Admin Law Exam Notes 2019 PDF

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ADMINISTRATIVE LAW EXAM NOTES 2019

Other Jurisdictional Error

1.

THR THRESHOLD ESHOLD ISSUES Jurisdiction

2 2

17

3.2.1.

Procedural Fairness/ Natural Justice 17

3.2.2.

Procedural Error

22

3.2.3.

Relevant Consideration

24

1.1.1.

ADJR Act

2

3.2.4.

Irrelevant Consideration

27

1.1.2.

Common Law

2

3.2.5.

Improper Purpose

30

3.2.6.

Bad Faith

32

3.2.7.

Fraud

34

3.2.8.

Inflexible Policy

35

3.2.9.

No Evidence Rule

37

Standing

4

1.2.1.

ADJR Act

4

1.2.2.

Common Law

4

Justiciability

6

3.2.10.

Acting Under Dictation

39

1.3.1.

ADJR Act

6

3.2.11.

Delegation of Power

41

1.3.2.

Common Law

6

3.2.12.

Unreasonableness

44

3.2.13.

Irrationality

46

Delegated Legislation

7

4. 2.

48

ADJR Act

48

PR PRECURSOR ECURSOR TO ‘THE GROUNDS’ 11 Privative clause

2.1.1.

ADJR Act AND Common Law

Remedies

11

4.1.1.

Quashing (s16(1)(a))

48

11

4.1.2.

Mandatory (s16(1)(b))

48

4.1.3.

Declarations (s16(1)(c))

49

4.1.4.

Prohibiting (s16(1)(d))

49

13

2.2.1.

ADJR Act

13

2.2.2.

Common Law

14

3.

RE REMEDIES MEDIES

GRO GROUNDS UNDS OF R REVIEW EVIEW

15

Pure Jurisdictional Error

15

Common Law

50

4.2.1.

Prerogative Writs

50

4.2.2.

Equitable Remedies

51

ADMINISTRATIVE LAW 2019

1. THRESHOLD ISSUES Jurisdiction Where are you? Commonwealth ADJR = decision of an administrative character made under a (Cth) enactment; s3 ADJR CL = High Court; s 75 Constitution CL = Federal Court; s 39B Judiciary Act

o o o State o o

CL Judicial Review CL NSW Supreme Court; s 23 & s 69 Supreme Court Act (NSW)

1.1.1. ADJR Act i.

A decision

ii.

Of administrative character By an officer of the Commonwealth

iii.

Under statute, both the Federal Court and the Federal Circuit Court are vested with the jurisdiction to review an application by , a person aggrieved, for review (s8 ADJR Act). The is a decision for the purposes of s5 of the ADJR Act as it is final and operative and substantive in nature (ABT v Bond 1990). is conduct leading to a decision (s6 AJDR) shows a failure to make a decision (s7 AJDR) It is administrative in character, as the has applied general rules to the specific matter (Griffith v Tang 2005). It has been made under the enactment of < INSERT ACT> (Griffith v Tang 2005), by an officer of the Commonwealth, , as required by s3 of the ADJR. Furthermore, pursuant to s3(1) ADJR, it is clear the decision is not explicitly excluded in Schedule 1 of the ADJR Act, nor is it a decision made by the Governor General. Therefore, it is evident that the matter in question is open to judicial review under the ADJR Act. Thus, despite there being two avenues of judicial review, both common law and statutory, the decision will be reviewed pursuant to the ADJR for the reasons above. 1.1.2. Common Law On the facts, it would appear that the source of the decision maker’s power is not derived from statute. It is o o o o

An exercise of prerogative power (state power) (Hawker Pacific v Freeland 1983) Not an exercise of public power (Neat v AWB 2003) An exercise of power conferred by a private agreement (ANU v Burns 1982) Anything which is barred by Schedule 1 of the ADJR Act, such as decisions made by ASIO, or sensitive political decisions 2

ADMINISTRATIVE LAW 2019 At common law, the High Court (s75 Constitution) and the Federal Court (s39B Judiciary Act) are vested with jurisdiction to review an application for judicial review. The application is based on a legal duty which gives rise to an immediate, right, duty or liability. (Re McBain 2002)

A. High Court's Jurisdiction (s75(v) Constitution)

Firstly, the Court must have the jurisdiction to conduct judicial review of a government decision. On the facts, the High Court evidently has the jurisdiction to review the decision made by , an officer of the Commonwealth (NEAT v AWB 2003) . Furthermore, pursuant to the High Court’s power conferred in s75(iii) and (v), is seeking a writ of mandamus OR prohibition OR an injunction in relation to the following matter (Re McBain 2002); . Despite there being two avenues of judicial review, both common law and ADJR, the decision will be reviewed pursuant to common law and the power vested in the High Court’s jurisdiction, for the reasons above. B. Federal Court’s Jurisdiction (s39B Judiciary Act 1903 (Cth)) Answer:

On the facts, it appears that this is a and can therefore be reviewed by the Federal Court under its jurisdiction granted by s39B of the Judiciary Act. The Federal Court has concurrent jurisdiction with the High Court for judicial review which is being sought against an officer of the Commonwealth (Evans v NSW 2008). Moreover, the Federal Court has jurisdiction to conduct judicial review in all matters ‘arising under any laws made by the parliament’ (s 39B(1A)(c)). At the commonwealth level, the common law jurisdiction of the Federal Court can only be accessed if the remedies of mandamus, prohibition or injunction are available. Pursuant to the fact these matters have arisen under laws made by the parliament and therefore the Federal Court has jurisdiction to review. Despite there being two avenues of judicial review, both common law and ADJR, for the reasons above, the decision will be reviewed pursuant to common law and the power vested in the Federal Court’s jurisdiction. C. NSW Supreme Court: s23 & s69 Supreme Court Act (NSW)

The facts indicate that the decisions was made at a state level. The Supreme Court of NSW has the jurisdiction to hear matters which ‘may be necessary for the administration of justice in NSW’ under s 23 of the Supreme Court Act 1970 (NSW). On the facts the decision is arguably unfair. Therefore, in accordance with administering justice, the SCNSW has the jurisdiction to hear the matter. The SCNSW cannot review decisions made under federal legislation, and only those made under state legislation. Thus, common law will be used.

3

ADMINISTRATIVE LAW 2019 Standing Secondly, for a matter to be taken to court, must have standing or locus standi. 1.2.1. ADJR Act Under the ADJR Act, will be required to prove that they are a ‘person aggrieved’ under ss 5 - 6 of the ADJR Act, whose interests have been adversely affected by the decision made (s 3(4) ADJR Act). will be required to prove that they have more than a mere intellectual, emotional or philosophical interest in the decision (ACF 1980; Right to Life 1995). As a . Licence/Permit holder They have a substantial economic interest (ACF 1980) , and they stand to gain or lose more than the general public might, as this is specifically relates to their business (Right to Life 1995). Special interest group The special interest test may be fulfilled by noting that: the decision restricts/disallows for which they are responsible (Shop Distributive 1995).

i.

the has a special and significant cultural interest and connection with the (Onus 1981).

ii.

iii.

the has had prior involvement in the particular matter, they are recognised and/or funded by the Government, they represent a significant portion of public opinion, or the group has significant expertise (North Coast 1994). Private citizen

They have a substantial economic interest (ACF 1980) , and they stand to gain or lose more than the general public might, as this is specifically relates to (Right to Life 1995). Representative of a body founded by Government They have a substantial economic interest (ACF 1980) , and they stand to gain or lose more than the general public might, as this is specifically relates to their operations (Right to Life 1995) . Moreover, given that the organisation is recognised and supported by the government in relation to , this is likely to give rise to standing (North Coast v Environmental Council 1994). 1.2.2. Common Law Private citizen will need to demonstrate that they have an interest which is involved with the . Mere intellectual, emotional or philosophical interests do not merit standing (ACF 1980; R ight to Life 1995).

4

ADMINISTRATIVE LAW 2019 This is clearly an issue in which the has a personal interest because (Boyce v Paddington Borough Council 1903) Special interest group The organisation will need to prove that they have a special interest, which is more than a mere interest in the issue at hand (ACF v Commonwealth 1980). Cultural group will need to demonstrate the existence of some cultural or spiritual significance closely involving the subject matter in order for standing to be granted (Onus v Alcoa 1981). The facts indicate that has significant cultural heritage involving the area as . Community group The facts indicate that is a community group which is concerned with . In considering their application for standing, a Court will take into consideration its size, representation nature, if it has worked with the government in the field, and if it has received support from the government in this matter (e.g. grants) (North Coast 1994).

5

ADMINISTRATIVE LAW 2019 Justiciability Finally, the Courts will only judicially review a decision if they consider the matter justiciable. NOTE: Justiciability is the about the appropriateness of a question for judicial resolution. There are two classic areas of non-justiciable issues: the prerogative power (e.g. non-statutory) and national security policy and defence 1.3.1. ADJR Act It is clear that this is not decision which is prevented from judicial review under Schedule 1 of the ADJR Act. 1.3.2. Common Law It is clear that is appropriate for judicial review as it concerns . It does not involve the exercise of a prerogative power, or national security policy (Church of Scientology Inc v Woodward 1982), such as defence, or any other area where the Court should not intrude. Thus, justiciability is not a relevant threshold factor in this instance.

6

ADMINISTRATIVE LAW 2019 Delegated Legislation NOTE: If there is delegated legislation - look for regulations/ordinance/by-laws/court rules/plans of management Law The rules for delegated legislation are found in: o

NSW - Subordinate Legislation Act 1989 (NSW)

o

Cth - Legislative Instruments Act 2003 (Cth)

Particularly: s 5(1) of the LIA Act provides that a legislative instrument is in writing which is ‘legislative in character’ (s 5(1)(a)) and ‘that is or was made in the exercise of a power delegated by the Parliament (s 5(1)(b)). It will be ‘legislative in character’ if ‘it determines the law or alters the content of the law, rather than applying the law in a particular case’ (s 5(2)(a)) and ‘it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right’ (s 5(2)(b)). More or less, there are four ways to try and circumvent delegated legislation: Arguing that the Parent Act is unconstitutional o

The Parliament can delegate enormous amounts of law-making power to the Executive.

o

Provided that the DL fits within a head of power, it can be delegated to the Executive to legislate (Meakes v Dignan 1931). However, an entire head of power cannot be delegated.

o

Difficult area to argue.

Was the DL implemented correctly? (Technical argument) o

The Executive must abide by proper process for the making of DL:

o

Public consultation: s5 Subordinate Legislation Act 1989 (NSW) provides that notice must be given as far as it is

▪

reasonably practicable for a Minister to do so. Forgetting to publicly consult isn’t enough to invalidate.

▪ o

Publication: Notice can be placed online and it will be considered ‘published’ in conjunction with s 23(8) of

▪

the Interpretation Act 1987 (NSW) which provides that it must be published on the NSW Legislation website. Although if publication is missed this will not necessarily invalidate the DL, as it has been deemed as a ‘technicality’, although this isn’t necessarily accepted as good law anymore (Golden-Brown v Hunt 1979). s 17 Legislative Instruments Act 2003 (Cth) provides that notice can be placed online and will

▪

be considered ‘announced to the public’, (ss 20, 29). If the Delegated Legislation isn’t online, it will be deemed as unenforceable. o

Parliamentary review DL must be tabled before both houses so can conduct:

▪ -

Scrutiny (Upper House Committee decides if it is in line with the Parent Act)

-

Disallowed (MP may move to disallow, and if the motion is accepted, it’s disallowed)

7

ADMINISTRATIVE LAW 2019 o

Sunsetting ▪

DL will be automatically repealed after 10 years (Cth) or 5 years (NSW)

Arguing that the Delegated Legislation is outside of the scope of the Parent Act (broader argument to make) o

DL must be reasonably proportionate, appropriate and necessary to the purposive act. (SA v Tanner 1989)

o

When interpreting proportionality and what is necessary, the court may look to the Parent Act and its intentions. (Vanstone v Clark 2005)

o

‘Necessary or expedient’ - When the Parent Act authorises a Minister to make regulations which are ‘necessary or expedient’, these can be read as words of limitation, and going beyond this could mean that the regulation in question goes beyond the scope of the Act, i.e. ‘the regulations must be confined to complementing the legislative plan, not to supplementing or extending it’. (Shanahan v Scott 1957)

o

‘For or with respect to...’ - The Parent Act cannot make simply any legislation which serves it purpose, it must deal with what it’s in relation to. E.g. ‘regulations for the emission of air impurities from fuel burning equipment’ and then making a regulation about banning all open fires is beyond the scope. (Paull v Munday 1976)

o

‘Regulating and restraining’ - the power to make laws which regulate subject does not extend to its prohibition. ‘Restrain’ is not equivalent to ‘forbid’ (Swan Hill Shire V Bradbury 1937)

o

‘Regulating, controlling or prohibiting any activity’ - depends on the context but this wording is quite wide and could actually prohibit things depending if it’s within the scope of the purpose of the Act. E.g. ‘...for the use and enjoyment of the Mall’ and there was a by-law prohibiting the distribution of flyers in the Mall, this was valid, because even though it might impact on enjoyment, the rule was for use and enjoyment. (Foley v Padley 1984)

o

The DL must be certain and defined. This is quite a rare ground. (King Gee Clothing v Cth 1945)

o

The DL cannot be ‘capricious and irrational’ and based on an error, such as a statistical mistake. (Minister for Primary Industries v Austral Fisheries 1993)

Arguing that the decision made under the Delegated Legislation is incorrect o

If the delegated legislation is actually valid, and the plaintiff wishes to challenge the decision made under the legislation, it will be treated like any administrative decision made under parent legislation.

o

Thus, it can either be argued in JR or MR.

Application: Prior to discussing the grounds for review, the delegated legislation must be addressed. Formal Requirements On the facts, the allows the Minister to formulate to . The facts provide that the delegated legislation complies with the accountability mechanisms and parliamentary requirements of the Legislation Act 2003 (Cth). Public commentary has been sought, it has

8

ADMINISTRATIVE LAW 2019 been published within the meaning of the Legislation Act 2003 (Cth) and is on the relevant website. Moreover, it has been reviewed by Parliament. Outside the scope of the Parent Act may argue that the falls outside of the scope of the . In SA v Tanner (1989), Brennan J formulated a three step test which can be applied to consider if the delegated legislation goes beyond the scope of the parent act: 1. It will construe the terms in which the legislature has given the power to make the delegated

legislation. 2. Ascertain the scope and legal effect of the impugned regulation; 3. Determine whether the regulation having the scope and legal effect is within the ambit of the

power ‘Necessary or convenient/expedient’ As includes the phrase ‘necessary or convenient/expedient’, the regulations/guidelines must be confined to complementing the Act, and must be ancillary, and it must not supplement or extend it (Shanahan v Scott 1957) . could argue that the goes further than complementing the Act, as demonstrated by .

‘Regulating/Restraining’ As includes the phrase ‘regulating’ or ‘restraining’, which is not akin to prohibiting something (Swan Hill Shire v Bradbury 1937). can argue, based on the , that the can only go so far as to regulate or restrain, as opposed to prohibit, based on .

‘Regulating/Controlling/Prohibiting’ As includes the phrase ‘regulating, controlling or prohibiting’ this indicates that the scope of the Parent Act and the discretion granted to the Minister to make delegated legislation is quite broad ( Foley v Padley 1984) and thus it is likely that the delegated legislation will be deemed to be valid even if it is prohibiting something from being done.

Inconsistent with the parent law/Improper purpose ‘Not inconsistent with this Act’ As includes the phrase ‘not inconsistent with this Act’, the guidelines/regulations must be formulated in accordance with the purpose or object of the Act (Morton v Union Steamship 1951). can argue that the purpose/object of the Act is and as such is inconsistent with this purpose/object. 9

ADMINISTRATIVE LAW 2019

‘For or with respect’ or ‘relating to’ As includes the phrase ‘For or with respect to...’ or ‘relating to’, the Parent Act cannot make simply any legislation which serves it purpose, it must deal with what it’s in relation to and be substantially connected to the subject of the Act (Paull v Munday 1976). could argue that is not sufficiently connected to .

‘Carrying out or giving effect to this Act’ As includes the phrase ‘carrying out or giving effect to this Act’, the regulations/guidelines must be confined to the same field of operations marked out in the Act itself ( Carbines v Powell 1925) . can argue that goes further than the Act’s field of operations, as it .

Rare reasons Uncertainty On the fa...