Admin Law Exam Notes - EVERYTHING SUMMARISED PDF

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Admin law exam notes + a detailed description how to answer questions in exams....

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Administrative Law | Summary Notes Tilly Thompson

Administrative Law Notes Delegated Legislation Procedural Requirements of Delegated Legislation Sunsetting Publicity Parliamentary Review Tabling Committee Oversight Disallowance Judicial Review of Delegated Legislation Judicial Review Jurisdiction

3 5 5 5 6 6 6 7 7 11 12

Common Law Jurisdiction Supreme Court (State)

13 13

High Court of Australia Federal Court

13 14

ADJR Jurisdiction Justiciability

15 17

Standing Common Law Standing

17 17

Standing under ADJR Remedies

17 18

Grounds of Judicial Review Grounds of Judicial Review under the Common Law

19 19

Error of Law Jurisdictional Error

19 20

Procedural Fairness Rights, Interests and Legitimate Expectations

21 21

Exclusion of Procedural Fairness Hearing Rule

22 22

Bias Rule Actual Bias

24 24

Apprehended Bias Exceptions Relief for Procedural Fairness Breaches Unauthorised Delegation No Evidence Rule Grounds of Judicial Review under the ADJR Consideration Grounds Failure to Consider a Relevant Consideration

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Administrative Law | Summary Notes Tilly Thompson Accounting for an Irrelevant Consideration Improper Purpose

30 31

Bad Faith Fraud

32 32

Procedural Error Acting under Dictation

33 33

Inflexible Policy Procedural Grounds

34 35

No Evidence Decisional Grounds

35 37

Uncertainty Unreasonableness

37 37

Irrationality

38

Privative Clauses Constitutional Invalidity

39 39

Federal Level

39

State Level

40

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Administrative Law | Summary Notes Tilly Thompson

Delegated Legislation -

NOTE: ADJR act is not applicable when challenging the validity of DL (as it is not a decision) - Only challenge validity of DL through judicial review using the COMMON LAW - Challenge the validity → means compare the DL to the parent act and check whether it is within the scope of power

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DL is legislation made by a non-parliamentary body, acting pursuant to an Act of Parliament - DL refers to ‘a legislative instrument made by a body to which (or a person to whom) parliament has delegated the power to legislate’ DL CANNOT be made by a body other than the parliament without the authority of parliament (to maintain the separation of powers)

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Steps in Reviewing Delegated Legislation 1. Jurisdiction

Is it Commonwealth or State delegated legislation? - If Cth use Legislation Act 2003 ( Cth) - If NSW use S  ubordinate Legislation Act 1989 ( NSW); Interpretation Act 1987 ( NSW)

2. Legislative Instrument

Does the delegated legislation meet the definition of legislative instrument in s 8 of Legislation Act 2003 ( Cth) ( and NSW legislation if necessary)? - If yes continue - If no → leaning towards soft law / policy (not valid)

3. Sunsetting

Is the DL still valid or has a sunset clause caused it to be repealed?

4. Publicity

CTH - Has the DL been registered? Has the DL undergone public consultation? NSW - Has it been published and has an RIS been prepared?

5. Parliamentary Review

6. Judicial Review

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Has the DL been tabled properly? Has it undergone scrutiny by a committee? Has it been disallowed? (NOTE: DL commences operation before it is tabled and continues to be operative until disallowed)

If procedural requirements have not been followed, the DL is procedurally ultra vires, a  nd invalid STOP THERE! But → if procedural requirements all followed and DL is valid → proceed to judicial review.

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Administrative Law | Summary Notes Tilly Thompson Definition - NOTE: always satisfy the s8(4) definition of the Legislation Act 2003 ( Cth) … ‘ it is a legislative instrument as per s 8…’ - If it does not satisfy this definition, it is not actually DL and therefore any decisions made under it are invalid (e.g. if not made under a power delegated by parliament) - Soft law → codes of practice, guidance, guidelines, policy notes etc. ARE NOT DL - NOTE → just because something is called a guideline does NOT mean it isn’t a legislative instrument - depends on whether or not it meets s 8(4) test

NOTE: if NSW legislative instrument, satisfy s3 definition in the Subordinate Legislation Act 1989 ( NSW)

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Schedule 4 → e.g. standing rules and orders of parliament, rules of Court, university by-laws etc.)

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Administrative Law | Summary Notes Tilly Thompson

Procedural Requirements of Delegated Legislation -

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One ground for review → DL does not satisfy the procedural requirements (therefore invalid) - NOTE: look at whether the parent act alters procedural requirements (this would alter the standard rules discussed below) If procedural requirements have not been followed, the DL is procedurally ultra vires, a  nd invalid

Sunsetting -

Sunsetting imposes a shelf life on DL Check if the DL is still validly enforced → once sun sets, DL must be reintroduced

CTH Requirements - S50(1) of the Legislation Act 2003 ( Cth) repeals a legislative instrument on the 1 April or 1 October falling on or after the 10th anniversary of registration of the instrument - Unless the instrument was registered on prior to 2005 (s50(2)) NSW Requirements - S10(2) of Subordinate Legislation Act 1989 ( NSW) → a statutory rule is repealed on in September on the fifth anniversary of the date on which it was published

Publicity CTH Requirements - S17 of Legislation Act ( Cth) requires public consultation - S19 - failure to consult does not affect validity - Encouraged but not required - S15 - legislative instrument must be lodged for registration - Mandatory requirement of REGISTRATION ( S15G) - S15K(1) - a legislative instrument is not enforceable unless it is registered NSW Requirements - Subordinate Legislation Act 1989 ( NSW) - In NSW, before some  statutory rules are made the minister responsible must prepare a Regulatory Impact Statement (RIS) - S5 - regulatory impact statement (RIS) required in particular cases - Not required in every situation - S6 - Minister can certify no need for RIS (because public interest demands that the RIS process not be followed ( S6(1)) - S7 - statutory rule must not be presented to Governor-General without RIS or ministerial certificate saying an RIS is not needed - S9 - failure to comply does not affect validity - Not compulsory (only encouraged) - S39 - all statutory rules must be published on the NSW legislation website - S39(2A) - a failure to publish does not affect validity, but it does affect commencement date 5

Administrative Law | Summary Notes Tilly Thompson

Parliamentary Review Tabling -

Common law requirement that subordinate legislation be tabled in each house of parliament as soon as it has been made Tabling requirements ensure instruments are brought to the attention of parliament (so they know what they must scrutinise)

Commonwealth Requirements - S38 Legislation Act 2003 ( Cth) - S38(1) - office of parliamentary counsel must arrange tabling of registered legislative instruments within 6 sitting days of registration - S38(3) - instrument is treated as repealed if not tabled within that time NSW Requirements - S40 Interpretation Act 1978 ( NSW) - statutory rule must be tabled within 14 days of gazettal - S40(4) - failure to lay notice does not affect validity (but still must be done)

Committee Oversight -

Committee review → quality assurance - Look at the DL (not policy) and fix specific problems (e.g. clarify definitions)

Commonwealth Level - Senate Standing Committee on Regulations and Ordinances - S23(2) → role is to scrutinise all legislative instruments that are tabled to be at the senate - Look at: - Is this instrument consistent with the statute (parent act)? - Does it trespass on personal rights and liberties? - Availability of merits review? - Can’t engage in policy considerations → only scrutinise the legislation NSW Level - Legislation Review Committee - Joint Committee established by s9 Legislation Review Act 1987 ( NSW) - Scrutiny role only → can’t consider the policy of legislation (s9(3))

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Administrative Law | Summary Notes Tilly Thompson

Disallowance -

Disallowance allows parliament not to allow a legislative instrument - Parliament is able to eliminate legislative instruments they do not like

Commonwealth Level - S42 Legislation Act 2003 ( Cth) - a notice of motion to disallow a legislative instrument may be put before either House within 15 sitting days of tabling - The instrument is disallowed if the motion is passed or the motion is not called on NSW Level - S41 Interpretation Act 1978 ( NSW) - a notice of motion to disallow a statutory rule (or provision) may be put before either House within 15 sitting days of tabling - Anyone in parliament can make a motion to disallow - The rule (or provision) is disallowed if the motion is passed - Does not need to disallow the entire DL if one provision is not acceptable

Judicial Review of Delegated Legislation Grounds for Judicial Review of DL 1

The DL fails to comply with formal procedural requirements.

2

DL exceeds the scope of the primary Act.

3

The DL is inconsistent with, or repugnant to law (general law or empowering legislation).

4

The DL serves an improper purpose.

5

DL is unreasonable and unproportional.

6

There is uncertainty in the expression, application or operation of the DL.

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The DL was enacted under a sub-delegation of legislative power.

Failure to comply with formal (procedural) requirements - DL was not passed through all the right processes (e.g. not tabled, no sunset clause) - Procedural requirements may be specified in the: - Legislative instruments legislation or the specific primary act - Consequence: - Under the legislative instruments legislation → some breaches will result in repeal or invalidity, others not (depends on the relevant provision) - Under the empowering legislating → will generally lead to invalidity but depends on whether the Act makes it mandatory

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Administrative Law | Summary Notes Tilly Thompson DL exceeds the scope of the Primary Act - Does the DL exceed the scope of the primary act? → do more than what the primary act allows? - 1. Look at how Parliament has conferred power to make the regulation in the parent act/ - 2. What is the scope and legal effect of the regulation? - 3. Is the regulation within the ambit of power conferred? - 4. Is the regulation capable of being considered reasonably proportionate to the end to be achieved? - Regulation must be reasonably proportionate, appropriate and necessary to fulfil the purpose of the parent act ( SA v Tanner ) Power to do what is necessary or convenient (or expedient) - Does the parent act prescribe power to make DL that is necessary or convenient to be prescribed - About completing as opposed to supplementing the power (Carbines v Powell ( 1925)) - Must complement the parent legislation not supplement or extend it - Scope is wider where the empowering Act is general, narrower where the empowering act is detailed (Morton v Union Steamship Company of New Zealand Ltd ( 1951)) Shanahan v Scott ( 1957) - Primary act (Marketing if Primary Products Act 1935) c oncerned with marketing scheme for eggs - PA gave power to make regulations ‘necessary or expedient’ in relation to processing and marketing of eggs - The DL made purported to prohibit the cold storage of eggs - Found that the regulation DID NOT fall within the scope of the power to make necessary or expedient regulations - The prohibition was therefore an attempted extension of the scope / widen the purposes of the PA act - “Such power does not enable the authority… to extend the scope or general operation of the enactment… it will not support attempts to widen the purposes of the Act” Power to Regulate - Does the primary act give power to regulate a subject matter? - Is the power broad enough to include prohibition? (not likely) Swan Hill Corporation v Bradbury ( 1937) - Regulate DOES NOT mean prohibit - ‘A power to make by-laws regulating a subject matter does not extend to prohibiting it either altogether or subject to a discretionary licence or consent’ - By-laws made under such a power may prescribe time, place, manner and circumstance and they may impose conditions, but under the prima facie meaning of the word they must stop short of preventing or suppressing the thing or course of conduct to be regulated.

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Administrative Law | Summary Notes Tilly Thompson Inconsistent with, or repugnant to law Inconsistency with the empowering legislation - Delegated legislation cannot be repugnant to, or inconsistent with the Act which confers the power to make it (Plaintiff M47/2012 v Director-General of Security ( 2012)) - Direct inconsistency examples: - Term defined differently in each instrument - Inconsistent effect examples: - Imposing new liabilities beyond those contemplated by the Act - Constraining activity permitted by the Act - Inclusion of an additional penalty - Qualifying rights granted by the Act Inconsistency with the general law - DL must be consistent with parent act AND can’t contradict superior law (general law) -

Constitutional limits - E.g. acquiring property without providing compensation (s51(xxxi)) or breaching the implied freedom of political communication - State regulation is subject to Cth laws ( s109 Constitution ) - State regulations can’t override Cth laws (parent act and all Cth acts)

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Other primary legislation - Regulations cannot be inconsistent with matters dealt with by another Act → e.g. council by-laws which regulated bookmaking were inconsistent as other primary legislation already dealt with betting in public places (Powell v May [ 1946]) - Can’t make laws in areas where there are already laws

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Common law - Principle of legality → executive does not have ability to override common law - Delegated legislation - unless the parent act clearly authorises an interference with common law rights, it will be invalid - E.g of common law rights → access to the courts, freedom of communication, privilege against self incrimination

Improper purpose - Improper purpose → does not mean malicious purpose → means anything that isn't proper (e.g. if the act authorises one motive, all other motives will be improper) - 1. Identify the purpose - If a there is an express or an implied purpose set out in the parent act → any other purpose will be improper ( Brownells Ltd v Ironmongers’ Wages Board ( 1950)) - If there is no purpose identifiable in the Act → any other purpose will be improper ONLY if it is not in good faith - 2. Identifying inconsistency - The improper purpose must be substantial (Haines v Annwrack Pty Ltd ( 1980)) - Executive officials are motivated by several purposes → the improper purpose must be substantial (out of all the mixed motives) to affect validity 9

Administrative Law | Summary Notes Tilly Thompson

Unreasonableness and proportionality Unreasonableness - Consider whether the delegated legislation is ‘so oppressive or capricious that no reasonable mind can justify it’ (City of Brunswick v Stewart ( 1941)) - High threshold - Test does not invite the court to consider the merits or policy of the DL Proportionality - “The test of validity is whether the regulation is capable of being considered to be reasonably proportionate to the end to be achieved… It is not enough that the court itself thinks the regulation is inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power” - SA  v Tanner ( 1989) - If there are more effective / less intrusive ways to achieve a purpose then use those methods Uncertainty - DL may be invalid if it is uncertain in its expression, application or operation - Approach → “there is no doctrine that certainty is a separate requirement which all forms of subordinate legislation must fulfil” (King Gee Clothing Co Pty Ltd v Commonwealth ( 1945)) - Certainty is not an essential element - E.g. vague description of an area or location = uncertainty in the DL’s expression (Ingwersen v Borough of Ringwood [ 1926]) - E.g. formulae incapable of consistent application = uncertainty in application of the DL (Brudenell v Nestle Co (aust) Ltd [ 1971]) - E.g. pricing formulae with vague components so it could not be consistently applied = uncertainty in the application of the DL (King Gee Clothing Co Pty Ltd v Cth ( 1945)) Sub Delegation of legislative power - General principle = delegatus non potest delegare - A person whom power has been delegated cannot sub-delegate that power - There is a prohibition on sub-delegation of LEGISLATIVE power - Not administrative power - Can sub-delegate administrative power (to make decisions under the DL) - Exception → can sub-delegate authority to make decisions and exercise discretionary power within the limits of the regulation - The principle does not preclude the making of regulations which confer on a subordinate body or official authority to make decisions and exercise discretionary powers within the limits prescribed by the regulations, but it is always borne in mind that legislative power itself cannot be deputed (Hawke’s Bay Raw Milk Producers Co-operative Co Ltd v NZ Milk Board [ 1961]) - Leading case of NZ illustrative of key concept applied in Aus

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Administrative Law | Summary Notes Tilly Thompson

Judicial Review -

JR is concerned with the lawfulness of decisions made by the executive, not whether their decisions are wise and fair - A court must affirm a legally impeccable decision even if it thinks that the decision was substantively poor - A court must quash a decision which is legally flawed, even if it strongly suspects that the decision was in fact the substantively correct one Steps in Judicial Review

1. Jurisdiction

The court must have the jurisdiction to conduct the judicial review.

2. Justiciability

The court must accept the issues as justiciable.

3. Standing

The applicant must have standing.

4. Remedies

The court must have the power to grant a remedy.

5. Valid Grounds

There must be a valid ground of review. - JE, bad faith, procedural fairness, error of law

6. No Exclusion

The Legislature must not have validly excluded the court’s jurisdiction.

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Administrative Law | Summary Notes Tilly Thompson

Jurisdiction -

1 - is it a commonwealth or state matter? → look at the act in the question

Commonwealth Legislation - The relevant legislation is the XYZ Act (Cth), a piece of Commonwealth legislation. As the decision was made in the commonwealth jurisdiction, the ability of the client to bring an action of judicial review will be discussed with reference to both the ADJR Act and the common law.

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ADJR Jurisdiction Under the ADJR the Federal Court and the Federal Circuit Court...