CONTENTS
TOPIC 2: THE NATURE AND PROCESS OF JUDICIAL REVIEW ...................................................... 3
2.1 The Nature of JR ..........................................................................................................................3
What is JR? ............................................................................................................................... 3
What kinds of decisions / conduct are judicially reviewable?...................................................... 3
2.2 The Process of JR .......................................................................................................................6
The common law system of JR .................................................................................................. 6
The statutory system of JR (ADJRA) ......................................................................................... 6
2.3 The ‘Jurisdictional Pre-Requisites’ for Statutory JR .................................................................7
1. “a decision to which this Act applies” ..................................................................................... 7
2. “conduct engaged in for the purpose of making a decision”
(s 6 ADJRA; ss 21 JRA) ......... 8
3. “of an administrative character” [decision must be…] .......................................................... 8
4. “made under an enactment”................................................................................................... 9
5. “a non-statutory scheme or program” ................................................................................... 11
Statutory JR provides a right to statement of reasons .............................................................. 11
TOPIC 3: STANDING .......................................................................................................................... 13
Standing ...........................................................................................................................................13
What remedy is being sought? ................................................................................................ 13
Basic rules for standing ........................................................................................................... 13
Standing under ADJRA / JRA .................................................................................................. 14
Amicus Curie ........................................................................................................................... 14
Federal constitutional issues in standing.................................................................................. 15
TOPIC 4: GROUNDS OF JUDICIAL REVIEW .................................................................................... 17
Natural Justice / Procedural Fairness ............................................................................................17
1. When do the rules of NJ apply?
[the threshold question] ................................................... 17
2. What do the rules of NJ require? [the content question] .................................................... 19
The hearing rule ...................................................................................................................... 19
1. Adequate prior notice: ....................................................................................................... 19
2. Adequate disclosure of relevant issues: ............................................................................ 19
3. Adequate opportunity to address: ...................................................................................... 20
4. Right to oral hearing? ........................................................................................................ 20
5. Right to representation ...................................................................................................... 21
6. Right to cross-examine ...................................................................................................... 21
7. Timeliness in making decision ........................................................................................... 21
8. Does NJ require observance of rules of evidence? ............................................................ 21
9. Does NJ require reasons for decision? .............................................................................. 22
The bias rule ............................................................................................................................ 22
Where NJ may NOT apply ....................................................................................................... 23
Can legislature exclude the rules of NJ? .................................................................................. 25
What is the effect of failure to observe natural justice? ............................................................ 26
Procedures required by law to be observed ..................................................................................27
Decisions not authorised by the enactment ..................................................................................29
Page 1
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Improper exercise of power ............................................................................................................31
1. Failing to take into account a relevant consideration
2. Taking into account an irrelevant consideration
3. Exercise of power for improper purpose
4. Bad faith
(ADJRA s 5(2)(a); JRA s 23(a)) .............. 33
(ADJRA s 5(2)(c); JRA s 23(c)).......................... 33
(ADJRA s 5(2)(d); JRA s 23(d)) ......................................................................... 34
5. Exercise of power at the behest of another
(ADJRA s 5(2)(e); JRA s 23(e))..................... 35
6. Inflexible application of rule/policy (fettering discretion)
7. Unreasonableness
8. Uncertainty
(ADJRA s 5(2)(b); JRA s 23(b)) ...... 31
(ADJRA s 5(2)(f); JRA s 23(f)) .... 36
(ADJRA s 5(2)(g); JRA s 23(g)) ......................................................... 37
(ADJRA s 5(2)(h); JRA s 23(h)) ..................................................................... 39
9. Abuse of power
(ADJRA s 5(2)(j); JRA s 23(i)) ................................................................. 39
Fraud (ADJRA s 5(1)(g); JRA s 20(2)(g)) .......................................................................................40
No Evidence .....................................................................................................................................41
No evidence as a common law ground of JR ........................................................................... 41
No evidence as a ground under statutory JR ........................................................................... 41
Jurisdictional Error..........................................................................................................................43
JE under common law ............................................................................................................. 43
Types of JE ........................................................................................................................... 43
Privative clauses (PC) and JE ............................................................................................... 46
ADJRA / JRA ........................................................................................................................... 46
Error of law on the face of the record ....................................................................................... 47
Failure to make a decision ..............................................................................................................48
TOPIC 5: REMEDIES.......................................................................................................................... 49
Remedies under Common Law JR .................................................................................................49
The writs of certiorari and prohibition ....................................................................................... 49
The writ of mandamus [compels public officers to do duties] ................................................. 50
Restrictions on availability of prerogative writs ......................................................................... 50
Constitutional writs before the High Court ................................................................................ 50
Use of equitable remedies ....................................................................................................... 51
Remedies under ADJRA / JRA........................................................................................................51
TOPIC 6: MERITS REVIEW (MR) ....................................................................................................... 53
AAT……………………………………………………………………………………………………………..53
Establishment of the AAT ........................................................................................................ 53
Jurisdiction .............................................................................................................................. 54
Standing .................................................................................................................................. 55
Pre-Hearing Procedures .......................................................................................................... 55
Hearing Procedures ................................................................................................................. 55
DM powers of the AAT............................................................................................................. 57
Appeals from the AAT to the Federal Court ............................................................................. 58
TOPIC 7: OMBUDSMEN .................................................................................................................... 59
What is the Ombudsmen (Qld and Cth)? ................................................................................. 59
Page 2
TOPIC 2: THE NATURE AND PROCESS OF JUDICIAL REVIEW
2.1 THE NATURE OF JR
What is JR?

JR comprises the remedies developed by courts to control public officials in the exercise of their
powers
Constitution and legality v merits distinction:

The doctrine of separation of powers, expressly enshrined in respect of judicial power at the federal
level in Ch III of the Constitution, is the principal legitimating factor for the role of courts in JR – it
serves to both define and limit their role in reviewing the exercise of official power – summed up in
Hamblin v Duffy:
o
JR by the court does not enable it to substitute its own decision for that of the person /
body who is challenged. The question for the court generally is whether the action is
lawful in the sense that it is within the power conferred on the relevant Minister,
official or stat body; or that the prescribed procedures have been followed; or that the
general rules of law, including adherence to the principles of natural justice, have been
observed.

To enliven the court’s jurisdiction in JR, there must be an error of law in the decision under JR
(MIEA v Wu Shan Liang)

Fundamental difference between JR and merits review eg. AAT stands in the shows of the original
decision-maker with the capacity to substitute a different decision
What kinds of decisions / conduct are judicially reviewable?

Intro: JR is confined to situations where a government body or official is exercising public powers
or duties, eg. makes a decision in the exercise of a statutory power
o

JR is not available to enforce rights existing purely under private law (eg. rights of one
party against another which arise from the terms of a contract mutually agreed to – need to
pursue civil remedy)
Statutory powers: most of the actions/decisions of public bodies and officials consist of the
exercise of a statutory decision-making power
o
R v Toohey: the HC made it reasonably clear that the old rule as to vice-regal officials no
longer applied re statutory powers; courts now willing to review discretionary decisions of
the Crown
o
All statutory powers must be exercised according to law; the status of the repository power
is largely irrelevant (Toohey)
o
NB. Decisions made in the exercise of stat powers by the Gov-Gen are excluded from
review under the ADJR Act.
o
P M61/2010 v Cth: Gov thought its assessment process was non-statutory and
unreviewable; the court found it was statutory and hence subject to JR
Page 3
Together = the Acts

Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Non-statutory prerogative powers: power which has no statutory origin; historically courts were
reluctant to JR exercises of prerogative power, however this is no longer the case (
o
Today, whether courts will review the exercise of prerogative power depends not on the
classification of the source of the power (though still relevant to reviewability), or the status
of the decision maker, but on the subject matter or nature of the power exercised (Ex
parte Lain; Civil Services Union (CSU)). There are two relevant issues:
1. Whether the decision itself is justiciable regarding the 1st test by Lord Diplock in
CSU and accepted in Aus (Peko-Wallsend; Century Metals), that the decision
must affect rights or obligations enforceable in private law (CSU; Peko-Wallsend)

Cabinet decisions that might be justiciable: where Cabinet is called
upon to make decisions involving justice to a particular individual (O’Shea)
o
However, Cabinet decisions involving political, social and
economic concerns are generally unreviewable (O’Shea)
2. Whether there are special features of the decision which make JR inappropriate
(Peko-Wallsend)


Politics: Features generally related to the political nature of the decision,
eg. where it involves complex policy questions and not simply matters
affecting private interests

Decision of the AG: off limits (Toohey)

Exec Gov’s discretion to enter or modify treaties: off limits (Blackburn
reaffirmed in JH Raynor and Ex parte Rees Mogg)
Public law component: Conventionally, decisions made by private bodies are not amenable to JR,
however recent gov corporatisation, deregulation and outsourcing raise new difficulties eg.
o
GBEs: incorporated under Corporations Act; generally accountable in a broad sense to
parliament through the shareholding Minister, but are not usually subject to any direct
control from gov re their day to day activities

Application of JR is uncertain
o
Outsourcing: the delivery of gov services to the private sector
o
Self-regulation: where govs forgo direct statutory schemes of regulation and allow a
particular industry or business etc to regulate itself

Datafin: a body established by an industry as its self-regulatory mechanism was
amenable to JR at the best of a person aggrieved by its decision even though the
Panel was not established by gov, was not attached to the exec and was not
exercising statutory prerogative (or even contractual powers), but because


a body should be subject to JR if it exercises public law functions or
where its actions have public law consequences (Datafin)
Neat: held that the body’s (created by statute, but incorporated) power derived
essentially from its existence as an inc company so its actions were not amenable
to JR – but specifically said the conclusions arrived at not to be taken as implying
any response to wider issues
Page 4
Peko-Wallsend:
Facts: federal gov decision whether to nominate an area of land for heritage listing, which would make mining
operations in the area unlawful. P-W had mining interests in the relevant area and made submissions, then
commenced proceedings to restrain Cabinet from taking further steps to nominate the area
Held: on appeal:


that P-W had been given an adequate opportunity to present its case and therefore had not been denied
natural justice;
the court also considered whether or not a Cabinet decision of this nature was within the realm of JR;
following CSU, the decision was not unreviewable simply because it was an exercise of prerogative power;
however, the court (differing reasons) considered a Cabinet decision of this nature was not reviewable, 2
judges emphasising that it involved matters of high level policy of national importance and international
relations
O’Shea:
Facts: parole board had leg power to recommend prisoners’ release which could be accepted or rejected by GovIn Council, board recommended release of a particular prisoner but the Gov-in-Council declined
Issue: was the decision reviewable on the basis it was subject to a duty to act fairly
Held: the prisoner was not entitled to a further hearing before the Gov-in-Council; argued Gov-in-Council’s
decision was the formal manifestation of a cabinet decision and involved an element of policy or political judgment
making it unsuitable for JR; some Cabinet decisions involving political, social and economic concerns are
generally unreviewable
Datafin:
Held: a body established by an industry as its self-regulatory mechanism was amenable to JR at the best of a
person aggrieved by its decision even though the Panel was not established by gov, was not attached to the exec
and was not exercising statutory prerogative (or even contractual powers), but because a body should be subject
to JR if it exercises public law functions or where its actions have public law consequences
This was partly because the Panel’s existence was interwoven into a broader scheme of regulation, some of
which involved direct government measures – so the Panel’s activities could be viewed as being partly
devolved from government
The source of the power is not necessarily the sole test for determining reviewability, and in this respect the
decision epitomises a dunctional as opposed to institutional approach to the question of reviewability – focusing
on the nature and consequences of the power exercised, rather than its source.
Neat v AWB:
Facts: leg established a marketing scheme for the sale of Aus wheat, designed to limit the number of exporters –
a body created by the statute was given legislative authority to issue permits to other exporters, but this was
subject to approval by a trading company incorporated under the Corps Law of Victoria (AWB). The appellant
made a number of requests for permission to export the wheat but was rejected.
Issue: Were AWB’s refusals to approve the exports amenable to JR?
Held: arrangement described as “private corp given a role in scheme of public regulation”, appears on that to be
argument that comp’s power derived from stat scheme establishing its role. However, court held that the power of
its veto derived essentially from its existence as an inc company so its actions were not amenable to JR
Court noted that the conclusions were confined to the arrangement before them and were not to be taken as
implying any response to the wider issues.
Page 5
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
2.2 THE PROCESS OF JR

The common law system of JR

The statutory system of JR – ADJRA; JRA
The common law system of JR

The origins lie in the establishment of the Supreme Courts, invested with the jurisdiction of superior
courts at Westminster to issue prerogative writs (Certiorari, Prohibition and Mandamus)
o Certiorari: quashes / annuls a decision
o
o
Prohibition: stops / prohibits decision-maker from proceeding to make a decision (not
available if decision has already been made)
Mandamus: compels public officials to perform their duties
The High Court:

Established by Ch III of the Constitution

Its JR jurisdiction is conferred by s 75(v) – “in all matters in which a writ of mandamus or prohibition
or an injunction is sought against an officer of the Cth”

Constitutional writs: the s 75(v) writs
o
These writs correct jurisdictional error (see later)
The Federal Court:

Established by the Federal Court Act 1976 (Cth)

Common law jurisdiction: conferred by Judiciary Act 1901 (Cth) s 39B

Statutory JR jurisdiction: conferred by the Administrative Decisions (JR) Act 1977 (Cth) – later
The Federal Mags Court:

Established by the Federal Magistrates Act 1999 (Cth)

Such JR jurisdiction as is conferred by statute, especially migration law matters
The State/Territory Supreme Courts:

Federal juris: State SCs may exercise federal JR jurisdiction however this is confined by the
ADJRA and Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
The statutory system of JR (ADJRA)

A reformed statutory system of JR, first established at the federal level by the ADJRA, then later
adopted by the states (ie. Qld – JRA)
o Where ADJRA/JRA don’t work, applicant may have to try and seek review under the CL,
which is why both still exist and both are important – and Parliament can repeal statutes,
whereas cannot remove common law (can’t take away HC authorities!)

Streamlines & simplifies the procedure for instituting judicial review of admin. decisions

‘Codifies’ the grounds of judicial review recognised under common law (dealt with later):
o Decision-maker had no juris to make decision
o Breach of rules of natural justice
o Decision not authorised by enactment
Which courts exercise stat JR jurisdiction?


At the federal level – the Federal Court
At the state / territory level – the Supreme Court
Page 6
2.3 THE ‘JURISDICTIONAL PRE-REQUISITES’ FOR STATUTORY JR


The Acts provides a specific formula for determining whether or not an action is amenable to review
(s 5, 6 ADJRA; s 20, 21 JRA):
o
“A person aggrieved by a decision to which this Act applies may seek an order to
review…” or
o
“A person aggrieved by conduct engaged in for the purpose of making a decision to
which this Act applies may seek an order to review…”
NB. “a person aggrieved” is dealt with in Topic 3 - Standing
1. “a decision to which this Act applies”

Defined as (s 3 ADJRA; s 4 JRA):
“a decision of an administrative character made / proposed / required:
a) Under an enactment [different in JRA]
Elements:


other than:
a) A decision by the G-G [not included in JRA]; or

b) A decision included in Sch 1”
Decision or
conduct;
of administrative
character;
under an
enactment
What is a “decision”?

Inclusive definitions (s 3(2) ADJRA; s 5 JRA):
Making a decision includes:
(a) making, suspending, revoking or refusing to make an order, award or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or
permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing;
and a reference to a failure to make a decision shall be construed accordingly.

Does “decision” include interim or preliminary decisions? Initially, only included ultimate or
operative determinations (Evans v Friemann; Riordan), but this approach was disproved by the
Federal Court in Lamb v Moss, but resolved in ABT v Bond which returned to the narrow
ADJRA, s 5
interpretation.
o

SO: A decision will only be reviewable if it is final / operative, but, if the statute
provides for the making of a finding, so that an intermediate decision might be
described as a decision under an enactment, it will be reviewable (ABT v Bond)
allows for
attacking of
decision, s 6
for attacking
conduct
A report or recommendation may constitute a decision: where provision is made by
enactment for the “making of a report… before a decision is made”, the making of such is a
decision (s 3(3) ADJRA; s 6 JRA), provided the statute (or another law) provides for the making of
the (final) decision.
o
Will exist only where the enactment also expressly provides that the report is a condition
precedent to the making of the final decision (Ross v Costigan), although it is unclear
whether this requirement applies to Qld (Noosa Shire Council; St George v Wyvill – no ref
made to requirement, although probably satisfied in these cases anyway)
Page 7
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
2. “conduct engaged in for the purpose of making a decision”

(s 6 ADJRA; ss 21 JRA)
Inclusive definition (s 3(5) ADJRA; s 8 JRA) -- includes the taking of evidence or the holding of an
inquiry or investigation
o
Failure to take evidence, failure to make investigations was JR (Courtney v Peters)

“conduct” concerns the procedural, rather than substantive, aspects of reaching a decision (not
interim steps) (ABT v Bond)

There is no need for the person engaged in the conduct to be the same person who makes the
decision (Chan v MIEA cf Gourgand v Lawton); this is specifically provided for in the JRA (s 21)

After the decision is made, the conduct is not reviewable (NSW ALC v ATSIC)

Parts of an investigation which have an effect and are not merely a step in the process are JR
(Salerno v National Crime Authority)
3. “of an administrative character”

[decision must be…]
Not expressly defined, essentially decisions of gov bodies/officials exercising statutory powers in
pursuit of the exec function of gov will be decisions of an administrative character
Administrative v legislative


Decisions which are legislative in character (such as the exercise of a statutory power to make
by-laws) are not administrative (Paradise Projects)
o
When it’s making a law, rather than applying a law, will be legislative (Paradise Projects;
MIC v Tooheys)
o
However, a decision is not legislative in character just because the statue describes the
power as one to make by-laws (MIC v Tooheys)
Commercial nature: The fact that a decision is of a commercial nature does not mean that it loses
its administrative character, provided it is made in the discharge of a statutory function (James
Richardson v FAC; FAC v Aerolines)
o

FAC v Aerolines: FAC established a fee for service for commercial operations, however
just because a decision is commercial does not means it loses its admin character
Indicia for admin v leg characterisation: (Central Qld Aboriginal Corp v AG):
o Leg determine content of rules (cf admin apply rules)
o Parliamentary control of the decision suggests legislative (not definitive)
o Requirement of public consultation suggests legislative
o Provision made for review on merits, eg, by AAT, suggest administrative
o Decision has binding legal effect, suggests legislative
Application of indicators:
o
Qld Medical Lab v Blewett: Power was legislative in character because the effect of the
decision was to create a new rule to govern future cases (where leg conferred a power to
make a determination substituting a new pathology services table of allowable fees in a
Sch)
o
FAC v Aerolines: the exercise of a stat power vested in the FAC to make a determination
fixing / varying aero charges was administrative – due to the fact that an exercise of the
power was based on relevant commercial considerations (cf this power with one allowing
the FAC to make by-laws which would undoubtedly result in legislative decisions)
Page 8
Administrative v judicial

Decisions made by courts in the exercise of their formal adjudicative powers are not reviewable (as
they are judicial, not administrative)

Decisions of admin review tribunals: established by statute are generally administrative, eg
decision of AAT is reviewable under the ADJRA
o

State level: may be harder to asset admin tribunals do not exercise judicial power,
regarding the lack of a marked separation of judicial power (= to that resulting from Ch III
of the Constitution at the federal level – Kirk??)
Decisions of lower courts: eg. a decision by a magistrate in the exercise of the court’s summary
juris is an exercise of judicial power, not reviewable
o

However, when conducting criminal committal proceedings, magistrates perform an
administrative function in determining where or not sufficient evidence exists to establish
prima facie case to commit a person to trial (Lamb v Moss)
Close association with exercise of judicial power:
o
Legal Aid v Edwards: a refusal by registrar of Family Court to accept a notice disputing a
bill of costs was administrative
o
Letts v Cth: decision by registrar to seek a direction from a judge whether lodgement of
docs = abuse of court’s process, not administrative because the reg was exercising the
juris of the HC to control frivolous / vexatious applications
4. “made under an enactment”
Enactment


Refers to Acts and other instruments including rules, regulations or by-laws made under an Act (r s
3 ADJRA; s 3 JRA; s 36 AIA 1954 (Qld); ss 6, 7 S IA 1992 (Qld) – note JRA additionally provides
for JR of decisions made under non-stat “scheme or program”)
o
NB. Under JRA means Qld Acts / statutes
o
NB. Under ADJRA means principally fed statutes, limited range of State Acts under which
decisions have been made by Cth officers (S 2, Sch 3 ADJRA)
The instrument itself must have been made under the authority of or in pursuance of an Act
(Chittick v Ackland)
o

Chittick v Ackland: app sought JR of a decision by the Health Insurances Commission to
dismiss her in reliance upon provisions contained in the T&Cs of her employment; the
relevant leg gave Comm specific power to unilaterally create the T&Cs so the T&Cs doc
itself was an instrument made under an enactment.

Cf: general policies and guidelines often generated within gov agencies as a
guide to decision-making – won’t qualify as instruments made under enactment
unless there is specific stat authorisation for their making (Schokker)

Cf: if leg gives power to appoint/dismiss and then authority draws up contract and
in contract discusses termination, employee’s termination will be based solely on
contract – person won’t be able to rely on general power that says authority may
appoint/dismiss – must be more specific! (ANU v Burns; Schokker)
Qld:
o
o
Blizzard v O’Sullivan: Dep Police Comm’s contract not an instrument (because it was
negotiated, not imposed by the statute)
Concord Data: state purchasing policy not an instrument, not made pursuant to a
statutory power to make it
Page 9
Together = the Acts

Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Key features of instrument: its capacity to authorise decisions of an admin character and to affect
legal rights and obligations (Chittick v Ackland), need not necessarily be an instrument of a
legislative character (though must derive from an enabling statute)
Made under


The source of the power must come from statute (Glasson v Parkes;
o
Can be express or implied (MIEA v Mayer)
o
Ie. Irrelevant that DM body created by statute, it’s whether its DM powers have a statutory
source
o
Glasson v Pakes: Cth statute created scheme which required each state to enact mirror
leg to give it affect, the decision in question demanding repayment of overpaid subsidy;
company sought to challenge decision under ADJRA, but actual decision making power
was in STATE LEG, that set up scheme (Cth set up skeleton)
Current Test (Griffith Uni v Tang):
o
1.
Decision must be expressly or impliedly authorised by the enactment;
2.
Decision must itself affect legal rights and obligations, and must derive from the
enactment
NB. Guss v DCT: was a step taken by the Comm in issuing the notice of intention to
recover a penalty reviewable under the ADJRA as an act made under an enactment

Re 2nd limb of Tang Test: was it a decision affecting legal rights, or merely a step
to inform the directors of the Comm’s intention to recover an amount due

Full Fed Court: the step involved did not affect legal rights because it:
 a) removed a barrier to the taking of the recovery action – just a
procedural step (Edmonds J)
 b) the issuing of the notice did not involve any operative determination
based on a process of reasoning from particular facts (Greenwood J)

In dissent (Gyles J) – the step in giving notice was a decision made under an
enactment because the giving of the notice did affect the legal rights of both the
Comm and the recipient because:

It was a step expressly authorised by the enactment;

The giving of the notice was a statutory precondition to recovering the
penalty; and

Giving the notice rendered the recipient liable to recover action
Page 10
Decisions NOT made under an enactment

Where source of power does not derive from statute:
o
An exercise of a prerogative power (Hawker Pacific v Freeland)
o
Not an exercise of ‘public power’ (Neat v AWB)
o
An exercise of power conferred by a private agreement (contract) (ANU v Burns; Post
Office AA v APC)


ANU v Burns: if leg gives power to appoint/dismiss and then authority draws up
contract and in contract discusses termination, employee’s termination will be based
solely on contract – person won’t be able to rely on general power that says authority
may appoint/dismiss – must be more specific! (would have to resort to CL JR)
Express exclusions:
o
Decisions of the Gov-Gen (s 3 ADJRA)
 NB. Decisions of the State Gov are not excluded from review in the JRA
o
Decisions listed in Sch 1 of the ADJRA
 Eg. Decisions made by ASIO, can’t attack in Federal Court
 Eg. Sensitive political decisions
o
Decisions referred to in s 18 and Sch 1 of the JRA
5. “a non-statutory scheme or program”

JRA extends to decisions made under “a non-statutory scheme or program” (s 4(b) JRA)
o

The section has been given a very narrow interpretation though
What is a non-statutory scheme or program?
o
The inclusion of two separate words, “scheme” and “program” are intended to cover single
one-off projects and continuous things (Anghel)

o
Anghel: app sought JR of decision made by a Minister to approve construction of a
rail link, jointly funded by the Cth and Qld Govs, it was clear the decision was not
made under an enactment and the project was funded in part by moneys appropriated
by the Qld Parliament – was it a scheme or program? Yes, but ultimately the app
couldn’t make out any ground of review
Bituminous: concerned a roads implementation program established under an Act, the
applicant’s product was on an approved list but then removed, app faced an initial difficulty
in that the scheme was non-statutory because the program was provided for in the Act

Held: the manual and product list itself did not constitute a scheme or program but
imply the development of criteria to be applied to a program
Statutory JR provides a right to statement of reasons

There is no general common law right to reasons

Right contained in s 13 ADJRA, Pt 4 JRA, AIA

It is a separate independent right; JR proceedings don’t have to be started before a request for
reasons can be made (provided it was something you could seek JR for)

Benefits:

o
Enables potential applicants to assess their chances
o
Improves administrative decision-making
Obligations on DMs
o Must record the law relied on + facts relied on + the decision-maker’s reasoning
o The obligation only relates to the facts relied on by DM – not all facts which might be
relevant (Yusuf)
Page 11
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Griffith Uni v Tang:
Facts:
 Tang sought review under the JRA of a decision made to exclude her from PHD, on the basis she had
engaged in academic misconduct
 The GU Act was typical, conferred usual functions associated with providing tertiary education and research
etc. Re the conferral of powers, the statute gave the uni the general power to delegate functions to committee
 The decision to exclude Tang was made by a committee, acting on delegated authority and in reliance on a
uni policy which established a set of procedures for dealing with allegations of academic misconduct
 The policy was not a stat instrument, it was by another committee to guide re academic dishonesty
At first instance:
 The relevant provisions conferring power on the uni were in very general terms, nevertheless Mackenzie J
ruled the decision was made under an enactment; in his view the task of deciding whether a decision is made
under enactment involves determining whether the enactment gives the operational or substantial source of
power to make the decision or whether properly categorised as deriving from an incidental source of power,
in his view it was made under an enactment because of the tightly structured nature of the devolution of
authority by delegation.
Held, on appeal:
 The force of the argument against the statute being the source of power to make the decision is considerable
less where, as here, there could be no other possible source of the power (such as a contractual r/ship
between parties). Even though the provisions of the Act relied on as the source were very general, “it is
relevant to consider how central the decision is to the role of the DM and to trace the stat source of authority
for any decision”
 The decision was made in relation to a central or core function of the uni, it was a substantive an final
decision made in the exercise of a stat power vested in the uni to execute its functions
REVERSED BY THE HC
 Gummow, Callinan and Heydon: two-part test for determining when a decision is “made under” an enactment,
both requirements must be met:
1. the decision must be expressly or impliedly required or authorised by the enactment; and
2. the decision itself must confer, alter or otherwise affect legal rights and obligations and in that sense
must derive from the enactment
 The decision in question was not made under an enactment because it did not affect Tang’s legal rights
and obligations; the r/ship between Tang and the uni re her PHD was a purely consensual one; the Act
empowered the uni to formulate the T&Cs of her candidature, it did not give legal force or effect to the
decision to end the r/ship
ABT v Bond:
Facts: relevant leg established a licencing regime for tv broadcasting, under which inc entities could hold
commercial tv licences; the tribunal had a discretionary power to suspend / revoke a licence, provided it was first
of all satisfied as the existence of one of more specified matters – in this case, being that the existing
licensee was no longer a fit and proper person to hold a licence
The statute established a two-stage decision-making process:
1. tribunal had to make a finding as to whether or not licensee was fit and property;
2. if such a finding was made, tribunal could decide whether or not to suspend / revoke the licence
Bond (and other apps) commenced proceedings under the ADJRA at the conclusion of the first stage, after the
tribunal found licensees no longer fit and proper, and they also sought to review a number of antecedent
preliminary findings, including that on the available evidence Bond had acted improperly and would not be a fit
and proper person to hold a licence if he had been eligible to do so
Issue: which of the so-called decisions challenged were decisions amenable to review under the ADJRA?
Depended on whether broad or narrow approach to be preferred
Held: While the ADJRA was remedial in nature, the narrow approach should be preferred, passed on an
analysis of the stat definitions and on broader policy considerations; and
 JR is confined to errors of law, not fact-finding and the factual conclusions reached in stages of making a
decision are not reviewable unless the process involved gives rise to a recognised basis for jud intervention
 For a decision to be reviewable, it must be a final or operative decision
 However, an interim step may constitute a reviewable decision if the statute expressly provides for that step.
 Also, must be a substantive determination
Here: the tribunal’s decision to revoke / suspend a licence was a reviewable decision because, it was the final,
ultimate or operative determination AND the determination that the licensee not fit and proper would ALSO
qualify, as it was a conclusion reached as a step, but the statute provided for the making of a finding on that
point, so was a decision under an enactment, although an intermediate decision
However, the antecedent findings not reviewable, incl finding that as an individual Bond not a fit and proper
person, as not a final decision, not did the statute expressly provide for them to be made as interim decisions
Page 12
TOPIC 3: STANDING
STANDING

Often critical in public interest litigation where an individual or organisation seeks to compel a public
authority to comply with a public (ie. statutory) duty in circumstances where no private right or
interest of the individual or organisation is affected.
What remedy is being sought?

Common law action: seeking a prerogative writ

Seeking an equitable remedy: an injunction or declaration

Bringing a statutory JR action (eg. ADJRA): seeking an order to review “a person aggrieved”
These days, no real difference re remedies and the standing rules
Basic rules for standing

Historically, the AG’s role to enforce public rights (ex officio – own motion; ex relatione – relator
action)
o
The AG’s decision to proceed or not proceed is not judicially reviewable
o
Common for AG to seek an undertaking as to costs re relator actions
If AG does not initiate action, when will member of the public have standing?
The rule in Boyce v PDC:

1st limb: where the alleged interference with a public right also constitutes an interference with a
private right of the app

2nd limb: where no private right is involved but app suffers “special damage” as a result of an
interference with a public right
o

“special damage”:
 Not limited to pecuniary (monetary) damage
ACF v Cth: ACF
 Need not be “damage”, can be an “interest”
only showed mere
 Cannot be mere emotional / intellectual concern
emotional /
intellectual concern
 Something gained over & above seeing the law enforced
 Probably need a track record in taking active measures to support cause
Further developments: Bateman’s Bay:
o
The interest need not be consistent with the scope and purpose of the legislation being
enforced (Bateman’s Bay);

o
Cf. Alphafarm v SmithKline; Right to Life v DHS: standing was denied because
the pls’ relevant interests were inconsistent with the purpose and policy of the leg
Economic loss as a competitor is a relevant factor (Bateman’s Bay)

However, economic rivalry will be irrelevant as an argument in support of standing
if, for instance, the action appears to be an attempt to obtain a tactical advantage
over a competitor (Rayjon Properties)
Page 13
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Standing under ADJRA / JRA

“a person aggrieved” (s 5 ADJRA; s 20 JRA): further defined in s 3 ADJRA as “a person whose
interests are adversely affected” – encompasses the common law and equitable rules as to
standing (Aus Institute of Marine Engineers)
Does the statutory JR system liberalise common law / equitable rules of standing?

Yes, while the pre-existing law is the starting point (ACF v Min Resources), changes have emerged,
eg. in ACF v Min Resources, ACF was this time granted standing (although ACF by this time had a
well-established track record in similar conservation measures)
o


Further, public perception of the need for protection and conservation of the environment
had increased – ACF now the major conservation org in Aus (Davies J, ACF v Min
Resources)
Consolidation of principles: in North CEC v Min Resources (held to have standing under the
ADJRA): various factors demonstrated the “proximity” of the app to the subject matter and the
importance of its concern, including:
o
That the org was the peak environmental body in the region;
o
It was recognised by both the Cth and state govs as a significant and responsible
environment organisation;
o
It had received federal funding to initiate and participate in coordinated projects and
conferences on matter of environ concern; and
o
It made submissions on forestry management issues to relevant gov authorities
Other more liberal cases:
o
Ogle v Strickland: two priests were persons aggrieved for the purposes of challenging a
decision made by a film censorship board to approve a film, priests argued film satisfied
def of “blasphemous” – held: unlike ordinary members of the public, it was the vocation
and duty of the priests to teach and foster Christian beliefs and generally protect the tenets
of Christian faith

o
More than a mere emotional concern because had a closer proximity to the issue
than other members of the Christian community
NQCC v Qld Parks: most expansive approach – org sought review under JRA of a
decision by director of gov agency to issue permit allowing for harbour d/ment by State of
Qld; contended director had no power to permit the proposed work because inconsistent
with Marine Parks Act

Held: on conventional approach NQCC had a special interest sufficient to
establish standing, based on a factual comparison with cases like North CEC – it
had demonstrated a close involvement with environmental issues surrounding the
particular d/ment and was recognised by the gov as a serious and responsible org
(evidenced by gov funding and representation on gov forums)

However, despite this, Chesterman J suggested the conventional ACF/Onus
formula was unnecessarily vague – preferring the approach that standing should
be afforded “if the pl is not motivated by malice, is not a busybody or a crank and
if the action will not put another citizen to great cost or inconvenience”
Amicus Curie

Where a person or org has been directly involved in some matter leading to judicial challenge, their
involvement may constitute a sufficient interest to establish formal participation in the judicial
proceedings

US Tobacco Co: comp sought JR re a refusal to approve the import of a smokeless tobacco
product – prior to the JR proceedings a consumer org dedicated to exposing harmful products, had
been given participation statute in a stat pre-decision conference
o SO: the org was afforded participant status in the judicial proceedings
Page 14
Federal constitutional issues in standing


Under federal juris, questions of standing are inter-connected with the constitutional requirements
of “matter”:
o
“in all matters the HC shall have original jurisdiction” (s 75 Constitution; also s 39B
Judiciary Act)
o
The notion of a “matter” is a central defining concept requiring a justiciable issue or
controversy, ie. a concrete issue for judicial resolution (Abebe v Cth)
o
Precludes the HC from providing advisory opinions and generally requires there be some
right, duty or liability (Re Judiciary & Nav Acts)
Importance of identifying a matter: Re McBain:
o

Emphasis on lack of active controversy; the Fed Court matter had run its course and the
controversy had been settled to the satisfaction of parties by an exercise of fed judicial
power

There had been no intervention by Cth / State AG to remove proceedings to the
HC, nor had the Fed Court resps sought to defend the constitutional validity of the
provision; in any event the Bishops had not been parties to that action

People who were not parties to a litigation do not have a right to claim the
resulting decision was erroneous and should be quashed
Extent leg capable of broadening rights of interested parties: Truth about Motorways:
o
HC acknowledged the need for a matter to concern some right or interest determinable
by judicial resolution
o
However, provided the court is capable of making a final and binding determination, the
concept of “matter” does not import any additional requirement as to the standing of
the app
Page 15
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
ACF v Cth:
Facts:



Company building resort in Yeppoon, had application in, had to lodge environmental impact statement (EIS)
ACF said EIS not valid – sought a declaration that not valid, gov said “you have no interest in this”
Sought injunction preventing company from going ahead and building; ACF said they were major
conservation organisation, with objects, interested in environment, seeking to ensure its protection etc
Held:

HC rejected ACF’s argument – set out points, special damage:
Not limited to pecuniary (monetary) damage
Need not be “damage”, can be an “interest”
Cannot be mere emotional / intellectual concern
Something gained over & above seeing the law enforced
Here: ACF only showed mere emotional / intellectual concern and the charter of existence could not in itself
establish a special interest, today probably need to have track record in taking active measures to support cause
Onus v Alcoa:
Facts:
 Proposing to build aluminium smelter, land contained Aboriginal relics, Vic statute in place which made it an
offence for anyone to interfere with relics
 2 women, Aboriginals who traditionally occupied land, requested AG to bring relator action in SC seeking dec
that if building was to go ahead wouldn’t interfere with relics – AG refused
 Went to CoA against refusal, CoA said no
 Went to HC, won:
Argued first interference with private rights – HC said no
Said they were the custodians of the relics and they as descendants use relics to teach children etc – the
relics had special cultural & spiritual significance for the apps in accordance with their laws and customs
Their interest was more than a mere intellectual/emotional concern; it was greater than any interest held
by members of the public generally
Case different from ACF v Cth in terms of weight and interest – it affected apps personally
Bateman’s Bay:
Facts: pls were joint companies operating funeral benefit fund and life insurance businesses for Aboriginals,
sought injunction to prevent proposal by 2 Aboriginal Land Councils to establish a similar funeral benefit business
Under the relevant leg, an exemption from the Minister was required if the Land Councils were to carry on a
funeral benefit business
Pls argued the exemption was void so that the trust deed established between the two councils for operating the
business was unlawful – argued councils were acting beyond their legislative power
No direct private right / interest was at stake – their interest was an apprehended economic loss if rivals began
operating in the same business
Held by HC: they had a sufficient interest to pursue injunctive relief – seeking the observance by the competitors
of relevant statutory limitations – their interest was immediate, significant and peculiar to them – given all
parties would be operating in essentially the same limited market, it was highly probably that the pls would suffer
severe detriment to their business if the rival not restrained
Re McBain:
Dr initiated Fed Court proceedings after became aware that proposed treatment of a patient was prohibited by Vic
leg, he succeeded in obtaining a declaration that the Vic provisions was inconsistent with Cth law and was invalid
re s 109 of the Constitution
Apps were made to the HC to quash the Fed Court ruling, one by Roman Catholic Bishops who had not been
parties to the Fed Court matter but had been granted leave to appear as amicus curiae – they sought certiorari to
quash the ruling for error of law on the face of the record
The other app was made by the Cth AG re Roman Catholic Bishops, AG sought to intervene based on s 78A
Judiciary Act right
Held: all apps refused on discretionary grounds – the AG’s relator action was out of time and it was not
appropriate to grant an extension, given the omission at earlier stage to bring the matter before the HC; and the
Bishops had not pursued apps to be joined in the Fed Court proceeding, inappropriate to expose criminal
prosecution to drs acting in good faith relying on Fed Court ruling
Page 16
TOPIC 4: GROUNDS OF JUDICIAL REVIEW

The grounds are the means by which an administrative decision may be shown to be unlawful

The grounds arose and developed as part of the common law; under statute JR they are
expressly listed:
o
s 5 ADJRA
o
ss 20, 23 JRA
NATURAL JUSTICE / PROCEDURAL FAIRNESS
What are the rules of NJ?

The rules of NJ are essentially a right to a fair, unbiased hearing; decisions affecting rights or
interests must be made fairly (s 5(1)(a) ADJRA)

NJ is a fundamental legal principle (Pl M61/2010E)
Applying the rules of NJ

Two questions:
1. When do the rules of NJ apply? (the threshold question)
2. What do the rules of NJ require? (the content question)
1. When do the rules of NJ apply?
[the threshold question]
1st step: Statutory direction (what does the statute say?)


It is common for statutes establishing decision-making bodies to expressly oblige them to
observe procedural fairness
o
AAT Act 1975 Cth s 39
o
QCAT Act 2209 (Qld) s 28
Courts can “supplement” what the statute provides where procedural fairness requires it -o
Annetts v McCann: Act said persons entitled to legal representation and could attend and
cross-examine witnesses – parents wanted to hand up written submissions at the end of
the proceeding

o
Ainsworth v CJC: Asked CJC to write report re gaming, report was very critical of Mr
Ainsworth, he said he should have had a chance to rebut


HC held: yes, just because the Act didn’t specifically say that, procedural
fairness required it, so it was allowed
HC held: any entity like the CJC with vast powers MUST obey the rules of
procedural fairness – Mr A should have been given the chance to respond before
the report was given to the gov
NB. Can leg exclude NJ? [see later]
NJ will apply where the decision affects “rights”, “interests” or “legitimate expectations”

The rules of NJ apply where the decision affects rights, interests or legitimate expectations
o
Historically, only when strictly legal rights were affected (Cooper)
o
Admin DM, in making decision that affects rights and legitimate expectation must
observe the rules of procedural fairness (Schmidt)
Page 17
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
What is a legitimate expectation?
[need to be reasons give + chance to plead case]

A reasonable expectation that right / liberty / defined interest that person has will not be
interfered with by an administrative decision, without affording person a chance to address
reasons
(essentially a definition of the rules of procedural fairness)

It is not a right to the thing you are after (eg. renewal of a licence), but to a right to a fair hearing
in relation to that decision

Heatley: Tas authority issued warning notice; not given advance notice
o

FAI Insurance: Gov-in-Council exercised stat power to refuse to renew FAI’s licence to operate in
Workers Comp Insurance, already had a licence, applying for renewal
o




HC held: No legal right affected here, but any member of public has legitimate expectation
that if they otherwise behave selves and pay entrance fee, entitled to enter race track SO
authority with power to interfere with that expectation, must not do so unless provide person
with chance to plead their case
Held: Had legitimate expectation as licence holder, that their licence would be renewed, should
have been given reasons and chance to plead their case
Haoucher: deportation order on basis of criminal convictions in Aus; appealed to AAT; AAT
remitted back to Minister – only power AAT had at that point (now AAT can substitute own decision)
– policy said Minister should abide by AAT’s recommendation unless there were exceptional
circumstances and strong evidence why Minister should not abide by AAT’s recommendation –
Minister affirmed original deportation order
o
HC held: in this situation because of policy, when it came back to Minister, Minister obliged by
policy to consider whether there was strong evidence against what AAT said, Haoucher
needed to be told what strong evidence was etc before affirming that second decision
o
H had legitimate expectation that Minister wouldn’t affirm first decision unless he firstly gave
reasons re the exceptional circumstances and strong evidence
Teoh: deportation order against Teoh, Teoh had children living in Aus with him,
Unincorp
o
HC held: Teoh had legitimate expectation that admin decision affecting children
treaty
would be exercised in accordance with obligations Aus incurred under UN
Convention re protection of rights of child – DM would make interests of children a primary
consideration in reaching decision to issue deportation order
o
The convention had been acceded to, signed and ratified but not yet implemented into
domestic law, HC held: it wouldn’t have been signed & ratified if didn’t want to make it law!
o
If DM doesn’t make children primary consideration needed to tell Teoh that!
o
NB. Not good law anymore see Lam below
Ex parte Lam: court retreated from its approach in Teoh!
o
Deportation order also – cancellation of VISA on basis of substantial criminal record; Lam
through lawyers wrote submission to Minister, which had a section re affecting children
o
Delegate decided to cancel VISA without contacting children’s carer etc. Lam said legitimate
expectation that before decision made, DM would contact carer etc – said should have told
him and given chance to argue that
o
No breach of NJ here – no promise to contact carer
o
More importantly, Lam had not been deprived of any opportunity – he provided all relevant
info in submission “Interests of Children” – hadn’t suffered any detriment
o
HC emphasising: have to show some substantive unfairness – no disadvantage here
o
HC critical of Teoh: said went too far in that case – so quarantined off Teoh, re Teoh and
effect of unincorp treaties – not good law anymore
Kioa: law now reached a point where common law duty to act fairly in making of admin
decisions affecting rights/interests/leg expectations, subject only to statutory intention
Page 18
Pl M61/2010E
Contracted assessment process to “Wizard People” given a manual, and looked at asylum seekers, told Minister
whether they thought they were refugees
Set up to try and avoid JR
WP decided two apps didn’t meet the requirements – there were clear breaches of procedural fairness
Minister argued the assessments made outside Migration Act; all MA does is say Minister has authority to lift bar,
tried to say not judicially reviewable
HC: said no to gov – have this system where they make an assessment and you decide, all done by virtue of the
Migration Act – definitely judicially reviewable! – NJ is a fundamental legal principle!
2. What do the rules of NJ require?

[the content question]
There are two branches of the rules of NJ:
1. The hearing rule
2. The bias rule

The rules flexibly apply – what NJ requires in each state will depend on the statute, facts and
circumstances in each case (Kioa)
The hearing rule
1. Adequate prior notice:

Person must be given adequate prior notice of additional matters to be investigated (Ong)
o
Ong: 2 stage DM process, uni council set up to investigate allegations re Ong – although
the committee gave Ong prior notice of matter it intended to investigate, it later added
further matters that had come to its attention during the investigation – this was a breach
of NJ
2. Adequate disclosure of relevant issues:

Issues critical to the decision should be disclosed (Kioa)
o

Not an absolute right: eg. investigatory bodies not required to “show their hand” at every stage
of an investigation (NCSC v News Ltd)
o

Kioa: important decision re basis of NJ – Mason of the view that this is a common law
requirement, Brennan of view it’s derived by implication of statute
NCSC v News Ltd: about body set up to investigate company crime – HC held it must
observe the rules of NJ, but not investigated parties cannot look over NCSC’s shoulder
Relevant and important info arising to be disclosed:
o
Miah: protection visa applicant was not informed of the DM’s intention to rely on new info
concerning a change of gov in the home country – HC held: non-disclosure and
resultant lack of opp to respond = breach of NJ
o
Muin: Migration Act provided that one Minister made adverse decision and person
appealed to RRT, Minister has to provide reasons statement – critical issue in case was
extent to which obligation satisfied when what is in statement is series of websites

HC held: nor reason why websites couldn’t satisfy “giving docs” requirement – statute
provides you give someone copies of docs relied on, don’t have to give physical
copies

HC held: because RRT said they had looked at docs but only referred to 3 in
decision, that reasonable to infer RRT had not taken account of all material
referred to

Muin had assumed that, if had known RRT wasn’t going to look at all docs, would
have made additional representations to bring RRT’s attention to the docs – because
that hadn’t happened = breach of rules of NJ
SO: relevant info must be brought to DM’s attention BEFORE decision reached
Page 19
Together = the Acts

Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Potentially adverse material must be disclosed even if not relied on:
o
App VEAL: before RRT made decision received anon letter saying the applicant had been
accused of killing person in other country; the RRT affirmed decision and said they had
received letter making allegation but gave no weight to it – because could not test
allegations

HC held: NJ, on facts, statute & circumstances required RRT to tell app about letter

Concluded that this should have been put to app before decision made because RRT
required to determine if letter credible, relevant and significant – if so, its
contents must be disclosed to app for response before decision made

Because this didn’t happen = breach of NJ

Public interest of keeping writer anon - don’t include identity in info provided
3. Adequate opportunity to address:

Where a hearing is denied

Other instances:
o
Refusal of a request for adjournment to allow adequate time to prepare (Bhardwaj)


Bhardwaj: Appeal against deportation order, Mr B’s migration agent, once hearing
had been set, faxed in asking for adjournment to properly prepare
 Fax went missing – hurriedly made another decisions on basis for request for
adjournment – set aside Minister’s decision
 Minister said IRT has made decision – it’s finished, can’t make another
 HC held: the first decision was not valid
o
Tribunal fails to read important info in docs before it (Aala)
o
Tribunal failed to disclose departmental submission made to it (Muin)
o
Tribunal failed to observe its intention to write to app to ask about inconsistencies in his
evidence (App NAFF)
Need to show actual unfairness?
o
App NAFF (breach of NJ) vs Ex parte Lam (no breach of NJ)
o
In no of cases judges have had regard to the actual effects of the supposed breach of
NJ on the person in question
o
In Aala – relief should be withheld when there is a positive conclusion that a proven
breach of NJ could have made no diff to the result
o
In Muin, noted that re misleading statement made by DM, Muin was misled and his
conduct of the case thereby influenced
4. Right to oral hearing?

There is no absolute right to an oral hearing – dependent on statute, facts and
circumstances
o

Particularly important it the nature and seriousness of the matter, & nature of contentions
Heatley: DM required to give adequate notice of warning off, but not obliged to give oral hearing
o
Held: oral hearing may be very necessary in some instances to resolve inconsistences in
evidence

Chen v MIEA: oral hearing may be required where real issue of credibility is involved, or where
app would be obviously disadvantaged by having to rely solely on written submissions

Finch v Goldstein: oral hearing may be necessary where DM process is in the nature of an
adjudication between competing claims (a committee established to hear appeals re promotions
was required to adjudicate between two parties in dispute over promotion of one)
Page 20
5. Right to representation


There is no absolute right to an oral hearing – dependent on statute, facts and
circumstances
o
Some statutes say that tribunal does not entitle you to be legally represented in front of it
o
Cairns: request for legal rep was rejected – not a breach of NJ

Full Fed Court: no absolutely right to legal rep – he was law student, on the facts
and circumstances could handle it himself

Relevant factors – seriousness and complexity of the issue
What are relevant factors to consider?
o
WABZ: asylum seeker case, Full Fed court summarised no of key factors re whether NJ
requires legal rep:

App’s capacity to undertand proceedings

App’s ability to communicate effectively and language used

Legally and factual complexity of issues before the court (also Cairns)

Effect on app’s liberty / welfare
6. Right to cross-examine

Will generally be a NJ requirement where the credibility of witnesses is critical to the decision
(Harrison v Pattison)
o
Harrison v Pattison: TAFE employee lodged anti-discrim complain – pl charged with
breach of discipline and under Education Act, an inquiry was set tup – solicitor to run
intended to call 25 witnesses and barrister for pl wanted to cross-examine them

SC held: in this kind of case, credibility of witnesses and what they say is critical to
the issue – NJ clearly required right to cross-examine
7. Timeliness in making decision

Can delay amount to a breach of NJ? It may, if extreme or protracted delay where credibility of
witnesses is a key issue (NAIS v MIMIA)
o
NAIS v MIMIA: asylum seeker case – issue re determining whether well-founded fear of
persecution if returned to Bangladesh

There was a 5 year delay from RRT hearing and handing down decision

HC held: delay so extreme that real and substantial risk that capacity of RRT to
assess evidence before it was severely impaired – too much time had passed for
RRT to be reliably concluding things had heard earlier
8. Does NJ require observance of rules of evidence?

No strict rule but the more they depart from rules, more danger of a breach of NJ
o

NB. Some statutes expressly specify DM not bound by rules of evidence
Tribunals / DM’s must act on logically probative evidence (Re Pochi)
o
Re Pochi: NSW DC found Pochi guilty of drug offences, but other evidence not admitted

In deportation proceedings wanted to bring in evidence which would not have been
admissible in court

Fed court held: not bound by rules of evidence, won’t in itself constitute breach of
NJ – but must be careful to act on logically probative evidence, straying too far from
rules of evidence may be an injustice
Page 21
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
9. Does NJ require reasons for decision?

No general common law obligation on tribunals/DM’s to provide written reasons for decision
(PSB v Osmond)

BUT today, many statutes creating DM powers require written reasons for decision

o
JR Act Part 4 (for “decisions” to which Pr 3 applies)
o
RTI Act
o
If a Qld statute requires reasons for a decision then DM must observe the requirements
for a ‘reasons statement’ (s 27B AIA 1954 (Qld))
Beyond this, in certain circumstances, NJ may require DM provide written reasons for decision
The bias rule
Objective test: is there a “reasonable apprehension of bias”?

Would a bystander reasonable conclude the DM incapable of making an impartial decision?

People are entitled to a decision free from bias

If decision made by someone had argument with / involved in business with your opponent, bias
rule will knock them out
Test: same for pecuniary and non-pecuniary bias (Ebner v OT in B) – two-part test:
1. Identify what it is that causes impartiality
2. Identify logical connection between that thing and feared deviation
Special knowledge attributed to person:

BATAS v Laurie:
o
Widow of dead smoker bought action against BATAS in Dust Diseases Tribunal
o
BATAS said judge bias because previously made a ruling in case involving them (where
BATAS had deliberately destroyed docs so judge said couldn’t rely on LPP)
o
It was argued that because only interlocutory ruling in previous case, and because judge knew
about rules of PF, was capable of not being bias
o
HC 3:2 held: bias test was established, reasonable bystander would conclude that judge
incapable of bringing an impartial mind
o
Should we say bystander attributed with knowledge judge had? HC didn’t go there
Bias may be established by evidence of consistent, cumulative behaviour pattern by DM:

Livesy v NSW Bar Ass:
o Motion to dismiss L from roll – not fit/proper person
o 2 of previous 2 judges from Wendy’s case sat on appeal and came to same conclusion – a lot
of it came from association with Wendy
o Appealed to HC, on basis shouldn’t have sat on his case w/ same facts/evidence
o HC held: bias rule clearly established (how could CoA get it so wrong!)

Keating v Morris (similar to Carruthers v Connolly):
o
o
Gov appointed commissioner Morris to conduct inquiry re Dr Patel, included actions of
other doctors (Keating was Director of Medical Services)
Held: Comm unable to bring impartial mind – seemed on a crusade to right wrongs, which
was not his charter –areas of concern:
 Questioning of Keating vs very different questioning of nurse (whistle-blower)
 Comm’s interventions to prevent Keating cross-examining certain witnesses
 Coffee meetings between Comm and certain witnesses
Page 22
DM expresses preliminary view & Special position of minister as elected official

MIMA v Jia Legeng: Minister prior to cancelling visa on basis of bad character, made statements
on radio and in letter to AAT expressing concern about the AAT’s decision to overrule initial visa
refusal and its approach in similar cases and about “character” of those convicted of crimes
o
HC held: neither actual nor reasonable apprehension of bias
o
Important point: DM not required to have totally blank mind, must just be open to persuasion
o
Emphasis on the error of applying the standards of detachment applicable to judicial
officers or jurors
MIMA v Jia Legeng:

Re actual bias: for bias in the form of prejudgment there must be a mind incapable of alteration;
NJ does not require the absence of any predisposition or inclination
in considering a charge of prejudgment, nature of DM process and identity of DM may be critical
- Minster’s conduct here had to be viewed in light of being an elected official – accountable
to the public and parliament and entitled to be open about his portfolio

Re reasonable apprehension: the facts as a whole did not support claim of prejudgment – the
Fed Court findings of actual bias (found to be wrong) could not be used in aid of this alternative
lesser argument, and nor could a process of reasoning be attributed to a reasonable observed
DM rules on same issue in earlier case:

BATAS v Laurie: [see above]
An advisor to DM has pecuniary interest

Hot Holdings v Creasy: involved grant of mining and advisor’s role merely peripheral - HC held:
interest was insufficient to give rise to a reasonable apprehension of bias in DM process
Conduct after decision

Epeabaka: where conduct after decision indicates bias (views express on website after
decision)
o
RRT affirmed Minister’s decision – E found tribunal member made comments calling
applicants “chronic liars” 10 months after decision made
o
HC held: by process of careful analysis, post was balanced by comments sympathetic to
asylum seekers, so bias test not made out upon reading the whole post – have to show
incapable of bringing impartial mind – couldn’t show here
Where NJ may NOT apply
Waiver:

Difficult to establish a person has waived their right to NJ especially re the bias rule

Vakauta v Kelly: Party may waive right to challenge a decision on the basis of bias where
supposed bias was manifest in course of process, and party stood by without any objection at
that time, eg. only raising matter at time of unfavourable substantive outcome
o
Although entitlement to object on this ground may be “revived” on further objectionable
remarks being made in formal decision
Necessity:

May overcome NJ defects depending on legislation and decision-making structure (BRBQ v
Rauber) – doe not arise very often in public law matters

Doctrine says: may be bias, but they are the only person who can make the decision
Page 23
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Does NJ fully apply to preliminary stage (of the two-stage DM process)?

Old approach: NJ would only apply when decision itself penalised or directly affect the person
(Testro v Tait)

Contemporary approach: look at nature and effect of decision (Annetts v McCann; Ainsworth
v CJC)
o
Ainsworth v CJC: law has progressed since Testro and relevant question now is simply
whether the report adversely affected a legal right, interest or legitimate expectation –
which includes reputation


Conceded that in multi-stage DM process, NJ must be satisfied if the process,
viewed as a whole affords PF – however this conception was not applicable on
the facts given that there were really two distinct processes involved, and the
unfairness might be cured or not at the later stage and the fact the reputation had
already been affected by the earlier action
Subsequent repair: SA v O’Shea – Gov-in-Council not required to accord NJ in deciding
whether or not to accept parole board recommendation for release of prisoner because board
had already accorded NJ and later decision turned on unfettered political decision
Where right of appeal exists?

Two situations:
1. Applicant unsuccessfully exercises statutory right to appeal, and then seeks JR of the
original decision on NJ
2. Applicant not yet exercised statutory right of appeal but seeks JR for breach of NJ

Calvin v Carr: race-fixing charge considered by race stewards then appealed to a committee
o
PC held: no clear / absolute rule could be laid down on question of whether defects in NJ at
an original hearing can be cured through appeal process – referred to 3 situations:

Where rules provided for rehearing by same body where clear first hearing
superseded by second

Where hearing structure and context indicated PF was required both at first instance
and on appeal

Intermediate cases which would depend on their facts and whether or not justice
would be done
Indicated a fully impartial appeal probably enough to cure earlier breach of NJ, however
cautioned an initial defect might be so severe might not be cured by even most
comprehensive of appeals

Miah: relevant factors
o How preliminary initial decision was
o Whether reputation already affected
o Level of formality at first state
o Urgency of matter
o Nature of appellate body
o Breadth of the appeal
o Subject matter

NB. Where have stat right of appeal, don’t need to worry about admin law, just exercise that
right! Courts will expect apps to have exercised lower appeal rights before seeking JR
o
Otherwise, need to JR a decision
Page 24
Can legislature exclude the rules of NJ?
Starting point: is NJ a rule of statutory construction or a free standing common law rule?

Kioa: Mason of the view that this is a common law requirement, Brennan of view it’s derived by
implication of statute
“Code of procedure” type provisions in statutes

Miah:
o
Sought protection visa, after lodgement of application for visa and before Minister made
decision, change of gov in Pakstan, which meant Minster felt app couldn’t say he would
have well-founded fear of persecution
o
2 grounds of JR – on NJ point, relevant provisions of the Act set forth what the Minister
was required to do, and he had done all those things
o
HC held: the obligations in the Act were not sufficient displace common law
obligations to observe NJ
o
The material needed to be put to the app, particular when largely relied upon re decision
o
Then changed legislation to specifically exclude NJ
Post-Miah “exclusive code of procedure” type provisions

MIMI v Lat: business visa rejected by Minister – considered app hadn’t satisfactorily explained
$12 acculturated – appeared to be unlawful activity
o

Full Fed Court held: upheld Minister’s decision but in doing so said that the new clause
in the Migration Act looked effective to them; looked sufficient to legislatively exclude the
common law rules of NJ in relation to the hearing rule
Saeed: business visa application – Minister relied on a lot of extrinsic materials to point out
intention of Parliament
o
HC held: do not run to extrinsic materials – the first task is to look at the words in the
statute (they were quite dismissive of Minister running to second reading speech)
o
HC held: in favour of app – said the clause did not absolve responsibility of acting in
accordance with PF:

Matter deal with in sub-division did not apply to off-shore visa apps like Saeed,
so entitled to full NJ obligations (almost opposite Par’s intention!)

HC said if want to exclude need to do it correctly

Gave a very narrow, literal construction

Hinted that HC at some point might entertain argument that rules of NJ are
inherent component of exercise of judicial power ie. not possible for leg to
totally exclude NJ

Strong assertion that if Parliament wants to take away rights, must be very clear
Page 25
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
What is the effect of failure to observe natural justice?

Voidable: Some authorities have indicated that unless and until the decision is declared void by
a competent body or court, it may have some effect or existence in law and may therefore the
subject of an appeal (if one exists) – in this sense it is “voidable” (ie. not void ab ignition but
valid and operative unless and until challenged – and upon such challenge being upheld, it
is then regarded as void from inception (FAI v Winneke)

However, especially in the context of the High Court’s juris under s 75(v) Constitution to correct
jurisdictional error – see Aala

NB. If JR court thinks breach would not have made any difference to the result it may in its
discretion, refuse to grant the actual relief sought (remedies are discretionary) (Aala)
Page 26
PROCEDURES REQUIRED BY LAW TO BE OBSERVED

A decision may be rendered invalid by non-observance of procedures to be followed in reaching
the decision

The old common law rule drew distinction between mandatory and directory procedures:

o
Non-compliance with mandatory procedure would render the decision void
o
Non-compliance with a directory procedure did not render the decision void
Link with juris error [see later]
Contemporary approach:

Old common law incorrect: the test is not mandatory v directory, but rather to ask did
Parliament intend that the act done in breach of the relevance procedure should render
the decision invalid? (Project Blue Sky)

Factors:
o
If procedure in question establishes a condition precedent to the valid exercise of the
power, non-observance of the procedure will render the decision invalid (Project Blue Sky)
Under ADJRA:

Found in ADJRA s 5(1)(b) / JRA s 20(2)(b) - “that procedures required by law to be observed
in connection with the making of the decision were not observed”
o
“Required by law..”: identify precisely the procedures required to be observed (Jadwan
– regulation of retirement villages in Tas, requirement that must be followed must be one
required by law – must find it in the statute
o
“in connection with...”: a broader reach than the common law ground (Ourtown)

Merely requires a relation between one thing and another and not necessarily a
causal r/ship between the two thing (Ourtown)
Project Blue Sky:

made standard without observing procedure:

Standard ABA made provided that by certain period of time, 50% of tv programs broadcast between certain times
must be Australian programs

Project Blue Sky = NZ TV company

Given treaty and s 160 - said standard invalid

HC held: overturned Full Fed Court – said mandatory v directory not correct
o Correct approach is to ask common sense question – did Parliament intend that act done in breach of
relevant procedure render decision void?
o SO: Look closely at language used in statute
o Listed number of relevant factors including:

If look at procedure in q and can show way worded is to establish condition precedent to the
valid exercise of the power, non-observance of procedure will render decision invalid

Said s 160 not worded that way, if leg said “before making standard, ABA must first of all…” but
it doesn’t
o Particular provision (s 160) didn’t establish a condition precedent

Important re statutory interpretation

Observance of s 160 not condition precedent, but if someone comes along later and feels particular standard
doesn’t accord with s 160, can obtain ruling to that effect, that standard can be overturned, but doesn’t mean other
standards already made are invalid/void – just voidable
Kutlu:





Health Services Act provides for establishment of Professional Services Review Panel
Statute states Minister can appoint member of panel, but must consult with AMA first
In 2005/9 Minister appointed members without consulting with AMA
5 practitioners challenged Minister’s decision on basis of Project Blue Sky
Full Fed Court held: panel performs critically important function – importance of consulting with AMA is critical
component of the leg so non-observance renders the decision void,
o despite the fact some public inconvenience would result, the other factors were more important than that
Page 27
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Page 28
DECISIONS NOT AUTHORISED BY THE ENACTMENT

Express ground under ADJRA s 5(1)(d) and JRA s 20(2)(d) that “the decision was not
authorised by the enactment under which it was purported to be made”
o
umbrella term, could cover a range of situations
o
NB. remember only decisions of an administrative character are reviewable under stat
JR – any attempt to review legislative decision must proceed by way of common law JR
“not authorised”


Any relevant ostensible limits on the statutory power?
o
What does the statute say? Examine the language, scope and purpose of Act
o
Check rules of stat interpretation in AIA 1954
Any relevant implied limits on the statutory power?
o
Common law presumptions:

Coco: placed listening device in factor for purposes of charge under ITA, leg
provided a police officer could approach judge to obtain warrant to use listening
device


o
Held: issuing of warrant invalid, evidence couldn’t be used – in the absence
of clear words, presumed Par does not intend to curtail basic rights and
freedoms (here, interference with private property)
Pl S157: Gleeson identified key principles of stat construction relevant, particularly to
JR, including the presumption that leg powers affecting individuals are to be
interpreted consistently with Aus’s obligations under international human rights law
Other common law presumption examples:1

Deprive citizens of recognised common law rights: eg. the right to quiet enjoyment of
one's property free from trespass - Coco

Deprive individuals of access to the courts - Pl S157

Be inconsistent with recognised human rights obligations - Pl S157

Authorise decisions affecting persons to be made contrary to the rules of natural
justice/procedural fairness - Saeed

Deprive citizens of property rights in absence of compensation - Mixnam's Properties

Levy taxation without authority of Parliament - AG v Wilts United
1
In this context, important common law presumptions of statutory interpretation include those which assert that in
the absence of express words to that effect, a statute will not be interpreted so as to…
Page 29
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Common law rule against delegation

This ground encompasses the common law rule against delegation – that if statute provides for
delegation, can’t then delegate to someone else – statute didn’t give power to delegate to that
person UNLESS statute says delegatee can on-delegate to someone else
o
o

Carltona principle: the rule is relaxed for minor administrative tasks, especially in highvolume decision-making

Can be found that Parliament impliedly meant there to be delegation of certain
fucntions association with DM power

Where power disciplinary in nature, less likely relaxation of rule will be allowed

Where power administrative in nature, more likely relaxation of rule be allowed
O’Reilly v C State Bank: provisions of ITAA allowed delegation

Comm delegated function to Dep, then Dep delegated to investigating officers

HC held: question of stat construction – does it require Dep to personally
sign/authorise every notice? Reference was made to Carltona and the need for
administrative efficiency and the need to relax the rule in high-volume
decision-making

HC held: given number of notices, Par did not intend Dep to personally draw
up and sign every notice – legislation impliedly authorises delegation of
administrative functions
NB. Unlawful delegation not expressly referred to in ADJRA or JRA (ss above see “Decisions
not authorised by the enactment”) but it is conceivably covered by these provisions
Page 30
IMPROPER EXERCISE OF POWER

Under ADJRA and JRA this is an umbrella term for a number of self-contained grounds
o
ADJRA s 5(1)(e))  s 5(2) explodes term
o
JRA s 20(e)  s 23 explodes term
The application may be made on any 1 or more of the following grounds—
e) that the making of the decision was an improper exercise of the power conferred by the enactment under
which it was purported to be made;
…
The reference in paragraph… (e) to an improper exercise of a power shall be construed as including a reference to
a) taking an irrelevant consideration into account in the exercise of a power;
b) failing to take a relevant consideration into account in the exercise of a power;
c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
d) an exercise of a discretionary power in bad faith;
e) an exercise of a personal discretionary power at the direction or behest of another person;
f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of
the particular case;
g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the
power;
h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
i) any other exercise of a power in a way that constitutes abuse of the power.

NB. Don’t confuse with the specific ground “an exercise of power for an improper purpose”
which is one of the grounds contained in the “improper exercise of power” grounds for JR
1. Failing to take into account a relevant consideration
(ADJRA s 5(2)(b); JRA s 23(b))

Peko-Wallsend (HC):
o Involved the process for a land grant under NT Land Rights Act:
 (i) Lodgement of claim; (ii) Commissioner hearing + Recommendation; (iii) Minister’s
decision.
o At Commissioner hearing - PW did not disclose precise details of uranium deposits
o Comm’s recommendation to Minister: ‘Grant an area = 10% of the land claimed’.
o PW then wrote to Minister to advise that uranium deposits existed within this area
o But before decision could be made, a change of Minister… then a change of government.
o New Min: Makes a decision to put Commissioner’s Recomm. into effect –Min unaware of
Peko’s letter to the earlier Min (Dept officials did not include Peko’s letter in briefing papers
prepared and sent to new Minister).
o HC held: Minister’s decision invalid – Min failed to take account of a relevant consideration
(PW’s letter - which was omitted from Departmental briefing papers to the Min).
 What if Minister not aware because wasn’t brought to his attention? Too bad, Minister
deemed to have constructive notice of salient and relevant matters
 Minister can’t rely on delegating tasks to other

Materially affects decision: ground won’t be established unless the failure materially affects
the decision

Defending the matter: DM in defending the matter will have to point to evidence to show they did
account of the relevant consideration (not enough to just list it in reasons statement)

Insufficient weight: it is not enough to allege ”insufficient weight” given to a relevant
consideration – it is for the DM, not the court, to decide the appropriate weight to be given to a
relevant consideration (Peko-Wallsend)
o
However, DMs must give proper, genuine and realistic consideration to the merits of
the case (Gummow – Khan)
Page 31
Together = the Acts

Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
NB. Intersection with NJ – a DM receiving an ex parte communication which is credible, relevant
and significant must advise relevant / interested parties (Brennan – Peko-Wallsend – wasn’t an
issue in the case though) [see NJ 2. Adequate disclosure of relevant issues]
Where a Minister is the repository (source) of the statutory power

Where statute/subject matter shows Minister required to personally consider all relevant matters
before deciding:
o
Ministers will have constructive knowledge of salient, relevant matters which were not
brought to their attention by departmental/ministerial advisors
o
Ministers cannot rely on ‘delegating’ important fact-finding tasks/processes to
advisors/officials (note the inter-relationship with the improper delegation ground):
(Peko-Wallsend (HC); Tickner v Chapman (FFC))
o
Tickner v Chapman: owners of land opposed to decision made by Minister

Full Fed Court held: leg said Minister must have regard to reports sent to him etc,
meant he had to personally turn his mind to it and consider it before reaching
decision

It is no excuse to say went to departmental staff and they didn’t bring it to his
attention

Does leg in question confer power on a Minister and makes it clear that the
Minister must personally consider / do that task?

High benchmark re Minister’s exercising statutory powers; Ministers must be
aware of relevant issues!
Examine the statutory
decision-making power
What factors bind the
decision-maker?
What are the implied
factors? Consider:
Where no express factors
Scope
Purpose
Subject matter
Page 32
2. Taking into account an irrelevant consideration

(ADJRA s 5(2)(a); JRA s 23(a))
Same approach as failure to take into account a relevant consideration
Where a Minister is the repository (source) of the statutory power

Courts inclined to provide more leeway to Ministers in determining what is an irrelevant
consideration (cf. failure to consider relevant consideration)

Consideration relates to policy/politics: If irrelevant consideration relates to policy / political
matters may be hard to show they took into account an irrelevant consideration – courts will not
entertain arguments that political considerations used as one basis is an irrelevant consideration
(Hot Holdings)
o
Hot Holdings: may be cases where a Minister may have properly had regard to a wide
range of matters, some on particular fortunes of gov of which Minister is a member, and
may exercise power according to government policy – won’t be an irrelevant consideration

When object of leg is clear but gov has express a policy which conflicts – courts are
reluctant to say DM can’t have regard to that policy

Murphyores: SC indicated that where Minister entitled to take account of what is/isn’t relevant,
court not going to define too closely

NB. some overlap with ‘inflexible application of policy’ and ‘improper purpose’ grounds [see later]
3. Exercise of power for improper purpose
(ADJRA s 5(2)(c); JRA s 23(c))
Approach:


What is the proper purpose (legislative) of the DM power?
o
Look at subject matter, scope and purpose – what is the statute about, why does it exist?’
o
May not be express, may be implied
Was the DM made for an inconsistent (improper) purpose?
o
Sydney MC v Campbell: Act gave council authority to resume land for “improving or
remodelling an area” or “widening or extending public roadway” (the proper purpose)

o
Schlieske: German citizen in Aus had visa revoked, German authorities advised he was
wanted for drug offences – Aus gov with Germany set about organising extradition to
Germany – however, used Migration Act deportation power to do if (after extradition
proceedings under the Extradition Act failed)

o
Held: improper purpose – rule of law, procedures with protections built in – officials
must act correctly
Kwinsnax v LCC: LCC had power to make bylaws – prohibited sale of food from “stalls”
without a licence – evidence showed mobile food vans unlikely to ever get a licence, it was
clear LCC was doing a favour to local shop owners and keeping mobile vendors out


HC held: the actual purpose of the council’s resumption was to sell resume land for
a profit to improve its financial position = improper purpose
SC held: actual purpose was to protect local shops against competition from
mobile vendors = improper purpose – couldn’t rely on general commercial power
when it wasn’t for that purpose
Was the decision made for multiple purposes (proper and improper)?
o
Difficulties arise where the evidence indicates the power was exercised for multiple
purposes, both proper and improper
Page 33
Together = the Acts
o
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Thompson v Randwick: the HC held it was not necessary for the applicant to show that the
improper purpose was the sole purpose for the exercise of the power, sufficient if it was
the substantial purpose for its exercise

will be satisfied if decision would not have been made but for the improper
purpose (Samrein))

If it was substantial purpose = decision rendered unlawful
4. Bad faith
(ADJRA s 5(2)(d); JRA s 23(d))

Overlaps with “exercise of power for an improper purpose” ground (FCT v Futuris) – key
difference turns on dishonesty

Connotes corrupt, dishonest or capricious behaviour – heavy burden of proof imposed – the
evidence must show a lack of any honest or genuine attempt to perform the function (FCT v
Futuris)

Crown v Toohey: Aitkin J set out 3 types of bad faith, exercise of power:




o
By corrupt person for personal gain;
o
o
For improper purpose without any attempt at personal gain;
Act beyond power irrespective of motive (wouldn’t normally refer to bad faith – generally
first/second type)
SBBS v MIMA sets out 9 points (Tamberlin, Mansfield and Jacobson):
o
An allegation of bad faith is a serious matter involving personal fault by the DM
o
o
The allegation is not to be lightly made and must be clearly alleged and proved
Bad faith may manifest in different ways - it is not possible to give a comprehensive
definition
o
The presence or absence of honesty will often be crucial
o
The circumstances where a court finds an admin DM had not acted in good faith are rare
and extreme
o
Mere error or irrationality does not demonstrate bad faith – bad faith requires more
than poor decision-making
o
Error of fact or law and irrationality will not demonstrate bad faith in the absence of other
circumstances which show capriciousness
o
A court must decide if there is bad faith by inference from what a DM has done or failed
to do and from the extent to which the reasons disclose how the DM approached the task
o
It is not necessary to demonstrate that the DM knew the decision was wrong – Bad faith
may be demonstrated by recklessness in the exercise of the power
SBAU v MIMA (Mansfield): the tribunal embarked upon its review with a mind fixed on rejecting
the claims:
o
It Ignored claims of harassment and intimidation
o
It made assertions contrary to the information available
o
It acted capriciously in addressing the review
o
Its doubtful fact-finding indicated more than legal or factual errors
SCAZ v MIMI: tribunal’s failure on 2 occasions to grant an adjournment constituted a reckless
disregard for the provisions of the Act it was required to observe
o
It actions were “arbitrary and capricious”
o
Its actions could not be characterised as a bona fide attempt to exercise the power
NB. Possible overlap with fraud (see below) (SZFDE v MIC)
Page 34
5. Exercise of power at the behest of another
(ADJRA s 5(2)(e); JRA s 23(e))

Consulting and obtaining advice from another is, in itself, permissible

The issue is always: was the DM overborne?
o
ie. attempt to influence person who was given power in such a way that person not
exercising power themselves = invalid decision

Role of portfolio ministers: Difficulties re role of portfolio Ministers – tells someone down the line
to make a decision – is DM overborne?

Subject matter – high level gov policy: Difficulties where the subject matter involves high level
gov policy – overlap with “fettering discretion” ground (Ipec Air)
o

Ipec Air: met requirements but there was a delay, when Ipec enquired, told matter was
now one for the Minister for decision on political grounds, Ipec questioned further

3:2 – majority found recusal of the licence to import the aircraft to be a valid
decision

2 judges concluding DG had still made his own decision in the matter;

Windeyer J concluding DG in these circumstances was bound to have regard to
gov policy and to exercise functions accordingly (this approach found support in
Ansett Transport)

Menzies J (dissent) noted that the reason for conferring power on D-G rather than
Minister was to prevent gov policy from outweighing all other considerations

Kitto J (dissent) taking into account policy was relevant, but here found Director
General completely overborne by Minister
Bread Manufacturers: NSW Prices Reg Act set up body which had statutory powers to make an
order fixing max price of bread – Comm made series of orders increasing max price of bread
o
On the facts, Comm had contacted Minister before making order, requesting advice [p156]
o
BM challenged max amount set (wanted it to be higher)
o
Found Minister had overborne Comm; Comm had acted under dictation
o
HC held: Not sufficient evidence of acting under dictation – simply speculative – wouldn’t
expect Comm to act in isolation, would expect they would consult with the Minister and
that the Minister’s view would be fairly persuasive
Page 35
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
6. Inflexible application of rule/policy (fettering discretion)
(ADJRA s 5(2)(f); JRA s 23(f))

“An exercise of a discretionary power in accordance with a rule or policy without regard to the
merits of the case.”

“rule or policy” means a non-statutory (or extra-legal) rule, guideline, policy, precedent etc
such as a manual to guide DMs – need to ask:
1. Is the policy / manual / guideline lawful? (Green v Daniels)

In Green the policy was not lawful because it prevented the operation of quite
specific statutory criteria in respect of certain applicants [p159]
2. If lawful, was it “blindly applied without regard to the merits of the case”?



The law requires that as a DM, must put the policy to the applicant and give them a
chance to address why the policy shouldn’t apply to their application
Neat: relevant leg established marketing scheme for sale of wheat – body given authority to issue
permits to export bulk wheat but its consent was subject to veto by an incorporated trading comp
o
Trading comp had policy not to approve bulk export permits on basis such export would be
detrimental to pool growers
o
Appellant had applied unsuccessfully to export wheat
o
Was JR available for inflexible application of a policy?
o
No, 3:2 majority – policy itself was not unlawful, was consistent with and reflected the
purpose of the statute
o
Kirby (dissent) Whilst statute effectively game company a majority and favoured its
commercial interests – still had to consider the effect on those interests of each application
– at least some of the app’s requests were rejected without regard to their merits
Ansett (considered Air Ipec): nothing improper in seeking to persuade DM to act in accordance
with gov policy; not wrong to give even conclusive weight to policy; bound to observe the policy (in
Ansett circumstances – Barwick CJ); concept of responsible gov obliged DM to exercise discretion
according to lawful gov policy unless leg unambiguously stated otherwise [p162]
Page 36
7. Unreasonableness
(ADJRA s 5(2)(g); JRA s 23(g))

A controversial ground of judicial review – appears to violate the ‘legality v merits distinction’
(Peko-Wallsend Mason J)

Definition: a decision made in circumstances where no sensible person could ever dream it
lay within the powers of the authority to make it (essentially means there was no real or
genuine exercise of the direction) (Wednesbury)
o
Licence issued to cinema operators on such terms as thought fit, issued to operator with
condition that no children under 15 could attend Sunday screenings – pl sought to
challenge condition, felt it was arbitrary
o
Held: ground of JR not made out – it did not meet threshold requirement of
unreasonableness as was in the scope of the DM power, not so unreasonable as to be
outside the contemplation of the exercise of the power

The ground is not made out by a simple assertion that, on the facts, the decision appears to be
generally ‘harsh or unreasonable’

May overlap with other grounds – eg. bad faith or a significant breach of the NJ bias rule
What indicia identify “unreasonableness”?




3 part test (Fares Rural Meat):
o
A capricious choice of powers available to the decision-maker
o
An exercise of power involving discrimination without justification
o
An exercise of power out of proportion to the scope of the power
MPI v Austral Fisheries: Minister declared fisheries management plan (a delegated leg power),
part of which adopted formula
o
Held: unreasonableness ground made out – was “an exercise of power resulting in
arbitrariness, injustice or partiality”
o
Formula set forth in the plan resulted in anomalies – no reasonable person could have
devised it – so artificial and created such extraordinary results that it was not within the
scope of the statutory power
Proportionality (UK based approach)
o
Often used in Australia as the indicia of unreasonableness in relation to review of
delegated legislative powers (by-laws) (SA v Tanner; Vanstone v Clarke) – ie. out of
proportion to what’s given by statute
o
SA v Tanner: HC held that keeping waterways safe is so critical and important, the
exercise wasn’t disproportionate so the ground wasn’t made out
o
Vanstone v Clarke: Minister had power to make written determination providing that
specified behaviour is taken to constitute misbehaviour for the purposes of the Act
Irrationality / Illogicality
o
Illogical/absurd reasoning - a flawed process of fact finding:
o
(ABT v Bond Mason CJ): a decision unsupported by reason may be judicially reviewable
for unreasonableness
Page 37
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Recent developments

Emergence of a separate ground of review known as irrationality / illogicality

First explained by Gummow J in Eshetu:

o
‘Wednesbury unreasonableness’ only applies to an exercise of a discretionary power
(not a fact-finding function)
o
However, a fact-finding function which conditions a power (eg “If A & B exist, the Minister
may..”) is reviewable for ‘irrationality/illogicality where, on the available evidence, the
factual conclusion is not reasonably open to the decision-maker
The ground now appears to be fully recognised by the High Court:
o
Re MIMA ex parte App S/20 (2002)
o
MIC v SZMDS (2010)
Eshetu:
involves 2 separate apps – 2nd one – E to invoke HC’s original jurisdiction arguing tribunal’s decision void
for unreasonableness
 Illogicality of reasoning
 Where fact finding function conferred by statute as pre-condition to ex of power (where decision-making
power dependent upon determination of jurisdictional facts) then can attack first part of it on basis of
illogicality of reasoning
 Gummow saying that Wednesbury unreasonableness ground does not apply to 2nd dot point ^^ (factfinding) when looking at fact-finding this ground of illogicality can apply
 Problem – as HC started to get comfortable with Gummow’s approach, it’s asserting it’s not enough to
show that decision-maker might arrive at different facts; if reasonably intelligent minds could come to
different conclusions on facts – insufficient
 Arrived at decision by looking at app’s testimony and rejecting it (didn’t believe him) – then rejected
corroborative testimony because of that…
 There was nothing illogical/irrational in way went about making determination on facts as whole...
SZMDS:
 Most recent decision – majority of 3 found against app – but all judges endorsed emergence of this
ground of JR
 Pakistani citizen – applied for protection visa – feared persecution based on homosexuality
 Have to show some step taken was so irrational/so illogical that it undermines decision
 All judges accept ground, just getting over threshold which is issue
SZJSS:
 Husband and wife Nepalese couple – if sent back, persecuted… Gave warning to lawyers – ground of
JR is not made out by dressed-up argument that diff conclusion could have been reached on facts,
need to show that if flaw wasn’t there would pretty much definitely come to opposite conclusion
Page 38
8. Uncertainty
(ADJRA s 5(2)(h); JRA s 23(h))

“An exercise of power in such a way that the result of the exercise of power is uncertain”

Some doubt as to whether uncertainty is a recognised common law ground of JR
o
Appears at least as a ground applicable to the exercise of delegated legislative powers
(by-laws) (King Gee Clothing; Television Corp)

Television Corp: conditions invalid as inconsistent with enabling statute, Kitto J
specifically found the conditions were invalid for uncertainty in the sense that the
stat power relied upon had to be exercised with certainty
9. Abuse of power
(ADJRA s 5(2)(j); JRA s 23(i))

“Any other exercise of power in a way that is an abuse of the power”

Possible overlap with unreasonableness (Sunshine Coast v Duncan)

Possible unequal treatment (possible emerging ground)
Page 39
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
FRAUD
(ADJRA s 5(1)(g); JRA s 20(2)(g))

“that the decision was induced or affected by fraud

Onus of proof requires app to establish, on balance of probabilities, that the decision was actually
induced by fraud - ie mere suspicion or a “real possibility” is not sufficient (Wati v MIEA)

The fraud ground is relatively uncommon, given that it involves conduct that likely to be the
subject of criminal or statutory penalty.
Fraud by a party to the proceedings

Most cases involve fraud practised on the DM by a party to the proceedings (Price v Elder)
Fraud by the DM

The fraud ground can apply where the alleged fraud is practised by the DM – (Wati v MIEA)
(the court was referring to a provision of the Migration Act 1958 (Cth) identical to ADJRA s 5(1)(g))
o
Cases involving alleged fraud by the DM are also likely to enliven the grounds of
‘improper purpose’ and ‘bad faith’
o
However, unlike the ‘bad faith ground (where the bad faith is by the DM), the fraud ground
mostly operates where the fraud or dishonesty is practised on the DM by another.
Fraud by third party

Fraud may be practised on the DM by a third party – (SZFDE v MIC)
o
Eg. decision made on what turns out to be perjured evidence
Page 40
NO EVIDENCE
No evidence as a common law ground of JR


Basis of “no evidence” at common law:
o
JR (by courts) is distinguished from ‘merits review’ (eg by tribunals) – ie JR does not
permit courts to re-examine the facts before the DM
o
JR is based on establishing an error of law by the DM (the fact-law distinction)
However, a complete absence of evidence for a finding of fact is an error of law – hence, ‘no
evidence’ exists as a ground of judicial review
Australian position

The ‘no evidence’ ground requires a complete absence of evidence to justify the decision
o

[much stricter test than UK]
R v A Stevedoring IB: the court distinguished between a mere insufficiently of evidence to
support a conclusion of fact (when the function of finding the fact has been committed to
the tribunal) and the absence of any foundation in fact for the fulfilment of conditions upon
which in point of law the existence of the power depends
It is not sufficient to merely show an ‘insufficiency of evidence’
o
ABT v Bond per Mason CJ: the law has always recognised that the existence or
otherwise of evidence to support a factual conclusion is a question of law

So the making of findings in the absence of evidence will constitute an error of law
UK position

[much less strict test than Aus]
An ‘insufficiency of evidence’ will establish the ground (eg. Coleen Properties Ltd)
No evidence as a ground under statutory JR

Under ADJRA / JRA – two possible avenues:
o
“..that there was no evidence or other material to justify the making of the decision..”
(ADJRA s5(1)(h)); or
o
“..that the decision involved an error of law, whether or not the error appears on the
record of the decision..” (ADJRA s5(1)(f))
Relationship between the two:

S 5(1)(f) incorporates the pre-existing common law ground

S 5(1)(h) is an additional ‘no evidence’ ground unique to statutory judicial review (ABT v
Bond – per Mason CJ)

ABT v Bond:
o Pre-existing common law ground in encapsulated in 5(1)(f) because where no evidence to
justify decision at all would constitute error of law
o What’s purpose of (h) then? To add on a second bite of the cherry re no evidence ground, stat
extended ground as add-on, effectively if can satisfy common law test, could rely on (f)… But if
can’t show complete absence of evidence, might have to refer to 5(1)(h) – when read on, s 5(3)
tells us can’t make out (h) unless satisfy (a) or (b) – needs to be read in conjunction with s 5(3)
ADJRA s 5(1)(h) – must be read with s 5(3)

s 5(3) ADJRA provides that “the ground specified in s 5(1)(h) shall not be taken to be made
out unless…”

Two limbs:
Page 41
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
1. s 5(3)(a) the DM was required by law to reach the decision only if a particular matter was
established, and there was no evidence… .from which he or she could reasonably be
satisfied that it was established; or

“particular matter” - the statute must require that a “particular matter” be established
as a condition precedent to making a valid decision (West TV v TV Capricornia)

Need to look at what the statutory provisions say

Eg. If A and B exist, the DM may do…

“no evidence or other material..” - ie the ground does not depend on showing an
absence of legally admissible evidence to support the decision

“from which he or she could reasonably be satisfied…” - this liberalises the common
law – ie. no need to show a complete absence of evidence to support the decision a lack of probative evidence to support it will suffice (ABT v Bond per Mason CJ)

Just need to show not enough evidence that they could be reasonably satisfied
it existed
2. s 5(3)(b) the DM based the decision on the existence of a particular fact which did not exist

“particular fact” – generally means a ‘secondary’ or ‘ultimate’ fact, rather than a
‘primary’ or ‘evidentiary’ fact (Curragh Qld Mining)

“based on” - means that the fact must have been critical (not peripheral) to the
making of the decision (Curragh Qld Mining)


Curragh Qld Mining – the ”fact” may be a link in a chain of reasoning

Rajamannikam – the “fact” must be one without which the decision would
not have been made

eg. B walked across road at 9pm
“that fact did not exist” – it’s necessary to do more than demonstrate an absence of
evidence to support the “fact” – you must show that the “fact” did not exist
(Rajamannikam – not enough to show reasonable person wouldn’t make decision)
Curragh Qld Mining:
 App entered into contract to supply coal , imported machine – tariff concession was available to
importer of such equipment if could show no suitably available machine in Aus,
 Sought tariff concession
 Rejected concession on assumption that app could get terms of contract varied to have later delivery
date and get Aus machine
 Fed Court said decision based on particular fact that app able to vary terms of contract (they had
already signed) – that fact did not exist
 Fact must be critical to decision – the decision here was totally based on that fact, or small fact
in chain of reasoning may be sufficient as well
Rajamannikam:

looked at way stat no evidence ground operated - supported Curragh Qld Mining

RRT listed reasons why it found app not refugee – app tried to say RRT based on 8 facts which did
not exist, but unable to sustain argument by time got to HC – 2nd part of limb, must show particular
fact, decision based on that fact, and that the fact did NOT exist

HC held: Not enough to show reasonable person wouldn’t make decision, actually have to
negate that particular fact! Show it doesn’t exist
Page 42
JURISDICTIONAL ERROR
JE under common law

“that the person who made the decision did not have jurisdiction to make the decision”

The original common law basis for JR of decisions of inferior courts & later, administrative
tribunals

Developed in connection with the common law prerogative writs of certiorari & prohibition

The only basis on which to invoke the ‘constitutional writs’ before the High Court under s75(v) of
the Constitution

Will mostly ‘trump’ legislative privative clauses which seek to immunise administrative decisions
against JR – see Pl S157 (later)
Types of JE
1. Narrow type: ‘lack of’ juris – where there is no jurisdiction at the outset - ie a threshold issue
1. Complete absence of jurisdiction (Coco; Re Tully)
o
Coco: listening devices used to obtain info from Coco’s factory – judge had no authority
under Act to issue warrant to do that
o
Re Tully: appealed against annulment of probation

Before appeal heard, said Appeals Board had no jurisdiction to hear appeal

Tully said Board did have juris because dismissal, SC said no – he was on probation,
and they annulled it, refusal to confirm probationary employment
2. Constructive failure to exercise jurisdiction (Bhardwaj; Dranichnikov)
o
Bhardwaj: in Aus on student visa – visa cancelled when didn’t commence study, appealed,
became ill sent fax– fax went missing, Registry heard matter in absence
 HC held: when the relevant leg provisions were examined in detail – observance of
rules of PF are a condition precedent to valid exercise of tribunal’s power
 Effectively failed to exercise jurisdiction because failed to observe precondition, the first hearing was a nullity
o
Dranichnikov: Russian business man – see textbook , RRT failed to properly identify social
group man a member of, which required to do as first step to see if refugee – because
first step wrong, everything that followed was nullity
Page 43
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
3. Jurisdictional facts (City of Enfield)
o
o
Important type of basic JE - situation where statute says something – eg. “If A exists,
decision-maker may do…”

The juris fact = the existence of A, must actually exist and, if it doesn’t, then
decision-maker has no juris to do make the decision

Looks like violates distinction between merits review and judicial review
City of Enfield: Waste management process – comp applied to Comm to enlarge waste
disposal plan – 2 separate pathways for decision-making…

HC allowed council’s appeal – trial judge was correct – leg directed Comm to proceed
and deal with application in one of two ways depending on whether special industry or
general industry

The key point being that leg did not give comm discretionary power to determine
whether special/general industry – was worded as “if A exists, decision-maker shall do
this” – if got characterisation wrong at start, = JE

Cf. “In DM’s opinion does A exist…” – this would require an opinion formed
reasonably on the materials before the DM
o
NB. Unreasonableness only applies currently in the case of an exercise
of discretionary power and may therefore be unavailable to challenge a
process of fact-findig re determining juris facts – parameters of ground
of irrationality/illogicality re challenging juris fact-finding requires further
elaboration

JR courts rationalised cross-over between JR and merits review – throws up juris fact
question – not matter that’s within discretion of decision-maker’s authority – whether A /
B exist minister may – whether A or B exist, juris fact which JR court can determine for
itself

HC went further to discuss US doctrine – rejected (Chevron Doctrine – governs
interference by review courts in the fact-finding of US Fed Reg authorities)
Page 44
2. Broad type: ‘excess of’ jurisdiction – where DM commits a fundamental error (a jurisdictional
error) after correctly entering upon the territory


JE is not confined to the ‘narrow’ or threshold kind of error of law but includes (Anisminic):
o
Breach of the rules of NJ
o
Bad faith
o
Failure to consider relevant material
As a result, UK courts hold that the ‘Anisminic doctrine’ (‘excess of jurisdiction’) means:
1. All errors of law amount to ‘jurisdictional error’
2. No distinction drawn in this regard between admin tribunals and inferior courts


Au courts have retained the distinction between:
o
errors of law sufficient to constitute jurisdictional error and errors of law which are
insufficient to constitute jurisdictional error (Houssein); and
o
between what constitutes JE by an inferior court and what constitutes JE by an admin
tribunal (Craig; Kirk)

Means inferior courts are less likely than admin tribunals to commit JE

Craig: charged with criminal offences, to be tried in DC in SA (inferior court) – judge
made order staying proceedings

SA sought JR of order – said misapplied principles and committee JE

HC made distinction between inferior court and admin tribunal clear
Craig (reaffirmed in Kirk):
o
HC set out instances where JE can be committed by court/tribunal
 an inferior court will not ordinary commit JE where it:


fails to take into account some matter which it was, as a matter of law, required
to take into account in determining a question within juris; or

relies upon some irrelevant matter upon which it was, as a matter of law, not
entitled to rely in determining such a question
an inferior court will commit JE where it:



o
mistakenly asserts/denies the existence of juris;
o
eg. a court whose juris is limited to civil matters would act wholly
outside its juris if it purported to hear and determine a criminal charge
o
eg. if essential pre-condition of court’s juris exists, JE would arise if
court proceeded where that event has not occurred
misapprehends or disregards the nature or limits of its functions or powers after
correctly recognising juris does exist;
a tribunal will commit JE where it falls in to an error of law which causes it to (in
addition to ones for courts):
 identify a wrong issue;
 ask itself a wrong question;
 ignore relevant material;
 rely on irrelevant material; or
 in some circumstances, make an erroneous finding or reach a mistaken
conclusion
and its exercise of power is thereby affected, it exceeds its power and commits
JE which invalidates any order / decision of the tribunal
NB. List not exhaustive (Yusef) and recognised categories are not closed (Futuris – Kirby)
Page 45
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Privative clauses (PC) and JE

Privative clause: a leg clause which purports to oust or restrict JR
o
Eg. “no decision shall be challenged by any court by whatever means”
STATE:

In Hickman, the HC set forth the test that a PC would only protect a decision from JR where the
decision:
o
Was a bona fide attempt to exercise power
o
o
Did not, on its face, exceed the power conferred
Was reasonably capable of reference to the power
Here…

The Hickman test was reconsidered by the HC in Pl S157 which concluded the Hickman test was
merely a rule of construction (at best a first stage measure of protection); the real question is
whether the tribunal in question has violated an indispensible condition to the valid exercise of its
juris (effectively equating with juris error)

Pl S157 dealt with PCs in federal statutes, asserting a PC cannot deprive the HC of its
constitutional JR jurisdiction in s 75 Constitution.

Kirk v IRC reaffirmed Craig and focused slightly differently (preferring a Kable-type argument) but
reaffirmed Pl S157 and held that at state level, it is beyond the power of state parliaments to
interfere with the nature and existence of state SCs, by way of PCs

(cf. Darling-Casino which was indicated state PCs may preclude review for errors
of any kind – not considered by Kirk)

Further, Spigelman CJ in Mitchforce took the view that, in the context of state
legislation, the Hickman principle ‘operates by a process of statutory construction
without a constitutional overlay.
o
However, Kirk did provide that not all state PCs will be ineffective, but they will be if JE is
established
o
And PCs will protect decisions where all that can be established is an error of law not
significant enough to go to juris (eg. error of law on face of record) for which writ of
certiorari is available (ie. review of decision made by lower court).
o
Kirk did not consider the Hickman test and essentially makes it redundant.
ADJRA / JRA

NB. ADJRA provides the Act has effect notwithstanding anything contained in any law in force at
its commencement. This negates the operation of pre-existing PCs, but not post-ADJRA PCs.
Further, Schedule 1 excludes specific stat decisions from review (see also JRA s 18)

The ground of JE under the ADJRA and JRA (s 5/6(1)(c) ADJRA / s 20/21(2)(c) JR)

At CL, the following sections provide the basis for JR on the basis of JE:
o
HCA original jurisdiction = s 75(5) Constitution
o
FCA original jurisdiction = s 39B Judiciary Act (Cth)
o
QSC and QCA = Part 5 JR Act, s 43(1) Judiciary Act (Cth)
Page 46
Error of law on the face of the record

A common law, non-jurisdictional error of law ground – only by way of the writ of certiorari,
was originally to correct errors by inferior courts

Two requirements:
1. Must be an error of law (cf. an error of fact)
2. The error of law must appear on the face of the “record” (Craig v SA; Kirk)

Consider “no evidence” ground

Is it possible in given case for docs, other than those referred to, to be included in
the record?

Craig: because trial judge had said “for reasons already published I made order” it
was insufficient to include reasons in the order – ie. the court rules against the
proposition that the record included the trial judge’s reasons (reaffirmed in Kirk)


Re: the HC’s original jurisdiction - Certiorari for ‘error of law on the face of the record’ cannot issue
under s 75(v) of the Constitution - but possibly under ss 73(iii) or 76
o

= narrow view of “record” – “in the absence of some stat provision to the
contrary, the record of an inferior court for the purposes of certiorari does not
ordinarily include the transcript, exhibits or reasons for decision
Ie. s 75 writs only available for juris error (Alla)
Under ADJRA: “that the decision involved an error of law, whether or not the error appears on
the record of the decision...”
o
Does not require the error of law be on the face of the record
o
Overlap with “no evidence” ground -
Page 47
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
FAILURE TO MAKE A DECISION

This ground applies where the DM is under a duty (as opposed to having discretion) to make a
decision and has failed to do so (Brownsville; Wei)

Under stat JR, the provisions cover the situation where:
o
There is a prescribed time specified within which the decision must be made, and it is not
made within that time; and
o
Where there is no time specified but there has been unreasonable delay

Where the leg specifies a time for making a decision, it may also usually deem the lack of decision
within that time to be a “refusal” to make the decision

Where no time specified, court will determine if there has been a “reasonable delay” (Thornton)
Page 48
TOPIC 5: REMEDIES
REMEDIES UNDER COMMON LAW JR
 The origins lie in the establishment of the Supreme Courts, invested with the jurisdiction of superior
courts at Westminster to issue prerogative writs (Certiorari, Prohibition and Mandamus)
o
Certiorari: quashes / annuls a decision
o
Prohibition: stops / prohibits decision-maker from proceeding to make a decision (not
available if decision has already been made)
o
Mandamus: compels public officials to perform their duties
o
Quo warranto / Habeas corpus (not covered)
The High Court:
The Federal Court:
 Established by Ch III of the Constitution
 Its JR juris is conferred by s 75(v) – “in all matters
in which a writ of mandamus or prohibition or an
injunction is sought against an officer of the Cth”
 Constitutional writs: the s 75(v) writs - correct JE
The State/Territory Supreme Courts:
 Established by the Federal Court Act 1976 (Cth)
 Common law jurisdiction: conferred by Judiciary
Act 1901 (Cth) s 39B
 Statutory JR jurisdiction: conferred by the
ADJRA
The Federal Mags Court:
 Federal juris: State SCs may exercise federal JR
jurisdiction however this is confined by the
ADJRA and Jurisdiction of Courts (Cross-Vesting)
Act 1987 (Cth)
 Established by the Federal Magistrates Act 1999
(Cth)
 Such JR jurisdiction as is conferred by statute,
especially migration law matters
The writs of certiorari and prohibition
When do they apply? – the ‘Atkin formula’:
 The decision must be an exercise of ‘public’ power or authority
o
Ex parte Lavelle (no - power derived from a contract of employment)
o
Whitehead v GU (no - power derived from indust. agreement)
 The decision must ‘sufficiently affect’ the applicant
o
Ex parte Lain (yes - ex gratia comp. scheme determined eligibility)
o
Ainsworth (no - CJC report had no ‘legal effect or consequence’)

o
Certiorari only exists to quash legal effect
Hot Holdings (certiorari available against certain prelim. decisions)

Q: Does decision have effect on legal rights? Does it sufficiently affect rights?

Decision made at preliminary stage = SAME question, does it sufficiently affect rights?

Majority said Ainsworth an example of first situation – where looking at Minister’s
decision - one decision in question

In HH, clearly two-stage decision making process – did first step sufficiently affect
legal rights? If final decision can only be made in app’s favour if prelim decision in
favour of applicant – that preliminary decision will affect rights and attract
cert/prohibition if needed
 For a High Court comment on the scope of certiorari, see Craig v SA at 175
Page 49
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Special use of certiorari for ‘error of law on face of record’ (ELFR)
 ‘ELFR’ is a common law, non-jurisdictional error of law ground – it is available only by way of
the writ of certiorari
o
As to the elements of ELFR, see previous lectures and
o
Generally, see Craig v SA; Kirk
 Note re: the High Court’s original jurisdiction under s.75 of the Constitution - Certiorari for ‘error of
law on the face of the record’ cannot issue under s 75(v) but possibly under ss 73(iii) or 76.
The writ of mandamus
[compels public officers to do duties]
 Compels the performance of:
o
A ‘public’ duty (as opposed to eg. an obligation arising under a contract)
o
Which is owed by a ‘public’ official (acting in that capacity)
o
Applies against inferior courts - and other public bodies or officials where an identifiable
(usually statutory) duty or obligation applies

See Ainsworth v CJC (no - the CJC was not under any specific ‘duty imposed by
law’ to investigate and report)
o
Does not lie against Crown (State Governor or Gov-G.)
o
Does not entitle applicant to ask for a particular result
Restrictions on availability of prerogative writs
 They do not lie against the Crown (FAI v Winneke (State Governor/Governor-in-Council))
 Some uncertainty whether certiorari & prohibition lie against ‘legislative’ type decisions (R v Wright;
Ex parte Waterside)
 The writs are discretionary remedies –
o
Factors such as delay, futility & motive may be relevant
o
However, these factors may not be relevant for the constitutional writs under Const.75(v)
[and s.39B of Jud Act ] where jurisdictional error is established (SAAP v MIMI)

o
SAAP v MIMI: HC held that the nature of, or seriousness of, the breach of statutory
procedural fairness provisions (which conditioned the exercise of power) was not a
discretionary consideration
Eg. if go straight to JR and haven’t exercised other remedies first (QCAT review) court
make take that into account in awarding discretionary remedy
Constitutional writs before the High Court
 Const s.75(v) refers to “mandamus and prohibition..”
o
Implies ancillary/incidental jurisdiction to issue certiorari (Aala)
o
Referred to in this context as the constitutional writs (Aala)
o
Available against “an officer of the Commonwealth” [see s.75(v)]
o
Available under s.75(v) only to correct jurisdictional error (Aala)
o
So, certiorari for ‘error of law on the face of the record’ cannot issue under
Constitution s.75(v) but possibly under ss.73(iii) or 76.
o
Although they are discretionary remedies, SAAP v MIMI indicates that ‘nature or
seriousness’ of the breach will not be a discretionary consideration where the breach =
juris error (in that case, a breach of a stat. procedural fairness condition).
Page 50
Use of equitable remedies
 Injunctions and declarations used where:
o
Restrictions apply to prerogative writs (See Ainsworth v CJC)
o
Where the regimes of statutory JR not available:

against an exercise of delegated legislative power

against a decision by a Gov. or GG.
REMEDIES UNDER ADJRA / JRA
 A procedural reform: Removes the need to choose relevant writ or equitable remedy - ADJRA s5:
‘order of review’ / JRA (Qld) s20: ‘statutory order of review’
 Nature of remedies available - ADJRA s16 / JRA s30:
o
ADJRA s16(1)(a) – set a different date of effect for an order?

Yes in some circumstances – see Wattmaster v Button
o
ADJR Act s16(1)(c) - an order declaring the rights of the parties
o
ADJR Act s.16(1)(d) - an order directing a party to do, or refrain from doing any act or
thing…of which the court considers necessary to do justice between the parties

Does it allow court to award damages? – no, see Park Oh Ho

Does it allow court substitute a different decision? - only in ltd circumstances –
see MIMEA v Conyngham

Because constrained by separation of powers
Page 51
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Page 52
TOPIC 6: MERITS REVIEW (MR)

Constrained by sep of powers, confined to deciding whether decision correct according to law, court
cannot substitute own decision

MR – major contrast to JR because enables non-judicial tribunals to adopt more flexible approach to
decision-making, to substitute their decision for the one being reviewed

o
In some circumstances Par might decide that MR body might not have full powers to substitute
their decision for original decision, might just want tribunal to set aside and remit decision
o
Admin tribunals are creatures of statute – Par can change statute as it likes
Judges: Not a violation of Ch 3 for a Fed Court judge to sit as member of AAT, to sit and conduct nonjudicial body, because wearing different hat when sitting on AAT (Drake v MIA – said that was NOT a
violation of Ch 3, could do it)
What is MR?


MR is the process whereby an admin decision of the gov is reviewed ‘on the merits’, that is:
o
the facts, law and policy aspects of the original decision are all reconsidered afresh and
o
a new decision - affirming, varying or setting aside the original decision - is made.
MR is characterised by the capacity for substitution of the decision of the reviewing person or
body for that of the original DM (Admin Review Council (Report No. 39))
Peak MR tribunals in Aus

AAT = template model
o

NSWADT; VCAT; SAT (WA); QCAT
The key MR provisions of the AAT Act are replicated in statutes establishing the State versions
AAT
Establishment of the AAT

The AAT was established by the Administrative Appeals Tribunal Act 1975 (Cth) (AATA 75)
Membership:

Consists of a President and number of Deputy Presidents and other presidential members, senior
members and members

All are appointed by the Gov-Gen re leg guidelines:
o
President must be Federal Court Judge
o
Dep Presidents must be legal practitioners of at least 5 years standing etc [p249]

All appointments are for up to 7 years, with eligibility for re-appointment

Clearly one of the strengths of MR is ability to bring a significant non-legal expertise
Page 53
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Jurisdiction

Unlike the manner in which, for example, the Federal Court assumes jurisdiction under the ADJRA,
the AAT’s jurisdiction is conferred on it in a specific and ‘piecemeal fashion’ by particular statutes
AAT has no independent general review powers (Re Qantas) but NB. s 25(1) of the AATA

S 25(1) states that an enactment may provide for applications to made to the AAT for review of
decisions made in the exercise of powers conferred by that enactment

Actual empowerment – s 25(4) AATA – provides the tribunal has power to review any decision in
respect of which application is made to it under any enactment

Definition of enactment:
o

Defined in s 3 AATA to include Acts, Ordinances, and other statutory instruments including
rules, regulations or by-laws
Definition of decision:
o
Defined in s 3(3) AATA
o
A decision is a decision which is open/operative determination (Chaney)
o
A decision could be the exercising of powers given under an Act (Hales)

o



It is a substantive decision

This decision gives effect to the statute’s intention, when considering that
‘conduct’, ‘reports’ and ‘recommendations’ can be reviewed

An intermediate decision can be reviewed, only where it is provided for under the
statute, so that it can be characterised as a decision under an enactment
Inavlid/unlawful original exercise of power is reviewable: (ie. review is not limited to legally
valid decisions) (Re Brian Lawler)
o
The AAT’s review jurisdiction is not ousted because an original decision would be declared
a nullity if challenged before a court.
o
Its jurisdiction arises where there is a “purported exercise” of powers (Brian Lawlor)
o
Therefore, a decision may be reviewed even if it is technically invalid or legally ineffective.
o
But cannot affirm a decision of original DM not acting within its powers.
Must be a primary decision: the AAT is not a primary-decision maker – there must be a primary
decision (Re Tradigrain)
o

Where in that case, a decision to try and recover overpayment under social
security legislation could be a ‘decision’ under the AAT Act
ABT v Bond, which, while not being an AAT case, may still give some guidance: per
Mason CJ
 A decision is one that is final or operative, and determinative
NB. AAT can exercise powers and discretions which are associated with the DM power in
question but which were not actually exercised by the original DM
Question of an Act’s constitutional validity: the AAT will assume the Act under which the
decision is made is constitutionally valid:
o
The AAT may not examine the constitutional validity of an Act: Re Adams and TAB, per
Brennan J (as President)
Page 54
Standing

An application may be made by anyone whose interests are affected by the decision (s 27(1)
AATA)
o NB. doesn’t say “adversely affected” so not the same as ADJR
o
Interests need not be legal, proprietary, adverse or beneficial (Re Control Investments)
o
Interests must be ‘affected’ so someone who is just generally interested or who thinks
certain conduct should be observed won’t have standing (Re Control Investments)
o
A person who has standing under ADJRA/JRA or CL JR will have standing before the AAT
(Re Control Investments)

Process of statutory construction whether someone is considered to be interested in decisions
made under a certain act (Bris Airport Corp v Wright)

Additional standing rule for special interest groups:
o
An organization or association of persons, whether incorporated or not, shall be taken to
have interests that are affected by a decision if the decision relates to a matter
included in the objects or purposes of the organization or association (s 27(2) AATA)


Doesn’t apply to a decision made before the org/ass was formed / before objects
included matter concerned (s 27(3) AATA)
The AAT can decide if a person is a person whose interests are affected by a decision, and that
decision is conclusive (s 31 AATA)
Pre-Hearing Procedures
Application for review

Application to the tribunal is to be in writing, and must lodge two copies of statement of reasons
within 28 days of lodging the application: ss29(1); 37 AATA

Upon application for review, the President may order a preliminary conference – s.34A
o
The President may give directions as to ADR – s.34C
o
"ADR" means procedures and services for the resolution of disputes, and includes
conferencing; mediation; neutral evaluation; case appraisal; and conciliation; and
o
The AAT may make orders giving effect to the terms of a settlement reached – 34D, 42C
Hearing Procedures

To be informal & non-technical & expeditious: s.33(1)(b)

Based on model of inquisitorial fact-finding: s.33(1)(c)

AAT not bound by rules of evidence: s.33(1)(c)
o
However, should only proceed on ‘logically probative evidence’ (Re Pochi)
o
Can admit hearsay evidence, or non-expert opinion (Trkulja v AAT)
Page 55
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
AAT and rules of NJ

NJ is implied under general law principles (Sullivan)

Additional statutory obligations: s.39 – AAT shall ‘ensure a party a reasonable opportunity to
present case, inspect documents and make submissions.’

Note some exceptions – eg regarding Security Appeals Division hearings – s.39B

If one party wants to surprise or ambush the other party with some evidence (usually video
evidence in compensation cases), they are entitled to present their case in that way (APC v Hayes)
o
If the AAT interferes with this, it is counterproductive and can lead to a failure to afford a
fair hearing (Sullivan).
o
AAT cannot say that it is unfair to surprise the other party, cannot reject application to
suppress evidence until cross-examination – would be unfair to party trying to suppress it
(APC v Hayes).
o
Has been confirmed in later FCA cases (Re Bessey; Re Moline).
Evidence

As a ‘MR tribunal’ the AAT is not limited to evidence/material before the primary DM but may take
account of subsequent material (subject to the doctrine of accrued rights) (Shi v MARA)
The AAT & the role of government policy

MR may ‘interfere’ with govt. policy

General proposition is: AAT should ordinarily apply a ministerial policy unless the policy is
unlawful, or its application would result in an unjust decision (Drake No 2).

In Drake No 2, Brennan J (in the AAT) attempted to assemble an approach:

o
Firstly, AAT should ask if the policy is unlawful or not.
 Will be unlawful where:
 Effect of policy is to prevent the operation of statutory criteria (Green)
 Policy is contrary to the statute (Green)
 Policy changes the way the Act works (Green)
 The policy is substituted for the actual operation of the Act (Green)
o
Secondly, ask whether strict application of the policy could produce an unjust result or not.
o
Thirdly, if the AAT departs from the policy, cogent reasons need to be given.
o
Fourthly, the level of government at which the policy is settled should be considered.
 If high-level (ie ministerial), substantial weight must be given to it.
 If low-level (ie departmental guideline, manual or policy), treat with less deference
(although consistency still plays a role).
Where a policy is given legislative backing (ie given the status of legislation, referred to in
legislation etc), it must be treated as law (SDSS v Collins).
Page 56
DM powers of the AAT


See section 43 of the AATA - MR is a full de novo hearing:
o
“...the tribunal may exercise all of the powers and discretions conferred by the enactment
on the person who made the decision..” (s.43(1))
o
and may affirm /vary/set aside & substitute/set aside and remit (s.43(1)(a))
However:
o
The AAT has no greater powers than original DM (Brian Lawlor)
o
The AAT is an appeal body, not a ‘primary DM – so it cannot exercise a power not
engaged or exercised by the primary DM in the decision under review (Tradigrain)
Page 57
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
Appeals from the AAT to the Federal Court

An appeal is only available (s 44 AATA):
o
from a “decision” of the AAT 
There will only be a decision of the AAT where it is the effective decision or
determination of the application for review (Chaney)

o

Therefore, it excludes interim rulings or adjudications etc.
on a “question of law” –
 Erroneous statutory construction
 Breach of natural justice
 Unreasonableness
 Taking into account of irrelevant considerations
 Rule of thumb: grounds of review listed in ADJRA / JRA are all questions of law
The phrase “on a question of law” in s 44 is narrower than “involving a question of law” (Etheridge)
o
Therefore, need to identify a specific question of law to get to the FCA under s 44 AATA
o
It’s not enough to just say that the AAT generally misconstrued the statute – need to be
granular
o
Whether facts fall within the meaning of a term used in the legislation is a question of fact,
not law (Etheridge)
Page 58
TOPIC 7: OMBUDSMEN


Ombudsman Act 2001 (Qld) = QOA
Ombudsman Act 1976 (Cth) = COA
What is the Ombudsmen (Qld and Cth)?
The general nature of the O:

The primary function of the O is to investigate complaints from the public relating to admin
actions of agencies (s 5 COA; s 12 QOA)

The O does not exercise judicial or other determinative powers.
How is O’s jurisdiction enlivened?

Citizen complaint

Ombudsman initiated inquiry (s 18(1)(b) QOA; s 5(1)(b) COA)

Parliamentary referral (s 19 QOA)
Which entities are covered?

Generally, O’s juris is confined to actions of gov agencies
o An “agency” is a (s 8 QOA)
 Government department
 Local government department
 Public authority
 Defined broadly as an entity established for public purposes under an Act
(s 9)
 Not an individual
o Also includes things done on behalf of an agency, for example, things done by an
independent contractor on agency’s behalf (s 10)

Qld Exclusions: some activities, persons and orgs are excluded from being investigated:
o Operational conduct of police officers / officer of Crime and Misconduct Com (s 7(2))
 NB. Admin actions of police are within O’s office, complaints dealt with by CMC
o Holder of judicial office or someone who works in a court (s 9(2)(c)-(d))
o A decision made by Cabinet is excluded (s 16(1))
o Person acting as a legal adviser to the State (s 16(2)(b))
o A conciliator under the Health Rights Commission Act 1991 (Qld)
o Some Government Owned Corporations (GOCs) [see below]

Cth Exclusions: Actions by Ministers, Parliament, Judges excluded (s 5(2))

GBEs and GOCs
o
Cth GBEs: prescribed authorities includes Cth controlled companies (COA applies to
“departments” and “prescribed authorities”) – pre-1994 Cth comps are excluded, as are
others by Regs
o
State GOCs / SOEs / SOCs: The approach varies:

The Government Owned Corporations Act 1992 (Qld) excludes review of GOCs
by the QOmbuds

Ombudsman Act 1978 (Tas) includes review of Tas GBEs & SOCs.
Page 59
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
What is the juris of the O?
When can the O proceed to investigate?

Is it “a matter of administration” (Cth s5) or an “administrative action” (Qld ss12,14, 18,19)
o
What is “administrative” or not will be resolved on a case-by-case basis (Booth v Dillon
(No 1))
o
Mere incidents or unauthorised actions may not be caught (Booth v Dillon (No 1))
o
O not able to investigate policy per se but can investigate how policy operates in
particular cases (Biganovsky)
o
Traditional classification of governmental powers as either legislative, judicial or
administrative will often be a useful guide (Glenister v Dillon)
o
The question is “Is the action designed to discharge an executive function or is
reasonably incidental to it?” If not, then probably not administration.
o
Professional and commercial decisions may be matters of administration for the
investigative purposes of the O (Re BC… and Friedmann)
 Though note operation of GOC legislation (in exclusions above)
o There must be a distinction between higher-level policy (broad statements of
government direction), as these are immune from investigation, and between lower level
policy, which merely provides procedural or interpretative guidance on exercise of
statutory powers, which are investigable.
 This is assessed on a case-by-case basis
Can the O refuse to investigate?

Where, in the opinion of the O, certain factors exist, O may decide not investigate (s 6 COA;
s 23 QOA) – extensive list of factors:
o Applicant does not have a direct interest
o Matter is before (or would be better dealt with by) a court or tribunal etc
o If matter is trivial, frivolous or vexatious
o Other alternatives exist for redress
o In all the circumstances, an investigation is not justified
(s 23)
23 Refusal to investigate complaint
(1) The ombudsman may refuse to investigate a complaint or, having started to investigate a complaint, may refuse to continue the
investigation if the ombudsman considers that—
(a) the complaint is trivial; or
(b) the complaint is frivolous or vexatious or is not made in good faith; or
(c) the complainant does not have a sufficient direct interest in the action complained of; or
(d) both of the following apply—
(i) the complainant has a right of appeal, reference or review, or another remedy, that the person has not
exhausted;
(ii) it would be reasonable in the circumstances to require the person to exhaust the right or remedy before the
ombudsman investigates, or continues to investigate, the complaint; or
(e) both of the following apply—
(i) the complainant had a right of appeal, reference or review, or another remedy that is exhausted;
(ii) in the circumstances, the investigation, or the continuance of the investigation, of the action complained of is
unnecessary or unjustifiable; or
(f) in the circumstances, the investigation, or the continuance of the investigation, of the action complained of is
unnecessary or unjustifiable.
(2) Also, the ombudsman need not investigate a complaint to the extent that the ombudsman is satisfied a complaints entity has
investigated, or will investigate, the action complained of at a level at least substantially equivalent to the level at which the
ombudsman would otherwise investigate the complaint.
(3) A right or remedy mentioned in subsection (1)(d)(i) or (e)(i) does not include a right under the Judicial Review Act 1991 to make
application to the Supreme Court.
(4) If the ombudsman—
(a) can not investigate a complaint; or
(b) refuses to investigate a complaint; or
(c) refuses to continue an investigation of a complaint;
the ombudsman must inform the complainant, in a way the ombudsman considers appropriate, of the decision and the reasons for the
decision as soon as reasonably practicable.
Page 60
O’s investigation powers and procedures

Ombudsman Act 1976 (Cth) (ss.7A,8)

Ombudsman Act 2001 (Qld) (ss 24-26; Part 4)
o
24 Investigations generally
The ombudsman may conduct an investigation or part of an investigation—
(a) informally; or
(b) by exercising powers under part 4 (s 24 QOA)
o
25 Procedure
(1) Unless this Act otherwise provides, the ombudsman may regulate the procedure on an
investigation in the way the ombudsman considers appropriate.
(2) The ombudsman, when conducting an investigation—
(a) must conduct the investigation in a way that maintains confidentiality; and
(b) is not bound by the rules of evidence, but must comply with natural justice; and
(c) is not required to hold a hearing for the investigation; and
(d) may obtain information from the persons, and in the way, the ombudsman considers
appropriate; and
(e) may make the inquiries the ombudsman considers appropriate.
o
26 Consultation
(1) The ombudsman may, during or after an investigation, consult any Minister who is concerned
in the action complained of.
(2) The ombudsman must consult with a Minister if—
(a) either—
(i) the Minister asks to consult with the ombudsman about an investigation; or
(ii) an investigation relates to a recommendation made to the Minister; and
(b) the ombudsman is considering making a report under section 50 about the
investigation.
(3) If, during an investigation, the ombudsman considers there may be grounds for making a
report on the investigation that may affect or concern an agency, the ombudsman must, before
making the report, give the principal officer of the agency an opportunity to comment on the
matter under investigation.
(4) In this section—
Minister includes a local government's chairperson, mayor or president.
o
Part 4 – Powers & Procedures for Investigations
O’s reporting powers

Ombudsman Act 1976 (Cth) (s 15)

Ombudsman Act 2001 (Qld) (Part 6 – NB. individual misconduct reporting power in s 50(2))
o
The O may make the following recommendations (s 50)
 Reconsideration of the matter by the agency
 That the agency take action to rectify, mitigate or alter the effects of the action
 That any practice in accordance with which the action was taken be varied
 That any law in accordance with which or on the basis of which the action was
taken be reconsidered
 That reasons for future reasons should be given
 Any other steps the O thinks fit
 Note that this will be an apology
o
NB. s 50(2) If, during or after the investigation, the ombudsman considers there is evidence of a
breach of duty or misconduct on the part of an officer of an agency, the ombudsman—
(a) must give a report about the breach of duty or misconduct to the agency's principal
officer; and
(b) may, if the ombudsman considers it appropriate in the circumstances, send a copy of
the report to—
(i) the responsible Minister for the agency; and
Page 61
Together = the Acts
Administrative Decisions (Judicial Review) Act 1977 (Cth) = ADJRA
Judicial Review Act 1991 (Qld) = JRA
(ii) if the agency is a local government, the local government's chairperson,
mayor or president.
Page 62