Admin Law Summaries PDF

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Summary

Spelling errors because I copy-pasted quite a bit of this from our readings, and for some reason my iPad kept dropping t's and f's and other letters. Mainly this goes over what is and isn't reviewable, and there's a significant chunk dedicated to traditional remedies....

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1. ADJRA and JRA: What can be reviewed? >> Significant difference exists bw ADJRA and JRA bc of changes in admin law that occurred bw 1977 and 1991: e.g. decisions of GG are not reviewable under the ADJRA but are reviewable under the JRA EARC tried to avoid problems associated with the ADJRA

A. A decision >> 1. s 5(1) ADJRA >> a person who is aggrieved by a dec to which this act applies that is made after the commencement of this act may apply to the fed court or fed magistrates court for an order of review in re decision of any one or more of the following grounds... 1. s 20(1) JRA >> a person who is aggrieved by a dec to which this act applies may apply to the court for a stat order of review in re dec

A. Conduct >> 1. s 6(1) ADJRA >> where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this act applies, a person who is aggrieved by the conduct may apply to the FC/FMC for any order of review in re conduct on any one or more of the following grounds... 1. s 21(1) JRA >> if a person has engaged, is engaging, or proposes to engage in conduct for the purpose of making a dec to which this act applies (whether by person engaging in conduct or another person) a person who is aggrieved by the conduct may apply to the court for a stat order of review in re conduct

A. A failure to make a decision >> 1. s 7 ADJRA >> 1. s 22 JRA >> if: (a) a person has a duty to make a decision to which this Act applies; (b) there is no law that fixes a period w/i which the person is reqd to make the dec; and (c) the person has failed to make the decision; a person who is aggrieved by the failure to make the dec may apply to Court for a stat order or review in re the failure to make the dec on the ground that there has been unreasonable delay in making the dec

1. What is a ‘decision’? >>

A. ‘Decision to which this Act applies’ >> 1. s 4 (JRA) definition >> (a) critical expressions: decision | administrative character | under an enactment (b) critical expressions: decision | administrative character | under a nonstat scheme/program | funds (public)

A. ‘decision’? >> the word ‘decision’ is not specifically defined in ADJRA or the JRA. Two provisions assist with the definition of ‘decision’ 1. How wide is the meaning? >> Lamb v Moss: suggested that broad list of activities in 3(2) ADJRA provided justification for a wide meaning of the word ‘decision’. ABT v Bond: HCA not prepared to give ‘decision’ such a broad meaning. However accepted that the 3(2) helps the court understand the scope of the word. 1. s 3(2) ADJRA / s 5 JRA examples >> making of a decision includes a reference to: (a) making, suspending, revoking or refusing to make an order, award or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f) retaining, or refusing to deliver up an article; or (g) doing or refusing to do anything else; and a reference to a failure to make a decision shall be construed accordingly. 1. s 3(3) ADJRA / s 6 JRA reports/recommendations >> if provision is made by an enactment for the making of a report or recommendation before a decision is made, the making of such report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a dec Ainsworth v Criminal Justice Commission: this section was probably intended to overcome the common law that certiorari was not available against reports/recs of public officials who were unable to affect legal rights a) s 3(3) ADJRA: narrow >> Edelsten v Health Insurance Commission: the enactment must specifically make the report/rec a condition precedent to the making of a subsequent dec (report cannot be optional) a) s 6 JRA: uncertain >>

Kelson v Forward: supports a narrow approach Some cases support a liberal approach Uncertain what approach Qld courts would take 1. ABT v Bond >> Leading HC judgment on the meaning of ‘decision’ w/i ADJRA a) Definition of ‘decision’: >> (1) Must be made ‘by or under’ an enactment >> exception: s 4(b) JRA. MIEA v Mayer - allowed a determination to be considered a ‘decision’ if it was implicitly required by a statute (rather than expressly provided for) (1) Normally needs to have some element of finality >> exception: s 6 JRA (1) An intermediate determination will only be a decision if it is provided for in a statute in the sense of being expressly provided for or impliedly reqd >> Examples of intermediate decisions (not judicially reviewable) Carter v Minister for Aboriginal Affairs: advice given by the Minister that he would consider whether to exercise a power granted by legis to make a declaration or preservation of Aboriginal artefacts Telstra Co v ACC (no2): the issue to Telstra of a consultation notice as a prereq to the issue of a competition notice under the TPA (1) Determination must be substantive and not procedural >> a) Decision vs Conduct >> HC held that actions in Bond not reviewable as decisions or conduct. Mason J considers them mutually exclusive. Decisions: administrative activity that is substantive and final or operative. Conduct: admin activity preceding a dec that reveals flawed procedural process, as opposed to substantive issues. a) Application to future cases >> (1) Edelsten v Health Insurance >> There are difficulties in applying Bond consistently due to technicalities in Mason CJ’s judgment (1) Harris v Bryce >> applied Bond, HELD that a determination by the Cth Sex Discrimination Commissioner to investigate a complaint of sexual discrimination contrary to s 26 of the Sex Discrimination Act was NOT a dec for the purposes of ADJRA. Determination NOT substantive as it did not determine any person’s

rights: not substantive enough to amount to a ‘decision’. Relief not available under ADJRA but court sp stated that relief under trad remedies (s 39B Judiciary Act) were potentially available (1) Re Excel Finance Co >> did not apply Bond HELD that determination of the Aus Securities Commission to auth a Receiver and Manager of a co to make an app under s 598 of Corp Law, allowing public examination of those involved in the affairs of companies WAS a decision (even though very similar to Harris v Bryce - commencement of an investigation) (1) Redland Shire v Bushcliff >> Thomas J pointed out that the Bond formula does not work outside the judicial context. There is difficulty in directly transposing the Bond criteria to ‘decisions’ of a body that performs non-adjudicative functions. (1) *Griffith Uni v Tang >> Gummow, Callinan and Heydon JJ did not disapprove of the majority view in Bond but had doubts as to whether Mason CJ’s approach commands majority support in HCA today. Majority mentioned the Bond test but without the ‘substantive’ req Gaudron and Toohey JJ rejected the ‘substantive’ req

1. Conduct >> s 21 JRA, s 6 ADJRA, allow review of conduct. Requirements: conduct for the purpose of making a decision; a dec to which this Act applies; person aggrieved

A. Other relevant sections: s 8 JRA >> Reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of anything preparatory to the making of the dec, including (a) the taking of evidence; or (b) the holding of an inquiry or investigation.

A. What is ‘conduct’? ABT v Bond >> Case discussed definition of ‘decision’ and ‘conduct’. 1. Conduct: an action taken, rather than a decision made. >> Conduct looks to the way in which the proceeding was conducted, rather than the decs made along the way with a view to the making of the final determination. 1. Conduct is procedural and not substantive in character >> supported by s 8 JRA, which refers to 2 activities that are procedural. 1. If a person is seeking review of conduct, the complaint is that the process of dec-making was flawed (not that the actual dec was erroneous) >>

1. Failure to Decide >> s 22 JRA, s 7 ADJRA deal with the availability of judicial review if a dec-maker fails to make a decision

A. legislation >> 1. s 22(1) >> S 22(1) If –(a) a person has a duty to make a decision to which this Act applies; and (b) there is no law that ixes a period within which the person is required to make the decision; and (c) the person has failed to make the decision; a person who is aggrieved by the failure of the person to make the decision may apply to the court for a statutory order or review in relaion to the failure to make the decision on the ground that there has been unreasonable delay in making the decision. 1. s 22(2) >> S 22(2) If –(a) a person has a duty to make a decision to which this Act applies; and (b) a law ixes a period within which the person is required to make the decision; and (c) the person has failed to make the decision before the end of the period; a person who is aggrieved by the failure of the person to make the decision within the period may apply to the court for a statutory order or review in relaion to the failure to make the decision within the period on the ground that the person has a duty to make the decision despite the end of the period.

A. definitions >> 1. duty >> There must be a duty to make a decision – a duty to make a decision is to be disinguished from statutory power; Brownsville Nominees Pty Ltd v Commissioner of Taxaion a) Duty is deined in s 3 (JRA) to include ‘a duty imposed on a person in the person’s capacity as a servant of the Crown’ >> a) Public Service Associaion of South Australia v Industrial Relaions Commission of South Australia – ‘[in] the absence of statutory language to the contrary, a grant of jurisdicion ordinarily carries with it a duty to exercise it’ per Heydon J. >> 1. Unreasonable delay – means that no reasonable person acing in good faith would, in the circumstances, have approved of the delay in making a decision. the delay MUST NOT be capricious or irraional; Thornton v Repatriaion Commission. >>

1. What is ‘administrative character’? >> For a decision to be reviewable, it must be of an administrative character, but this is not defined in the ADJRA/JRA

A. Preliminary points >> 1. Maintains trichotomy bw legis, exec and judicial acts and decisions; limits JR to admin acts and decisions >> Resort Management Services v Noosa Shire Council; Evans v Friemann; Minister for Industry and Commerce v Tooheys The usual approach is to consider whether the dec is of legis or judicial character and, if not, the dec will be of admin character 1. Court seeks to avoid giving the phrase a narrow or technical construction >> As ADJRA/JRA are remedial statutes, the phrase should be given a wide construction and application Evans v Friedman: it is the decision which must be of an admin character, not the subject of the dec. This case involved an attempt to review a dec to fail a person in a patent attorney exam. Subject matter was education. Court rejected a strict approach which considered only the subject matter; rather the dec must be characterised. In this case, the dec involved the administering of the patent system set up by legislation, thus, was of an administrative character. Evans v Friedman: administration does not involve an isolated act; it is a process. Particular decs need to be characterised in the context of any such process. 1. It is the character of the decision which is relevant and generally not the character of the dec-maker >> Glenister v Dillion: should not make a determination on which branch of govt the dec-maker comes from, but the dec itself. e.g. a Magistrate may make an admin decision in the course of a committal hearing. Hamblin v Duffy: 1. Decisions of an administrative character cannot be construed in isolation from other sections of the Act >> Evans v Frieman: examples of decs in s 5 JRA gives an example of the type of decs that are of an admin character. e.g. ‘revoking a licence’ = ‘decision’, a typical quasi-judicial activity. This indicates that bodies exercising quasi-judicial functions tend to come under the scope of ‘decisions of an admin character’ 1. It is difficult, if not impossible, to set out an all-encompassing definition of ‘legislative’ ‘judicial’ and ‘administrative’ power >> Hamblin

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A. Tests >> 1. Hamblin v Duffy per Lockhart J >> Legislative acts usually involve the formulation of new rules of law having general application Administrative acts usually apply this law to individual cases (not for the community) Judicial acts determine facts and law (binding) by referencing general legal rules 1. Cth v Grunseit per Latham CJ, endorsed by FFC in Tooheys >> “The distinction bw legislation and the execution of legislation is that legislation determines the context of the law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases. 1. Rules of thumb: >>

a) Decs to pass/change subordinate legislation will NOT be administrative; are legislative >> A dec to pass a by-law is usually legislative, however, need to look at the content and not the name (just bc something is labelled as a bylaw, does not mean it is automatically legislative) see Tooheys (1) Minister for Industry and Commerce v Tooheys >> Minister had power to determine the duty payable on entry of goods into Aus based on general criteria. Such decisions were labelled ‘bylaws’. Despite the use of the word by-law, it was held that the decision was of an admin character as it involved the application of general rules (general criteria) to a particular case. A ‘by-law’ may just be the application of the law to a particular set of circs, thus not changing the law. This would be a dec of admin character. a) If a dec has actually changed the law it is legislative >> Qld Medical Lab v Blewett: held that the Minister’s decision to adopt a new schedule of medical fees (appearing at end of statute) had the effect of changing the law and was NOT of admin character. Gummow J: if the minister had decided not to change the schedule, the dec would have been admin character (as it would have involved administering the schedule rather than changing it) a) Steps preparatory to a change in law are often administrative >> Resort Management v Noosa Council: held that a dec by local auth to propose an amendment to a town plan (which would eventually lead to a change in law) was of an admin character. to propose a change in the plan was part of the process of administering the plan. Aerolineas v Federal Airports Corp: FAC made a dec to impose a charge on all aircrafts using certain airports (to cover security expenses). Imposition of the charge was general as applied to all aircraft using certain airports; however, held that the dec to impose the charge was of an admin character bc of the degree of executive control over the dec. Held that the dec was part of the process of administering the Corp’s commercial operation under the statute (through cost recovery). An admin act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the reqs of policy of expediency or admin practice. RG Radio v ABA: Respondent determined to make a plan for broadcasting services in Gosford area, where applicant held licences to operate two existing commercial radio services. Held that R’s decision not administrative character because there are various factors indicative of legislative character: (a) dec determined the content of a general rule; (b) dec subject to parl control; (c) publication of the plan was reqd; (d) there was wide public consultation; (e) there were wide policy considerations; (f) there was an absence of executive variation or control; (g) there was an absence of merits review; (h) the plan had a binding legal effect; NB no single factor is decisive, take all into account

Roche Products v NDPSC: drugs and poisons committee had power per s 52D Therapeutic Goods Act (Cth) to amend the poisons standard. In exercising the power, Committee reqd to take into acct considerations listed in s 52E(1), inc extent and patterns of use of a substance and other matters necessary to protect public health. Held of legislative character. Rele factors: (a) the future lawfulness of conduct; (b) general application of standard; (c) wide public consultation; (d) decision an important part of a national system of controls designed to ensure a uniform approach by Cth, States, Territories; (e) absence of merits review; (f) publication in the gazette; (g) absence of exec variation or control a) A decision cannot be of both admin and legislative character >> Schwennesen v Minister of Environment and Resource Management: judge accepted that most decs in which there is a controversy display both legislative and admin character, must be determined whether the factors suggesting that the decision is legislative will displace those that suggest the decision is admin a) Policy considerations do not automatically make a dec of legislative nature >> Resort Management v Noosa: Policy does not always change the law, may provide direction to the Executive in how to apply the law, which would be of admin character a) Administrative tribunals have a duty to proceed judicially, but this does not mean their decs are of judicial nature >> Hamblin v Duffy: there is a difference between ‘judicial power’ and ‘proceeding judicially’. Duty to proceed judicially means there is a duty to act independently and impartially, observe NJ. Monsilovic: actions incidental to judicial power are usually treated as judicial e.g. power to make a declaration of inconsistency with the Vic Charter was treated as incidental to judicial power and thus judicial Little v Registrar: officials of the courts, registrars etc may sometimes make decs of admin character

1. ‘Under an enactment’ >> for a decision to be reviewable it must be under an enactment. This means that private decision-making is not reviewable s 4(b) JRA exception: also allows decs under a ‘non-statutory scheme or program’

A. Views before Griffith University v Tang >> 1. ‘under’ >> Evans v Friemann – ‘under’ was understood as ‘in pursuance of’ or ‘under the authority of’ a statute

1. proximity >> Post Oice Agents Associaion Ltd v Australian Postal Commission – there must be an element of proximity – was the enactment ‘the immediate or proximate source of the power rather than to an ulimate source.’ rejected in Griffith v Tang: Gummow, Callinan and Heydon JJ stated that the search for proximity deflects attention from the interpretation of the JRA and ADJRA in light of their subject scope and purpose. 1. must be appropriate statute >> Glasson v Parks Rural Distribuions Pty Ltd – held that the review under the AD(JR)A was not available as the decision was held to be made under a NSW enactment, not a Cth enactment.

A. Griffith University v Tang >> This is the leading HC judgment on the meaning of ‘under an enactment’ within JRA Though the court’s dec concerns a dec reviewed under the JRA, dec has implications for decs made under ADJRA bc limits in JRA as to when a dec is reviewable are largely the same as those set out on the ADJRA. (s 16 ADJRA: if state and cth statutes express the same idea in different words, courts are not to interpret them differently) 1. Facts >> The applicant (Ms Tang) was a PhD candidate at Griith University. A university commitee at Griith made a decision to exclude Tang from the PhD candidate programme on the ground that she had ‘undertaken research without regard to ethical and scieniic standards.’ The allegaion was that she had fabricated some basic experimental results in order to speed up her research. The university sought summary dismissal under s 48 JRA on the ground that the decision was not made ‘under an enactment.’ The university’s claim was unsuccessful in the irst instance and on appeal to the QCA – the university successfully appeale...