribunal has to aim for a speedy resolution of the matter
Again what does this mean - that you cut off people halfway through their argument? Common sense prevails.
Barwick case 2004
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Justice Ipp - about efficiency in obtaining info - where there has been a denial of natural justice….especially
when the issues I whether the evidence of a particular witness…..compliance with requirement….no different to
outcome….submissions on question of law.
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In other words what he is saying is about getting the balance right, in some instances it will be appropriate to cut
a submission short, to ask the party to move along, as long as ultimately there is no indication you are denying
that party natural justice
Evidence presented at tribunals
We know Tribunal aren’t bound by formal rules of evidence informal proceedings, depends on circumstances of case
Eshetu 1999 case
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High court dealt with a provision in Migration Act which spoke of “no evidence” provision. High court said they
are intended to be …. Not restrictive, free Tribunal in some respects….extent to which they free Tribunal from
obligations applicable to courts of law…another question.
This means that the discretion of Tribunal is not unfettered, wide discretion as to how they go about looking at the
evidence. A Tribunal is not going to err simply because it acts on evidence which would not perhaps normally be
admissible in a court, just because it is doing it to Tribunal way, not the court way. That is not a mistake as such. But
again that does not mean that the Tribunal is a free for all, that anything goes, that any events can be thrown at the
Tribunal
McDonald 1984

Court refers - “a Tribunal will still have to determine practical ….more likely to find the answer to such question
in the statute under which it is operating, or in consideration of natural justice or common sense…..where
legislation is silent.”
Where there is this notion of no evidence that has to be balanced by the usual requirements that Tribunal have to act on
substantial justice and the merits of the case. What this can be taken Tribunal mean is that a Tribunal has flexible
proceedings, flexible in the way it goes about doing things in a particular Tribunal.
Re evidence and Basic standards of procedural fairness
Kioa case

Fairly, considered in the light of state….interests statute seeks to ….account as legitimate considerations operative words there are about fair procedures, what will be fair in one tribunal may seemingly be unfair in
another
At the very least the evidence needs to be probative of the issue. To be probative evidence need sot logically show the
existence or non existence of facts that are relevant to the issue to be determine. In other words to show the likelihood
or unlikelihood of the occurrence of some event.
Probative evidence - About avoiding these quantum leaps and ensure there are links there
In conclusion in this area a tribunal, whether a Tribunal is bound by the rules of Natural justice is to be determined by
the statute itself. The rules of evidence and whether it is to be bound by the rules of NJ determined by the legislation. If
bound by rules of evidence determined by legislation but In the main Tribunal won’t be bound by the rules of evidence
T has to give reasons for decisions, on established facts, so has to take care what evidence it will allow in in order for it
to base its decision on that evidence
Its decision has to be supported by evidence or materials placed before it
Question that is allied to evidence is to ask to what extent is a tribunal able to draw upon evidence or material not put
before it by the parties
Parties have to be told we are relying on this evidence, if not directly presented by the parties
Kinestra 1961 VIC Supreme Court

No room to doubt that a Tribunal bound o act in a judicial manner…bound to disclose any specific info…unless
legislation…” then looked at university of Silong v Fernando, PC decision.
Fernando case

Enquiry and obtained info in absence of the Pl. clearly the Pl should have been presented or be given an
opportunity o correct or contradict this info that was prejudicial to them. The fact that the Tribunal may obtain
Clearly any info the Tribunal obtains from any source, if that info not presented any the parties and it is part of the
decision making process that info has to be disclosed to the parties, fairness requires it be presented to the parties so
that they can comment on it
This is even in cases where the Tribunal under the legislation says the Tribunal can obtain its own materials, legitimate
expectation of the parties is that there will be disclosure of that information
Veal case COA 2002 (2005 case)

Migration case - high court clearly spelt out that it is a breach of procedural fairness for a Tribunal not to make
an enquiry in certain circumstances.
In other words this is where a Tribunal is aware of other material not presented to it but would be relevant to the
decision but the Tribunal has made the decision not to examine that material, that decision by the Tribunal would be a
breach of procedural fairness.
Tribunals can also refer obviously to other decisions, previous decisions, other decisions of courts, it can refer to
policies, scholarly writings, textbooks, journal articles, whatever, but whatever material it decides to use in its decision it
has to tell the parties.
Policy
One of the more difficult areas for Tribunal is how they deal with policy
Sort of issues that arise for Tribunal re policies there is a handful



Identifying applicable policy
o Government departments have heaps of policies, so what is the applicable policy to this decision under
review
How do you interpret that policy
o Do you just take on board the explanation that he agency or department gives for that policy
The lawfulness of the policy
o Issue here is that what happens occasionally is that a dept or agency puts together a policy based on
what it thinks the legislation says. Ie the legislation says there should be a particular pension granted to
a particular group of citizens, so department puts on policy to implement legislation, but may be doing



that in any unlawful way
What is the status of the policy
o There are degrees of policy - is it what he minister etc - what is the policy you are applying.
What is the weight to be given to the policy
o All the things to be weighed up by a decision maker, how much weight do you give to the policy as well
as how to apply this particular case
What if there are competing policies
o Different departments, particular policy implemented in a particular way in a particular state, and in an
adjoining state, same policy and different implementation -what happens there
In most instances Tribunal will attempt to apply a common sense approach
How to identify what is and what is not a policy
The name of the doc might sometimes help - doc may actually say “policy”. But what if it says guidelines or practice
notes, code, directions - all policies?
It depends on the interpretation you give to those docs as to whether they are policy or not
What if it is a policy about guidance, about how you should go about making a decision, is that a policy in itself?
Any decision maker will have to make an initial decision as to whether a particular document is actually a policy, before
it decides how it is meant to deal with it
Stella case - 2005 - Vic case

1997 council adopts policy for industrial development in which it puts out guidelines re setbacks on buildings,
how far back they should be set back, also re general appearance, landscaping guidelines, fencing, storage,
advertising on buildings etc. a couple of years later there is another similar but less detailed policy that is
incorporated into the planning scheme. It goes before the Tribunal and the Tribunal had to consider whether the
latter policy, the less detailed policy, was meant to override the earlier policy, to supersede the former policy.
The Tribunal in coming to its decision had to decide which one applied. This Tribunal concluded that both
policies were relevant, but each one had a different weighting. They gave more weighting to the latter policy, but
in so doing they also said they had to give more then adequate weighting to the detail of the earlier policy
If there is a policy it has to be consistent with the legislation. It is about going to the source of the power, what allows the
department to make a policy on that issue.
Quote of Book by practical guide to evidence - Murphy - frustrated judge finally asked a barrister after witnesses
producing conflicting accounts - am I never to hear the truth. No my lord, merely the evidence.
JUDICIAL REVIEW
Jurisdiction of the Courts - Administrative law
High Court: “Constitutional Writs”
Under Australian Constitution the high court has original jurisdiction re all matters in which the commonwealth is a party.
See s75 - writs of mandamus, prohibition or injunction
75. In all matters-(i.) Arising under any treaty:
(ii.) Affecting consuls or other representatives of other countries:
(iii.) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:
(iv.) Between States, or between residents of different States, or between a State and a resident of another
State:
(v.) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the
Commonwealth:
the High Court shall have original jurisdiction.
S75 of the Constitution turns solely on the identity of the commonwealth, or commonwealth agent being sued.
S75(v) provides jurisdiction re certain remedies against officers of the commonwealth. Ensures remedies will be
available when commonwealth officer failed to perform enforceable legal duty. Mandamus appropriate remedy. Or if
officer exceeding his or her powers, writ of prohibition. Prohibiting/stopping excess of power. Or injunction where officer
acted unlawful
Federal Court
Statutory jurisdiction in admin law. This jurisdiction derives from 2 statutory sources: ADJR Act and Judiciary Act
ADJR ACT
ADJR ACT 1977 provides fairly clearly that the federal court has jurisdiction to review the making of or failure to make a
decision, or conduct engaged in making decision
This means decisions made under commonwealth enactment or authority; that is type that will be looked at.
Jurisdiction doesn’t extend to governor-general
ADJR Act spells out grounds for judicial review - procedural fairness, error of law, irrelevant considerations
ADJR Act also other features, including enables court to suspend decision pending review.
Enables person aggrieved to obtain statement of reasons if statement not provided.
s39B(1) Judiciary Act 1903
“s39B(1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia
includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is
sought against an officer or officers of the Commonwealth.”
Same as jurisdiction of the high court in relation to any matter in which a writ of mandamus, prohibition or injunction is
sort
S39B(1) second source of jurisdiction for the federal court
Federal Magistrates Court
Same jurisdiction as the Federal Court under ADJR Act
State and Territory Courts
Can undertake judicial review though it is limited
Jurisdiction of Court (Cross Vesting Act) 1987
Special federal matters that can be transferred to the court or other court. Special matters under ADJR Act or any other
matter that Federal Court has original jurisdiction
Sometimes used where there is an excess of workload, allows cross vesting to state or federal courts to assist
Range of decisions subject to review
Most commonwealth decisions subject to judicial review
Remedies
S75(v) - jurisdiction conferred on high court - mandamus, prohibition and injunction.
Courts also have powers to give other remedies re certiorari, declaration, but the main ones just touch on tonight:
Mandamus
Old writ, literally a command compelling a respondent to perform a public duty. The ordering of the doing of something could be not doing something. Particularly appropriate if person responsibility for discharging the public duty either failed
to perform the duty or constructively failed to perform. This is in the sense that in any purported performance there was
error in the decision. E.g. a decision maker who goes through the motions of making a decision
Test of standing for anyone seeking remedies
Test for mandamus - requires a specific legal right, or just a legal right, real interest, special interest. Fairly strict
standing rule, stricter than certiorari and prohibition
Prohibition
Restrains the person to whom the writ is directed from doing something unlawful that is proposed to be done or
continuing to undertake an unlawful act that has already been done
Ground - decision or conduct under review jurisdictional error, no effect in law.
Certiorari
Two parts
(1) Remove official record of the decision; bringing the decision under review into the court reviewing
(2) If decision is found to be unlawful to simply quash
Wiping the slate clean, as if never taken place
Often order for certiorari coupled with writ of mandamus
Prohibition and certiorari closely related. Question which is more appropriate depends on type of conduct in question.
Eg when decision made and don’t need any further action, certiorari may suffice. Unlawful conduct pending or occurring
prohibition may be more appropriate
Standing rules for certiorari and prohibition the same
Generally if stranger or third party has interest in outcome then standing more likely to be granted
Injunction
Protect statutory rights to enforce statutory obligations of decision makers and can be issued either in a form that’s
prohibitory or mandatory
One of the more flexible remedies available, can mould to the circumstances of the case to allow a respondent to modify
and rectify problems
Declaration
Court order resolving the dispute re the law that applies to a particular situation, merely declaratory not restrictive or
mandatory
Usually hand in hand with another remedy
Standing, same as for an injunction - person must have a special interest
Habeas corpus
Originally a type of writ issued by a superior court allowing a prisoner to have himself or herself removed from prison
and be brought before a court to have the matter for which he or she was detained determined
No standing rule
Discretionary relief
Each remedy above, is discretionary. E.g. habeas corpus, difficult to think of a case where that writ would be refused if
there was a finding that the intention was in fact unlawful.
It is not possible to describe all the factors that might influence a courts exercise of this discretion to grant relief or
otherwise
R v Commonwealth Court Council ex part Ozone Theatres 1949
 Spoke some factors to take into account re mandamus. Many factors had been relied upon in modern cases,
reference to the Ozone Theatres case. For instance Alla 2000 (refugee case) referred specifically to these
factors
 Re mandamus
o


If a more convenient and satisfactory remedy exists - is there a better remedy then what you are
seeking, if so we will use discretion not to grant this
o If no useful result would ensue - might be no point if damage has been done already.
o Unwarranted delay or bad faith - if your seeking remedy but evidence shows you caused the delay
Discretion is judicial.
Also said other considerations can also be taken into account. Spoke of re all types of orders not just
mandamus
o That a new law may or will soon come into operation; better remedy may be available through
legislation then that may be the better option
o Impossibility of obeying the injunction.
o Whether defendants legality is culpable or innocent
o Time needed to comply with an order
o Whether and the extent to which people are benefited or inconvenienced by a particular order
o Whether order disproportionate to illegality that has occurred
o Whether it is just been a technical illegality - the wrong coloured paper, technical breach
o Defendants innocence in relying on the correct advice in the government department; department offers
advice, it is incorrect, you act on it and commit an illegality; not your fault
o Personal circumstances of the defendant, affect on health of obeying court order
o Personal circumstances generally
o Unfairness of making only one of the law breakers obey the law ie a group, you want somehow to
ensure there is equality in the order that has been made and not fairer to others than not
o Justice of condoning a breach of the law by one person when everyone else has complied
o These are all considerations to take into account
Section 16 ADJR Act
Confers on the Federal Court and Federal Magistrates Court the power to make such orders
 s16(1)(a) re quashing or setting aside the decision.
 S16(1)(b) power to remit matter to decision maker for further consideration; court sends back to decision maker
to decide again.
 S16(1)(c) is the declaratory powers.
 S16(1)(d) also
 S16(2) also has powers in retraining unlawful conduct
 s16(3) which is compelling the making a decision. Duty to make a decision but has not
So there is a great deal of flexibility for the courts in these remedies
Grounds of Review
ADJR Act
 S5 - Lists grounds of review
o Error law
o Failure to consider relevant
 S5 is re the decision itself
 s6 is the conduct engaged in the making of a decision
 S7 if failure to make a decision review is available
 Sections 5,6,7 main ones to start with, be aware of
Section 5 ADJR Act grounds of review
 Denial of procedural fairness - decision maker perhaps not free from bias, or applicant didn’t receive a fair
hearing. It is about acting within the authority given to the decision maker
 Wednesbury Unreasonable - Wednesbury Corp case 1948 - this is a exercise of power so unreasonable that no
reasonable decision maker could have exercised it in that way
Quinn case 1990
 Justice Brennan there spoke of the duty and jurisdiction of the court to review administrative decisions but not to
go beyond the enforcement of the law. About ensuring that the limits of the power are set out for the decision
maker
 “If in so doing….the court has no jurisdiction to simply cure…error. The merits…political control for the

repository alone” - Warning that courts not to take opportunity in judicially reviewing admin decision as one
where they would give their view of what the merits of the case are, there are simply looking at the legality of
the decision. Sometimes it may seem unjust, but if it is unjust it is not for the courts to rule on that, that is for the
parliament to make appropriate changes if they see fit. Again these warnings will come time and time again”
Reminder in Quinns case reference to the constitution under s76 constitution parliament has the power to
confer on the high court original jurisdiction involving interpretation and arising under laws of the parliament. So
it is only about interpreting the legislation, not the merits of the legislation.
The commonwealth parliament always has had the power to limit or remove judicial review jurisdiction. As long as that
doesn’t infringe on chapter 3 const. and we will deal with this when we look at attempts by the parliament to limit and
restrict the judicial review powers of the courts. Look at privative clauses.
Abebe v Commonwealth 1999 case

Take note of case

Case that high court confirmed the parliaments power to make laws defining the jurisdiction of the federal court
and how far federal court can go in judicially reviewing admin decisions

Migration reform act (1992)? - Parliament gave fed court jurisdiction analogous to ADJR Act but didn’t include
several grounds of review available under s5 ADJR act. So these grounds were excluded from the jurisdiction of
the federal court.. So this was almost like a dual system. Federal court analogous system with limited remedies,
remedies under s4 ADJR not available.
Take note e.g. this type of power that the parliament has always had and continues to attempt to implement, see how
the courts have literally side stepped these issues. E.g. under s177 Income Tax Assessment Act, this raises within that
section the conclusive certificates and it says that the production of a notice of assessment……this means that s177(1)
if you have this notice of assessment signed by the tax commissioner et that document on its own said that all the
particulars were correct, so it was a conclusive certificate, couldn’t challenge it, everything needed to be done had been
done, conclusive as signed off by a commissioner. See how courts have managed to get around that type of attempt to
exclude judicial review.
Time limits
Play a role in this area
One way the parliament can limit the jurisdiction of the courts in judicially reviewing is provide an application has to be
commenced within a prescribed period of time. Providing time can limit means of seeking remedy, so left to courts to
decide whether it is a reasonable time limit or not
Decision maker under no obligation to exercise the power
Parliament to say here is a provision conferring powers but no duty to exercise
S417(7) Migration Act is an example of that type of provision, says “(7) The Minister does not have a duty to consider
whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so
by the applicant or by any other person, or in any other circumstances.”
Applicant s134 case

Means minister doesn’t have to make a decision, if so then an applicant is precluded from seeking any writ of
mandamus to order a minister to make a decision.
Broad discretionary powers
For many reasons it is desirable when making a decision to confer decision makers with very broad discretionary
powers as to whether or not to exercise that power.
Sometimes for e.g. the treasurer is given power under various pieces of legislation to in fact have very broad discretions
in the national interest. Have to contract with say migration ministers discretionary powers under migration act, duty to
grant or not if the relevant satisfaction not obtained, in some sense it is going to be appropriate for discretions to be
conferred.
This is situation where Wednesbury unreasonableness comes to play, is discretion so wide that no reasonable decision
maker would have made it.
Privatisation of decision-making
Neat Domestic Trading case 2003

Appellant Meat, wheat grower, sort permission to export wheat, under s57 Wheat Marketing Act, bulk export of
wheat was unlawful without consent of wheat export authority. In addition in keeping with s57 of the act this
wheat export authority could not give its consent without first consulting a corporation owned by the Australia
Wheat Board. Couldn’t do without AWB approval.

Court said AWB refusal to approve the export was a decision of an administrative character made under
enactment and able to be reviewed. Almost like a condition precedent involved, approval had to be considered
by another body. In this case the high court determined whether the AWB had noted a consideration. Instances
where the AWB was such a body could in the chain of decision making come up with a decision that then
impacted on a decision by government.
The Grounds of Review
Grounds of review are at the heart of judicial review.
ADJR Act

Section 3(1)
"decision to which this Act applies" means a decision of an administrative character made, proposed to be
made, or required to be made (whether in the exercise of a discretion or not and whether before or after the
commencement of this definition):
(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment ; or
(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in
paragraph (ca) or (cb) of the definition of enactment ;
other than:
(c) a decision by the Governor-General; or
(d) a decision included in any of the classes of decisions set out in Schedule 1.

Section 3(3)
(3) Where provision is made by an enactment for the making of a report or recommendation before a decision
is made in the exercise of a power under that enactment or under another law, the making of such a report or
recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.
Provides us with the definition of a decision, including a reference to
I.e. making, suspending, revoking, refusing to make an order, very wide definition as to what a decision maker is
Held by the courts that whatever it is a decision should be
 Final - finality to it
 Operative or determinative - this disposes f the issue, decision made with definite effect
5 positive requirements court looks at in the definition
1. It is a decision
2. It is a decision of an administrative character
3. It is a decision that is either made, proposed to be made, or required to be made (happened, going to happen or
needs to happen)
4. Decision may or may not be in the exercise of a discretion - ie may be decisions where there is no discretion, it
just follows
5. Decision is made, proposed to be made or required to be made under an enactment.
4 exceptions
1. Decision of the governor general - s3(1)
2. Criminal justice process decision - s9A
3. Decision under schedule 1f
4. Decisions under s19

Section 5
S5 lists grounds for review, specific requirements for purpose of decision making
1. Breach of the rules of natural justice has occurred
2. Procedures required by law to be observed were not observed
3. Person who purported to make the decision didn’t have the jurisdiction to make the decision - source of the
power
4. Decision is not authorized by the enactment, pursuant to which it is purported to be made - thought you had the
power and you basically misinterpreted it
5. Decision involved an error of law
6. Decision induced or effected by fraud
7. There was no evidence or other material to justify the making of the decision - in the context of decision making
re logical sequence of decision making process, no quantum leaps, where is the evidence that led the decision
maker to make the decision
8. That the making of the decision was an improper exercise of the power, irrelevant consideration taken into
account or relevant matter not considered, or for an unauthorized purpose
9. Pressure to make decisions quickly?? New ground ???????
10. Policy and that is all I will apply, in other words you don’t take into account merits or anything else to be taken
into account, blindly following policy
11. Wednesbury unreasonableness, exercise f power so unreasonable no reasonable person could have made
12. Decision contrary to law
Section 5 is re the decision, S6 is re the conduct for the decision

Section 6
S6 is exactly the same as s5 but about the conduct engaged in for the purpose of making a decision.

Section 7
S7 is re failure to make decision - not making a decision is a decision in itself, includes unreasonable delays in making a
decision
For the most part these grounds have developed from the CL and come from one or other of the equitable
writs/remedies above
Categories of Grounds of Judicial Review
These grounds of judicial review, whether they come directly from the ADJR act or other source ,can be divided into 2
categories (grounds re procedural and grounds re substantive exercise of the power)
1. Procedural Exercise of the Power - really about failure or denial of procedural fairness, about decision
maker being free from bias and person affected entitled to and given a fair hearing. And any mandatory
requirements met
2. Substantive Exercise of the Power - designed to ensure decision makers act within their substantive
authority and correctly apply the substantive law that governs the exercise of power. Involves construing
and interpreting the law correctly
Not always an easy exercise. About getting the law correct.
Also having regard to all mandatory considerations and disregarding irrelevant considerations. Also in second category
Wednesbury unreasonableness comes into play
Not surprising there is overlap between various grounds of review. Ultimate purpose is to ensure a decision maker
doesn’t exceed the limit of powers conferred by statute.
Earlier red and green light theories - red light is re stopping decision makers from exceeding powers; statute says x is
the power you have and that is it.
Referring to Quinn case 1990
Words – A decision of an administrative character under an enactment
Bond case

Describe decision reviewable under ADJR ACT

“decision which is final, operative and determined…”

has to be some finality or operative effect, can’t be up in the air. (S6 - conduct can be reviewed under same
grounds)

Mason CJ in talking re fine line between decision and conduct in lead up - “distinction….illusive…determination
for which provision is made by….substantive, final, operative….reasonably clear….conduct points to action
taken,….concept of conduct looks to the way in which the proceedings have been conducted……with a view to
the making of a final determination….procedural and …in character”
Often fine line with conduct in its, conduct of the decision making process isn’t final, the substantive part is the decision s5.
Distinguishing between administrative, legal and judicial functions
Of that administrative character it is often difficult to distinguish between admin, legal and judicial functions.
Evans case 1981

Fox J said we should apply a broad approach.
Tooheys case 1982

Federal court in some ways modified the view of how to distinguish between admin and leg power; under
customers act minister had power to make by laws and goods attracted a lesser import duty. Government
argued not a decision of admin character. Simply arguing it is not an admin decision it is a by law. Court said
that calling decisions by laws didn’t mean the power was legislative in nature, have to look at content and
subject matter. Court said the minister was applying the law in exercise of his discretion to particular
circumstances, that didn’t make the ministers decision legislative in character. This case broadened the scope
of admin character.
Just because you label something one way doesn’t give it an exemption.
Opposite view to Tooheys case is Bluit 1988
Ultimately come down to court’s interpretation of content and subject matter re whether decision of admin character
Under an enactment
ANU v Burns 1982
Neat domestic 2003
TANG 2005
 High court considered meaning “decision to be made under an enactment before it can be judicially reviewed”.
 High court held the decisions of an assessment board and appeals did not meet this requirement.
 Ms Tang is excluded from her PHD program on grounds that she has engaged in academic misconduct,
exhausts all avenues of appeal with university and seeks judicial review under s20 Judicial Review Act QLD<
same commonwealth ADJR. Alleges breach natural justice, improper exercise power…etc. question before the
court was whether the decisions of two subcommittees of the university were made under an enactment (the
Griffith university act or any other any). University Act specified the functions of Griffith university as body
corporate including provision or….university governing body had the power to make statute son matters
including admission enrollment and discipline and make and notify of rules. Although nothing in the act dealt
with or referred to matters of admissions re exclusion from a research program there was no question of any
committee acting ultra vires. Committees acted within the powers they can. Another piece of legislation Higher
Education General Admissions Act.
 Joint judgment, Gumow Hayden McCullan - two stage test
1. Decisions must be expressly o implicitly required or authorized by an act
2. Decision must itself confer or otherwise affect legal rights (so decision itself must have some affect on
legal rights or obligations)
 Court rejected other possible tests. Test raised in submissions referring to approximate source of power,
another test that referred to what is the community standard.
 Majority said the decision of the subcommittees weren’t made under enactment because (1) no legal rights
were susceptible of affecting by the obligation (2) there was at best a consensual relationship the continuation
of which was dependant on the presence of mutuality. That mutual consensus had been brought to an end but
no decision made by the university under the act. Nothing in the act that spoke about research students if you
want to kick them out. Expectation itself did not give rise to rights under the general law.
 Kirby dissent; unduly narrow approach, unnecessary restraints shouldn’t be put by courts.
 Leading case in the area.
Justiciability
Whether a particular issue is reviewable by the courts
Parliament may have already addressed the issue and done it by giving jurisdiction over a particular area. But this may
not be so clear in all instances
Ie federal court has juristic but act itself …parliament may decide to bring in clauses to remove …to review decisions
Notorious Privative clause - part 8 of the Migration Act.
Courts don’t take kindly to prevent persons having access to the courts
We will see how the courts have continuously tried to protect/preserve their review rights
A non justiciable decision is one where a court decides that the decision making function lies within the executive or the
parliament and it is inappropriate for the court to trespass on that promise.
Thorpe

The foundation of justiciability lies in the foundation of the powers in the constitution….court performing court
like functions…courts duty is plain - in other words there will be areas where the courts say this is not for us,
there are other forums that are better suitable for
Usually the higher the policy content in an admin decision the less likely ti will be amendable to judicial review. The high
up the scale of policy content less likely of judicial review.
The traditional way to deal with this in courts under English law was to define certain powers as simply being non
justiciable
CCSU case 1985

HOL listed no of matters as non justiciable.

Eg making treaties, not for courts to enter debate about appropriateness or otherwise of government entering a
treaty or not.

Defence of the realm - right parliament to defend itself, what will it do. Not for courts to venture there. We know
particular in modern times there are certain issues that have come out of defence of the realm

Prerogative mercy - someone sentenced to die and government decides not to pass that sentence

Granting of honors - not place for courts to say x should have got it

Dissolution of parliament - parliament decisions there will be a dissolution it is not for courts to venture there

Appointment of ministers - courts don’t venture re who gets what in diff ministries
Notion really grown under American doctrine of Justiciability; under American constitution courts precluded from
examining power other than judicial power.
Australian way of Justiciability
It seems to turn on the way in which a decision under attack impacts upon the aggrieved person. Usually where a
decision involves a direct abrogation of an individual rights, the Australian courts are more likely to find jurisdiction
somewhere to review
However where decision of collective nature at high policy end and only indirectly affects individual rights then
intervention less likely
Never been a dispute that the courts can examine questions concerning the existence of and extent of non stat powers.
This is about whether the power exists.
As to the extent of the exercise of that power that is another issue. This comes from old English notion of Sir Edward
Coke that the king has no prerogative that which the law allows him ie king even has limits on his powers
Issues of J in Australia tend to arise in the manner in which a power is exercised rather than the end decision
CCSU case

“courts will enquire whether particular prerogative power exists and if exists then to the extent…..proprietary of
its exercise…”
Peko-Wallsend case 1987

Case followed in Australia

This case was attempt to challenge cabinet decision that nominated stage two of Kakadu park to be part of
world heritage list. Bowen CJ endorsed conclusion reached in CCSU case, that this type of exec action was not
immune from judicial review mainly because carried out pursuant to prerogative power. But noted that this type
of decision did raise questions of some difficulty to the court.

In this case decisions of cabinet was non-J. why? In Bowen CJ words it involved complex policy questions
related to environment, rights of aborigines, impact Australian economic position, whole combination of
aboriginal land rights, mining, environment and economic issues,…very good e.g. of a non-J area the courts are
saying that is for the parliament or executive to deiced not us
In other words it is simply not suitable or appropriate for determination by the courts.
Marchiori 2002

“decisions about defence, court said …elected in matters of defence…no matter how grave policy issues, how
exceeds constitution bounds….courts recognize no position….in the name of reasonableness…..actual bad
faith…….British state overwhelming unlikely in practice.”
Zenafor?? - SC SA case 2003

Rejected challenged for decision by AG to grant indemnity to minister against whom brought defamation
proceedings
Question where courts have not gone before.
These are recent cases involving areas of defence and foreign relations, areas historically no go areas. They in a way
illustrate the creativity of some litigants in attempting to review executive action.
In November 2003 US Supreme Court agreed to hear an appeal from a decision from Rasul about exercise of executive
power to go to war in the US and whether persons detained in the course of active, military operations including
determination by executive that certain persons were enemy combatants.
Following that case Aubassi case

Mother of British national captured by US forces in Afghanistan, detained at Guantamo bay, brings proceedings
on behalf of her son seeking to compel British foreign office to make representations on his behalf to the US
government to take some action.

Goes to UK COA and they not her son was being indefinitely detained on territory over which US have control in
circs in which he could make no challenge whatsoever as to legality of detention. Court accepts he is being
arbitrary detained.

Question was raised concern the conduct of the UK government in how it was to deal with the US government
re protection of its citizen. What is the UK as a government able to do in dealing with the US government re
protecting its own British citizens.

Court rejects proposition that there was no scope for juridical review and they said that “every citizen has a
legitimate expectation that the government would not simply was there hands of the matter…however nature of
expectation was limited….diplomatic…secretary of state has a very wide discretion…business with other
countries”… “the foreign office has discretion re whether to exercise the right to protect British
citizens….discretions wide..” saying bottom line is about foreign policy. They continue “it is highly
likely….intimately connected with decisions …..unlikely itself to impinge on any …..”

Court said “on no view appropriate to order
Re Campaign for nuclear disarmament 2002

Applicants sort - re whether resolution authorized states to take military action in even of non compliance by
Iraq, argued governments should have judicial governance re what in law requires. “court invite to declare…..in
breach of …novel and ambitious claim” court held non J. “where the court even to embark on the hearing of the
substantive issue the government would be placed in impossible pos….damage conduct of international
relations…” in other words they weren’t going to discuss it, the mere discussion of it, debating, would be
contrary to the national interest
To summarize.
Whilst the fact that an executive power is non statutory that in itself will not render that power non justiciable or immune
from judicial review, it is about the subject matter of the power, the circumstances of the exercise which may involve
issues non amenable to determination by the courts
In determining whether and to what extent particular exercise of power is Judicial court take into account grounds of
review to be relied upon and relief sort in proceedings
It is a developing area in the law and the courts in UK and US, Australia challenge re making decisions re Justiciability
in areas haven’t dared to go before
Legislative scope and purpose
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:
New South Wales:
Victoria:
Queensland:
Tasmania:
South Australia:
Western Australia:
Australian Capital Territory:
s 15AA of the Acts Interpretation Act 1901
s 33 of the Interpretation Act 1987
s 35(a) of the Interpretation of Legislation Act 1984
s 14A of the Acts Interpretation Act 1954
s 8A of the Acts Interpretation Act 1931
s 22 of the Acts Interpretation Act 1915
s 18 of the Interpretation Act 1984
s 11A of the Interpretation Act 1967
Principles of statutory interpretation were developed primarily by judges decided cases but also all states and territories
have their own interpretation act setting out principles to be applies in interpreting statute
Two main approaches to statutory interpretation


Literal Approach - focus on lexic or grammatical meaning of words, phrases and provisions
Purposive - interpret words of statute in light of its purpose or object
Legislation establishes that purposive approach is dominant approach
Approach to be taken in inter legislation is how it promotes the purpose or object of legislation
Northern Territory has no equivalent provision in Interpretation Act, but follows
Relevant Purpose
Purpose relevant is the intention of the parliament in passing the act, objective test not considered by what individual
legislators may have in fact intended
May find there are express provisions in the legislation spelling out what the objects or purposes are; often
objects/purpose clauses. Commonly objects state what the act is doing rather than explaining why the act is doing it. So
sometimes necessary to 9nfer purpose by considering act as a whole, analyzing entire legislative scheme to see what
intention is
Also in interpreting legislation those reviewing the legislation can look at extrinsic materials which include anything and
everything from speech of minister when introducing the bill in parliament, explanatory memorandum, reports of
committees and recommendations. So this extrinsic material often a guide in identifying the issue or problem the
legislation was intended to remedy or address
In the main courts read statutes with a presumption the parliament didn’t means to restrict fundamental rights and
liberties. I.e. freedom of movement, freedom of expression, access to courts, right o privacy etc, premise that courts not
intended to restrict those fundamental rights. The only way this presumption can be rebutted is through a clear
expression of intention to the contrary. Ie privative clauses, need for clear expression by parliament that a certain right
won’t be available in this particularly legislation. So if contrary intention by the parliament it has to be expressed clearly
within the legislation
The grounds of review
Main area to concern ourselves with
Creyke and McMillan passages - 3 major grounds of review
1. Requirement that statutory powers exercised and authorized by a proper purpose
2. Irrelevant matters not to be taken into account
3. Relevant matters be taken into account
You will find majority of the remedies centre around those three approaches
1. Improper purpose
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 Board. Only the power which has been conferred for that purpose can be
used: see Schlieske v Minister for Immigration & Ethnic Affairs.
Idea is the proper purpose is to the power that is conferred for a particular purpose and that purpose only
2. Relevant and irrelevant considerations
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.
Unreasonableness
Main most often used ground of review
Assisted by ADJR Act - sections 5(2)(g) and 6(2)(g) entrench CL position of unreasonableness
 S5(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including
a reference to:
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised
the power;
 S6(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including
a reference to:
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised
the power;
Kruger case 1997

Certain premise that when a discretionary power is conferred on a depository the power must be exercise
reasonably for the legislation is taken to intend the power be so exercised. So presumption is that the legislation
is about using the power in a reasonable way
All manner of categories of unreasonableness, broad head of judicial review.
Some eg, categories of unreasonableness
 Decision was devoid of plausible justification - see Chan 1989 case.
 Peko-wallsend case 1986 - giving excessive or inadequate weight to a consideration. So when DM making
decision he/she has to weigh up the relevant consideration. Relying too much on one piece of evidence or
not relying enough on a piece of evidence
 Making erroneous finding of fact on a point of importance - GT (GD?) Australia 1986 case. decision maker
talking about making decisions about what are the important facts, not everything has to be taken into
account, only the important ones do.
 Nikac 1988 eg of category of failure to have proper regard to departmental policy or representation
 Edelstein v Wilcox 1988 - notion of unnecessarily harsh effect of the decision - decision which in the context
of the issue involved, the end result is harsher than needs to be. Typical eg is a minor misdemeanor where
harsh sentence is given or harsh penalty is given.
 Cruse v Johnstone - very old case - notion in that case is where there is demonstrable inconsistency with
other decisions. If you are going to make a decision which is inconsistent with other decisions have to
demonstrate and explain very clearly in reasons for decisions, why it is different to everything in similar fact
situations, if not able to do this may be termed unreasonable decisions
 Prasad case - category where there is failure to give genuine and proper consideration to a matter that is
involved with a decisions. Idea where decision maker may simply go through the motions of examining the
facts and policy but without truly examining it, not proper consideration.
See unreasonableness is a broad head of judicial review. Have been studies on grounds of JR and found in recent
years one of the most frequently relied upon by applicants - 20% cases rely on unreasonableness. Often it is used
almost hand in hand with other remedies and other grounds of review, but often used almost as a last resort method
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. operate 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 decision-maker 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.
The ground is often termed “Wednesbury unreasonableness” (Wednesbury 1948 case) - decision so unreasonable that
no reasonable person would have made it
We know the word unreasonableness itself can have a number of meanings: In Australia a number of cases have
attempted to give some sort of definitive meaning to unreasonableness, really what they have done is semantics.
 Quinn 1989 case: said it is really about an abuse of power, abuse of power makes decision unreasonable
 Teoh 1995: said it is a decision so devoid of plausible justification that no reasonable person could have taken
that course
 Prasad case 1985: high court said their preference in Australia was more to use a formula of devoid of any
plausible justification. In this case the court determined that a decision was unreasonable because there was
readily available evidence that contradicted the finding of the decision maker, failure of decision maker to make
further enquires and to have regard to evidence that was readily available, that made decision unreasonable,
particularly were info readily accessible, wasn’t difficult exercise.
 a lot of academic scrutiny re this case and Wednesbury (see text)
 Luu 1989 – another case where notion of unreasonableness was found, federal court, failure of particular DM
had failed to consult the available evidence and that interpreted as unreasonable exercise of the DM powers.
DM knew material available, material that would have been important in decision ha d it been taken into
account, and just didn’t look at it
 Chang case - high court said some “unreasonable” decisions can sometimes be described as perverse.
Perhaps taken to some extreme.
 In this case, migration case 1989, where minister had refused to grant a visa, entry visa, to Mr Chang.
First went to federal court who found it was a reasonable decisions. See in many cases the highest
courts in the land have difficulty in coming to similar type conclusion.
 Minister had the power to grant an engine permit to applicant who had status as refugee, defined under
leg as well founded fear of being persecuted….. So if well found fear of being persecuted for those
reasons, ghedn you may qualify for status of refugee. Minister determined evidence of Mr chang (that
he had been persecuted by 6 years imprisonment as result of anti revelatory options and minister of
view not sufficient to satisfy requirement of well founded fear of persecution. Federal Court said
although he may have been discriminated against to a limited degree, this would not be considered
persecution. Nor could it be considered anything of Mr Chang was well founded, as he indicated if he
was to be deported his preferred destination was china, his home, so using that argument to say what
fear does he actually have.
 High court examined and analyzed extensively re what meant by well found fear of persecution. High
court unanimous in holding unreasonable minister to hold Mr Chang shouldn’t be granted refugee
status, type of discrimination in this case did amount to persecution, and if chance he did return to
china, unreasonable to hold his fear wasn’t present. In other words the high court viewed there was a
well founded fear.
 Peko-wallsend case - decision maker gave inappropriate weighting to the issues involved. Justice mason said if
decision maker given too much weight to an irrelevant consideration or too little weight to a relevant
consideration, then this type of decisions is manifestly unreasonable
 City of botany bay council 1999 - federal court - see time and time again courts setting up warning to courts
setting up judicial review that you don’t look at merits review, it is all about legality review. Whether the court
likes the policy or not that is up to the legislature to make changes if it wishes. Not for court to cross that line
into merits review
 Eshetu - someone who disagrees strongly with someone else’s process of reasoning….illogical or
unreasonable, or so unreasonable no reasonable person would have adopted……….






In other words that is the merits, you look at the legislation.
This case was interesting case. One of number of high court and federal court cases that advocated
care when dealing with unreasonableness. Mr E was Ethiopian, sought protection visa under migration
act, central issue was whether or not he could be accorded refugee status, whether he had well
founded fear of being persecuted. Minister rejected application, review by refugee review T, not
successful, went to high court.
 Mr E said involved in anti government activities in Ethiopia, starved, threatened to death, and also
submitted since he left Ethiopia, several colleagues in similar situation had been arrested or
disappeared and killed by government, so fearful of returning to Ethiopia.
 Refugee review tribunal said he did not have a well founded fear of persecution, it said that it had been
unable to find any independent corroboration of his accounts of deaths disappearance etc and that they
had a number of sources indicating that although there had been some of the opposition to government
Mr E referred to, he wouldn’t be in serious danger if returned. T simply didn’t believe Mr E had a well
founded fear of persecution had he been returned.
 High court rejected view T had acted unreasonably, said T had got it right. The court gave a very limited
and narrow focus to the limits of unreasonableness and said unreasonableness can only be used in
extreme circs, it should not be used as a guise to seek review of the merits of a decision.
 This is case where concept of unreasonableness taken in very narrow sense, meant Mr E not offered
protection.
Betkhoshabeh - developed physiocratic illness, paranoid delusion, particular towards B interpretor. So he was
convicted of unlawfully being on the interpreters premises and he was in fact sentenced to 3.5 years
imprisonment. Prompted minister for immigration to determine he should be deported. Decision upheld at AAT,
and T found Mr B may well suffer discrimination if returned to Iran, but his life or freedom would not be
threatened
 Goes to federal court and single member of fed court says decision of AAT is unreasonable, full federal
court reverses decision of single judge, said T had not acted unreasonable. Then again the argument
was about the dangers of courts reviewing questions of law and interfering with questions of fact,
entering into the merits review
So the court looks at what is the evidence that supports the argument. In these cases the courts were simply of
the view there was not sufficient evidence to suggest returning them to particular countries would cause any
harm.
There were and have been a small number of cases where individuals have been returned to countries with fear
of persecution and have been then imprisoned and executed.
Cong tam dong 200 case - appellant came to Australia in 1984, convicted of home invasion, when completed,
deportation was issued against him. AAT agrees with it. Appellant seeks judicial review of the decision.
Appellant arguing as he had argued before the AAT that his participation in the offence, home invasion, that that
offence was due to pressure that had been exerted upon him by co offenders and fearful for his safety if he
didn’t participate. Pressured into crime. He also argued that now his family was in Australia and he spent most
of his life in Australia. T dismissed all arguments, view of T considerable risk of reoffending, T said although
now being in Australia for more than half of life, and his family should still be deported.. Unreasonable for T to
simply substitute its own view of the evidence with psychologists and prison officers etc who provided evidence
favorable to him. Full federal court then holds AAT had not acted unreasonable. So similar approach to earlier
cases, said T is entitled to reach own conclusion based on assessment it makes and TY was entitled to make
decision
Don’t attempt to use unreasonableness by itself as a means of seeking redress.
Acting for unauthorized purpose
The common law position has been entrenched in paragraphs 5(2)(c) and 6(2)(c) of the AD(JR) Act.
ADJR Act: 5(2)(c) and 6(2)(c)
 S5(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including
a reference to:
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
 S6(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including
a reference to:
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
Statutory power must be exercised in accordance with purposes of the act of the legislation
Case in point Municipal v Campbell 1985

Relevant legislation stated that acquisition could only be for public purposes.
When the purposes of the act are not expressly stated it is then up to the court to construe the statute to determine what
are the proper purposes of the legislation. At CL and under AJDR Act a person who challenges the exercise of a power
base don 9impoper purpose, that person bears the onus of establishing that issue. Onus on them to demonstrate what
improper purpose is
Think of notion of improper purpose, not to be taken lightly, certain inferences from saying DM acted for improper
purpose, knowledge of doing something that is potentially illegal, so if you are going to make that assertion that you
better have some evidence and be able to back it up
Classic case A-G NT v Kearney 1985

Situation where then NT administrator makes a declaration that a huge area of land outside the Darwin metro
area was now going to be part of the Darwin metro area. It was alleged and ultimately proven that the decision
was made for an improper purpose, being to frustrate an aboriginal land claim, by the kempie cox aborigines, in
other words there could not be an aboriginal land claim on the metro area of Darwin, so make Darwin much
bigger. Clearly improper purpose case
Sometimes you get multiple purposes. This is where a decision is made for several purposes and not all of the purposes
are improper. There is only going to be an abuse of power if the improper purpose or purposes amongst multiple
purposes is the substantial purpose - in other words that no attempt would have been made to exercise that power if it
had not been for that purpose.
Thomspon v Randwick Council Case

Road widening. Amongst multiple purposes were some proper purposes, including road widening. So this is
where the so called dominant purpose test comes into play
Samrein pty ltd 1982

Multiple purposes cases. Water board decides to use its stat powers to acquired adjoining blocks of land to
build an office tower in Sydney CBD and says purpose of office tower is for the water board employees. It turns
out only half building used by the water board and the rest either sold or renting out for profit. In this case high
court said the decision was valid because the improper purpose was not the dominant purpose. The court said
the dominant purpose was to by the building., the dominant purpose was a proper purpose
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.
Now whilst improper purpose and bad faith are actually separate grounds of review most of the improper purpose cases
are in fact also examples of bad faith, they tend to go hand in hand.
Bad faith arises where a power is exercised for corrupt or dishonest motives - can be deliberately malicious, fraudulent
etc
So bad faith may be established where council dishonest in expressing an acquisition to be made for a proper purpose
when in fact it is really for an improper purpose.
A decision maker may be acting in bad faith by exercising power for purpose of defeating statutory rights of aborigines
such as Kearney case above.
Now it is a difficult area, any judicial review on the ground of bad faith almost inevitably raises the ground of fraud and
there is no precise or exhaustive definition of fraud.
Tooheys case referred to notion of bad faith and fraud and said it unravels everything and all sorts of issues can arise
They are particularly difficult to prove, and if you are the Plaintiff, the plaintiff bears the burden of proof, not something to
be taken lightly.
Case in point is case of NAALAS
NAALAS 2001

North Australian Aboriginal Legal Aid Service – 2001

Case where allegation that a chief magistrate of the NT had been appointed for a 2 year remuneration package
which was actuated by improper purposes. In other words that this particular Chief Magistrate had been
appointed at this high level of remuneration in order to defeat judicial independence, the chief magistrate would
now be dependant on the executive government that had appointed him.

Wineberg J wasn’t prepared to infer such a purpose from the evidence that was available, he was critical of the
appointment procedure was such, said it suggested confusion bordering on incompetence on part of people
arranging remuneration but wasn’t a contriving orchestrated scheme to influence the CM performance of duties.
Ie insufficient evidence to demonstrate there was bad faith or fraud involved.
Considering irrelevant matters and not considering relevant matters
The common law position has been entrenched in paragraphs 5(2)(a) and 6(2)(a) of the AD(JR) Act.
Khan case

Established principle there is an obligation on a decision maker to give consideration to relevant matters proper genuine realistic consideration, and to discourage taking into account irrelevant considerations.
Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363(HC)

“where relevant considerations are not specified, it is largely for the decision maker, in the light of matters
placed before him by the parties, to determine which matters he regards as relevant and the comparative
importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant
consideration will only be made good if it is shown that the decision maker has failed to take into account a
consideration which he has, in the circumstances, bound to take into account for there to be a valid exercise of
the power to decide”
Minister for Aboriginal Affairs v Peko Wallsend (1986) (HC)

talking re features of taking into account irrelevant considerations
o
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker
fails to take into account a consideration which he is bound to take into account in making that
decision (Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363, at p 375; CREEDNZ Inc. v.
Governor-General (1981) 1 NZLR 172, at pp 183, 196-197; Ashby v. Minister of Immigration (1981) 1
NZLR 222, at pp 225, 230, 232-233).
o
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of
the statute conferring the discretion. If the statute expressly states the considerations to be taken into
account, it will often be necessary for the court to decide whether those enumerated factors are
exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to
refer to the factors which the decision-maker is bound to consider - are not expressly stated, they
must be determined by implication from the subject matter, scope and purpose of the Act.
o
Facts: re whether any detriment and harm under the relevant legislation, the relevant leg in this case was
aboriginal land rights NT act. Material had been provided by Peko-Wallsend re mining leases that
were situated and made under a claim in the Kakadu national park. Some of the factors that the
decision maker, the minister, was bound to consider, was the constriction of the statute. Look at
subject matter scope purpose of the statute, as starting point. If the statute expressly indicated the
considerations to be taken into account then the high court sad the minister had to ask the question
whether it was an exhaustive list or simply indicative list, was it inclusive??? Court was careful to say
that a decision maker in this sort of situ doesn’t have to taken into account every single possible
factor, it is only the factors that are considered by the decision maker to be relevant or of importance.
Court trying to say you don’t want a situ where you can challenge decisions of decision maker simply
because X wasn’t taken into account, where X wasn’t important, really re major things to be taken into
account.
Is that all there is or are there other things that need to be taken into account, decision maker needs to think re this.
Other considerations to be implied from the legislation
If the legislation provides this checklist what else is there to take into account? If there is this broad discretionary power
where the legislation simply lists, not exhaustively, then there is a general test to be applied by the court.
Reference Yusuf case, where they said it may be that a particular statute……relevant consider for decision
maker….what is important….fasten upon use….whether DM has properly applied the law” - all re legality of the decision
in the DM process. “they are not grounds……..at.”
Almost inevitably exam question re this
In Peko Wallsend Justice Mason identified 5 factors which are crucial to consider
1. “The ground of failure to take into account a relevant consideration can only be made out if a decision-maker
fails to take into account a consideration which he is bound to take into account in making that decision” - Fails
to take into account the object which is bound to take into account - legislation says you have to take into
account Y then the DM is bound to take it into account
2. “What factors a decision-maker is bound to consider in making the decision is determined by construction of the
statute conferring the discretion.” - if there is a list, is that a full list?? Is there anything else that needs to be
taken into account if you look at subject matter purpose scope
3. “Not every consideration that a decision-maker is bound to take into account but fails to take into account will
justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according
to law. A factor might be so insignificant that the failure to take it into account could not have materially affected
the decision” - so the factors that need to be taken into account are only those that would materially affect the
decision - not every single consideration needs to be taken into account, not every consideration materially
affects the decision
4. “The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in
mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a
discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that
discretion, and a decision made within those boundaries cannot be impugned” - warning re entering into merits
review, JR is all re legality of the decision, not function of court to substitute its own decision simply because it
doesn’t like it. We will see later when looking at remedies that there are often a remedy may be that the court
says go back and do it again and these are the consider you should take into account……. It may be on
reconsideration the decision maker still comes to same decision but at least they have done it legally and
correctly
5. “The principles stated above apply to an administrative decision made by a Minister of the Crown….However, in
conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from
the subject matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due
allowance may have to be made for the taking into account of broader policy considerations which may be
relevant to the exercise of a ministerial discretion” - what the high court is saying is that there are going to be
instances where, particular decision of a minister, that broader considerations need to be taken into account.
Recognition by court there will be instances i.e. national security issues, international relations or foreign affairs,
defence - those sorts of considerations are e.g. of ministerial discretion where decision made by minister need
to take into account broader policy consider, court recognition where those broader considerations may well
override the less important considerations.


Those 5points are considered to be the definitive exposition of the panicles governing considerations ie
consideration of relevant matters and not considering irrelevant matters
Still some debate re this because Mason J also added - “I say "generally" because both principle and authority
indicate that in some circumstances a court may set aside an administrative decision which has failed to give
adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of
no great importance. The preferred ground on which this is done, however, is not the failure to take into account
relevant considerations or the taking into account of irrelevant considerations, but that the decision is
"manifestly unreasonable".” – there is academic writing re this paragraph which says it is controversial, in other
words it is almost, if you read those words, an invitation for the courts to enter into merits review. At the end of
these 5 considerations he adds this little bit re what may be manifestly unreasonable, so just something to note
There has been a number of cases following Peko-Wallsend approach, best e.g. to refer to is Yusuf 2001
So the bottom line is as a general rule the decision maker has to make a decision on the material available at the time a
decision is made, the legislation has to be examined looking at subject matter scope and purpose and follow that 5 step
approach above
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.
The no evidence principle is the principle that a decision has to be made on findings of fact which are based upon
logically probative evidence
ABC v Bond

Perhaps the best eg is this case where there was no evidence having probative value to support a finding of
fact.
There has to be logically probative evidence
Pochi case 1980

The simplest eg is this case where it was an issue of the mere suspicion that Mr P was a major drug dealer, and
there was no probative evidence to support that conclusion and the idea was that if Mr. P was a major drug
dealer then he would be deported, so no logically probative evidence to reach conclusion he was drug dealer
Idea of no evidence ground developed more recently than other grounds
Tameside UK House of Lords 1977

The notion from a 1977 case in UK HOL - Tameside case - a complex case involving the secretary of state who
had the power, he had to be satisfied, and that the Tameside council had acted unreasonably in implementing a
new selection test for entry into grammar schools. The secretary of state came to the decision that the council
had implemented a scheme which was unlawful, but there was no evidence in the case from all the education
experts to substantiate the test that the council was the one that was going to implement. This case the court
simply substituted its own opinion on the merits of the grammar schools v comprehensive schools in the UK
(this is what has been argued in articles) - see as case court intruding into merits review.
Notion of 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.
What is the principle of proportionality - not exclusive to admin law - the notion that requires that the means that are
employed by a decision maker must be no more than is required or reasonably necessary to achieve a particular aim. A
decision maker has to take into account what are the legitimate objectives that this decision is aiming to achieve. And
pursue that objective through means that are not oppressive or excessive. It is a balancing act, the decision maker
balancing to determine if the objective of the decision makers discretion have been pursued by means that are
proportionate to that end.
See the notion of P in criminal law in sentencing, notion that if it is a misdemeanor, harsh penalty is disproportionate the same for decision maker, means for achieving particular purpose must not be disproportionate
This comes from HOL in CCSU case - notion that has grown and been excepted in the UK courts but has not been fully
embraced by the Australia courts, it hasn’t been embraced by a separate independent ground of review in the Australian
courts.
Take note of Cumliffe case 1994 - and Tanner case - these are high court cases which emphasize that proportionality in
Australia is not an independent ground of review. It has been said that it is really an aid, a consideration aid, to decision
makers, to keep in mind the balancing act, the weighing up of the ultimate aim of the decision
Jurisdictional Error and Invalidity
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.
____________
One of those areas of admin law that is perhaps one of the more technical sides, one of those that we need to be aware
of. It is one where there is often confusion even in the highest courts
Australian admin law at the cutting edge of admin law however this is one area where in fact the English admin law is in
fact ahead of Australia as far as a common sense approach to jurisdictional error
Normally this is an area of the law where the remedies come into play - remedies dealt with at the end of the course. It
is really about which errors are reviewable judicially - which areas can the courts judicially review.
Distinction between errors of decision makers and errors of lower courts/tribunals:
 Historically judicially reviewable errors made by decision makers have traditionally been categorized as “ultra
vires - going beyond the power”
 Historically judicial reviewable errors committed by lower courts or tribunals are referred to as “jurisdictional
errors” rather than ultra vires
Jurisdictional errors themselves can by either
1. ERORS OF LAW: Jurisdictional errors of law itself (stuffed up interpretation of the law)
2. ERRORS OF FACT: Errors in finding of fact whose existence is a condition precedent to jurisdiction - in other words
stuffed up as far as coming to conclusion re fact without which they wouldn’t have been given jurisdiction - thus
gave themselves power to make decisions wrongfully. Sometimes referred to a jurisdictional fact doctrine - mistake
or error re conditional precedent of fact without which they wouldn’t have jurisdiction
The traditional doctrine of jurisdictional error
At CL Jurisdictional Error developed as ground of review, available where tribunal or lower court as opposed to minister
or public servant exercised jurisdiction in excess, going beyond power that they had
The reason for the distinction between the two is that the case law concerning these errors by T primarily developed
separately from the law concerning ministers, public servants, departments and agencies. This occurred for historical
rather than logical reasons,
Body of law grew re tribunals and separate re ministers, agencies and departments etc
Because there were very archaic rules re prerogative writs - old admin law was very technical, complex long winded
prerogative writs. The rules in these prerogative writs were archaic and traditional, thus divisions re which writs can be
used for diff types of decisions
Traditionally writs like certiorari (quash decision) and also prohibition (prohibit something from being done or continuing
to be done) traditionally available to those bodies such as lower courts
Ordinary administrators or decisions makers were amenable to writs such as mandamus, also injunctions and
declaration
So these judicially reviewable errors committed by tribunals were traditional called jurisdictional errors, fixed by certiorari
and prohibition
Other errors by other admin decision makers i.e. ministers etc were called ultra vires errors could be corrected by
mandamus and declaration.
The traditional doctrine of jurisdictional error beings with a “self evident proposition” - in this area is that a decision
maker such as a T does not have an unchallengeable power to define the extent of its jurisdiction.
Self evident proposition that a decision making body doesn’t have power to define extent of jurisdiction, something
defines the boundaries, such as legislation
This goes back to case of WOURTH v TAWI 1994
Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47

Wourth case concerned a crown employees appeal board in NSW, board purported to hear an appeal against
….Only re promotions, demotion discipline and dismissal - also re only 7 being annulled as opposed to be
dismissed, view was that the board had exceeded its jurisdiction.
Non jurisdictional errors of law
An error that is committed by a T will not be a jurisdictional error, and therefore not a ground of judicial review, unless
the error is one of law rather than one of fact
Has to be something re making mistake of the interpretation of the law rather than mistake of interpretation of fact in
decision making process
This ground of review has been diminished somewhat due to Craig v SA case
The main case historically that defines this area is the anisminic case - UK case 1969- this case and how courts have
interpreted it is what has really shaped the 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

The HOL said that some categories of errors of law which had previously been regarded as non jurisdictional,
that is that they went to an aspect of law, could now be regarded as errors about jurisdiction

Facts - fairly straightforward - shows how courts dealt with these issues - body called Foreign Compensation
Commission which had jurisdiction to determine claims for comp for destruction or confiscation of British owned
property aboard. The property in question was property of company called anisminic ltd, confiscated by
Egyptian govt. commission rejected A claim on ground that the present owned, the Egyptian org, that that org

was now a successor in title to the property and was therefore not a British national (had to be British national to
seek comp). now quite clearly that type of interpretation of the act would effectively negated any possibility of
compromise in most cases of confiscation because confiscate property will almost always been owned by a
foreigner… Under traditional jurisdictional error doctrine, that type of error would arguably not have been
reviewable. The commissioner was certainly exercising jurisdiction. It hadn’t failed to observe any of the
procedural requirements and its error in interpreting the legislation would traditionally have been regarded as an
error within its jurisdiction and hence it would not have been judicially reviewable.
Nevertheless the HOL by majority 3/2 - held that the commission had committed a jurisdictional error and that
its decision had been invalid - way interpreted was so fundamental that it was a jurisdictional error
Following Anisminic, the areas which were classified as jurisdictional were now broader, wider interpretation, but what
happened was immediately after the animistic case there was confusion re what HOL had meant. Predictably Lord
Denning adopted the clearest yet most radical interpretation in Pearlman v Keepers and Governors of Harrow School
[1979] QB 56
Pearlman v Keepers and Governors of Harrow School [1979] QB 56

Distinction between errors entails absence jurisdiction and error within jurisdiction is very fine. So fine rapidly
being eroded…..high court choice…if chooses to interfere can formulate that lower court had no jurisdiction…if
does not chose to interfere can say the court had jurisdiction to decide wrongly and it did so….
It was just an acknowledgement of the fine distinction the court found itself in
This was followed by Re Racal Communications Ltd [1981] AC 374, House of Lords case, referred to Anisminic as a
legal landmark, breakthrough
Ultimately confused R v Hull University Visitor; Ex parte Page [1993] AC 682
R v Hull University Visitor; Ex parte Page [1993] AC 682

adopted position that all errors of law are jurisdictional and that you need not distinguish between ultra vires and
jurisdictional errors, they were indistinguishable from each other, errors of law of whatever type were now able
to be challenged

Browne Wilkinson JJ - fundamental - courts intervene those public decision makers will exercise lawfully….this
intervention ….powers exercised only within jurisdiction conferred…and in Wednesbury sense, reasonable….

If decision maker exercises powers outside jurisdiction …..acting ultra vires his powers and therefore unlawful

Given powers within jurisdiction and assumption powers will be exercised within that jurisdiction. HOL clearly
spelt out it was like Wednesbury unreasonableness, so let’s do away with distinctions of errors
All errors of law are jurisdictional and hence reviewable
The Australian Approach to Anisminic
Couple of decades after Anisminic states and territory courts applied it. In other Supreme Court cases they relied on
traditional distinction between ultra vires and other types of errors without reference to anisminic
Then came Craig v South Australia (1995) 184 CLR 163. In Craig high court endorsed Anisminic but not quite - it
endorsed it in a way that still didn’t quite accept the bringing together of the divisions of errors of law.
Where does this leave the Australian position? Most readings you will find that in Australian law there is a strong
presumption that errors of law are jurisdiction if committed by T but non jurisidctional if committed by others, so in
Australia there hasn’t been the total acceptance of bringing together the differences in errors in law unlike the UK which
said errors of law of any type are judicially reviewable (Anisminic case)
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.
We are helped in commonwealth sphere by ADJR act because s5(1)(f) ADJR act provides for review on the ground that
the decision involved an error of law whether or not the error appears
So 5(1)(f) provides avenue of review regardless of type of error that is involved
And s6(1)(f) effectively provides an identical review ground as far as the conduct of making a decision that has been
challenged
So the position under the ADJR act and equivalent state enactments is effectively the same as the current CL position in
the UK resulting from animistic case and added to my cases such as Hul university case.
Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238

See justice Kirby 212 - where he explains the history of the diff development in Australian law as opposed to the
English approach and primarily says look it is about time that Australia caught up with the UK way of doing
things in this area and let’s get rid of the distinctions of errors of law
Dr Haneef 2007 case

Most recent case where this issue has arisen is case of Haneef in 2007

Haneef of such note in federal court that the fed court put out an explanatory statement in relation to the case.
Refer to parts of that explanatory statement.

Recall history of Haneef case, July 2007, minister for immigration cancelled Dr Haneef's business long stay visa
and DR Haneef claiming that the minister had exceeded his powers in so doing it. Amongst claims was claim
that minister had misconstrued (error of law) s501 migration act and in particular criterion for failing the
character test. Dr Haneef claimed that the requirement for not passing character test required some link or
nexus between relationship visa holder had to another person (in this case his cousin) and alleged criminal
activity that Dr H cousin involved with.

Dr H arguing that an innocent familial association was not enough. Minister argued that any link was sufficient.
The minister said that on his construction and interpretation of the act re association test, it didn’t require the
visa holder to be a friend or good mate, that familial was enough.

Solicitor general admitted a number of matters relating to this association/link - i.e. second cousins, that Dr H
stayed in same accommodation as cousin in UK, that second cousin lent money, that Dr H left money phone
with credit, conversations on internet chat rooms mainly re family matters. This at the time (found out later that
there was very big question marks re sim card involved)

In the end the court wasn’t satisfied with the interpretation that a the minister had made under the legislation,
that he had committed an error of law and in cancelling the visa by adopting a wrong criteria in interpret he
committed jurisdictional error in applying the wrong test, that error “infected” decision to cancel the visa and
hence decision set aside
So can see the practical application of jurisdictional error as well as theoretical notion in admin law
Reasons for Decisions
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.
We 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 know 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 – s 13 of the ADJR Act (Cth) and s 28 of the AAT
Act (Cth).
Minimum requirements for appropriate reasons for decisions
The following quote from HOL in South Bucks concisely brings together minimum requirements for appropriate reasons
for decisions
South Bucks District Council and another (Respondents) v. Porter (FC) (Appellant) (2004) House of Lords, House of
Lords (July 01, 2004)

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to
understand why the matter was decided as it was and what conclusions were reached on the "principal
important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly
stated, the degree of particularity required depending entirely on the nature of the issues falling for decision.
The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for
example by misunderstanding some relevant policy or some other important matter or by failing to reach a
rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need
refer only to the main issues in the dispute, not to every material consideration. They should enable
disappointed developers to assess their prospects of obtaining some alternative development permission, or, as
the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant
of permission may impact upon future such applications. Decision letters must be read in a straightforward
manner, recognising that they are addressed to parties well aware of the issues involved and the arguments
advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has
genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
Therefore from this we get that reasons need to be:
1. Intelligible
2. Sufficient
3. Reader understand why decision made
4. Basis for reasons, briefly stated depending on particular depending on issues
5. No doubts re whether error of law
6. Rational approach
7. Not adverse inferences drawn
8. don’t have to refer to every single bit but only main issues
So this is in some ways re conciseness in decision itself
Something to remember, that a concise decision can be something to be proud of. Pascal 1657 “this letter would not be
so long had I had the leisure to make it shortly”
Digi-Tech (Australia) Ltd v Brand [2004] NSWCA 58 (61 IPR 184)

Sheller, Ipp and McColl JJA:
"[Unnecessarily long decisions] should be discouraged. Prolixity is an enemy of comprehensibility and, indeed,
cogency… [Setting] out in great detail the submissions advanced by the parties and the evidence of many of the
witnesses... tends to obscure the essential issues that have to be decided and makes the reasoning process
difficult to follow."

The decision discourages:
o
recounting large tracts of submissions and evidence; quotes should be reduced to the minimum
o
expressing every line of thought in the chain of reasoning particularly where, for example, the line proved
unhelpful
o
scattering the findings of fact "amidst discursive discussions"

The decision states:
"A succinct analysis of the issues and their sequential determination, involving a clear and ordered statement of the
facts found is the preferred aim."
Often find some courts give you the big picture in one sentence.
 Cummings 1977 case English - reasons for judgment started with “this is a case of a barmaid badly bitten by a
big dog”
 Another Clifford Davis case - ‘there is a pop group of 4 or 5 decisions called Fleetwood Mac”
 Other decision makers and judges get a bit wax-lyrical
 Hinz case - first line “it happened on April 19 1964, it was bluebell time in Kent”
 Beswick case “old peter beswick was a coal merchant in,….”
 Miller case “in summertime village cricket is a delight to everyone”
Creyke and McMillan textbook refers to report of Senate Select Committee on certain maritime incident and emphasize
that a critical ingredient of effective accountability is ability to effect sound information in decision making
To bring an action for judicial review of an admin decision, almost impossible to do that unless an applicant knows how
or why a decision was made or reached - that is the starting point for the important of reasons for decisions
All heard expression that it is of fundamental important that justice should be done and also manifestly and undoubtedly
seen to be done - hence reasons perhaps most important part of a hearing
Said before the reasons for decisions are of greater significance to the person affected than to the party that wins, the
party that wins usually doesn’t care, they have one, and in most instances when a decision maker agrees with the
winning party the winning party usually accepts that the reasons for decisions, doesn’t add anything they didn’t know
already. It is the party who loses, misses out, is rejected, that is the party that will be anxious to know why and how he
or she has not been successful
Word reasons for decisions are very important - About exposing the process of reasoning that has led T or DM to come
to particular conclusion. If you ask the question why, should be able to find something “because”
Three broad reasons why we need reasons
1. Explain how and why decision made
2. Improve quality of decision making within decision makers themselves
3. To explain decision arrived at in a way that enables a review court to clearly understand the reason
Go back say 10 years you will find many reasons for decisions that begin “this is an application under s35 of the AAT
act in which the Pl is seeking an order under ss93, proceedings commenced…..” etc - can strongly argue reasons that
begin in this matter haven’t told you anything relevant at all, hasn’t said anything to help the reader understand what the
case is about, because unless s93 is a section that everyone knows what it is then it won’t be of any assistance
If a decision maker commences reasons for decisions along those lines and goes to judicial review, most judges come
across this sort of passage don’t read it, they want to find what the case is about, so nowadays you might, it is more
comforting to find, that most decision makers will commence reasons for decision along these lines “the issue in this
case is whether Fred smith, fisherman, has been allotted….quota for this year” so immediately have essence that case
is about fishing quotas effecting Fred smith, fisherman. Doesn’t say when proceedings commenced, that is in the record
and can be found, unless the date is particular important that it won’t really matter, not relevant to the case
Modern reasons for decisions in Australia usually do not set out a long history of the matter; they don’t set out the long
complicated facts.
Hopefully the result of more concise decision making and statements of reasons is that they concentrate on "the why"
and "the because" - read any long reasons, they can become obscure, and hard to understand. And what often happens
is that the more you read and the less of the why and because you come across, some people just give up
Generally there is going to be a final conclusion in the statement of reasons and the reasoning will involve logic and
often with that comes the use of syllogisms - the perhaps simplest syllogism is the one that says “all men are mortal,
Socrates is a man, and therefore Socrates is mortal.”
Nowadays the best way to begin reasons for decisions is to identify areas of disagreement between parties, if you do
that at the start then you make sure that you don’t put anything in the reasons that is not relevant.
If you had to write down reasons for decisions in life, and what taken into account, upfront somewhere you have to deal
with the issue, what is the issue, what was the question being asked, what did you have to decide. Again Pascal once
said is the last thing one knows when writing a book is what to put first and where do you start
Justice Branson from federal court a couple of years ago was referring to case of Australian Postal Corporation v Barry
and he said
I observe incidentally that it is a salientary…….identify each element of the statutory cause of action….had the
tribunal set out the terms of the section of the act, unlikely it would have overlook critical elements
In other words this is a case where the federal court was saying normally you at least refer to section under which you
had jurisdiction to decide. In other words if they had referred to act then unlikely they would stuff up
Decision maker has to at very least refer to, where does the power come from, refer to where the power comes from
Sometimes it is a fairly black and white but also often difficult to understand and in fact may be a complex issue re how
to interpret the legislation
E.g. sometimes used, decision of admin appeals tribunal re importation of 8 Asian elephants for Sydney and Melbourne
zoos, and a lot of the commentary at the time was about whether the tribunal decision was about whether the Asian
elephants could be imported for exhibition at our zoos but really the question was really about whether they were
permitted to be imported for the purpose of breeding and propagation. This is the case of international fund for animal
welfare in 2005 (don’t need to know case) - there were very complex bits of legislation involved. - All about for what
purpose can we import elephants, is it just for show or more for giving opportunity to breed and propagate. So there
were very complex issues and it became clear that it was going to be allowed for the purpose of propagation.
What role does policy play
Policy can be a difficult area, just like legislation
Tribunals such as ATT not bound by policy, although it is a consideration to take into account and usually reluctant to
depart from policy unless good reasons from doing so- This case is Drake 1979
Policy itself cannot alter the power given to a decision maker under legislation but can perhaps help to explain or
describe in general the way the legislation should perhaps be exercised.
If you go to the ADJR Act s6(2)(f) which spells out that decisions may not be taken in accordance with a rule or policy
without regards to merits of case - in other words yes examine the rule but shouldn't allow that to dominate unless you
have clearly examined the merits of the particular case in question
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:
- the investigation or prosecution of persons for any offence against a law of the Commonwealth;
- requiring the production of documents, the giving of information or the summoning of persons as
witnesses;
 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.
Qualities to be aware of in administrative decision making
Justice Mason wrote in Federal Law Review, talking about the distinction between primary decision making by decision
makers and judicial review of those decisions and he said that there are 5 qualities that you should be aware of in admin
decision making
1. Independence of the T - so in T setting they are independent bodies
2. Decision making in public - usually in open forum, so unless in situation like NICAC Hearing where body may
deicide not appropriate for public hearing but mostly DM in public
3. Requirements for reasons - needs to be reasons for decision
4. Application of Natural justice/procedural fairness
5. Individual justice should not be subordinated to public policy
Almost impossible for decision makers to hide behind silence - and the ADJR act has helped with the ability of decision
makers to be able to more clearly explain the reasons for their decisions
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.
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.
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
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Look at particular Justice Kirby in that case talking about what are adequate reasons
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 reasons 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.
An extreme example of a decision where an attempt was made to suggest that lots of words provides good reasons was
case of Dornan v Riordan (1990) 24 FCR 564
Dornan v Riordan (1990) 24 FCR 564

Report involving 178 pages by the pharmaceutical benefits remuneration tribunal where court said the report of
178 pages did not provide reasons for decision, notwithstanding the length to the decision the T failed to state
its reasons, all about determining remuneration of pharmacists for particular items, and there was a rate of
$4.55 per item originally pay, but not $3.50, each item went down $1.05 - long report, court said despite all
information provided still no clear reason as to how and why tribunal had come up with that magic figure of
reduction of $1.05 - the reasons weren’t there, they asked a question hwy and couldn’t find a because, despite
178 pages
Kandiah v Minister for Immigration and Multicultural Affairs [1998] 1145 FCA

Refugee case - in order to qualify for refugee status had to establish well founded fear of persecution for race,
religion etc….

Mr. K Shri-Lankan national, re fear of persecution and prosecution arose from earlier detention and torture at
army base. Remain in hospital for more than a month following torture. Relied on letters from treating doctor.
Went on appeal to Justice Finn who found that given the nature of the issues involved and the case put by Mr. K
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a vital question for the RRT was to ask whether the treating doctor’s letters were truthful. T came to conclusion
they didn’t believe the letters.
Court said if the letters were accepted can corroborate claim of persecution, they were not in the circumstances,
just another piece of evidence, they were central to the application and common fairness to him required they
be adverted to, now considerable body of case law re need for adequateness of decisions…..consented in
terms of finding….reasonably expected of admin decision makers.
Court said if they doubted the letters they should have put it to Mr. K. justice said we don’t even know if they
believed letters or not - they just dismissed the evidence that is all we know. Reviewing court didn’t even know
whether that was in the mind of the tribunal. So quite clearly breach of procedural fairness
Kermanioun v Comcare [1998] 1529 FCA

Key witness unable to attend, not key witness to incident but a key witness re statement that had been written in
the workplace log. In this case T simply hadn’t believed applicants evidence as to how the back injury had
occurred. The depot managed who wrote in log book unable to give oral evidence due to ill health. The way that
the reasons were written gave rise to some doubt that the tribunal had, so for e.g. they talked about the diff ink
that had been used in the writing of the report tec. In the end the court said if the T didn’t believe Mr. G who was
the depot manager then that should have been put to the applicant. He was entitled to be informed about that
key element in the decision making process.

Again this was another case where it was unclear to the reviewing court as to whether the tribunal had actually
taken into account the belief or otherwise of the depot manager
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.
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.
There are plenty of guidelines for preparing statements of reasons - see reading materials - empahsis 2002 admin
review council practical guidelines for preparing statement of reasons, 2007 admin review council best practice guide (4)
on decision making reasons - The Admin Review Council goes through 8 questions or check points that decision
makers have to go through.
Eight questions or checkpoints are asked as follows:
1. Does the decision maker have an obligation to provide a statement of reasons?
2. Even if an obligation exists, can the decision maker refuse to provide a statement of reasons?
3. Assuming an obligation, what does the decision maker need to show in the statement of reasons?
4. What should the decision maker do if other or better reasons are identified after the decision is made?
5. How should a statement of reasons be prepared?
6. What should the decision maker do where recommendations or reports are used, and where submissions are
made, in coming to the decision?
7. How does the decision maker deal with instances where confidential information has been used?
8. Is the statement the decision maker prepared an adequate statement?
Go to admin review council website particular 2007 best practice - go to 8 checkpoints that are there
Again the helpful legislation is the ADJR Act because it talks about a person aggrieved by a decision or conduct and
that that person will be entitled under ADJR for SOR
AAT act talks of person who interest have been affected, request can be made for SOR
So in essence right to seek reasons belongs to any person who is individually affected by a decision
Reasons have to be in writing - ADJR and AAT act
Lastly what ultimately the reader is looking for are the real reasons for the decision - so the real reasons should be
stated and this means that the SOR should contain all the steps involved in the reasoning process and the links
between those steps. Again about the how and the why - how did the decision end up being decided in this way
Freedom of Information
Introduction – Freedom of Information
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.
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.
We will also identify structural and cultural obstacles to access. As such, we will also examine the complex application
procedures; the costly mechanisms 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.
The law is changing – progression of FOI law
Very recent changes proposed to FOI in Australian law that has been well and truly overdue. There will be something on
FOI in the exam, the usual thing for exam preparation, discuss later, if you see a question on FOI, when you see those
magic words FOI you don’t say everything you know about FOI.
Often suggested that Sweden was the first country to pass FOI legislation in 1766 (???) but was meant to be somewhat
different to the way we look at it now, back then was in guaranteeing freedom of the press to impart information
Really wasn’t until 1976 with US FOI act when we start to hear the phrase right to obtain and elicit information from
official sources, government
Prior to this in 1940s newly founded United Nations asked each state to report on what guarantees of freedom of
information was in their various states. See article 19 Universal Declaration Human Rights, art 10 in 1950 European
convention on human rights
Australian FOI 1982 closely followed by NZ and Canada, UK fairly slow in enacting (1/1/05)
In the last 15 years unprecedented number of national states adopting some form of access to international legislation
In Europe exceptions to the rule of having national FOI legislation are Germany and Switzerland
FOI 1982 Australia was the subject of a report by two interdepartmental committees and senate standing committee in
1979 and much public debate at that time re bringing in such legislation
Prior to introduction of FOI act, access to information held by commonwealth government or any of its agencies was a
matter of its discretions, and in many instances refused access to information - so FOI act in response to that situation
Firstly look at FOI act and evaluate at practical level re whether applicants do obtain access to docs they request and
secondly whether achieve objectives or how functional
Prior to FOI, it is discretionary and very difficult and many agencies refused access to information
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.
What are the objectives - Dealing primarily with commonwealth FOI 1982 mirrored in state FOI
 Original purpose is to facilitate public scrutiny of open government by extending right of citizens to access
official government information - Trying to find out what government goes about doing things
 Providing access to personal information, info re yourself held by government
Government agencies hold a lot of information about you, where you live, how you live, how you get to work or study, all
manner of transactions involves any agencies, governmental or quasi government, all hold information about you
The act itself provides a legal right to access documents in eh possession of government agencies and when the
legislation was enacted this marked a major shift in thinking about the notion of government held information and the
notion of official secrecy,
One of the standing committees in 1979 recommended FOI legislation sad it rested on
1. Individuals have right to know info held by government
2. Need for more government accountability
3. About public awareness and participating in process of government by knowing how government makes it
decisions
S3(1) FOI Act re extending as far as possible rights of public
One of earliest cases is Arnold v Queensland (1987) 13 ALD 195 where the court looked at object of act and examined
s3 in particular.
The FOI act applies to documentary information, documents, but the definition of document is in fact read very broadly
and obviously nowadays particularly with developments in technology not just about written material, in old days
primarily about written material, but interpretation now is about maps and charts etc any way by which information is
sorted, audio, tapes, etc - very wide interpretation given to documents as such
Bodies Covered by the Act
Schedule 2 of the FOI Act, regulations, talks about what sort of bodies are covered by the act, what sort of agencies,
primarily any government agency as prescribed in schedule - authorities, agencies, etc, very wide interpretation
provided
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.
Documents Exempt from Access
The Act exempts certain types of documents from access. Sections 33 – 47 cover most of these exemptions.
Some examples:
 s33(1) docs affecting national security defence or international relations - can see in some instances strong
argument re not accessing particular information, but then again thought that says that is the nitty-gritty I really
want to know how we really deal with other countries, how does government make decisions with national
security
 S33(A) docs affecting relations between the states
 S34(1) cabinet docs
 Executive council docs in s35
 S36 internal working docs, interesting one because case law that talks about, there have been attempts by
number of government agencies to label docs as internal working docs because of this exception, courts have
said just naming a doc an internal working doc in its own right won’t protect the agency from being able to
provide the documentation
 S37 - docs affecting law enforcement and public safety
 S38 docs re secrecy provision
 S39 - property interests etc
 S40 - certain operations of government
 S41 Docs affecting personal privacy
 S42 Legal professional privilege
 S43 Business
 Research s43(a)
 S44 docs affecting national economy
Many of these exempt categories provide for issuing a certificate for these exemptions, certificate from AG to indicate
particular doc exempt
Exemptions tend to be wide, fare reaching, tend to be fairly widely drafted, it is the ideal way historically for agencies to
refuse access particularly on public interest grounds - See how that has in fact changed
Statement of Reasons
If an agency does refuse to grant access then has to provide a Statement of reasons - needs finding, evidence, reasons
and information concerning applications right of review - so any agencies that refuses has to provide SOR as to why
refused
A Right to Access
S11(1) FOI provides the rudimentary right to access to docs and right conferred upon 'every person’ broadly interpreted
to include non-residents, aliens, and persons subject to deportation orders and imprisonment - just about everybody
Notwithstanding fact that an applicant needs to show no threshold interest, if you are just talking about, obviously
threshold interest if you want information about yourself and obviously cant seek info re anyone else, but if info re
government don’t need to show threshold interest, it will help and assist if you can but it is only a consideration that is to
be taken into account, but under s11 there is no threshold requirement, don’t have to explain why want information
S15 - always prescribed form, talks about how requests should be framed
S18 codifies certain that it is properly requests, and links to s94 re costs involved
Particular in public interest provision in s3 which determines whether a fee should be remitted, public interest question is
asked
Always rights of appeal if there is a request that has been rejected under s53 you can have external review by the
ombudsman for e.g. and can also apply to AAT under s55 or go to the federal court
In practical terms once a request for access is refused on the exception grounds s33-47 an appeal is rarely instigated
primarily due to the high legal costs that are involved in appealing to the higher courts
Recent Case Law
Mention some of the more important landmark cases
Shergold v Tanner (2002) 76 ALJR 808
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To indicate rarity of these types of cases going to high court - this only 4th freedom info case to reach high court
in 20years FOI legislation - issue in this case was whether a decision to issue one of these exception
certificates under the act was warranted, and then high court rejected the argument that in general terms of
exception certificate, did not prevent full merits review by the AAT.
Michael McKinnon v Secretary, Department of Treasury [2006] HCA 45

perhaps even more important - high court in this case set particular precedent that you could say if you read any
articles about this case you will see comments that it is the last straw of FOI, because what high court did was
that it set a precedent that would allow governments to deny requests for information on basis of potential harm
that disclosure would bring.

Facts - 2002 - Mr. M is the Australian newspapers FOI editor, he made, under the legislation, some requests for
material relating to two areas (1) bracket creep in income tax system, the notion that the higher the income you
earn the higher the tax rate that you pay, so seeking information about how many people creep up into various
rates of income tax (2) secondly the first home owners scheme, and he was investigating the possible
fraudulent use of the scheme, in those days $7K first home owners grant so how many wealthy individuals
taking opportunity to buy first home, use first home owners grant.

So we are not talking national security issues, not talking about international relations or cabinet docs, just info
that is already a couple of years old

So dept of treasury provides list of docs that fall within requests, some 40 docs re bracket creep, all of which bar
one were said to be exempt. So you can have one. There were some 47 docs re first home owner’s scheme,
out of those either wholly or partially exempt.

The main section used to argument exception from FOI was s36(1) talks about internal working docs. The
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argument put by government was that it would be contrary to public interest, because these documents, these
except docs may include opinions, advice, recommendations, that had been made as part of the deliberation
process involved in decision making by govt. so it would be contrary to public interest for that type of
deliberation, those opinions etc to be disclosed to the public.
So rejected, M seeks internal review of that decision, internal review upholds earlier decision refusing access.
M then goes to AAT for review of those decisions and under s58 FOI can go to AAT.
Just before gets to AAT then treasurer peter Costello signs 2 certificates of exception, on top of the rejection
that it isn’t in public interest, the treasurer now steps in and places 36 of the 40 bracket creep docs and most of
the 47 first home owners scheme docs with conclusive certificates basically saying no way will these be
disclosed. Each of these certificates set out 7 diff grounds as to why this information should not be provided,
falling into 2 broad categories (1) disclosure compromise confident and candour and (2) disclosure likely to
mislead due to the provisional nature of the document and their use of jargon, acronyms and terminology.
AAT upholds decision, it goes to the full federal court, and they uphold the decision and dismiss M appeal, so M
appeals to the high court.
By 3/2 majority, high court dismisses the appeal, primarily about s58 FOI Act. What this now meant was that
here was now a precedent from the high court that clearly said ministers could withhold information even where
disclosure was in the public interest, as long as there was a potential harm to the national interest, that would in
itself override the public interest. So yes there may be a public interest, but if potential harm to national interest
then that overrides.. this case seen as last straw,
FOI Access Requests
Requests
2002-03
2003-04
2004-05
41,481
42,627
39,265
Between 1 December 1982 (the date of commencement of the FOI Act) and 30 June 2005, Commonwealth agencies
received a total of 724,650 access requests. Chart 1 shows the total number of access requests made for each year
since the commencement of the FOI Act. It should be noted that in 1982-83 the FOI Act operated for seven months
only.
Details of requests received
Centrelink, the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and the Department of
Veterans' Affairs (DVA) continue to receive the majority of requests. Commonly, requests made to these agencies are
from clients seeking access to documents containing their own personal information. Chart 3 shows these agencies'
share of the total number of requests received by all agencies this year.
Given information and statistics in material re growth of FOI request over the years (see diagram) take not of the main
users of FOI, main agencies from which applications for FOI are received i.e. veterans affairs, department of
immigration and Centrelink
Given McKinnon’s case there is a history of a number of major reviews of the FOI act seeking to turn M case around to
introduce legislation that would make FOI to be that which visionaries of 1970s wanted it
Proposed changes to FOI

1977 - Australian Law Reform Commission Report no. 77 and Admin Review Council Report 40 recommendations re changing FOI

1999 - June - commonwealth ombudsman looks at FOI and makes similar recommendations, that there was
this malaise with the legislation, and also had something to do with a generational shift, visions of late 70s were
not seen in the same way by the decision makers, public servants now in place

2001 - Enquiry into FOI and bill introduced to try and make changes, that goes by the by

2003/2004 - Australia National Audit Office in Report 57 looked at administration of FOI requests, again similar
recommendations

2006 - Commonwealth ombudsman looks at FOI in its 2006 report
These are heavyweight bodies - over period of years - and government did not respond and accede to the
recommendations being made
Finally government announced as part of 2007 election policies that it would reform commonwealth FOI act. - Senator
John Faulkner, senator of secretary of state, two draft bills, Information Commissioner Bill 2009, and FOI Amendment
Reform Bill 2009 for public consultation
Now this is major reform - one of the recommendations made by most of these reform bodies was the establishment of
an Office of Information Commissioner, comes under proposed legislation, proposed to be operational by January of
2010 - that office of the information commissioner will have functions looking at both privacy act and FOI act
So major structural reforms, the primary purpose of the commissioners will be to oversight access to FOI, they are going
to be responsible for guidance on the way that information is provided, retaining and advocacy of decision makers in
FOI, complaint handling in departments, review processes
The new bills, the bills now before parliament offer greater freedom for publication of information and far wider coverage
under the act.
Fees and charges - one of the major reforms is that there will no longer be an application fee under the legislation, this
was always a big problem as it could be very expensive exercise.
There will be further reviews on fees and charges down the track
The draft bills also propose repealing quite a number of the exceptions in s33-47 . It also intends to reformulate this
public interest test. They propose that there will be a single form of public interest test rather than the number currently
used, and the test is weighted in favour of disclosure.
So in reformulating public interest test one of the factors the legislation says will not be taken into account will be things
such as access to the document could result in embarrassment to the government or loss of confidence, that it could
result in misinterpretation or non-understanding of the doc - the sort of things the McKinnen case provided for not giving
access to the doc
Also reformulation of national economy regulations - impact on economy - that will be reformulated
Reformulation on the cabinet exemption - proposed to be limited for docs prepared for the dominant purpose - current
everything that goes to cabinet is exempt - so will reformulate this exemption so that only those docs made for dominant
purpose for submission to cabinet will be exempt, which means a number of addition docs and reports, submissions etc
provided for cabinet, if not prepared for dominant purpose of submission to cabinet then they too will be accessible
Also major changes to time periods involved in seeking access e.g. voluminous requests or complex requests then
agencies able to approach information commissioner to seek extensions of time re provisions of info in more timely
manner
2 new exclusions proposed
 Intelligence agency information - already excluded under FOI but there will be a tightening up of access re that
information
 and also there will be a limited exclusion for the department of defence - re info as to how defence goes about
business of collecting, imposing, etc, operational intelligence
Also going to be reforms to archives act and also the privacy act
Whether regime should be extended to information held by non government agencies
Lastly the state, partly state ombudsman has also sort review of state FOI legislation, again very slow going in may
2005 Vic ombudsman issued discussion paper on reviewing its FOI act and in October that same year 2005 NSW
ombudsman issue again a major report which hasn’t been acted on by NSW until this year when the state government
said it would reexamine the FOI act, just took the lead from Qld which last year decided to revamp its FOI legislation
So much movement, remains to be seen whether the legislation is ultimately implemented, probably will be federal
Ombudsman
Introduction
The Ombudsman area is one that has grown in stature certainly over last 5-10 years.
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 (Cth) 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.
Commonwealth Ombudsman has had quite a bit of influence, despite fact that Commonwealth Ombudsman like all
Ombudsman can only make recommendations.
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. They use this primarily to get things done or get governments to agree to do something
Concept of Ombudsman is an ancient one, dates back to times of Romans. But for our purposes the start is in 1809
when office of Ombudsman created in Sweden
Ombudsman Committee of the International Bar Association definition:
An office provided for by the constitution or by action of the legislature or parliament and headed by an
independent, high level public official, who is responsible to the legislature or parliament, who receives
complaints from aggrieved persons against Government agencies, officials and employees, or who acts on [his]
own motion, and who has the power to investigate, recommend corrective action and issue reports.
That in a nutshell is what an ombudsman role is. Independent body headed by a high level official, not always but often
that official has a public sector background either having worked in public sector or in position where they have dealt
with public sector. Hears complaints from individual aggrieved citizens seeking redress from decisions of government
agencies, and Ombudsman has power to investigate and take corrective action and reports.
Sometimes will take action when sees pattern arising in agency or something similar may decide time to look at that
particular area. Commonly that pattern comes through individual complaints that arise in relation to particular
department or agency
Development of Ombudsman
First Ombudsman in Sweden in 1809 - role was to check legality of public official’s behavior. Then during next 150 years
or so, Finland in 1819 and Denmark in 1955. During 1960s and 1970s growth in Ombudsman.
Two subsequent waves of Ombudsman in a number of democracies - between 1974 and 1989 number of post
authoritarian states, countries such as Greece, Spain, Portugal and number of Latin American countries established
Ombudsman. After 1989 third wave of post communist state countries set up Ombudsman. In Europe unusual situation
is having combination of world’s oldest Ombudsman being Sweden and youngest being Luxemburg
Europe union Ombudsman is late comer only in 1985. Most of European Union states have national Ombudsman, only
Germany and Italy don’t have national Ombudsman.
Now over 100 countries that have established office of Ombudsman in one way or another, fastest growing areas of
admin law on international basis
Australian Ombudsman
In Australia apart from Commonwealth and individual at state and territory Ombudsman there has been a growth in
many private sector Ombudsman. Private health insurance, mining industry, energy and water, general insurance etc
few e.g. of private sector Ombudsman around.
One of the big issues, major issues with private sector Ombudsman is that being private sector Ombudsman they are
very much funded by the industries over which they have oversight so question arises as to “how far does an
Ombudsman bite the hand that feeds it.” Usually membership to private sector Ombudsman is voluntary - i.e. most
banks but not all are party to Banking and Financial Services Ombudsman.
There are many articles pointing particular to private sector Ombudsman such as banking and financial services
Ombudsman where clear indication where citizens complain and are affected but doesn’t seem to be the requisite
response
UK - private sector Ombudsman that also covers estate agents, housing, pensions, and removals industry
Role of Ombudsman
Ombudsman is trying to ensure decisions are made fairly rationally and efficiently. The process offered by Ombudsman
provides facility for those interested parties to participate in government decision making and makes easier for
government decisions to be scrutinized
Term Ombudsman sometimes used to describe any complaints handling body, thus wide array of Ombudsman
institutions
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1976 Commonwealth Ombudsman Act
1974 Ombudsman Act NSW
Areas of investigation and resolution of disputes
What does Ombudsman investigate - they look at what is sometimes referred to defective administration or
maladministration.
What is maladministration or defective administration? Very wide definition. It is about situations arising where a public
body fails to act in accordance with a particular rule or principle that it is bound by. It is more than just legality, it is about
assumption that government bodies or agencies when dealing with citizens should observe certain minimum norms or
rules of behavior to ensure citizens are treated properly and that rights are not affected incorrectly.
In 1995 the first annual report of the European Ombudsman came up with a conclusion that there are really three kinds
of failure giving rise to finding of maladministration
1. Failure to respect a legal rule or principle
2. Failure to respect principles of good administration
3. Failure to respect some human Ombudsman fundamental rights
The Ombudsman is able to undertake investigations of complaints. Just think about the fact that majority of complains
from Ombudsman are settled, very quickly. Often it is very much a matter of member of Ombudsman office picking up
phone and ringing relevant person in relevant agency to discuss the issue at hand, or simply Ombudsman office to write
letter to relevant dept, quite often very much about citizens simply wanting clearer explanation, don’t understand why
decision made in this particular way. Quite high percentage of complaints dealt with swiftly in very informal fashion. See
later on how in fact go from this end of spectrum to extreme wide ranging investigations involving abuses of human
rights.
Ombudsman are independent, accessible (doesn’t cost anything), potentially very speedy, as complainants don’t have
to establish standing (can go on behalf of someone), and legislation that sets up Ombudsman often gives very extensive
investigative powers
Ombudsman bend over backwards with government departments and agencies to try and sort it out, give agency or
department every opportunity to get it right and sort things out, even to point up to preparing report to parliament, the
agency concerned will receive draft report to parliament to see whether agency will agree to recommendations, quite
often ministers do not like to see negative Ombudsman reports tabled in parliament, once done becomes public doc
which often media like to get hold of
In contrast with Tribunals, Ombudsman investigations are even more informal and generally undertaken in private
Ultimately the Ombudsman can only make recommendations, they have no determinative powers. Unlike courts or
appellant T it is this power of embarrassment, the ability to make reports to parliament, that is their main way
There has been an institutional acceptance of Ombudsman across the board. There has been a growth in the number of
complaints received by Ombudsman. Commonwealth Ombudsman annual reports show growth of complaints received.
Some 70-75% of complaints received by the Commonwealth Ombudsman relate to 5 government entities
 Centrelink
 ATO - Tax
 Department of Immigration
 Australia post
 Child support agency
Each year public sector Ombudsman, Commonwealth state and territory, on average receive 60,000 complaints against
government, every year, but very high proportion of complaints settled very quickly
The total number of complaints received by Ombudsman is important as an indicator that citizens do turn to
Ombudsman for assistance and 10s of 1000s of complaints are addressed each year. It also signifies that process of
going to Ombudsman to deal with complaints is embedded in admin law system. In early days of the various
Ombudsman offices the Ombudsman had to spend a great deal of time marketing itself, particular to part of Australian
community come from countries where if you were seen to be actively criticizing government in any way you would be
persecuted, so didn’t complain
So Commonwealth and state and territory Ombudsman spent a great deal of time marketing to these citizens to show
that they could come to Ombudsman and complain re government and have matter resolved on its merits.
Another sign of institutional acceptance of Ombudsman is the growth and spread of private sector Ombudsman.
Last couple of years numerous proposals from parliamentary committees, commentators etc for creation of other private
sector Ombudsman such as aviation, children’s, small business, aged care , media, arts, and sports O’s
Last Ombudsman set up in Australia is Federal Workplace Ombudsman.
Office of Commonwealth Ombudsman
Created by Ombudsman Act 1976 (Cth) - this is act that sets framework, parameters, jurisdiction for its tasks. Some
areas not allowed to investigate.
Ombudsman can decline to investigate a matter until matter raised with relevant department
First question Ombudsman will ask is have you contacted relevant decision maker or department, if no Ombudsman will
say contact them first then come back if still dissatisfied
With Commonwealth Ombudsman office there are a number of offices or other Ombudsman which come under
umbrella of “Commonwealth Ombudsman” and this demonstrates growth and expansion of powers of Commonwealth
Ombudsman. in more recent times
In December 2005 Commonwealth Ombudsman was given jurisdiction to investigate actions of Commonwealth service
providers. So this means the Commonwealth Ombudsman can investigate the delivery of goods and services
Part IIA Ombudsman Act 1976 (Cth) Defence forces
Defence Force Ombudsman can investigate complaints re admin actions and defence force and employment matters, it
cannot investigate actions connected with disciplinary proceedings, can’t investigate granting or refusal to grant
particular honor or award to particular members of defence forces. It can investigate re serving members of defence
forces only after they have satisfied all internal grievance mechanisms. Can also investigate re ex serviceman for their
families
Immigration and detention
Main change to Ombudsman act Commonwealth in 1976 occurred in 2005 where Commonwealth Ombudsman given
powers re immigration and detention, hence immigration Ombudsman came into being.
Ombudsman given powers to investigate re assessing long term immigration detainees and also reviewing possible
wrongful immigration detention matters.
Cornelia Row case

Australian citizens wrongfully detained or deported. Following investigation of that case and other cases, very
high profile cases receiving very negative media report, there was a debate about these sorts of cases. John
McMillan, Commonwealth Ombudsman, said at the time that there was a likelihood that a case such as Cornelia
Row case was not a one off. There was likelihood that other decision makers within immigration had made
similar type decisions. The department of immigration almost immediately referred 201 cases to the
Ombudsman for investigation for possible wrongful immigration detention. That unfortunately a growth area
(because so many) but fortunate because Ombudsman able to investigate these cases
In some of the areas just the tip of the iceberg. If you have a decision maker or series of decision makers making
wrongful decisions it is likely that it will be more than one wrongful decision
Postal industry Ombudsman
Another Ombudsman under Commonwealth Ombudsman is the postal industry Ombudsman. this was added in 2006,
changes to the act. The jurisdiction of the postal industry Ombudsman extends to private sector postal officers who are
registered and do much of the work for Australia post nowadays
Telecommunications
Another major addition to the work of the Ombudsman was changes to the telecommunications interception act 1979
which gave Ombudsman role of inspecting records of telephone interceptions by Commonwealth law enforcement
agencies i.e. police etc. know interceptions can interfere with personal privacy and role of Ombudsman is to ensure
these telephone interceptions are done lawfully and properly and Ombudsman reports to AG.
Proposed changes to telephone interception act - Normally goes to judge to authorize interception to go ahead. One of
proposals under war of terror was that judges be provided with a blank request of telephone interception, so not even
judge was to know who or why the interception was to take place. didn’t go through, but that was extent of powers
asked for - demonstration of the extremes that on occasions law enforcement agencies will attempt to extend their
powers.
Also changes to the act re inspection of telephone records, since then extended to inspection of records relation to the
storage of communications, control of operations and use of surveillance devices across the board.
The Ombudsman inspection role means activities that by their very nature tend to the secret are in fact subject to
regular independent oversight by the Ombudsman. so it is an assurance to the parliament and community that law
enforcement agencies who use these extra ordinary powers are using them lawfully and with some propriety
Protection
In this age of terrorism, one of the responses of parliament was to make numerous changes to introduce new legislation
or amend current. E.g. prevention detention orders in response to perceived or imminent terrorist threat. Ombudsman
now given copy of initial preventative detention order, and person detained must be advised of right to complain to
Ombudsman if they so wish. So a person who similarly detained by police for questioning by ASIO for e.g. is to be
informed of their right to complain to the Ombudsman. role continues to grow
IGIS inspector general of intelligence and security - IGIS or his staff on first day of every questioning detention session
by ASIO the Ombudsman has a right to be informed of such questioning. So Ombudsman and IGIS signed a memo of
understanding and establish admin protocols to facilitate cooperation and integration to facilitate role
The courts are clearly prepared to acknowledge that private sector Ombudsman, whilst very much regulated by private
law; they do belong to a class of private bodies that need to have legality of decision reviewed in public arena.
Ongoing challenges for the Ombudsman
There is no doubt that certainly the Commonwealth Ombudsman in particular has been affected by the growth of
government and consequent changes in government sector. Their investigative powers have grown immensely
One of the challenges confronting Commonwealth Ombudsman, not due to growth of industry private sector
Ombudsman that share this title, instead it is really about the occasional lack of funding that public sector Ombudsman
come across and occasionally the failure of governments to act on Ombudsman reports
Mentioned last week re FOI how number, two very high profile investigations by Commonwealth Ombudsman over
series of years re FOI legislation which remained in the main unanswered by governments. In some areas governments
prepared to ignore recommendations of the Ombudsman. so that still remains an ongoing potential problem
In some areas i.e. immigration, governments prepared, due to embarrassment factor, to in fact react and make
appropriate changes and send to Commonwealth Ombudsman for investigation
In other areas i.e. FOI they have been less forthcoming
“Thirty Years of Complaint Handling – What have we learnt?” (Prof. John McMillan, Commonwealth Ombudsman,
August 2007)
Complaint problems are sometimes one-off and exceptional, but as often they are not unique and point to a
recurring difficulty in an agency program. If staff misunderstood a legislative or policy rule in one case, it is likely
the rule was misapplied in other similar cases. Equally, if misleading or defective reasons were given to one
client, it is likely that other clients were treated as poorly.
That lesson emerged tellingly from the immigration detention cases that were recently investigated by my
office.1 Put simply, the individual cases of Cornelia Rau and Vivian Alvarez sharply portrayed deeper problems
that needed to be addressed. The Government responded by referring another 247 cases to my office, which
led to eight further reports showing that the problems were systemic and worrying. In short, the two individual
cases of Rau and Alvarez were more powerful in portraying the problems to be addressed, than twenty years of
intensive immigration litigation, and countless inquiries and reports by parliamentary committees and other
bodies.
Clearly in migration and refugee detention area the role of Ombudsman very high profile and successful
Ombudsman of all types attempt to use alternative dispute resolution mechanism. NSW Ombudsman for e.g.
undertakes conciliation and mediation as part of its weapons in dealing with complaints. The constant training initiatives
for Ombudsman on alternative dispute resolution, mechanisms and skills.
Note Vic Ombudsman - Ombudsman office has moved from dealing with complaints by formal to informal means of
resolution. In early days both Ombudsman and deputy Ombudsman relied on formal invest, however gradual change to
less formal means recognized by amendment to the act. Today very few formal investigations conducted
Note from QLD Ombudsman - major difference that an informal resolution approach makes is that it provides quicker
outcome….more formal methods requires agencies to submit formal reports in response to complaint. In contrast
informal resolution involves file inspections, telephone enquiries and liaising. This year resolved 99 % of complaints by
informal approach, improvement on previous year 95%
Note from WA Ombudsman similar.
Extraordinary additional Powers given to NSW Ombudsman
State Ombudsman shows how sometimes they provide Ombudsman with powers normally not think would be given to
an organization such as Ombudsman at all
In 1998 in response to Wood Royal Commission NSW parliament conferred on NSW Ombudsman powers to investigate
allegations of child abuse in relation to child related employment screening scheme. This is to overcome potential
conflicts of interest when investigating complaints made against staff. Now absolute obligation on watchdog agencies in
NSW to informal NSW Ombudsman of every allegation or conviction of child abuse made against employee and of
disciplinary action or investigation made in response to it
Agencies are those that provide services to children, government schools, department of community services and other
prescribed public authorities, public authorities prescribed by regulation. Some amendments apply to non-government
agencies that provide services to children such as private schools, child care and residential child services
All other government agencies must advise of any allegation or conviction of child abuse if arises in course of
employment
Ombudsman can monitor internally. Ombudsman also entitled to request additional documents and reinvestigate at any
time. Ombudsman may even take over conduct of investigations if he or she so decides.
So the Ombudsman is additionally tasked with investigating complaints relating to the way agencies have dealt with
child abuse allegations and has the power to investigate agencies complaints handling procedures if it so desires.
Ombudsman, under these additional powers, also have general function of scrutinizing systems in place for preventing
child abuse and systems for responding to child abuse allegations
Essential qualities of an Ombudsman
Particularly given that Ombudsman are going to be investigating maladministration and usually how not to do things in
public sector the Ombudsman office itself must set high benchmark for how it deals with complaints.
So if Ombudsman criticizing the time taken by an agency to make or not make a decisions, or way makes decisions, the
Ombudsman office itself must be squeaky clean in demonstrating how timely investigations should be undertaken and
how they should be undertaken.
Qualities

Independence and impartiality - more important characteristics

Strength of Character - person who is Ombudsman has to have strength of character in knowing that he or she
is going to be prepared to criticize government when criticism is called for

Understanding of the law - though for e.g. Commonwealth Ombudsman not always a lawyer. Ombudsman is
not a substitute for the court but has a major role in examining and explaining and applying the law so some
knowledge and understanding of the law is a plus. The facility to understand the law and interpret legislation

Knowledge of government - again don’t have to have been a public servant but need to at least have some
understanding how government works so that the Ombudsman knows what dealing with and how to react to it

Power of persuasion - quite often Ombudsman solely rely on their persuasive powers to convince agencies to
respond to their recommendations - so need to be able to gain confidence and respect of agencies and done
through highly professional approach

Empathy - certainly with clientele - doesn’t mean blindly take side of complainant, Ombudsman not advocate for
cause like a lawyer may be. Ombudsman only becomes advocate if they conclude after investigation that there
has been a wrong done, then pursue remedy

Service delivery - Ombudsman has to set very high and realistic standards of service delivery itself if criticizing
way government goes about doing things

Common sense - Many of these lists of essentials for Ombudsman include necessity for common sense for
Ombudsman
Go through provisions - Ombudsman Act 1976 and look particular at early sections which describe type of action subject
to review, the sections from s5 onwards re types of government bodies, s3 type of prescribe authorities, duty to
investigate, and s15 for e.g. deals with the grounds for review. Permits review process and investigation by the
Ombudsman. So s15 is particular important.
Privacy
It has been suggested by numerous authors that privacy can divide into the following divided (but separate) concepts
1. Information privacy - very much about establishment of rules governing the collection and handling of personal
data such as credit info, medical records - sometimes refer to as data protection -Privacy legislation in Australia
is primarily re info privacy
2. Bodily privacy - protection of physical selves, drug testing , searches etc
3. Privacy of communication - mail, telephone, email, any form of communication
4. Territorial privacy - concerns setting limits of intrusions into domestic or other environments such as workplace
or public space and can include notions such as searches, video surveillance, ID checks etc
The recognition of a general right to privacy that warrants legal protection is a relatively modern phenomenon
The genesis of modern discussion of this topic is generally acknowledged to be an article written in 1890 in Harvard Law
Review, by then students called warren and brad dace who ended up on US Supreme Court. The true debate didn’t
really come to the fall until 1960s and subsequent decades in US
In 1980 Professor Gavison argued that modern concern can be - change in nature and magnitude and threats to privacy
due at least in part to technological change…… either impossible or extreme possible for individuals to protect the same
level of privacy that was once enjoyed….
Australian Law Reform Commission indicated that chief threats to privacy in Australia include growth of office or
government power, new business practices, and new information technology
Report 22 ALRC, Volume 1
84. Privacy was described in Chapter 1 in terms of:
• the interest in controlling entry to the personal place, or `territorial privacy';
• the interest in freedom from interference with one's person and personal space, or `privacy of the person';
• the interest of the person in controlling the information held by others about him, or `information privacy';
• the interests in maintaining the privacy of communications, and freedom from surveillance; and
• the interest in maintaining `privacies of attention'.
These interests are under threat particularly from the following features of contemporary society:
• extension of powers granted to administrative officials, allowing an ever-increasing range of persons in addition
to police to enter the `personal place' or `personal space', to interfere with private communications, to engage in
secret surveillance or to gain access to a personal file;
• new business practices which seek out the potential customer in his `personal place' or `personal space', rather
than simply waiting for people to decide to become customers and to approach the business of their choice;
• rapid development of technological means for penetrating `place' and `space', making it simply impossible to
keep things private by locking the door, pulling the shades, erecting a fence, sealing an envelope, whispering, or
communicating by telephone;
• development of computers to handle personal information, thereby allowing record keepers involved in
traditional relationships with clients, customers, patients, research subjects and others to increase the volume of
information held about their record-subjects, and encouraging them to allow that information to flow in directions
never envisaged by the existing legal and ethical framework governing those relationships; and
• extensive and expanding use of computers in public and private administration.
Some writers also say different notions of privacy as seen by Europeans and Americans. Whitman, one of the writers in
this area argues at the core of the European approach is the right to control your public image, rights to guarantee that
people see you the way you want to be seen. By contrast the conceptual core to American right to privacy is right to
freedom from intrusions by the state particular intrusion in own home.
Whitman’s says no such thing as privacy as such. Compares and says Americans and Europeans sometimes arise at
same conclusions although diff starting points and different understanding. America =.liberty values, Europe = dignity.
Certain times when two bodies approach each other nearly, yet constantly pulled in different areas.
So Whitman and others say that privacy is a term used with many different meanings. This raises two questions
1. Status of the term - what is privacy, is it a situation, right, claim, value, form of control?
2. Characteristics of privacy - is it related to info, autonomy, personal identity, physical access - can find support
for all possible answers in the literature
Status of the term “privacy”
The first step in examining concept of privacy, necessary to recognize that the international community accords privacy
the status of a human right through the UDHR and ICCPR.
Some recently enacted domestic human rights legislation such as s13 Charter of Human Rights and Responsibilities Act
2006 (Vic) recognizes privacy as a basic human right. S13 says “13. Privacy and reputation - A person has the right- (a)
not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and (b) not to
have his or her reputation unlawfully attacked.”
The ACT Human Rights Act of 2004 contains an almost identical provision in section 12, namely “12 Privacy and
reputation - Everyone has the right— (a) not to have his or her privacy, family, home or correspondence interfered with
unlawfully or arbitrarily; and (b) not to have his or her reputation unlawfully attacked.”
Whilst these pieces of legislation include privacy in a list of rights accorded the status of a human rights they don’t
define the term nor do they delineate the extent to which its scope crosses over, intertwines with, other freedoms, other
rights and other interests.
R v Broadcasting Standards Commission ex parte BBC (CA) [2001] QB 865

2001 UK HOL case

Lord Mustil attempted to define the essence of privacy
o
“to my mind the privacy of human being denotes at the same time the personal space in which the individual is
free to be itself and also the carapace or shell or umbrella which protects that space from intrusion., an
infringement of privacy is an affront to personality…demonstration that the personal space is not
inviolate”
In other words privacy can be viewed as a group or bundle of interests that individuals have in the personal sphere free
from interference from others. It tends to be more an interest than a right. So privacy may be a right in a legal sense but
for definition purposes the word interest is perhaps more accurate. A right is always a right, even if not all interests are
accorded the status of legal rights
It is also important to remember that privacy interest will unavoidably compete and collide with other interests. For e.g.
privacy will often compete with freedom of expression, a child’s right to protection etc
Characteristics of Privacy
With regards to identifying the characteristics of privacy, that is conceptually more difficult. The characteristics may give
rise to changing dimensions in demographics. It depends on the individual. The example give more modern times is that
young people today appear to be much more willing to share personal details. Post images and interact using other
means of communications.
We all know what privacy is. We all know when our privacy has been invaded. But bet that there will be very different
levels of privacy
Do Australians have a legal right to privacy?
Suggest that the advent of the internet, mobile phones particularly, ways and means of communication makes it easier
to communicate and faster, that this in itself has brought some issues relating to potential invasions of privacy.
One of the ways this has been commonly demonstrated recently has been through the use of mobile phones that have
a camera.
So examples
 October 2004 man pleaded guilty to using mobile phone to photograph women in changes rooms
 2004 man photographing topless women at Coogee beach
 2006 man taking up skirt photos of women in Warringah mall
These all raise issues about morality and the effectiveness or lack of effectiveness of the law to protect individuals to
breaches of that type of invasion of privacy
Under legislation apart from Vic and ACT examples above there is no constitutional right to privacy in Australia. There
are those few pieces of legislation that afford certain but incomplete protection of privacy
In 2005 extreme example of protection of privacy, Waverley council, voted 7/5 to band cameras from council run
swimming pools. Enshrined in local by-law and major uproar. Extreme response to protect individual privacy
Various laws that have effect of protecting privacy but not privacy law in itself. Criminal law has some protection but not
protecting the right to privacy e.g. fellow taking photos of women in store, charged with filming for an indecent purpose,
not invasion of privacy. Fellow on Coogee beach charged with behaving offensively in public place etc
If you look at Commonwealth Privacy Act 1988 and state counterparts it is all about protecting information, the
collection, correction, use, disclosure of, information. Every state and territory privacy body, it is very much about that
type of invasion of privacy
None of these acts afford sufficient legal protection to prevent invasions of privacy.
How has the CL dealt with protection of privacy?
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199

2002 High Court case which concerned the issue of whether the secret filming of operations at possum
processing plant provided sufficient grounds for granting interim injunction for ABC broadcasting film.

Majority of court held injunction should not have been granted as wasn’t possible to identify any underlying legal
or equitable rights let alone right to privacy.

In that decision high court referred to Victoria Park Racing case which had said that there is nothing to stop a
court from finding that there might be a tort, a cause of action, of unjustified invasion of privacy, although the
high court in this Lenah Game Meats case said it didn’t exist on the particular case before them
Victoria Park Racing and Recreation Grounds Company Ltd v Taylor & Others (1937) 58 CLR 479

Fellow decided to broadcast the races from local racecourse from building a tower outside racecourse so he
could look into racecourse and broadcast.

VRC wasn’t happy, thought invasion of privacy re races
In relation to finding that there may be a tort of invasion of privacy, paper in 1960 in quote by Justice Callum in Lenah
Game Meats case, of view that law of privacy comprises 4 distinct categories of invasion:
1. Intrusion upon Plaintiffs seclusion or solitude or into his private affairs
2. Public disclosure of embarrassing private facts about the Pl
3. Publicity which places the Pl in a false light in the public eye
4. Appropriation for the defendants advantage of the Plaintiffs name or likeness
Again here just for thinking purposes you can raise the issue of, are those that are in the public eye, do they need less
or more protection of potential invasion of privacy i.e. the Hollywood stars or politicians, sports people, in the public
arena, where they are constantly being bombarded by potential invasion of privacy. Should they receive more or less
protection???
Grosse v Purvis [2003] QDC 151

Another case to take note. Comes from district court QLD

Judge Scoyan heard claim for damages based on a number of torts which essentially arose from fact that
defendant had stalked or harassed the Pl over a number of years. Pl sought damages for invasion of privacy


a)
b)
c)
d)
e)
amongst other things.
In discussing relevant elements of possible tort of invasion of privacy, judge reviewed judgments in Lenah
Game Meats case and Victoria Park Racing case, and came to conclusion that none of these cases stood in the
way of a court in an appropriate case finding that there is in indeed a tort of invasion of privacy.
Judge in this case found that such a tort does exist in Australia and that it had been made out in this particular
case. Judge said bold step to take but one that is logical. He said there are essential elements to this tort of
invasion of privacy
Willed act of the defendant
Which intrudes upon the privacy or seclusion of the Plaintiff?
In a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities reasonable person is grey area
Which causes the Pl detriment in the form of mental, psychological, emotional harm or distress?
In this case judge award 175K for damages for breach of right to privacy.
Giller v Procopets [2004] VSC 113

Vic supreme court. In this case Justice Gillard found that the law had not developed to the point where the law
in Australia recognizes an action for the breach of privacy.

In this case the court held that the Pl was entitled to compensation for breach of confidence by her former
partner who showed video of sexual encounters to her friends family and employer and the filming had taken
place original using a hidden camera and later with the Plaintiffs knowledge. The relationship ends and the
person said they would release the tapes.

In separate criminal proceedings defendant convicted of stalking and breaching prevention order restraining him
from distributing tapes. Pl then brought action pleaded 3 causes of action - breach of confidence, intention of
infliction of emotional harm and invasion of privacy

Justice Gillard found English and Australian law had not recognized cause of action based on third ground,
being invasion of privacy

Goes to Vic COA which relied on Lenah Game Meats and judge in that case referred to Campbell 2004 (UK
case involving model Naomi Campbell who successful sued breach of confidence where published pictures re
drug rehab) - also reference to Douglas case (unauthorized wedding photos of Michael Douglas and Catherine
Zeta-Jones published in breach of confidence)
Lastly refer to Privacy Act 1988. The Act is primarily about data protection. It has a two pronged objective, about
protecting personal info in possession of government departments and agencies and safeguards for protection and use
of tax file numbers in particular, and if you stop and think about how much info currently held by government agencies
about all of us in any dealing with government - medical, education, transport, etc
In the act refer to 11 IPP (Information privacy principles) in materials based on OECD guidelines, set out guidelines for
personal info held by governments - re election, storage, use and disclosure
And then lastly there are the NPP (National privacy principles) which relate to private sector held information - re
information held by private sector
If you look at IPP and NPPs almost identical in approach
Standing
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 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.
Ex parte Rose Theatre Trust Co 1990

Case described as low point in the standing issue in recent times.

Late 1980s during construction in the centre of London for a building, a contractor struck the remains of the
Rose Theatre and group of citizens, Rose Theatre Trust, went to court seeking injunction to stop further
demolition work on the site.

The court ruled that the group lacked the requisite locus standi or standing, as lacked sufficient interest
In order to have standing individuals must show a greater standing, a greater interest, than that of the rest of the public.
Recently there have been a number of cases expanding the position on “standing”
R v Inspectorate of Pollution and Another ex p Greenpeace Ltd (No 2) [1994] 4 All ER 329

environmental group GP granted standing to challenge a proposed license for a nuclear power plant

English High Court said that GP was a responsible and respected body with genuine concern for the
environment, recognizes that standing has been conferred on basis of ideological commitment PLUS
something to follow up, not just intellectual interest.

Court thought granting standing would save courts time. Also saw as efficient and effective way of representing
interest of some 2000 supporters living around nuclear power plant

About representation or third party standing

Justice Otton stated “ if I were to deny standing to Greenpeace, those it represents might not have an effective
way to bring the issues before the court….Greenpeace…is able to mount a carefully selected, focused, relevant
and well-argued challenge … advantage of sparing scarce court resources, ensuring an expedited substantive
hearing and an early result … It follows that I reject the argument that Greenpeace is a ‘mere’ or ‘meddlesome
busybody’. I regard the applicant as eminently respectable and responsible and its genuine interest in the
issues raised is sufficient for it to be granted locus standi”
R v Somerset County Council and ARC Southern Limited ex parte Richard Dixon (1997) JPL 1030, [1997] C.O.D 227,
QBD

Continued liberalisation of the standing rules

“Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is
about wrongs -- that is to say misuses of public power; and the courts have always been alive to the fact that a
person or organisation with no particular stake in the issue or the outcome may, without in any sense being a
mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. If
an arguable case of such misuse can be made out on an application for leave, the court`s only concern is to
ensure that it is not being done for an ill motive. It is if, on a substantive hearing, the abuse of power is made out
that everything relevant to the applicant`s standing will be weighed up, whether with regard to the grant or
simply to the form of relief.”
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247

Justice McHugh said at 77 - “An early common lawyer would have some difficulty in comprehending the modern
doctrine of standing, a doctrine basically created in the nineteenth century. Until the great pleading reforms in
the middle of the nineteenth century abolished the forms of action, questions of standing could hardly arise in
private law litigation. A plaintiff either came within the form of action or was outside it. However, in matters
concerned with the issue of the prerogative writs of mandamus, prohibition and certiorari, support can be found
in the cases for the proposition that the person applying for the writ had to have some interest in the remedy. In
the case of mandamus, it may even have had to be a legal right. On the other hand, prohibition may have been
obtainable by a stranger to the dispute”
So earlier talking about prerogative writs being technical and lengthy etc that was one of the main problems of the writ
either fell within particular area and had standing or did not.
In the mid 1970s it was generally accepted that an ordinary member of the public had no general right to invoke the aid
of the courts unless had particular special standing
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247

AACBF established under Corporations Law and operated contributory funeral benefits fund. BB local aboriginal
land council, constituted to record functions of aboriginal land rights act. Also received funding to assist in …re
land taxes in NSW.

What BB proposed to do was to establish a contributory funeral benefits fund in comp with aboriginal community
benefits fund. Substance of issue defined. J

Justice McHugh --something re contract--- in other words could a body that was primarily publicly funded
through citizens taxes be able to use to set up community funeral benefits fund ….their honors suggested that it
may not be a requirement for standing to be grounded on a particular remedy, i.e. injunction etc to enforce
public duty.

They based their decision as follows - first question they said is why equity, even if the AG wanted to intervene,
why equity would intervene in such a case, the answer to that question was that if there was going to be
recourse to public revenues, the taxes used to fund org, there might be limitations on the activities for such a
body. The BB land council case establish that in proceedings where a Pl seeks to enforce a public duty or in
fact to confine the functions of a public authority the law on standing will be an enabling procedural stipulation
rather than a restrictive one - should be seen as a positive use of standing, in other words wherever possible
provide standing rather than restrictive
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.
________________________________
Traditionally only AG has standing to invoke any of the prerogative writs. In other words AG can intervene in any matter
In judicial review at general law, where a remedy is being sought, issues of standing linked to issues re availability of the
remedy itself
We now have assistance of ADJR Act, in which the test of standing appears quite distinct from the sort of remedy you
are seeking.
Apart from standing tests seeking remedies at general law there is a variety of special statutory standing test that have
arisen.
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 74 ALJR 604

One of those special statutory standing tests arose this case, which talked about standing being possibly
available to a person who is aggrieved, or to any interested person, or to any person.

Majority accepted that in an application for a writ seeking the exercise of judicial review (constitutional writ) that
may be by a stranger.

Case establishes that no requirement for chapter 3 judicial power for there to be an reciprocity - lack of interest
may be sufficient in the constitutional writ cases. This is fairly wide approach
Have been more recent federal court cases that indicated a somewhat narrower approach to standing than in
Bateman’s Bay case
All the cases say it is a question of degree
Transurban City Link Ltd v Allan [1999] FCA 1723

Spoke of question of standing being about reviewing an admin decision by firstly determining the reference to
standing which the applicant has in the decision under review. Other words one of the first questions to be
asked is whether in fact the party seeking judicial review has an interest in the matter. They say that it is to be
determined by reference to the Act and subject matter of the review and the relationship which the entity or
individual seeking JR may have to that subject name

So an interest in the outcome of the review may give standing, but there will be no standing where the actual
outcome of the review does not affect the applicant or person seeking JR

an applicant loses standing if his/her personal circumstances change so that they are no longer satisfy the
relevant test (e.g. 'person aggrieved'), even though they originally had standing at the time the proceedings
began i.e. standing is not an accrued right

at 698 - "The question of standing to review an administrative decision is to be determined by reference to the
interest which the applicant has in the decision which is under review. It is to be determined by reference to the
nature and subject matter of the review and the relationship which the applicant individually or a representative
body may have to it. An interest in the outcome of the review may give standing. But there will be no standing
where the actual outcome of the review will not affect the applicant. There will be a question of degree involved
in many cases."
Full Court's decision was recently upheld by the High Court in Allan v Transurban City Link Limited [2001] HCA 58.

Exchange between counsel and justices of high court
o Counsel at one point said we say that there is really, where the error made by the full court, part passage in the
decision…quote from full court decision “question of standing to review admin ….reference to the interest which the
applicant has in the review, by reference to the nature and subject….an interest in the outcome of the review may
give standing but no standing where actual outcome will not affect the applicant….
o Gummow JJ intervenes and says that is all some level of generality….
o Counsel says we say not only is it put at a level of generality but incorrect to say that the question of whether or not
Mr. A interests are affected or whether affected by decision..
o Gummow JJ says what voice of xx council…..
o Kirby JJ says all because we see it so many times that lawyers minds locked into legislation…
A person has standing to seek prohibition if that person was a party to the proceedings of the decision maker against
which prohibition is sought
Stranger that is not a party has standing only at the court’s decision, only if the courts decide in this particular case will
standing be given to a stranger
Provided the court decisions that the person was no a mere busy body any member o the public whose interest are
affected has standing to seek remedies, particular if about a serious breach by a government decision maker
A host of cases tell us that there is this general right to standing in those situations.
In Australia however there is a much narrower view. In Australia the courts tend to use test of whether the applicant has
a special interest in the subject matter of the applicant, fairly strict test of standing
Cheatley v R (1972) 127 CLR 291

person aggrieved who has suffered damage greater than that suffered by ordinary members of the public,
stranger with no interest has standing at courts discretion
Standing of Others
Sometimes persons who have been affected by a specific legal right may also seek standing. Much narrower test. Legal
right affected.
The starting point for any discussion on these “others” who may have standing goes back to Boyce v Paddington
Borough Council [1903]
Boyce v Paddington Borough Council [1903]

case concerned proceedings commenced by a pl seeking an injunction and the AG was not a party - this was
the case where the view from the Plaintiff's block of flats was obstructed by council advertising. This was not an
infringement of any legal proprietary right, simply view now obstructed. Clearly Pl had special damage, damage
special to himself and greater than the general public which was no affected by the view being blocked.

Justice Buckley said the Pl can sue in two cases
1.
Where interference with public right is such that some private right of his is at the same time interfered with, e.g.
obstruction on highway and owner of premises along highway is specifically affected by the obstruction
i.e. access to and from property
2.
Where no private right is interfered with but the pl in respect of his public right suffers special damage peculiar
to himself with respect to the public right.
Special interest in the subject matter of action
Second limb in Boyce was liberalised in High court case Australia Conservation Foundation Inc v Commonwealth
(1980).
Australia Conservation Foundation Inc v Commonwealth (1980)

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

There was some criticism by Australian High Court of Boyce, Gibbs J held formulation by Buckley J in Boyce
could be misleading and that the test should not be two limb test

Gibbs J said rather the test should be whether the Pl had a special interest in the subject matter of the action,
rather than Buckley J view of confining to special damage.

So high court preference was a Pl who has special interest in the subject matter rather than suffering special
damage.

The high court expanded and said we need to distinguish a special interest from a mere intellectual belief or
concern.
Cases on standing are obviously varied and much depends on the subject matter of the litigation and the nature of the
remedy that is being sought. So a special interest in one case may not be a special interest in another
It is going to be easier to determine a special interest in a subject matter if an individual has his or her financial or
proprietary interests affected by the decision. Those interest may not be a legal right as such.
This was taken to an extreme in Onus v Alcoa of Australia Ltd (1981)
Onus v Alcoa of Australia Ltd (1981)

High court held that an interest of a spiritual or emotional nature may give rise to standing to seek an injunction.

In that case they said that the special position of the aboriginals in the case, the Plaintiff's, in terms of their
aboriginal customary law, gave them standing where perhaps general environmental groups might not be given
standing in a similar situation. Those types of groups the court suggested may have more difference in establish
a special interest.
Another case court decided was special interest was the Shop Distributive case
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552

Issue was whether a union had standing to challenge a decision of the minister who had made a decision to
allow Sunday trading and in effect exempting certain shops in Adelaide CBD from regulations normally
prohibiting trading on Sundays.

Held in this case that the union did have standing, the court said the union represented members, shop
assistances employed in CBD, and had special interest in the trading hours since any alteration in the trading
hours would affect the terms and conditions of their employment.

In reaching that conclusion high court applied test in Australia Conservation Foundation - Pl has no standing if
he has no interest beyond that of any member of the public - rule is flexible and subject matter dictates what is
Have been attempts in number of cases particularly Australia Conservation Foundation re what special interest is. Court
in Australia Conservation Foundation said not mere intellectual or emotional concern. Fact that in Australia
Conservation Foundation it was about a conservation body opposed to a resort development, that in itself according to
the court did not give Australia Conservation Foundation sufficient standing to oppose the grant.
Could argue that that is splitting hairs, is there much difference between union representing its member and an
Australian Conservation Foundation body representing individuals and groups concerned with environmental issues
North Australian Aboriginal Legal Aid Service v Bradley

NAALA, according to the court, was a representative body representing aboriginal aid, equated to a
representative body such as a trade union in Shop Distributive and Allied Employees
Adjoining Land Owners
Becomes a little easier, but not automatic, to be given standing if you happen to be an adjoining land owner; usually
have standing to challenge planning decisions affecting neighboring land
Business Competitors
What about standing of business competitors - a competitor may have standing to challenge a decision that affects it
commercially
Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Limited (1994)

A competitor held not to have standing to challenge a decision that had been made affecting it.

Justice McHugh said in order to have standing a Plaintiff’s special interest must be an interest of the general
kind that a relevant public right is intended to safeguard to protect - has to be specific and special, different to
general public
Administrative Decisions Judicial Review Act
ADJR Act does assist. Because ADJR Act refers to an applicant having to establish that he or she is a person aggrieved
and then the ADJR act defines a person aggrieved as a person whose interests are adversely affected by a decision or
determination to which the act applies. Far more streamlined definition, much easier to demonstrate that you are a
person aggrieved, that interests have been adversely affected
If there are any proceedings under ADJR Act re standing there are three parties that need to be considered
1. Plaintiff: the plaintiff seeking review under ss5, 6 or 7or reasons under s13. Have to be a person who is
aggrieved, either by decision (s5) by conduct s(6) or by failure to make decision (s7).
2. Interested person - Under s12 a person may join an application for review once standing has been given to an
applicant but there you have to be a person interested. If person aggrieved has been given standing may apply
for another person
3. Attorney General: is third party, only standing requirement is to be the AG.
In Australia federal court consistently maintained that because ADJR Act is remedial legislation the expression “person
aggrieved” in the legislation should not be given a narrow construction. A person may be aggrieved even if there is a no
legal right or interest that has been affected by the decision, can still be aggrieved. If you look at definition section 3,
fairly open ended. If you look at ss5,6,7, aggrieved by decision or conduct or failure to make decision - in each case the
person is aggrieved when the interests are adversely affected by the decision or conduct or failure to decide. It is
inclusive in definition, not exhaustive.
Definition: Person Aggrieved
There is an inclusive definition of “person aggrieved” in s 3(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 (ii) a 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 ss 5, 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).
Difference between ADJR Act and General Law
In many cases the courts have ignored the definition under ADJR Act and simply focused on whether the person is
aggrieved or not.
Really it is because there is little difference between two phrases - person whose interests are adversely affected differs
very little semantically from “person aggrieved” - it means much same thing.
What the courts have decided is that if they are looking at the person aggrieved the standing needs two requirements
1. Stake or interest
2. Threatened interference with that interest (adversely affected part)
General test for determining whether interests are affected is that the person suffers, not just as any member of the
public but as a person who suffers a grievance beyond that of an ordinary member of the public.
Ogle v Strickland (1987)

One more interesting cases in early days of federal court

Priest held to have standing under ADJR Act to bring an action challenging a decision of the censorship board
which made decision to allow importation of file which may be offensive to those of the Christian faith (Hail Mary
film)

This priest was given standing because of his special interest
Is there a difference between ADJR approach and general law test? Well, in short, no.
There is nowadays a more liberal interpretation. Far more liberal than in Batemans Bay case
High Court has effectively created a formula for standing for all the remedies that aligns itself with provisions of ADJR
Act, really very much about special interest in the decision that has been challenged, and no matter how the standing
requirement is phrased (aggrieved, affected, special interest) courts generally treat it as requiring a “special interest”.
Some e.g. of the words used in numerous cases that primarily mean the same thing
 Onus v Alcoa of Australia – interest exceeding that of the public generally
 Australia Conservation Foundation Inc - interest over and above that enjoyed by public generally
 Alphapharm Pty Ltd - interest beyond that which is shared with wider public
Conclusion
The general law test for standing, there has been a general trend towards liberalization, come through under ADJR act
Under the ADJR Act the court has quite a broad discretion as to whether to grant leave, particularly whether to grant
standing,
Australia Law Reform Commission 1996 report
 It wanted an even greater liberalisation of the standing rules - they were recommending that any person should
be able to commence and maintain public law proceedings and have standing unless the relevant legislation
specifically indicates that it should only be a particular type of person allowed to have standing, or that it would
not be in the public interest just to allow anybody to have standing
No indication that the high court wishes to expand to that wider approach.
Privative Clauses
A privative clause is a provision in legislation that purports to either exclude or limit judicial review of a decision made
under that legislation.
E.g. include clauses:
 conferring wide discretionary powers on the decision maker
 restrictions of the kinds of enquiry that can be undertaken by the court
 preventing remedies being granted by the courts
 restricting ground of review by the courts

imposing time limits on when an application for review can be sought
 oust or throw out courts jurisdiction
A privative clause is a provision within the act which restrict the scope of judicial review under the act.
Purpose of Judicial Review: This raises question “what is the purpose of judicial review?” The primary purpose
(traditional perspective) is to ensure that those who the parliament has given the power to act, the decision maker/s, do
not go beyond that power; it is the ability of courts to review decisions made by those the parliament has given the
power to make those decisions
In Australia privative clauses aren’t new; they go back to 1904 and came to a high in 1910 with Why-Brow
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. and Ors (1910-11) 11 CLR 1

Attempt to virtually eliminate the high court’s jurisdiction to review decisions by the then arbitration court

High court was adamant that the privative clause in the legislation had no effect on its constitutional jurisdiction
to review admin decisions.
Some writers will say and have said, that one of the differences that privative clauses provide is that they are based on
a contradiction, the parliament enacts a law which establish legal rights within which a decision maker has a power to
make a decision. It gives decision makers certain powers to make certain decisions. If a privative clause is made that
applies to that decision, there is very little scope for the court to determine whether these legal limits of the power have
been respected by the decision maker.
The number of cases in which a privative clause has been found not to protect a particular decision making process is
very large. Certain themes that have emerged.
Perhaps most important factor to start off with is the well known principle in law referring to statutory interpretation - that
is that the parliament, when it makes laws, does not intend to reduce the jurisdiction of a court, unless the legislation
specifically states it or implies it.
So privative clauses as you will see in the cases have been construed very strictly
The courts have always said re privative clauses that if the parliament wants to limit or prohibit judicial review they have
to make it very very clear in the legislation, said have to use express words of plain intendment, or clear and
unambiguous words, or they have to be unmistakable and unambiguousness, clearness which admits of not doubt. In
other words if you want to restrict or limit, spell it out clearly.
Privative clauses generally consist of two parts
1. Decision/Event: first identifies the decision or event to which the relevant restriction applies i.e. a decision under
this act, so pointing to very specific identification of a decision
2. Specification of Restriction: second is the specification of the restriction upon which a court which may normally
have judicial review powers has some restriction, may use words such as finality, no appeal, no quashing, no
calling into question, those sorts of words
Background
Parliamentary Supremacy v Rule of Law
The problems that privative clauses raise have been compared to the problem of what happens when an irresistible
force meets an immovable object.
 Irresistible Force; Parliamentary Supremacy: Parliament has a general plenary power to make laws subject to
the constitution and it is well establish that a particular law, if unfair or unjust or wrong, it is about the validity of
the law. In other words parliament can make laws as it sees fit as long as within constitution
 Immoveable object; Rule of Law: it is for the courts to have the final word on the interpretation of the law as it
applies to particular cases. Role of courts in judicial in this sense is constitutionally entrenched, go to s75(v)
Constitution (“In all matters (v) in which a writ of Mandamus or prohibition or an injunction is sought against an
officer of the Commonwealth, the High Court shall have original jurisdiction”). That is an inherent power that
allows judicial review of decisions made by commonwealth official and bodies for jurisdictional error. These are
the so called constitutional writs. When parliament gives a particular administrative decision maker a power to
make a decision under a statute and then says, in which we term a privative clause, that the decision is final,
that it is not going to be questioned in the courts, then these two principles come into conflict
The supreme parliament should be able to pass any law including a law which includes a privative clause but the courts
need to maintain and retain the final word on the validity of administrative action
So which principle prevails??
Literal interpretation v narrow interpretation of privative clauses
Not surprisingly courts are reluctant to relinquish inherent power of juridical review, because if there was to be a literal
interpretation of these privative clauses it would mean a significant restriction on courts role in deciding whether or not a
particular decision has been made beyond power (judicially reviewing)
A narrowed interpretation would allow courts to maintain, assert, and exercise right of, judicial review, and that’s the
approach that has primarily been taken.
The literal interpretation suggests that parliament has made the decision that the body in question, the decision maker
can be trusted not to exceed its jurisdiction and that it doesn’t need judicial review of the courts and if there is a problem
parliament can always fix by undertaking further legislative reforms
A literal interpretation is not a view the courts find attractive. So the other view is that the approach taken by the courts
infringes the notion of parliamentary supremacy
The Hickman Principle
In what some commentators have seen as the most innovative and perhaps expedient compromise, the high court
appeared to reconcile these conflicting principles in R v Hickman; Ex p Fox and Clinton (1945) 70 CLR 598
R v Hickman; Ex p Fox and Clinton (1945) 70 CLR 598

Regulations made in 1941 during WW2 called national security coal mining industry employment regulations,
which conferred on local reference boards the power to settle disputes between employers and employees in
the coal mining industry. So this is countries at war, these are regulations to ensure continuation of mining, don’t
want disputes to hold up key industries, regulation 17 specifically contained a classic privative clause, “these
decisions are not to be challenged, appealed, quashed, subject to prohibition, injunction etc in any court
whatsoever”. You don’t have to read too many times to see that they want decision of local reference board to
be final

Mr. and Mrs. Fox are general haulage carriers who sometimes carry coal on trucks, sough writ of prohibition to
stop local reference board from holding hearing to settle dispute in which they were involved. Court unanimous
granted prohibition on the basis the dispute was not in the coal mining industry - carried coal sometimes, hence
not coal mining industry

In reaching that conclusion the court didn’t say privative clause was invalid, instead sought to reconcile it with


i.
ii.
iii.



the local reference boards limited grant of power by simply reading down the section, their statutory
interpretation.
“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 the 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 or has not confined its acts within the limits laid down by the
instrument giving it authority, provided always that its 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.” (Dixon J)
If the privative clause passes the three point test then it works:
bona fide attempt to exercise its power
relates to the subject matter of the legislation
is reasonably capable of reference to the power given to the body.
It this case it didn’t get through test 2, not in coal mining industry.
So what this interpretation by Dixon j in this case was to acknowledge that the legislature had the ability to
ensure a degree of finality about the decision making but it also enabled the courts to assert its power to judicial
review such decisions
Instead of throwing out jurisdiction of the courts it in fact expanded jurisdiction of decision maker
In years following Hickman it was reaffirmed and repeated in a number of high court cases particular dealing with WW2
national security
Hickman principle: A private clause will oust judicial review only if those three points are followed:
1. Decision makers decision is a bona fide attempt to the exercise power
2. The decision relates to subject matter of the legislation
3. The decision is reasonably capable of reference to the power given to the body
Some writers say that there is a 4th and 5th limb. Think safe in saying 3 limb approach is sufficient
Note Hickman approach, 3 limbs, is very much used by the courts as a last resort.
The courts will legitimately attempt as narrow as possible an interpretation of a privative clause in order to suggest the
privative clause is only aimed at certain types of errors of law. If the interpretation by the court is such then they don’t
even need to resort to the Hickman principle. Some have suggested that in the extreme this verges on defying the
parliament. But the view is that as long as the interpretation of the words doesn’t lead to an absurd result and that
appropriate statutory interpretation is used the practice of taking a narrow approach is consistent with the rule of law and
the separation of powers. Courts will attempt to interpret such words in a narrow fashion in order to say we still have
right of judicially reviewing and don’t even need to go to Hickman test
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78

Typical formulations used by courts to justify a narrow interpretation of privative clauses include the argument
put by Spigelman CJ "This approach to such clauses is well known to parliamentary draftsmen. Accordingly,
there is no foundation for the suggestion sometimes made that the application of a strict construction in some
way constitutes a failure on the parts of the courts to implement the intention of Parliament. Subject to any
applicable constitutional restrictions - and none have been suggested in this case - legislation can always be
drafted to ensure that an intended restriction on judicial review of administrative decisions will be effective."
Narrow approach used where possible.
Various types of privative clauses
Be aware of various approaches that have been made through types of privative clauses
1. “Finality or no appeal privative clauses”
Type of clause which typically says decision is final and will not be subject to appeal by a court.
Those privative clauses are always held to be completely ineffective in excluding judicial review.
2. “No certiorari clauses or no specific remedy clauses”
Typical clause is “the decision of the tribunal shall not be quashed or called in question in any court whatsoever”.
So unlike finality privative clause cannot be interpreted as having no intention to affect judicial review because clearly is
intended to have affect on judicial review. Courts sidestepped problem by traditional remedy of deeming “No certiorari
clauses” to be intended to covering only non-jurisdictional errors of law leaving all other jurisdictional errors open to
judicial review - no need to go to Hickman
3. “Conclusive Evidence Clause”
This is most commonly litigated type of privative clause - usually involves Income Tax Assessment Act 1936. In an
attempt to protect tax assessment notices from review. Relevant sections just FYI s175 and s177 tax assessment act
and again this is a typical conclusive evidence privative clause; “validity of any assessment shall not be affected by
reason that any of the provisions of this act have not been complied with”
In other words if you have a notice of assessment signed by deputy commissioner that document in itself is conclusive
evidence of correctness of assessment.
The classic case re sidestepping of these sections is Deputy Commissioner of Taxation v Richard Walter Pty Ltd 1995
Deputy Commissioner of Taxation v Richard Walter Pty Ltd 1995

Majority high court held neither sections were typically privative clauses. They said combined effect these 2
sections (s175 and s177) was to prevent a litigant from going behind assessment notice in judicial review and
challenging the procedural aspects of making of assessment. Court said this didn’t prevent challenges going to
substantive amount of tax due to taxpayer.

In other words court acknowledges can’t go behind assessment notice but can still challenge the dollar value of
the tax given

"The privative clause treats an impugned act as if it were valid. In so far as the privative clause withdraws
jurisdiction to challenge a purported exercise of power by the repository, the validity of acts done by the
repository is expanded".
Again no need to go to the Hickman principle to sidestep that type of privative clause
Federal Commissioner of Taxation v. Dalco (1990) 168 CLR 614

exactly the same sidestepping approach taken without need to go to Hickman
None of these cases provide any greater clarity as to the method of judicial approach that is to be taken in tax cases in
particular, tend to be confusing and confounded, nature of legislation itself gives certain air of difference and technicality
and will very much vary from case to case.
4. Time limit clauses
i.e. validity of decision shall not be questioned except those commencing with x days of the decision - if don’t challenge
within time frame that’s it, out of time, cant challenged
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78

Clause in question in this case was "The validity of [a decision] shall not be questioned in any legal proceedings
except those commenced in the Court by any person within three months of the date of its publication in the
Gazette."

Meagher JA didn't deal with the "time limit" clause, because he held that no judicial review ground could be
made out anyway (so there was nothing for a privative clause to exclude). Powell JA also held to that effect, but
mused about the "time limit" clause in obiter anyway. His Honour suggested that the "time limit" clause would
have been effective to exclude review (because the applicant had commenced proceedings outside the 3 month

period. Spigelman CJ in dissent held that there had been a jurisdictional error (namely denial of procedural
fairness); that the "time limit" clause was to be regarded as a privative clause; that Darling Casino therefore
required one to apply the Hickman test; and that application of the Hickman test led to a conclusion that the
privative clause did not protect against a denial of procedural fairness!
Powell JA's approach would appear to be the correct one
Time limit clauses have been traditionally been interpreted as not being privative clauses at all in the true sense or as
privative clauses which are limited in the way in which the court can in fact step around the clause and judicially review
them
5. Limiting review grounds clauses
These seek to restrict availability of some or all of the remedies i.e. shall not be quashed, reviewed, called into question
etc - interpreting in a narrow way the impact that these clauses have by saying the general types of jurisdictional error
cases are going to be reviewable
Cases applying Hickman test



Houssein v Under-Secretary Department of Industrial Relations and Technology (1982) 148 CLR 88
o The Court mused idly about it, but then proceeded by the conventional approach of interpreting the clause
in question as only ousting non-jurisdictional error of law on the face of the record. However, that was the
only sort of error alleged in Houssein, and so the privative clause was effective to oust review.
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
o one of the very few cases providing any real illumination of what the 3 Hickman limbs actually mean in a
practical sense
o illustrates very clearly the fact that no privative clause, however broad, can be effective to oust either the
High Court's original (Constitution section 75(v)) jurisdiction or its equally entrenched jurisdiction to review
the constitutionality of a law. O'Toole involved a challenge by an employer to the constitutionality of an
industrial award (which an employee was trying to enforce against him), on the argument that the award
had not been made in settlement of a genuine inter-State industrial dispute. The Commonwealth
Parliament's conciliation and arbitration power in section 51(xxxv) is dependent on the existence of just
such a dispute. Consequently the privative clause in the Conciliation and Arbitration Act (1904) (Cth) had to
be read down so as not to oust a person's right to challenge the constitutionality of the law.
Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602
o It was strictly in obiter, because all Justices including Gaudron and Gummow JJ concluded that there was
no breach to protect against in any event.
o Darling Casino stressed that Hickman is merely a presumptive principle of statutory interpretation, and may
be displaced if inapplicable:
"It is to be remembered that the Hickman principle is a rule of construction… the question in this case is not
one of the meaning and effect of the Hickman principle which seeks to reconcile "the prima facie
inconsistency between one statutory provision which seems to limit the powers of the [decision-maker] and
another provision, the privative clause, which seems to contemplate that the [decision] shall operate free
from any restriction". Rather, it is one of the meaning and effect of the statutory provisions in question. If
there is an inconsistency, the Hickman principle requires that it be "resolved by reading the ... provisions
together and giving effect to each"."
o Taken as authority for the proposition that the Hickman test is presumptively to be applied in assessing the
effect of most privative clauses, almost irrespective of their wording. However, this will only be the case
where more conventional interpretive approaches have failed to resolve the textual collision between the
jurisdiction clause and the privative clause. This will occur with very broad privative clauses and also with
"no certiorari" clauses . If the collision can be resolved by ordinary interpretive principles then there is no
cause for applying Hickman.
o At federal level generally there are also certain constraints on the extent to which a privative clause can
insulate a decision-maker from judicial review. The separation of judicial power doctrine means that, if
decisions are placed wholly beyond either appeal or review then they could be classed as exercises of
judicial power on the Huddart-Parker v Moorehead principles (and therefore unconstitutional), at least where
they make binding determinations of existing rights (as opposed to creating new rights).
o At State and Territory level, Darling Casino asserts that there are no such restrictions:
"The operation of a State privative clause is purely a matter of its proper meaning ascertained in its
legislative context. However, privative clauses, whether in State or Commonwealth legislation, are
construed "by reference to a presumption that the legislature does not intend to deprive the citizen of
access to the courts, other than to the extent expressly stated or necessarily to be implied". ...
However and provided the intention is clear, a privative clause in a valid State enactment may preclude
review for errors of any kind. And if it does, the decision in question is entirely beyond review so long as it
satisfies the Hickman principle."
This aspect of Darling Casino has been heavily criticised
All these cases emphasis Hickman is about rules of construction
Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (4 February 2003)
 This is the case that in effect said that generally in Australia law privative clauses will in most situations have a
minimal impact but that it will always depend on the interpretation of the particular legislation under consideration.
However the court said a privative clause will not protect a decision from judicial review for jurisdictional error. Most
instances of judicial review are related to jurisdictional error. The court admitted that there has been a progressive
widening in recent years of the way that the courts have interpreted privative clause.
 Judgments split 2 ways
majority gauldon McHugh gummow and mchanne - confirmed presence of privative clause. It is there, not
arguing that you can’t legislate to put in privative clause just through statutory construction can reconcile
privative clause with remainder of act and still undertake judicial review.
Concurring judgment Gleeson - some importance because he goes into great detail into what he sees as
the relevant principles of statutory construction. He refers to international law, statutory construct principles,
fundamental rights, and general access to justice and rule of law.
Justice Callinan concurred.
Often you will get extreme examples of hypothetic situations where the legislation is such that because of the power of
the parliament to create any law it so wishes within const it may be a power that is seen to subvert the rule of law.
Extreme hypo situation often raised is hypo dog licensing act - allows dog inspectors to fine dog owners who do not
have dog owners, not part of purpose of statute to fine owners of cats, but supposed provision that made actions of dog
inspectors completely impervious to any judicial challenge. I.e. no action of the dog inspectors can be challenged, so
theoretically dog inspectors could seek out cat owners and fine as well, or except members of family from having to
have dog license, or might give themselves power to grant divorce under their interpretation of their powers, those
extreme situations would theoretically subvert purpose of legislation.
So the argument goes that you cannot allow that type of situation to arise.
Extraordinary powers are out there with decision makers such as antiterrorism laws
Migration Act Privative Clause
Section 474 Migration Act inserted by the migration legislation amendment judicial review act 2001 and it contains
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.
It is fairly clear what the intention is. The courts have sidestepped this section just like every other type of privative
clause, and in this case gone to Hickman principles
The decision the courts say under this piece of legislation is only going to be lawful if the decision maker is acting in
good faith, if decision reasonably referable to power given to decision maker (other words decision maker has been
given authority to make decision concerned) if the decision relates to the subject matter of the legislation, and if there
are constitutional limits which are not exceeded. So privative clause under MA is often described as highest e.g. as an
attempt by government to undertake exclusion of the courts. It is also seen as the best e.g. of the courts being able to
get around, through statutory interpretation, the clear desire of the parliament, not to have such migration decisions
questioned in any way
Two cases of note
NAAV v Minister for Immigration and Multicultural Affairs and others [2002] FCFCA 228

application of Hickman principle required, again sidestepping of the PC
Bodrudazza v Minister for Immigration and Multicultural Affairs [2007]

re time limits under migration act. Court able to sidestep PC
Also note that there are some state jurisdiction privative clauses, particular one often referred to is s179 Industrial
Relations Act NSW, considered and sidestepped in Fish v Solution 6 Holdings Ltd (2006). In fact the privative clause in
that case was so wide that many commentators have referred to it as the mother of all privative clauses. So wide as to
be ludicrous
Fish v Solution 6 Holdings Ltd (2006)

High Court dealt with NSW PC and said in its majority, basic rule which applies is generally that it is
presumed that parliament does not intend to cut down, saves as…….necessarily
implies…..state….supreme court…..over matters ordinarily dealt with by state s……amenable to appellant
jurisdiction under s73 const….. - High court basically spread same message about state PC as
commonwealth PC
Judicial Review Remedies
Remedies under judicial review are of three types
1. Prerogative writs – certiorari, prohibition and mandamus (and habeas corpus but this course doesn’t deal with
this)
2. Equitable remedies - Declaration and injunction
3. Statutory remedies
Section 75(v) of the Constitution gives the High Court originals jurisdiction to grant constitutional writs against officers of
the commonwealth – “In all matters: (v) in which a writ of Mandamus or prohibition or an injunction is sought against an
officer of the Commonwealth; the High Court shall have original jurisdiction.”
We know how the old days before new admin law, most of these writs were quite technical, lengthy, cumbersome, time
consuming. ADJR Act really brings together in one single all embracing flexible remedy the so called order of review for
a breach re any decision or conduct under the act - s15 and s16 ADJR seeking order of review which may contain any
features listed in the section
Section 16 - Powers of the Federal Court and the Federal Magistrates Court in respect of applications for order
of review
(1) On an application for an order of review in respect of a decision, the Federal Court or the Federal Magistrates Court
may, in its discretion, make all or any of the following orders:
(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the
order or from such earlier or later date as the court specifies;
(b) an order referring the matter to which the decision relates to the person who made the decision for further
consideration, subject to such directions as the court thinks fit;
(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the
refraining from the doing, of which the court considers necessary to do justice between the parties.
(2) On an application for an order of review in respect of conduct that has been, is being, or is proposed to be,
engaged in for the purpose of the making of a decision, the Federal Court or the Federal Magistrates Court may, in its
discretion, make either or both of the following orders:
(a) an order declaring the rights of the parties in respect of any matter to which the conduct relates;
(b) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the
refraining from the doing, of which the court considers necessary to do justice between the parties.
(3) On an application for an order of review in respect of a failure to make a decision, or in respect of a failure to make
a decision within the period within which the decision was required to be made, the Federal Court or the Federal
Magistrates Court may, in its discretion, make all or any of the following orders:
(a) an order directing the making of the decision;
(b) an order declaring the rights of the parties in relation to the making of the decision;
(c) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the
refraining from the doing, of which the court considers necessary to do justice between the parties.
(4) The Federal Court or the Federal Magistrates Court may at any time, of its own motion or on the application of any
party, revoke, vary, or suspend the operation of, any order made by it under this section.
This allows this order of review to give the court the discretion (emphasis all discretionary remedies of the court) to give
orders in nature of certiorari, mandamus or injunction, but without earlier technicalities that surrounded remedies at
common law
Courts are very much able to fashion and mould some of these remedies depending on the give circs of the particular
case
So when seeking one of these remedies have to think which most appropriate. See sometimes the remedies go hand in
hand with another remedy as certain things want the remedies to do
Constitutional Writs
Certiorari and Prohibition
Certiorari and Prohibition are perhaps the two most important remedies in JR, mainly because of their simplicity and
their flexibility. “The very attractive remedies”
In most states and territories you seek an order of review, just as in ADJR Act, rather than seeking prerogative writs
Certiorari and Prohibition both have origins in supervision, by the high superior courts in England, of actions of so called
lower or inferior courts.
As we will see the scope of both of these remedies has gradually been extended to a reasonably wide range of decision
maker who are neither courts nor T but these historical origins still remain
Certiorari: This remedy is in essence a two part remedy
1. First there is an order removing the official record of the decision
2. Second there is an order quashing that decision and therefore the record in itself
So often see in the records the expression of wiping the slate clean as if it had never existed or occurred
Prohibition: Has a largely negative aspect to it. It prohibits the decision maker and those relying on that Decision from
doing something illegal which they are either doing or about to do, or from continuing to do an illegal action which has
already commenced
Difference between Certiorari and Prohibition
The main difference between Certiorari and Prohibition is in the timing of the application to the court.
Obviously Certiorari cannot be used until there is something to quash, some decision.
Prohibition on the other hand can be granted before then at a time when the decision maker has not reached a final
decision. Indeed Prohibition can only be used when there is still something remaining to be prohibited.
So these remedies largely overlap and are commonly used cumulatively. They would both be used for example when a
final decision contemplates the taking of further steps to enforce that decision. An extreme example would be that the
bulldozer is at the front door about to demolish the house; you would be seeking Prohibition because Certiorari would be
of no use. Certiorari doesn’t compel the decision maker to start again. You will see how Mandamus, that would be an
order to start again.
Certiorari is merely an application to the court for judicial review of that decision and in undertaking judicial review we
know the court undertaking this review cannot substitute its own decision for that which is being quashed. In some
instances an order for Certiorari operates retrospectively in the sense that once the order is made the quashed decision
is treated as a nullity from the moment it is first made. This can on occasions cause some inconvenience and injustice,
for e.g. where parties have organized their affairs in reliance upon a quashed decision. Too bad for those that relied on
that decision
Prohibition is simply a negative order, a restraining order, a bit like an injunction, doesn’t quash anything. Sometimes
can have partial Prohibition, so part of the decision making is stopped.
There can also be partial Certiorari, in other words there may be a decision where not all the elements of the decision
are illegal, but only one aspect of the decision needs rectification or quashing.
In most instances Certiorari will arise for any jurisdictional error (an error that has actually occurred). Prohibition tends to
lie only for actual or threatened excess of power
* Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

"In the case of each writ the focus of inquiry is upon the authority, or "jurisdiction", that is given to the person or
body to whom it is sought to have the writ issue. In the case of prohibition, what are the limits of that person's
authority to decide a question or exercise a power? In the case of mandamus, has the person failed to exercise
a power which he or she was bound to exercise? The inquiry is not about whether a decision which was made
in exercise of the authority was right or wrong on its merits. It is an inquiry about the boundaries of the power
conferred. ...

In deciding whether writs of prohibition and certiorari (and analogous forms of relief) should be granted, a
distinction is drawn between jurisdictional error and error within jurisdiction. This Court has not accepted that
this distinction should be discarded. As was noted in Craig v South Australia, that distinction may be difficult to
draw. The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction
should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each
species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the
functions and powers conferred on him or her, or does something which he or she lacks power to do. By
contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within
jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction
incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter
does not." (Hayne J at 159 and following)

That first sentence takes it back to the first lecture, re question of any decision about to be made is where does
the power came from or where is the jurisdiction. So court saying it will focus firstly on jurisdiction
That is one of the essentials of judicial review - the court is not looking at the right or wrong of the merits of the case.
May not like decision but if it is a decision that has been appropriately made then that is a power given by the parliament
and so be it.
Premature Prohibition
Sometimes there is the use of prohibition, and the term has to be carefully used, called “premature prohibition”.
Prohibition can be granted to prevent further action to be taken to the extent it will be based on a nullity - it can also be
granted to prevent the decision maker making the nullity in the first place - i.e. you anticipate decision maker will make
null and void decision - if you anticipate decision maker doesn’t have jurisdiction to make decision can seek prohibition
to avoid decision being made. It is rare for that to actually occur. The courts tend to wait for an actual decision to be
made before starting their enquiries as to whether it s going to be a nullity or not. So its part of the courts discretion,
almost wait and see decision.
These remedies are only when you get to court, litigated.
Certiorari and prohibition lie only to bodies exercising legal authority
Note that Certiorari and Prohibition only lie to bodies exercising legal authority. In other words it is in line with the
jurisdiction and having a power to make a determination making decisions affecting rights of decisions
What about those who have gone beyond legal authority and they make a decision that is having an impact. Arguments
in answer to that from the courts, even those that usurp and go beyond authority will be brought within the umbrella of
the authority
Ensure even those that have gone beyond their legal authority are also subject to the remedies
The decision-maker must exercise public power
It is also clear that Certiorari and Prohibition will only lie against bodies or persons who exercise public power, so
ministers, departments, exercising their functions.
So a distinction between public and private power needs to be made. That’s where issues arise with the contracting out
of government services so there are private sector organizations making decisions in the private sector , private
decision makers , but in the exercise and carrying out and providing a government service
Again the courts have said that they too will be brought in under the umbrella of the remedies
Is certiorari limited to inferior courts and tribunals?
One point to note is the question as to whether these two remedies should be limited to lower decision makers, tribunals
Originally these were remedies that were used against lower courts, and they weren’t tribunals in those days. So they
were traditionally used for e.g. against local government authorities at local government level, and back in 19 th century
in UK in particular most of the people exercising these local government powers were justices of the peace and in that
sense there was a judicial flavor to their powers.
With the expansion of public administration courts eventually expanded remedies to reach out to these government
decision makers.
Brett LJ in R v Local Government Board (1982) 10 QBD 309 at 321:

"[M] y view of power of prohibition at the present-day is that the court should not be chary of exercising it, and
that wherever the legislature entrusts to any body of persons other than to the superior courts the power of
imposing an obligation upon individuals, the courts ought to exercise as widely as they can the power of
controlling those bodies if those persons admittedly attempt to exercise powers beyond the powers given to
them by Act of Parliament."
However, this reasonably broad view of the reach of certiorari and prohibition was significantly narrowed in
R v Electricity Commissioners; Ex Parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171

"It is to be noted that both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt
almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice. But the
operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not
be recognised as, Courts of Justice. Wherever any body of persons having legal authority to determine
questions affecting the rights of subjects, and having a duty to act judicially, act in excess of their legal
authority they are subject to... these writs."
“Duty to act judicially” was interpreted in subsequent cases (most notably Nakkuda Ali v Jayaratne [1951] AC 66) as
imposing a specific and "super-added" requirement that one must be able to identify from the statute establishing the
tribunal or body in question a clear (which generally meant express) duty to act "judicially" (which usually meant at least
an obligation to hold hearings with evidence being called etc). Obviously, such a requirement drastically restricted the
range of bodies against which certiorari and prohibition would lie.
This restriction on the scope of the two remedies was not overcome until Ridge v Baldwin [1964] AC 40, where Lord
Reid said that the “duty to act judicially” part of Atkin LJ's judgment should not be read as a further or "super-added"
requirement, but instead those who determine questions affecting the rights of subjects were as a result purely of that
fact to be regarded as acting judicially.
The decision to be reviewed must be one "affecting rights"
The decision that is going to be reviewed has to be one affected rights in some way. All the cases tend to refer to
questions affecting the rights of subjects
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

"The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under
review. The report made and delivered by the Commission has, of itself, no legal effect and carries no legal
consequences, whether direct or indirect.

So the function of Certiorari is to quash the legal affect or the legal consequences of the decision under review.
Unless there is legal affect and only if there are legal consequences, whether direct or indirect

This case was reference to where decision making body makes a decision, report is just that, report that really
goes nowhere, doesn’t impact on anyone’s rights, they are not affected in any way, it is only say, if
recommendations in that report are taken on board and the decisions to take those recommendations on board
affects rights, thus providing potential need to seek remedy
Case to note from Australian perspective that matches Ainsworth is Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149

Involved a mining warden, mining warden had the power to recommend t other minister the granting or not of
exploration and mining licenses. It was just a power of recommendation. In this case, the court said not until the
minister makes a decision in relation to the recommendation is there a potential impact affecting rights. The
legislation was quite clear, minister couldn’t act before receiving recommendations from the mining warden, only
then in the ministers decision making process, was there the capacity to affect rights.
There has been a lot of discussion about the unsatisfactory nature of actually waiting for the minister to make a decision
before rights are affected, but the courts are still very much in that wait and see mode.
One may note that several recent refugee cases decided in the High Court's original jurisdiction have held that certiorari
lies, without discussing the Ainsworth requirement e.g. Aaala, Miah). This may be explained on the basis that refugee
applicants (even where they have entered without a valid visa) nevertheless have a legal right or entitlement to a
protection visa under the Migration Act 1958 (Cth) upon the Minister's satisfaction that they fall within the provisions of
the Refugee Convention. See Abebe v Commonwealth (1999) 162 ALR 1 per Gummow J at para 128. Thus certiorari
lies even on the Ainsworth principle.
Discretionary criteria for refusing certiorari and prohibition
The power is entirely discretionary. There has been a long debate as to whether this discretion has always existed.
There are many judgments that say there is no discretion, if the error is manifest, the decision to review can only go one
way, particular if the person is directly affected or aggrieved.
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 (Gibbs CJ)

"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, although the court retains its discretion to refuse relief if in all
the circumstances that seems the proper course."
The following extended quote from Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 per Gaudron and
Gummow JJ ( para 55 and following) sets out the more general principles governing discretionary refusal of certiorari
and prohibition:
 "Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of
discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich,
Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration;
Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:
o "For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no
useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad
faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or
towards the court to which the application is made. The court's discretion is judicial and if the refusal of
a definite public duty is established, the writ issues unless circumstances appear making it just that the
remedy should be withheld."
 When dealing apparently with certiorari and declarations, Lord Denning MR in F Hoffmann-La Roche & Co AG v
Secretary of State for Trade and Industry said:
o "He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he does not
come with due diligence and ask for it to be set aside, he may be sent away with nothing. If his conduct
has been disgraceful and he has in fact suffered no injustice, he may be refused relief.""
Re Aala writ may not be granted it:
 more convenient or satisfactory remedy available

no useful result that could ensue even with the granting of the writ
 in situations where party seeking the remedy has been the one that has been making unwarrantable delays in
the matter, or there has been evidence of bad faith on behalf of the applicant, the court can use its discretion to
take those such factors into account
Mandamus
This is an order to perform duties
Demand and refusal
The older case law required the party seeking Mandamus to prove that they had demanded that the respondent perform
a relevant duty and that the respondent, the decision maker, had actually or constructively refused. This was said partly
to be because it was felt respondent, decision maker, should not be sued without first being clearly warned (in other
words should be given opportunity to undertake their duty) and partly to ensure there had been no other way for
entitlement of performance.
For example, where a Family Court judge, at the parties' suggestion, had made a consent order denying that he had
jurisdiction to hear a matter, specifically so that the issue could be tested in the High Court by mandamus application,
the Court suggested that there had been no "refusal" to exercise jurisdiction -- see R v Ross-Jones; Ex Parte Beaumont
(1979) 141 CLR 504. On a technical point could say there hadn’t been any refusal to exercise its discretion, constructive
refusal only. They said in such cases of constructive refusal you can seek mandamus
Often simple cases of constructive refusal is where the decision maker goes through the motions as if making decision,
taking things into account, but really has not.
Another obvious example is that the expiry of a statutory deadline for performing a duty makes it pointless to seek a
mandamus to compel it performance, unless the Court can treat the time limit as directory (but note Project Blue Sky in
relation to the mandatory/directory distinction), in the sense that its breach has not deprive the official of power to act
(another way to put it is that the official is not functus officio). In that sense there could be an argument that there has
been constructive refusal.
Whether an official is guilty of an actual refusal to perform his/her duty is a question of fact. However, whether a
"constructive refusal" to exercise jurisdiction has occurred as much more to do with legal questions about the extent
of the official's power, than with the facts. In the case of constructive refusal, a purported performance of the duty is
treated as an instance of the official declining or refusing to perform it at all, because their purported performance is
legally void.
R v War Pensions Entitlement Appeals Tribunal; Ex Parte Bott (1933) 50 CLR 228 at 242-243 per Rich, Dixon and
McTiernan JJ:
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"A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which
remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in
law to know performance because he misconceived his duty or, in the course of attempting to discharge it, has
failed to comply with some requirement essential to its valid or effectual performance, he may be commanded
by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do
so has been made upon him."
Whether the refusal or failure to perform a duty is actual or constructive, it is clear that it must precede the institution of
the mandamus proceedings. See e.g. R v Commissioner of Metropolitan Police; Ex Parte Blackburn [1968] 2 QB 118.
Bodies or people to whom mandamus lies
In most instances Mandamus will lie against an official, usually the decision maker or decision making body
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.
Crown servants: a vanishing immunity
Take note in old days crown servants had an immunity that Mandamus didn’t lie against crown servants or agents of the
crown but that is no longer the case
Mandamus originally did not lie against the Crown, or against its servants or agents acting as such. This was because of
the Crown's general common law immunity from suit, and because it was thought incongruous for an order in the
sovereign's name (as mandamus was) to issue against the sovereign. However, as Crown immunity from suit at
common law has come to be eroded, so too has Crown immunity from the prerogative writ of mandamus. The High
Court has yet to rule clearly on this issue
Commissioner of State Revenue (Victoria) v Royal Insurance Aust Ltd (1994) 182 CLR 51
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where the mandamus applicant had paid too much stamp duty for a number of years. It wanted a refund, which
the Commissioner was empowered to make, one she had determined the fact and amount of overpayment. The
Commissioner made the necessary determination but refused the refund.
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The Court rejected an argument that mandamus did not lie to compel the payment of government moneys,
because of Crown immunity, but did not specifically state that Crown immunity no longer applied.
R v Toohey; Ex Parte Northern Land Council (1981) 151 CLR 170
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Court accepted that applicants can allege bad faith and improper motives against the Crown but did not clearly
determine whether Governors etc were subject to certiorari or mandamus. Gibbs CJ suggested (at CLR 186)
that "on the present state of the authorities", certiorari and mandamus might not lie.
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
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Court held that it was improper to seek declaratory relief against the Governor, or the Governor-in-Council, and
that the Attorney-General (as representing the Governor) was the appropriate defendant.
Thus, on the present state of authorities, the safest thing to do when one is seeking mandamus against the Governor
etc (or against any body which might be held to be the "Crown") is to seek in the alternative a declaration against the
Attorney-General.
Commonwealth officers as respondents
Usually it is going to be commonwealth officers as respondents
Section 75 (v) of the Constitution gives the High Court jurisdiction in all matters in which mandamus is sought against an
officer of the Commonwealth. The Federal Court also shares this jurisdiction as a result of section 39B Judiciary Act
1903 (Cth).
The nature of the duties enforced by mandamus
The power or discretion to make a decision usually is found in the legislation with the use of the word “may”. That is a
discretionary power. “Decision maker may do x”
Whilst there has been argument as to whether that word “may” meant that the decision makers may not have the power
at all, if the duty is at least to consider the exercise of the power then that is a decision in itself.
Again the duties which Mandamus enforces must be public duties. A simple test of seeing whether it’s a public duty or
not is that usually public duties have their source of power from a statute/legislation
The effect of mandamus
What is the effect of Mandamus? It is an order to do a positive thing or act rather than desisting from doing something
for which Prohibition or injunction would be more appropriate. Mandamus doesn’t have a quashing affect in any way, if
want to quash go to Certiorari.
Discretionary grounds for refusing mandamus
Again it’s a discretionary power. It is a discretionary power in all these writs that cannot be questioned. Unless evidence
that court went beyond its power in decision making process, it is a discretionary power
The court has a broad discretion to deny mandamus to an applicant, even where a good case has been made out.
Appellate courts are reluctant to interfere with the primary judge's exercise of that discretion
Statutory mandamus
The statutory Mandamus that we are familiar with is s7 ADJR Act – this is the ADJR equivalent of the CL remedy of
mandamus
Section 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."
Section 7 talks about the failure to make a decision.
Then go to s3 ADJR because it refers to definition of what failure means. 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").
Equitable Remedies
Declaration
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
Almost an opportunity for the parties to look at the views of the court of the given situation and for them to consider or
reconsider what they are going to do, i.e. continue or better alternative
Don’t mistake this with the similar declaratory powers that US Supreme Court has where it can be asked on a
theoretical basis what its views are in relation to a theoretical situation. Under Australian system of law there has to be a
dispute before the courts before declaration can be made - can’t simply approach the courts
Really came into vogue in beginning 20th century
Declaration's procedural advantages
Become one of the most popular judicial review remedies
 Really don’t have to concern yourself with the technicalities of the orders
 It is freely available
 Really seen as this opportunity for the parties to reassess
Discretion to refuse declaratory relief
Lockhart J. summarised the factors governing the discretion to refuse declaratory relief in Aussie Airlines
Aussie Airlines Pty Ltd v Australian Airlines Limited (1996) 139 ALR 663 (Lockhart J 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:
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(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."
The declaration can also be granted in advance of any damage arising -- see Re Trade Practices Act 1974 (s 163A)
(1978) 19 ALR 191 at 208 per Brennan J.. This means that it may sometimes be rather a fine distinction as to whether
the relief being sought is "hypothetical" or not (and therefore not a fit subject for judicial power).
Fine distinction as to whether that scenario is a hypothetical scenario or not. For e.g. bulldozer at front door, is that
hypothetical situation that there is a possibility of some damage being done, or is it an actual, reasonably foreseeable
that certain consequences will occur if bulldozer goes ahead
Is the declaration enforceable?
Declarations are generally regarded as unenforceable except where coercive orders could have been granted in any
event without the declaration
But in the main it is a statement by the court which parties would in general terms be loath not to take into account in
deciding what their next step might be
Injunctions
See Aronson & Dyer chapter 17: "The injunction was originally a purely equitable remedy. It is still equitable remedy,
although the expansion of the injunctive jurisdiction was inevitable following the introduction of the judicature system,
and has expanded even further as specific statutory schemes authorise orders often called "injunctions for particular
purposes".
Injunction stared in private law, most expansion occurred in that area, really about protecting preexisting legal rights and
interest
Courts generally only grant injunction in public law where a statute can be seen to be providing some rights, and these
rights will be affected
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.
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 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. ..."
It is usually used for its immediacy, injunctions tend to have almost immediate effect. So if you want quick action usually
to stop something occurring then injunction is usually the way to go. And it might come hand in hand with others
remedies seeking to use
Because of its flexibility it does offer some advantages over other remedies
1. It can be molded and fashioned to fit the particular situation, it is not bound by technical restrictions – it can 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
2. It can be granted immediately
3. It can be granted on an interim or interlocutory basis to restrain conduct pending the determination of the
substantive issues in the proceedings. Injunction is commonly used to preserve the "status quo ante" until the
rights of the situation can be definitively determined
It is a discretionary remedy and whilst very popular it is not automatically given by the courts
Lastly, it should be noted that injunction in public law may be refused as a matter of discretion on the same sorts of
grounds as any equitable remedy e.g. laches/delay; fraud; improper purposes or motives; waiver; other forms of
disentitling conduct.