Admin law cases with principles and pages PDF

Preview

Summary

One line summaries of principles for each case. With page numbers for Douglas & Jones book and Head book...

Description

Administrative law case list The Text pages of Douglas & Jones refers to the 2017 edition)

Jurisdiction: • o o o

State supreme court – original jurisdiction High Court s 75 Constitution – original jurisdiction (note s 44 Judiciary Act) Federal Court s 39B Judiciary Act – inherent jurisdiction Federal Court ADJR Act: more flexible, better remedies, more grounds. If you can use this, take it.

‘Administrative character’: ▪ ▪ ▪

Minister for Industry and Commerce v Tooheys (1982) (p674 D&J) • Standing under ADJR Act: ‘persons aggrieved’ QLD Laboratories v Blewett (1988) (p675 D&J) • Changing the content of the law, not a decision – legislative! SAT Fm (1997) (p677 D&J) • Sundberg J factors: the difference between legislative and administrative decisions.

ADJR Act Section 3: ▪

▪

‘Under an enactment’ • Griffith University v Tang (2005) (p679 D&J) o Making a decision because of empowerment from an Act is different to making a decision under the Act that gives an administrative body power to make decisions. Decision/conduct • Bond: (p686 D&J) o Explores the meaning of ‘decision’ and ‘conduct’ under ADJR Act.

Standing: • • • • • •

•

ACF v Commonwealth: (p814 D&J) o Special interest in subject matter – no standing – only a ‘mere intellectual or emotion concern’ here Bateman’s Bay: (p819 D&J) o Aboriginal Land Council did have special interest – injunction granted North Coast Environment Council Inc (p825 D&J) o Special interest for a ‘regional organisation’? Ogle v Strickland (p829 D&J) o Special interest to two priests challenging on behalf of church Right to Life: (p827 D&J) o ‘Right to Life’ not the authority in the area – mere intellectual concern insufficient. Onus v Alcoa: (p827 D&J) o Indigenous concerns real, local and affected more than other members of Australian community. ▪ Special interest granted. John Fairfax: (p833 D&J) o Newspaper proprietor granted certiorari as case was excess/lack of jurisdiction. ▪ May even be granted to stranger in this situation.

Justiciability: Ouster clause: It can usually be presumed that parliament did not intend to protect ‘manifest’ errors, ‘imperative duties’, ‘inviolable limitations or restraints’ or breaches amounting to jurisdictional error that will attract the issue of a constitutional writ. • Plaintiff S157: (p708 D&J) o Parliament cannot delegate unlimited power, nor ouster state Supreme court/High Court of Australia

National security: •

Church of Scientology: (p718 D&J) o Ultra vires does not apply in same way to ASIO as it is a matter of national security: not for court to judge

Political questions: •

Re Ditfort; ex parte Deputy Commission of Taxation (p732 D&J) o No strict ‘political questions’ doctrine o No level of government immune from JR.

Acts of State • •

A-G (UK) v Heinemann: (p732 D&J) o Not for court to comment on governmental interests of foreign states. Hicks v Ruddock: (p735 D&J) o In spite of Heinemann, where deprivation of liberty (HR violations) , detainment from foreign states is unlawful until rebutted by evidence of lawful authority.

Delegated legislation: •

•

• •

•

•

Victorian Stevedoring: (p301 D&J AND p328 D&J) o Lack of jurisdiction – prohibition o If no basis exists for exercising a statutory power, proper exercise of court’s jurisdiction to award prohibition. o Abdication of parliamentary legislation power under Constitution necessary for good government. Plaintiff S157: (p309 D&J) o HC cannot be deprived of supervisory jurisdiction to grant relief under s 75(v) Constitution o Privative clauses – legality question Watson v Lee: (p322 D&J) o Sufficient reporting of delegated legislation, re s 5(3) Rules Publication Act 1903 (Cth) Combet v Commonwealth: (p106 Head) o Constitutional limit to delegate: where regulation-making power so broad, it becomes a bare attempt to control and expel State laws Golden-Brown v Hunt: (p108 Head) o Delegated legislation not invalid, merely inoperative until published in Gazette and public reasonably notified Thorpe v Minister for Aboriginal Affairs: tabling requirement (p328 D&J) o N.B. also note simple ultra vires case can apply to delegated legislation. o Legislative Instruments Act 2003 (Cth): 6 sitting days o Where not tabled, impact weighed against public interest

Simple ultra vires/stat interpretation: • •

•

• • • • •

•

•

London County Council: (p355 D&J) o Activities valid if necessarily incidental to admin power Shanahan v Scott: (p406 D&J) o Court does not permit authority to extend scope in any way: legislative not administrative. o “Necessary or convenient” cannot take power outside the ‘field of operation’ of the Act King Gee: (p166 Head) o Purpose? Is it vague? Subjective? Ambiuous? o Uncertain? Lacking in objective standards ▪ Where no values or standards and criteria fail to give definite, objective calculations. Vanstone v Clark: (p166 Head) o Misinterpretation of empowering Act; therefore determination relied upon invalid. Austral Fisheries: (p381 D&J) o Plan under Act should not be capricious or irrational that it cannot be justified on reasonable grounds. Plaintiff M47/2012 (p358 D&J): o Authority cannot apply criterion that is not supported by the facts of the case. Racecourse Co Sugar Association v A-G: o Must be ‘certain, objective’ standards for fixing prices Paull v Munday: (p167 Head) o Strict approach to ultra vires and laws made by authority o Must be made according to true intent, meaning, spirit, not beyond this. Melbourne Corp v Barry: (p168 Head) o “Power to regulate does not include power to prohibit” a type of procession: implies continued existence of thing to be regulated. Foley v Padley: (p169 Head) o Power of Council to grant or refuse permission can be exercised only for purpose of power it is conferred: i.e. preventing adverse effects, not any extraneous purpose

Procedural ultra vires: Project Blue Sky (p656 D&J): ▪ Failure to comply with procedural requirements does not invalidate the decision unless there is a legislative purpose to invalidate it. ▪ Rejected mandatory – directory distinction ▪ Ascertained from language, subject matter, objects and consequences of breach. o Norvill v Chapman: (p174 Head) (p374 D&J) ▪ (Hindmarsh Bridge Case – also called Tickner) ▪ Evident intention of Act was substantial and non-delegable personal ministerial involvement as necessary requirement o Commissioner of Taxation v Futuris: (p647 D&J) ▪ High Court cannot protect ‘deliberate failure to administer the law according to its terms’ – jurisdictional error. o ABC v Redmore (p654 D&J): ▪ Procedural requirement directory where invalidity would impact on innocent third party ▪ What did Parliament intend? o Formosa (p612 D&J) ▪ Parliament here had strict intention to deny pension if applicant did not make a written application ▪ If department were given discretion, outcome different. o Wei v MIBP [2015] (p172 Head) ▪ ‘A duty is imperative where a material breach would work to the peculiar disadvantage of an individual’ [28]. ▪ Reinserted Directory/Mandatory o Forest & Forest v Wilson [2017] HCA 30 ▪ Re-done Mandatory/Directory to be more like Project blue Sky and NOT Wei

o

Extended ultra vires: Improper purpose: R v Toohey: (p404 D&J) • Mandamus • Unless judicial review excluded, court may consider whether exercise in scope of power granted Thompson v Randwick: ‘but for’ test (p401 D&J) • Any actions undertaken must be reasonably incidental with purpose of decision

▪

▪

Relevant/irrelevant considerations: Roberts v Hopwood (p183 Head) • Discretion exercised must be real, not arbitrary • Must not take into account ‘irrelevant’ matters, but all relevant matters. MAA v Peko Wallsend: (p425 D&J) • Failure of decision-maker to take into account a relevant consideration is one instance of abuse entitling a party to seek judicial review. • Consideration on most recent and accurate information at hand • See also: s 5(2)(b) ADJR Act

▪

▪

No evidence: •

• •

MIMA v Pochi (p457 D&J): o AAT limited power in migration cases o Court to ‘affirm the decision or remit the matter for reconsideration in accordance with recommendations of the Tribunal’ o Minister not bound to consider material of ‘insufficient probative evidence’. Re MIMA; ex parte Applicant s20/2002 (2003) (p450 D&J) MIMA v Rajamanikkam [2002] (p459 D&J)

Unreasonableness: ▪ Wednesbury: (p467 D&J) • ‘Decision must be so unreasonable that no reasonable body could have come to it.’ ▪ MIEA v Li: (p190 Head) • Section 40(1)(c) AAT Act: ‘for purpose of reviewing a decision, Tribunal may adjourn proceeding from time to time’ • Failure could amount to unreasonableness, jurisdictional error and review. ▪ Chan v MIEA (1989) (p190 Head) ▪ Prasad v MIEA: (p474 D&J) ▪ duty to initiative reasonable inquiries • Failure to give genuine, proper, realistic consideration to a matter, including making adequate inquiries as to fact, amounts to ‘manifest unreasonableness’. ▪ Austral Fisheries: (p189 Head) • Regulation or by-law not unreasonable because court thinks it may be more fairly framed • Must be so capricious and irrational that no reasonable person could ever devise it. ▪ SZFDE v MIC: (p481 D&J) • Fraudulent practices by a third part on an appellant in tribunal proceedings also amount to fraud committed against the tribunal • Tribunal failed to properly exercise jurisdiction o Parramatta v Pestell: (p192 Head) o discrimination o Council gave some blocks special benefit and others did not because of ‘work or service’ financed by its rate → NSW Aboriginal Land Council v ATSIC (p192 Head) ▪ South Australia v Tanner: lack of proportionality (p488 D&J) • ‘Reasonable proportionality’ because exercise of power and means of the law: the means the law embodies for achieving a purpose. • Therefore, not a real exercise of power

Inflexible application of policy: •

•

Green v Daniels (1977): (p388 D&J) o Message from department unclear o Declaration sought that P entitled to unemployment benefits o ‘No suggestion of anything other than an inflexible application of policy’: not as per Act requirements. Drake v MIEA (1979) (p386 D&J)

Acting under dictation/direction: •

•

R v Anderson (Ipec Air) (p375 D&J) o Director-General did not arrive at decision of his own after taking account Government policy. o Sought advice from Minister, and automatically obeyed pronouncement from the Government. Ansett v Commonwealth (1977) (p378 D&J) o A term of an Agreement must not fetter Government’s future executive decisions [OBITER].

Sub delegation: • • •

Carltona Ltd v Commisioner of Works (p370 D&J) Carltona principle o ‘Shared performance of duties short of delegation’ i.e. signing off an order, letting someone else do it Forster (p371 D&J) (See below) O’Reilly v State Bank of Victoria (p371 D&J) o Duty of signing cannot be given to a third person by the person it was sub-delegated to.

Uncertainty: • •

King Gee (p166 Head) o Simple ultra vires rather than a ground in and of itself. Decision is not a decision under the act. Television Co v Commonwealth (p409 D&J) o ‘Invalidity’ approach: uncertain rule invalid in whole or in part o ‘Interpretation’ rule: offending rule not invalid if court can satisfactorily resolve in favour of persons subject to rule.

Procedural fairness: Remember: general applicability first question • Kioa v West: (p496 D&J) o chameleon type character – where rights, interests, legitimate expectations affected o Denied procedural fairness where no opportunity given to respond to prejudicial information • Minister for Immigration and Border Protection v WZARH [2015] (p212 Head, ) o No longer need legitimate expectation – need to look at what is fair on a case-by-case basis: Lam o Reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made (Keifel CJ at 30). p224 Head Particular categories said to exist: • Undertakings o Teoh: (p225 Head)Children’s best interests not primary consideration, thus adequate notice and opportunity must be given to present case. o Ex parte Lam: (p226 Head) ‘Legitimate expectation’ refers to procedural protection, not substantive protection. Concern is fairness of procedure, not outcome. • Long standing practices o FAI v Winneke (p232 Head) ▪ Legitimate expectation approval would be renewed, or not be refused without opportunity of meeting objections raised against it. ▪ Adequate opportunity to respond, by written submissions at the very least. • Dismissals from office o Jarratt v Commissioner of Police(p228 Head) ▪ Officer must be accorded natural justice before dismissed. • Where reputation at stake – o Laws v ABT(p229 Head) ▪ No right to hearing where preliminary investigation ▪ Reviewable under s 31(1) ADJR Act if quality of finality. • Investigations o Annetts v McCann(p228 Head) ▪ Where reputation at stake, opportunity to respond unless express terms or necessary implication from Act excludes this common law right. Exceptions: • Where legislation limits application – o ex parte Miah(p231 Head) ▪ Natural justice may be scuppered on facts of case. [See 7 factors outlined.] ▪ Nature of original decision original decision made in public or private ▪ Formalities required for orig decision urgency of original decision ▪ Nature of appellate body (internal, judicial) breadth of appeal (de novo or limited) ▪ Nature of interest and subject matter • Church of Scientology v Woodward: (p234 Head) o National security not exempt but raises difficulty c.f. Leghaei v DGS (p232 Head) ‘reduced to nothingness’ o Plaintiff bears onus of showing no reasonable basis that actions have real connection with security • Urgency o Edelstein v Fed Comm Tax: (p233 Head) ▪ Removes need for procedural fairness ▪ Reviewable under s 31(1) ADJR Act if quality of finality • Policy and rule making o South Australia v O’Shea (p232 Head) o QLD Laboratory v Blewett (p675 D&J) ▪ All you can do is put relevant material before DM through written and oral submissions. ▪ Does not apply to policy and political considerations made by Cabinet ▪ Hope of release not enough. • Where an effective appeal is provided for o Twist v Council of Randwick (p528 D&J) ▪ Where legislature provides opportunity for property owner to be heard before rights affected, not for court to intervene and insist Council hears owner before making an order.

Hearing rule: •

•

•

•

• •

•

• • •

Barratt v Howard: (p522 D&J) o Court can dilute right to hearing to only written submission o Presumption in favour of procedural fairness where livelihood and reputation adversely affected. Bond v ABT: meaning of decision/conduct (p537 D&J) o ‘Decision’: one for which provision is made by or under statute per ADJR Act ▪ Final, operative or determinative of the issue of fact for consideration. o ‘Conduct’: where the actions are conclusive with the fact for consideration ▪ Must determine if an essential step in the reasoning to support a determination or ultimate conclusion. VEAL v MIMIA: (p538 D&J) o Decision-maker must disclose ‘substance’ of allegations and provide opportunity for affected person to respond even if ‘public interest’ meant actual author and exact content cannot be disclosed. o ‘Credible, relevant and significant’ information must be considered by DM before final determination o Tribunal must make inquiry in certain circumstances to form its own views about appellant’s claim o Consideration of other decisions, policies, writings or information must be made aware of during the hearing or floated as a possibility. Krstic v ATC: (p546 D&J) o No absolute right to legal representation, even where livelihood at stake (discretion of tribunal) o Depends on circumstances of case. O’Rourke v Miller (p550 D&J) o Probationary constable dismissed on evidence of informants, no right to cross-examine. Macquarie University v Ong: (p552 D&J) o obligation to give notice o Given standing and reputation, accusations of fault or deficiency would seriously affect this o Council required to give hearing and access to material placed before Council for purpose of deliberations/decision o Obligation to give notice not excused because they had not sought to be heard on earlier, different set of allegations NAIS v MIMIA: (p533 D&J) o Delay of more than 5 years could be sufficient to deny procedural fairness: Blencoe v British Columbia o Where delay ‘so extreme’ there was ‘real, substantial risk’ that capacity to assess applicant impaired. Graham v Baptist Union of NSW: right to be notified of hearing? (p237-238 D&J) o Church not obliged to tell minister time and date of hearing Somaghi v MILGEA: (p240 Head) o Sometimes, DM is required to warn applicant of possibly adverse hearing. National Companies and Securities Comm v News Corp: (p527 D&J) o No right of hearing where no charge, person being accused, legal rights being affected o Even before tribunal, no necessary right o Natural justice observed if each witness called to give evidence was allowed legal representation, participation

Bias rule: •

•

•

•

•

Difference between actual and perceived bias? o Laws v ABT: (p561 D&J) ▪ Tribunal made comments about inquiry on a radio program ▪ In spite of the Tribunal filing a defence for defamation, there was no basis for inferring bias so long as the composition had been changed. Reasonable apprehension of bias: o Stollery v Greyhound Racing Control Board: (p568 D&J) ▪ Where persons in a special relationship to appellant and matter a board is called upon to consider, they may be disqualified from participating in proceedings o Ex parte the Angliss Group: (p570 D&J) ▪ No reasonable apprehension of bias where duty of members is to ‘give full and fair consideration to every relevant argument put to them for revision or even an abandonment of announced opinions.’ o Bird v Volker: (p575 D&J) ▪ Judge was accused of bias due to being a female, a jew, etc ▪ Even if perception of bias is genuine, it must be reasonable: ex parte Elation Pty Ltd o Century Metals v Yeomans: (p588 D&J) ▪ Per Fisher, Wilcox and Spender JJ: ‘Obligations to accord procedural fairness are rarely imposed by statute in express terms.’ ▪ In this case, Mr Yeomans did not pass the test for impartiality as, to the reasonable person, may not ‘bring an impartial and unprejudiced mind to the task committed to him’. Decision makers who express provisional views: o Vakuata v Kelly: (p573 D&J) ▪ DMs afforded considerable freedom to express views where necessary or helpful to give parties indication of how court opinions are forming ▪ High Court acknowledged judges who regularly see particular types of witnesses appear for particular types of cases are likely to form views about reliability and impartiality of witnesses ▪ Judges must not allow views to prejudice approach to case to determine of defendant. Actual bias: o Ex parte Ong: (p576 D&J) ▪ DM in substance, the person who made complaint and gave committee particulars of matter which it was to investigate. ▪ Actual bias as person concluded complaint had been made out and what action should be taken next. ▪ Denial of natural justice not to give opportunity to respond. Institutional bias: o MILGEA v Mok Gek Bouy: (p590 D&J) ▪ Ministers afforded more shrift when it comes to bias ▪ Very hard to prove underlying institutional or political bias. ▪ Rejection based on matter of public policy. o Jia Legeng: (p592 D&J) ▪ Kirby J: ‘It is enough to show that ‘in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision...