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PROBLEM QUESTION – first consider which Stat Interp approach to apply: AIA/Project Blue Sky (when advising Cth) or Principle of Legality Breach of natural justice is jurisdictional error – Aala. If there is a jurisdictional error then the HCA will have jurisdiction s 75(v) and thus it will be void, lists in Craig and Kirk spot jurisdictional error. Spot the privative clause and invoke S157, which are constitutional. AIA – PROJECT BLUE SKY – s 15AA purpose, s 15AB extrinsic materials: Did the parliament intend that a failure to adhere to declaration etc would result in invalidity, no because the Act is concerned with certainty of decisions. Voidable consequences depend on the intention of the legislature in passing the statute – if there is no declaration for example, reaches it would not be void and would have power to remove under s 8. PRINCIPLE OF LEGALITY – could it be implied? Plaintiff S10 even with an exhaustive statement of NJH Rule this does not mean it is entirely excluded, look at statute as a whole and construction (even with clear statement) Significant characteristics cumulating and emphatic language in the exclusion then could not be implied, common law assumption to not curtail fundamental common law rights unless there is clear statement If no declaration ie then according the Bhardwaj s 9 dec never existed so decisions voidable under s 8 Example of with declaration but not complying with 9(3) factors M70 may be in scenario is a distinguishing case – jurisdictional facts. If minister doesn’t have them, then he doesn’t have power and his decision was void – therefore no removal depending on how you construe s 8. Distinguishing factor – fundamentally different it is not the intention of the legislature to uphold the Refugee Convention – argued to lead to a different result. See Leg Act s 8(3) indication that jurisdictional fact analysis wouldn’t apply. Standing – (ACF v Cth = special interest) – Hussein v Sec DIMA (Graham J) – standing demands a connection between interest and relief sough. AAT s 27, in ADJR test varies see Re McBain (McHugh J) – prohibition/certiorari: stranger may apply for public interest benefit, mandamus: more restrictive, injunction/declaration: special interest, habeas corpus: low threshold court has discretion (Vadarlis) Jurisdiction – HC original jurisdiction of s 75(v) – in all matters when which a writ of mandamus or prohibition or injunction is sought against an officer of the Cth. FC through statute ADJR, Judicary Act Jurisdictional Fact – Enfiled ‘the criterion, satisfaction of which enlivens the power of the DM’. Which then include assessment by a DM. M70: such assessments must have an objective basis. Error of facts exceptions for judicial review: no evidence (Mason CJ), lack of logically probative material. Procedural ultra vires: PBS – is there a procedural requirement, has the DM failed to comply, does this invalidate the decision Justiciability – court must accept that there is a justiciable issue: Re McBain: matter; requires determination of legal rights and interests, does not require resolution of solely political question; nature of power (GCHQ Case) Jurisdictional error – did the DM have authority? Was there error going to jurisdiction? Such an error now broadly defined for admin [Craig – inferior court mistakenly asserts or denies jurisdiction, wholly or partly acting outside the general area of jurisdiction/takes into account or fails to take into account a matter] [includes procedural fairness/natural justice under Aala, S157] Categories of jurisdictional error – mistaken assertion, misapprehension of nature or limits of power, acting wholly or partly, mistakes as to existence of jurisdictional fact, disregarding relevant considerations not paying regard to irrelevant considerations, errors of law, acting in bad faith, breach of natural justice – not a closed list, will automatically lead to invalidity based on jurisdictional error. Jurisdictional error narrow sense two elements: one is where there is an absence of jurisdiction, other is the doctrine of jurisdictional fact IF jurisdictional error, then the decision is void, as if it had never been (Aala; Bhardwaj, Plaintiff S157) Any other kind of law? – what kind of decision = duty or discretion (breach of procedural fairness/ADJR applies to both) If discretion – look to see if there has been a real exercise of discretion; improper purpose, bad faith? Acted unreasonably. If this kind of error, does this invalidate the decision completely? (YES Craig, Yusuf) NO (protected by a privative clause – Hickman) Hickman principle: bonafide attempt to exercise power, related to the subject matter of the legislation and was reasonably capable of reference to the power given to the body NJ – is NJ excluded by explicit provision that is clear? (SAAP; Saeed) Even if clear enough, does the very existence of such a provision impose a higher burden on DM (Saeed) HEARING RULE – must have clear words to exclude [Kioa, Aala] Clear statement rule (Zheng v Cai; Plaintiff S10) ‘code’ by itself not enough [Miah] BUT clear and unambiguous words would exclude hearing rule except in so far as the statute itself stipulates procedures. Req: prior notice, disclosure of case, opportunity to comment. To show a HR breach: show hearing rule applies – Mason J (Kioa/common law) v Brennan (Statutory), then applicant should have been given a hearing: Kioa Mason J (legit expectations) v Brennan

(sufficient interest) If a DM has the evidence and submissions of those entitled to be heard is apprised of all relevant material, reports of specialist committees to the DM, will not breach NK (White v Ryde Municipal Council) If hearing is conducted by others but DM is fully informed (Jeffs v NZ Dairy Production) Kioa v West – threshold question is whether the legislature intended that the decision be subject to natural justice, have regard to the text of a statute creating power, the subject matter of the statute, the interests which the power affects and the admin framework created by the statute within which the power is to be exercise. In the absence of clear contrary legislative intent a DM under statute authorised to make an admin decision directly affecting the rights of another in their individual capacity is bound to observe requirements of NJ AALA – if a breach of NJ/Procedural fairness by an officer of the Cth occurred when making a decision under a statute that did not relevantly and validly limit or extinguish any obligation to accord procedural fairness; then an excess of jurisdiction will have occurred sufficiently to attract the constitutional writs Plaintiff M61 (Offshore Processing Case) – can now be taken as settled when a statute confers powers to destroy, defeat or prejudice a person’s rights, interests or legit expects, that the principles of NJ generally regulate that power, unless explicitly mentioned. Mason J took the view that this had to be considered 'in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations Brennan JThere are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice HEARING RULE/PRINCIPLE OF LEGALITY – application? (yes Zheng; City of Adelaide; MIAC v Li) (No Lee v NSW Crime Commission) Clear statement principle – Zheng; Coco; Plaintiff S10 – but see proper construction of Act as a whole Plaintiff S10. What does statute say? Does it set down procedures? Have they been followed? (SAAP); does it clearly and unambiguously exclude natural justice (principle of legality; Kioa; Aala) if not then apply Mason J Kioa common law duty in statute or Brennan J stat interp to see if natural justice/hearing required by statutue (Kioa) BIAS – Failure to comply will amount to a breach of stat procedures equivalent to bias. If DM only discloses bare facts of conflict; Actual Bias – MIMA V Jia: state of mind so committed, Apprehended Bias – not an impartial mind: Ebner v Trustee in Bankruptcy. Exceptions – Necessity: creates its own law, Waiver: right to be heard by unbiased DM either express or implied. Statutory Abrogation: can exclude right to no bias through express and clear words PRIVATIVE CLAUSES is there one? HCA s 75 (v) jurisdiction cannot be ousted (Plaintiff S157) Basic? Or Complex? : In either case probably not effective (Plaintiff S157) HC held that a decision infected by jurisdictional error cannot be insulated from judicial review by a privative clause: a jurisdictionally flawed decision is regarded as no decision at all. If a PC did protect jurisdictional errors then it would generate a conflict with s 75(v) and therefore render the PC constitutionally invalid. However, properly interpreted the PC did not purport to oust from review cases where decisions were infected by jurisdictional error, therefore no constitutional problem as the constitutional writs of mandamus and prohibition are only available for jurisdictional error. As the alleged breach in S157 was a breach of procedural fairness the privative clause did not protect the challenged decision from review. HC emphasises s 75(v) preserves an entrenched minimum provison of JR jurisdiction to ensure officers of Cth neither exceed nor neglect any jurisdiction which the law confers on them – Plaintiff S 157 NOTE Futuris re no invalidity clause: Futuris similarity to the given act – is to be assessed in the manner indicated in the manner of Blue Sky failure to do so does this render invalid? principle of legality – strictly required ministerial declaration, so could not be deported, could be error of law and a misconstruct, Project Blue Sky – legislative purpose, that it not be invalid, simply because there was a mistake REASONS – is there a requirement in the statute to give reasons for decisions? If not and if decisions under the Act are subject to ADJR, a person with standing for ADJR. Purposes s 5 may seek s 13 ADJR when get reasons scrutinise for errors of law, but not nit-picking with fine tooth comb (Wu Shan Liang) If the decision gives jurisdiction to the AAT for merits review, then may seek reasons under the AAT Act, but Wainohu might suggest a duty to give reasons in certain circumstances Delegated legislation – is made by a body to which parliament has delegated the power to legislate, also known as subordinate legislation. Either attack the decision made under the delegated legislation or attack the validity of the delegated legislation itself; basis for challenge is s 75(iii) ‘in which the Cth or a person suing or being sued on behalf of the Cth, is a party’ Common Law: s 39B Judiciary Act (cth) (1A)(c) arising under any laws made by the Parliament other than a matter in respect which a criminal prosecution is instituted or any other criminal matter

REMEDIES – Certiorari: quash invalid decision, Prohibition: prohibit further unlawful action, Mandamus; to compel lawful exercise of power, Habeas Corpus; requires release of person from lawful detention – right to be free from wrongful restraint, test legality of detention: MIMA v Vadarlis: not a restraint amendable to habeas corpus, Hicks v Ruddock: deprivation of liberty prima facie unlawful, Declaration; resolve dispute over law applicable to situation in which applicant has sufficient interest, Injunction; restrain breach of stat duty, available whether prohibition available or not, or if no duty to afford procedural fairness SEPARATION OF POWERS Doctrine of Separation of Powers as per the first three chapters of the Constitution s 51(v) Role of Admin law is to aid the separation of powers by allowing judicial review the validity of laws and the decisions and actions of the executive. If you seek judicial review of an executive decision or action, all that the courts can set judgment on is; was it done legally? Was it done in accordance with legislation that gave the person the power? The court can say yes it was done legally, or it can say no it was not, the DM did not, or that they acted outside their power, or did not follow the right processes. In this case they can say the decision is invalid. The courts cannot remake the decision because it is an executive decision as opposed to judicial. Scope of judicial review – no review of the merits so as to not contravene separation of powers…Mason J it is not the function of a court to substitute its own decision for that of an administrator...its role is to set limits of the exercise of that discretion and a decision made within boundaries cannot be impugned (Maa v Peko Wallsend) Gleeson CJ Boyer Lectures – the structure of the Con reflects the principle of separation of powers. A constitutional guarantee that follows from the provision in s 71 that judicial power of the Cth is to be invested in the HC and in such other Federal courts that the parliament creates. This means that a citizen cannot be subjected to the exercise of Cth judicial power except by court, coupled with SOP and independence of judiciary, denies the Parliament and executive government the capacity to administer civil or criminal justice and is an assurance of due process – link to principle of legality. Guarantee of the rule of law HC is given jurisdiction in matters in which a writ of mandamus or prohibition s 75(v) Delegated legislation – Arguments against – separation of powers, impairs parliamentary sovereignty, constitutional balance, executive making legislation not legislature Victorian Stevedoring v Dignan (HCA)(1931) Argued that the Transport Workers Act contravened separation of powers in that parliament was delegating so much legislative authority to the executive that is breached the doctrine. Evatt and Dixon JJ said there are some limits which must exist to constrain the extent of delegated legislation power but those limits don’t exist here which begs the question; if this is an act that literally says here is the name here’s the definition Privative Clauses – undermine the fundamental assignment that the duty of superior courts jurisdiction to ensure public power is exercised according to law. Undermining the separation of powers, and increase government power without any check or accountability measure. This is because they restrict the review of the legality of executive action, so either breached because parliament is actually interfering with inherent judicial power of Ch III courts. Can also be seen as a way that the parliament confers judicial power on the executive, given to the admin DM Hickman – held this privative clause must be read in accordance with the separation of powers under the Con so as to not violate HC entrenched jurisdiction in s 75(v) Dickson J starts with the rule of law and separation of powers and the presumption that parliament would not intend to deprive people from access to the courts especially where there are rights and interests involved, then he looked to the terms of the PCs, reg 17 which says final and cannot be challenged at any court. Can’t mean literally because that violates s 75(v) Means PC has to be judicially reqritten, need a common law interpretation or constitutional interpretation in S157 – argument that s474 was constitutionally invalid, A PC cannot allow a non –judicial admin body to exercise the judicial power of the Cth, an admin authority can never conclusively determine the limits of their own jurisdiction Kirk – s 179 Industrial Relations Act, applied Kable doctrine – state supreme courts are not protected under state constitutions but are under the federal constitution. Entrenched minimal provision of constitutional protection for JR of JE. Merits Review – here in NSW and the president of admin appeals tribunal is a judge of FC, so they have a dual role and that raised issues about overlap of the SOP, as tribunals are part of the executive, not judiciary, so how can you have a judge part of the Ch III judiciary overseeing executive part Ombudsman – independent person appointed to investigate complaints about action or inaction that relates to a matter of admin. Jurisdiction must relate to a matter of admin, it must investigate on receipt of a private complaint, may investigate as own motion it has to be something of significant gravity. Could include a decision, act, recommendation, proposal to act or failure to act by executive bodies, but cannot review the legislature or the judiciary as they are part of executive

PRINCIPLE OF LEGALITY – presumption in the courts that there will not be an intention in the legislature to abrogate common law rights and freedoms except when that intention is shown in clear and unambiguous language. (Coco) clear statement principle S10 – all rebuttable presumptions can apply, unless excluded by statute under AIA. (Al Kateb) indefinite detention. Gleeson CJ Boyer Lectures - One of the express guarantees contained in the Constitution is that laws with respect to the provision of medical services must not authorise any form of civil conscription.13 The reason for this is obvious. One way for a government to provide wide and affordable access to health care would be to prohibit private medical practice and to force all doctors and nurses to work for the government. But if that occurred the individual rights and liberties of the doctors and nurses would be overridden. A v Hayden (No 2) Gibbs CJ fundamental that executive had no power to authorize a breach of law. Brennan J in Attorney General (NSW) v Quin courts are concerned with PoL – that is they enforce legal limits of power conferred on the administrator. Conduct which exceeds the power conferred will be set aside or declared invalid and the officer will be directed to address the exercise of a power which has not been considered or properly considered. ‘the court has not jurisdiction simply to cure admin injustice or error. Merits of admin action, to the extent that they can be distinguished from legality are for the repository of the relevant power and subject to political control for the repository alone. Judges being able to choose which rights are ‘fundamental’ and those that are not – bring in Al Kateb as part of the common law bill of rights debate to show the inconsistency the court can manifest where it comes to protecting fundamental rights – apparently the right to freedom was unfettered by the prospect of indefinite detention. Stat interp moves from being the pursuit of legislative purpose and object as per Blue Sky and AIA to being with respect to a particular common law freedom or right that is alleged to be abrogated as per PlS10. This is supported by Gleeson CJ in Electrolux Home Products v AWU, describing this principle as a ‘working hypothesis…upon which statutory language will be interpreted’. Plaintiff S10 endorses this approach, in that all the rebuttable presumptions can apply, unless excluded by statute or under the AIA applying the ‘common law bill of rights’ in the absence of clear and unambiguous legislative intention. Courts exercising executive power: M70 – the operation of the PoL in promoting interpretations directed to maintain the liberties of peoples subject to executive detention or exclusion from Australia. The link with constitutional issues associated with s 75(v) of the Cth particularly in terms of possibly imposing implied obligations on executive DMing where the executive could otherwise frustrate access to judicial review. Role of s 75(v) in ensuring that Cth officers act within the boundaries of legality is one of the primary aspects of the rule of law said to underline the Con. Implications ie current orthodoxy is that unless compelled to do so by statute Cth DMs do not have to give a statement of their reasons for decisions. Certainly no common law right to reasons although in special circumstances this will be statutorily implied. (Public Service Board v Osmond) Question turns to whether the DM can shield from review by refusing to provide reasons. HC arguably stepped closer to a stat requirement in Wainohu v NSW. MIMA v Guo – FC going beyond judicial review and entering merits review. KirbyJ: ‘neither branch usurps or intrudes upon the functions proper to the other’ HC emphasized that the making of the declaration re refugees and were entitled to appropriate ent...