Admin Law notes from a USYD Distinction student. PDF

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Notes are applicable to all ADMIN law units. ...

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Review Notes

EXAMINABLE TOPICS 1. JUDICIAL REVIEW a. Jurisdiction of the Courts 2. ACCESS TO JUDICIAL REVIEW a. Standing 3. JUDICIAL REVIEW OF RULE MAKING 4. PROCEDURAL FAIRNESS a. Implication 5. PROCEURAL FAIRNESS: a. Content of the hearing rule 6. PROCEDURAL FAIRNESS: a. Rule against bias 7. CONSIDERATIONS, PURPOSES, POLICIES AND REPRESENTATIONS 8. UNREASONABLENESS AND UNCERTAINTY 9. ERRORS OF LAW AND FACT 10. JURISDICTIONAL ERRORS 11. JUDICIAL REVIEW REMEDIES 12. BREACH OF STATUTORY DUTY TO GIVE REASONS 13. RESTRICTING REVIEW – PRIVATIVE CLAUSES

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(1) JUDICIAL REVIEW BEGIN WITH JURISDICTION: Consider  is it state/federal, what is the source of the power, prerogative powers/capacities. 1. Federal Level a. High Court – original review jurisdiction i. Officer of the Commonwealth - s75(v) Constitution 1. Seeking mandamus, prohibition, injunction ii. The Commonwealth – s75(iii) Constitution iii. Matters arising under Commonwealth legislation – s76(ii) Constitution b. Federal Court i. Officer of the Commonwealth – s39B(1) Judiciary Act 1. Seeking mandamus, prohibition, injunction ii. Matters arising under Commonwealth legislation - s39B(1A) Judiciary Act iii. Further jurisdiction – administrative decisions under Cth enactments - Administrative Decisions (Judicial Review) Act 1977 (Cth) (offers a simplified remedial model) At Federal level consider whether on the facts there are:  Commonwealth government officials or entity exercising powers conferred by Commonwealth legislation  Private entity exercising powers conferred by Commonwealth legislation  Commonwealth government official or entity exercising Commonwealth non-statutory executive power  Private entity exercising non-statutory powers, at request or direction of Commonwealth Government

2. State Level a. Supreme Court’s inherent jurisdiction to issue certiorari (quashing order), mandamus (mandatory order) or prohibition for jurisdictional error. b. Supreme Court’s inherent jurisdiction to issue certiorari for error of law on the face of the record. At state level consider whether on the facts there are:  NSW government official or entity exercising powers conferred by NSW legislation  Private entity exercising powers conferred by NSW legislation  NSW government official r entity exercising non-statutory executive powers of NSW  Private entity exercising non-statutory powers, at request of NSW government.

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*Defining the ‘Commonwealth’ – Bank Nationalisation Case – inclusive of all government corporations. ENTRENCHED/NON-ENTRENCHED Entrenched provisions for judicial review – protected by the Constitution.  Cannot be ousted by legislation 1. HCA’s Jurisdiction to remedy Cth public powers affected by jurisdictional error a. Plaintiff s157/2002 (respondent was opposing the Commonwealth) i. Where there is an exercise of public power or an officer of Commonwealth can be made the respondent, focus on the entrenched minimum provision under s75(v) of Constitution. 2. Each State Supreme Court’s jurisdiction to remedy State Public powers affected by jurisdictional error a. Kirk (institutes same minimum level at the state level)

WHAT IS ACHIEVED UNDER THE ‘COMMON LAW MODEL’? Remember, there are two grounds for review: 1. Jurisdictional error – only basis for mandamus, prohibition and retrospective certiorari 2. Error of law on the face of the record – basis for prospective certiorari *Issues here: What precisely constitutes these two categories? What about an issue that is neither jurisdictional or on the face of the record?  ALTERNATIVE: ADJR ACT Note that the ADJR Act is preferable, it provides the widest possible grounds of review and a simple, flexible remedial model. Start with s 16 of the ADJR Act ‘order for review’. It may be preferable due to its:  Flexibility (crafted to suit case)  Simplicity (every ground provides a basis for an ‘order for review’)  Breadth (includes common law and extends to errors of law whether or not on face of record)  Coverage (every error is remediable)

Questions to consider under ADJR Act: 3

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1. Does an express exclusion apply? 2. Is there a ‘decision of an administrative character under an enactment’; preliminary conduct; or a report that is deemed a decision by 3(3). What other federal jurisdictions are available? 1. Exercise of ‘public power’? 2. Can ‘officer of the Commonwealth’ be made a respondent? a. 75(v) Constitution b. 39B(1) Judiciary Act 3. Can ‘the Commonwealth’ be made a respondent? a. 75(iii) Constitution 4. Does the review application involve rights or obligations under federal legislation? a. 39B(1A)(c) Judiciary Act STATE LEVEL – NSW POWERS:   

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Supreme Courts inherit the jurisdiction of the superior courts Includes the prerogative remedies: certiorari, prohibition, mandamus. Supreme Court Act 1970 NSW o Ss 23 o S 65 o S 69(3) Note that ouster clauses will not exclude the entrenched minimum review jurisdiction established in Kirk.

 Chase Oyster Bar Pty Ltd v Hamo Industries The inherent common law jurisdiction extends to public powers of the state What is included in public powers? 1. Statutory – decisions under statute which affect the rights or obligations by force of the statute a. Chase Oyster Bar (2010) confirms this position extends to powers in private hands 2. Statutory – decisions under statute that affects interests by force of the statute a. Ainsworth (Brennan J) – confirms that administration of an Act ‘carries with it the weight of State-approved action and the supremacy of the law’. 3. Prerogative powers – coercive powers with a legal effect derived from prerogative a. Minister for Arts, Heritage and Environment v Peko-Wallsend What is included in private powers?

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1. ‘opt in’ powers – derived from the consent of the person affected by their exercise, eg the powers given under a contract or from other form of voluntary association. a. R v jockey Club Disciplinary Committee; Ex parte Aga Khan; Adamson. V NSW Rugby League DEFINING ‘PUBLIC’ FUNCTION: Non-government entities performing ‘public’ function 1. Where the non-government entity’s primary function is public a. Datafin: public function  government consideration of taking over company, legislative policy development, notice of decisions made by entity. The panel acted in public interest; it was not an entity operating in its own private self-interest. b. CONTRAST – NEAT Domestic Trading v AWB – private company’s decision to exercise a power of veto to maintain its statutory export monopoly was not public function. While the private company had a regulatory effect, it was still functioning for private interest. i. [54] statute have effect to the result, but was not necessary to empower the conduct (McHugh, Callinan, Hayne JJ) 2. Where decisions of a private adjudicator function under NSW legislation a. Chase Oyster Bar v Hamo Industries – progress payment determination by ‘private’ adjudicator under NSW legislation was amenable to review. i. Relationship between the adjudicator and NSW Government was considered - [3] appointed by Minster of the Crown (Spigelman CJ) - [5] ‘statutory, dispute resolution process’ (Spigelman CJ) - [68-70] distinguishable from NEAT, the adjudicator is not entitled to pursue any personal interests or personal interest in the outcome (Basten JA) 3. Where there is exercise of ‘public power’ by a private entity a. Forbes v NSW Trotting Club – private entity was the NSW trotting club. Excluded a private gambler from the club. Claimed procedural unfairness i. Gibbs – moral obligation to the public, and therefore, public power applies. ii. Murphy – the club is not in the position of any private land owner; public power because property rights have been aggregated. There is an exercise of power which ‘significantly affects members of the public’ [274]. iii. Note – this is a difficult standard, equitable element through the ‘moral obligation’. 5

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FEDERAL JURISDICTIONS – SEPARATE FROM ADJR ACT: ‘Officer of the Commonwealth’ a) Constitution – 75(v) b) Judiciary Act – 39B(1) (absent privative/ouster clause) What is an ‘officer of Commonwealth’?  Tenured office by the Commonwealth, usually accepting a salary from the Commonwealth – R v Murray and Cormie; Ex parte Cth  Includes Ministers; public servants; federal judges; other persons appointed or employed by a Commonwealth authority; holders of independent statutory offices established by federal law.  There is a Federal Court authority that a government entity that is incorporated is not and ‘officer of the Commonwealth’. Offshore Processing Case (2010)  Flexibility in overlapping grants of s 75 

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Court exercised jurisdiction to review legality of decisions made by private contractors without determining whether those contractors were ‘officers of commonwealth’. Non-statutory process for assessing asylum claims by irregular maritime arrivals, statute barred from on-shore visa application. Assessment made by a contractor under Ministerial Guidelines to inform Minister’s consideration of whether to exercise statutory powers to allow visas to be issued. o Minister had a power to ‘lift the bar’ o Independent contractors made the assessment, and the minister would exercise the power. o Statutory foundation invokes the power of the Commonwealth Minister and the Commonwealth were appropriate respondents to the proceeding, as they were exercising public powers (including those to detail asylum seekers) act in reliance on the contractor’s assessment.

FEDERAL JURISDICTION – USING THE ADJR ACT: Determining whether the ADJR is applicable: 1. Commonwealth level statute 2. Decision of an administrative character under an enactment, other than by the GG a. S3(1) b. Express exclusions under Schedule 1 6

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i. Fair Work Acts, Australian Charities Acts, Intelligence Services Acts, Telecommunications, Australian Federal Police, Tax, Customs, Renewable Energies, Corporations Act, Insurance Act. 3. Subject to express exclusions Typically, looking at security and defence matters (migration and workplace matters are excluded). Also, reviewable: 1. Conduct for the purpose of making a decision – s 6. 2. Failure to make a decision where there is a statutory duty to make the decision – s 7. 3. Reports or recommendations where provision is made in an enactment for the making of the report or recommendation before a statutory decision is made – 3(3). WHAT IS A DECISION? Bond  Respondent is the Australian Broadcasting Tribunal - general regulatory function in deciding whether licences are fit and proper.  The Tribunal finds that certain licensee companies were no longer fit and proper to hold their licences. Mr Bond sought judicial review of 11 ‘decisions’.  Limitations on definitions – court determines that decisions are: o Of substantive character o Not procedural o Need to be the dominant decision under the act (on the facts action on the licence)  Preliminary findings of fact cannot be reviewed as ‘conduct’.

DISTINGUISHING ADMINISTRATIVE AND LEGISLATIVE DECISIONS: Roche  Medicine in question – used for weight loss for excessively overweight/obese individuals. Previously given by pharmacist without prescription.  Decision taken by statutory committee to alter the entry of a particular medicine on the ‘Poisons Standard’ – notifiable instrument listing therapeutic goods. Manner of the listing determines which conduct in relation to the substance is lawful under the Therapeutic Goods Act 1989 (Cth).  Consequences – substance in question could no longer be lawfully advertised directly to consumers. 7

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Federal Court construed as legislative decision (Branson J). o [27] – distinguish between legislation and the execution of legislation. o [31] The inclusion of the substance in the schedule had the effect of determining its future lawfulness. The rule applies to the substance in general, regardless of manufacturer. o [33] Public consultation important to the process leading to the decision. o [34] Important element of national systems of control, relating to quality, safety, efficacy and timely availability. There is a broader regulatory effect. Multifactorial approach applied. Accountability is under a regime – suggests legislative.

DECISION MADE ‘UNDER AN ENACTMENT’: Griffith University v Tang [89] (Gummow, Callinan and Heydon JJ) 1. Decision is required or authorised by the enactment 2. Decision derives from the enactment the capacity to affect legal rights and obligations (more detail below) Not administrative if, pursuant to NEAT and Tang: 1. Not required or authorised by an enactment 2. Effect on rights and obligations derives from general law 3. It does not affect rights or obligations Griffith University v Tang Two-tiered test foe deciding that a decision is ‘made under’ an enactment ([78-80], [89]).  The University made a decision to exclude a PhD student from the degree program. Issue for HCA was whether this decision was an administrative decision ‘under’ Griffith University’s founding statute.  University is a public institution, established by statute, receiving public funding, monopoly on giving higher degrees, public resourcing for the institution is established by statute.  Once established, a University also has its own corporate personality – can complete internally organised tasks.  There are no rights or obligations existing between university and student impacted by decision. No need to achieve a statutory effect. The decision itself was not under an act that establishes the University. o Gleeson at [10]  the legislation does not provide for review of all decisions of an administrative character made in pursuance of any power or authority which has its foundation in a statute. 8

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(2) STANDING  

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Standing is the right to bring your matter before the court. Administrative decisions which determine the rights or obligations of an individual establish standing o E.g. applicant for a statutory licence/permit/visa. o E.g. immediate harm to individual interests – reputation, liberty, property.  Individual detained for duration of treaty obligation assessment process  Individual whose reputation is damaged by a public report on inquiry or investigation  Individual with a proprietary interest in property subject to a development application. Mostly straightforward, unless you’re dealing with a public advocacy group on the facts where they are not directly impacted by the rights and obligations seeking to be reviewed.

HOW IS STANDING ESTABLISHED? Snapshot: 1. Show sufficient interest 2. If it is mere intellectual/emotional it is unlikely standing will be established. THIRD PARTIES, INTERVENERS, AMICCI CURIAE An intervener will need to have interest, and they can add rights to the parties. Test for standing will also apply to interveners and this includes the right to appeal.

Significance of status

Principles governing grant of this status

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Party Able to initiate proceeding; all rights and obligations of parties – eg to lead evidence, examine witnesses, appeal, exposure to adverse costs order. ACF test – personal rights or ‘special interest’

Intervener Has all the rights and obligations of a party to the proceeding.

Amicii Curiae Does not have rights or obligations of a party; makes submissions on points of law that might be overlooked.

Roadshow Films [2-3] ACF test plus submissions may add to arguments parties will advance.

Roadshow Films ad [4] – CT will be significantly assisted by the submissions of amicus and costs and delay not disproportionate

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TEST FOR SUFFICIENT INTERST: 1. Where declaration and injunction are sought a. Private right or ‘special interest in the subject matter’ (ACF), Private right or ‘sufficient material interest in the subject matter’ b. Bateman’s Bay 2. ADJR Act 1977 (Cth) a. ‘Person aggrieved’ has been construed to be as wide as standing for injunction and declaration b. 5(1) – ‘a person who is aggrieved by a decision to which this Act applies’ c. 6(1) – ‘a person who is aggrieved by the conduct may apply to the Federal Court…’ d. 7(1)(c) – the person has failed to make that decision; a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply… e. 13(1) – ‘any person who is entitled to make an application’ 3. Certiorari and prohibition a. ‘Strangers’ may apply but courts may refuse standing as matter of discretion if applicant does not have special interest b. Re McBain 4. Mandamus a. Person must have ‘special interest’ in compelling performance of the public duty. FIAT OF ATTORNEYS-GENERAL  

A-G represents public interest and has standing to enforce public rights in the A-G’s own name. A-G can also grant fiat, allowing action to be brought ‘on the relation of’ an individual. o Decision on whether to grant fiat is non-justiciable o ‘somewhat visionary’ for citizens to rely on this for judicial enforcement of administrative law norms

STATUTORY PROVISIONS FOR ‘OPEN’ STANDING 

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Environmental Planning and Assessment Act 1979 (NSW) s 9.45 ‘Any person may bring proceedings to remedy or restrain a breach of this Act whether or not any right of that person has been infringed’. Australian Human Rights Commission Act 1986 (Cth) s 3: Rights can be exercised by a ‘complainant’ defined as ‘a person who lodged the complaint’.

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Under FOR laws ‘any person’ may request a government document and appeal against denial of access. Truth About Motorways Pty Ltd v Macquarie – HCA upheld a statutory provision for open standing to restrain contraventions of Cth trade practices legislation.

CASE LAW AUTHORITIES: ACF v Commonwealth  ACF wanted to challenge the legality of approvals given by Commonwealth Ministers and Reserve Bank to a Japanese company for development of a tourist resort in Queensland, including approvals for foreign exchange transactions to finance the developments.  There was a clear breach of environmental impact statements which needed to be satisfied.  ACF was a national body concerned with the protection of the environment.  ACF had members legitimately interested in the subject matter. o The approvals had been given before the environmental impact statements required under the Environment Protection (Impact of Proposals) Act 1974 were completed. The court didn’t accept this. ACF did not have standing. However, the HC softened the historical test of standing, maintaining a requirement for ‘special interest in the subject matter of the action’. 1. ‘Interests’ = distinguishable from ‘mere intellectual or emotional concern’. 2. ACF’s incorporation with particular objects did not strengthen case for. Standing. 3. ACF’s participation in the EIS did not establish standing. Onus v Alcoa of Australia  Case concerned recognition of custodian interest in land, contrary to protections in Victorian Law.  Gournditchjmara custodians of land owned by Alcoa had standing to restrain excavations on the site that endangered items of Aboriginal cultural heritage contrary to the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic). How does this contribute to the test for interest? 1. Non-material interests will be within scope w...