Using judicial review
• Essentially negative remedies … can be used:
• to protect … ANZ v Konza;
• to destroy … WA Land Authority v Minister for Sustainability etc.
• Cannot be used to create a decision … a successful applicant is most
often sent back to the decision-maker.
• Procedural complications in ADJR Act … largely overcome by Judiciary
Act, s 39B(1A)(c).
ANZ v Konza
[2012] FCA 196
[2012] FCAFC 127
• Challenge to 2 notices issued under ITAA, s 264, requiring disclosure of
information (stored in Australia) from customers’ accounts with ANZ Vanuatu
Judiciary Act 1903, s 39B(1) & (1A)(c)
ADJR Act, s 5
• ANZ sought prohibition against Konza (a delegate of the Commissioner), “an officer of the Commonwealth” … s 39B(1)
• ANZ claimed notices not authorised by s 264(1) – “a matter arising under a law made by the Parliament” … s 39B(1A)(c)
• ANZ claimed –
• notices not authorised by s 264(1),
• the decision to issue notices involved an error of law,
• the decision to issue notices was contrary to law,
• the decision to issue notices involved an improper exercise of power and
• the notices were uncertain.
Raising s 5(1)(d), (e), (f) and (j) of the ADJR Act
The result
• Obligation of confidentiality cannot override s 264 … Lander J at [71]; FFC
at [30]
• Disclosure would not breach Vanuatu law … Lander J at [128]; FFC at [23]
• In any event, s 264 is not subject to constraint by foreign law … Lander J at
[81]-[84]; FFC at [31]-[34]
• Notices not issued for an improper purpose … Lander J at [133]; FFC at
[39]-[42]
• Notice 1 not uncertain … Lander J at [186]; FFC at [50]
• Notice 2 uncertain … FFC at [63]
WA Land Authority (Landcorp) v Minister for
Sustainability etc
[2012] FCA 226
• Challenge to delegate’s decision to confirm that development of land
was “controlled action” under EPBC Act by reason of likely “significant
impact” on protected listed species – Carnaby’s Black Cockatoo
Judiciary Act 1903, s 39B(1) & (1A)(c)
ADJR Act, s 5
• Under ADJR Act, Landcorp claimed:
• breach of natural justice – s 5(1)(a);
• decision involved an error of law – s 5(1)(f);
• irrelevant considerations taken into account – s 5(2)(a);
• relevant considerations not taken into account – s 5(2)(b).
• Judiciary Act claims not developed.
The result
• Irrelevant considerations not taken into account … at [55]-[56], [59][60]
• Relevant considerations taken into account … at [62]-[63], [71]-[72]
• Natural justice denied when Department failed to reveal:
• documents reflecting Department’s accumulated knowledge and
approach to assessing proposed actions... at [86]
• information about other developments in the area … at [129]
• an assumed deficiency in an expert’s report … at [138]