Administrative Law Summary Notes PDF

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Summary

An excellent resource to look over for tutorial questions, and final exam preparation. These notes should only be relied upon for guidance....

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LAWS1160 | JURD7160

Administrative Law

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TABLE OF CONTENTS Jurisdiction to Conduct Judicial Review

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Standing

8

Privative Clauses

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Ultra Vires/Breach of Statutory Requirement

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Irrelevant Considerations

18

Relevant Considerations

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Improper Purpose and Bad Faith

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Unreasonableness

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No Evidence

26

Inflexible Application of Policy

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Acting under Dictation

31

Jurisdictional Error

33

Error of Law on the Face of the Record

35

Natural Justice/Procedural Fairness

36

The Hearing Rule

37

The Rule against Bias

41

Other Grounds for Review in the ADJR Act

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Merits Review – Reasons for a Decision

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Freedom of Information

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Merits Review

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Remedies (Common Law + ADJR)

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ADJR Act s5 Grounds for Review (Decision) ADJR Act s6 Grounds for Review (Conduct) ADJR Act s16 (Remedies) ADJR Act Schedule 1 (Exempt Decisions) ADJR s13 (Reasons for Decisions) ADJR Schedule 2 (Exempt reasons for Decisions)

58 59 60 61 65 67

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Judiciary Act s39B (Original Jurisdiction Federal Court of Australia) Freedom of Information Act Schedule 2 (Exemptions)

71 74

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Jurisdiction to Conduct Judicial Review I.

II.

Definition: A Court must have power to interfere with a matter by recognizing it has jurisdiction to conduct judicial review. When can an applicant argue for judicial review? a. A Court must be satisfied it has jurisdiction b. The litigant must have standing

III.

Has the applicant satisfied the Court it has jurisdiction? a. Jurisdiction at ***Common Law*** i. Inherent Common Law Jurisdiction – The inherent common law jurisdiction of superior Courts to grant prerogative writs such as ● Certiorari – Quash an invalid decision ● Prohibition – Prohibit a decision-maker from further unlawful activity ● Mandamus – Compel a lawful exercise of power ● Habeas Corpus – Require the release of a person unlawfully in custody ● Injunctions – Prohibitory and mandatory ● Declaration – Declaring legal obligations ii. In Most States and Territories Superior Courts – still hold inherent jurisdiction to conduct judicial review subject to Statutory Modification iii. For Commonwealth Public Officials – no court has inherent common law jurisdiction to conduct judicial review. ● The High Court – Formed from the Constitution  and therefore its has constitutional power  and not inherent. ● Federal Court – Formed by Statute and its jurisdiction is limited by Parliament (Federal Court of Australia Act 1976 (Cth)

IV.

Can the Applicant take the Matter to the High or Federal Court ? a. Essential Requirements for Enacting Original Jurisdiction? i. Applicant Must: ● Have a Matter – involving some disputes about rights, duties or liabilities, ● Entitlement to a Remedy – One of the remedies listed at (III)(a)(i) above ● Against a Commonwealth Officer – the Dispute must be against a Commonwealth Officer. b. ***Original Jurisdiction for Officers of the Commonwealth*** i. Must establish original jurisdiction of the High or Federal Court ii. ALSO REFER TO PRIVATIVE CLAUSES (where relevant) c. ***Original Jurisdiction for Officers of the Commonwealth***

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i. High Court – The High Court has original  jurisdiction under s75(v) of the Constitution in all matters in which involve: a. Writ of Mandamus; or b. Prohibition; or c. Injunction This is taken to mean Jurisdiction to Conduct Judicial Review at Common  Law. ii. Federal Court – The Federal Court has only statutory  jurisdiction and does not have inherent jurisdiction. 1. S39B(1) of the Judiciary Act 1903 (Cth) – The Federal Court has original jurisdiction for Commonwealth Officers with respect to i. Writ of Mandamus; or ii. Prohibition; or iii. Injunction 2. S39B(1A)(c) of the Judiciary Act grants the Federal Court jurisdiction over any matter arising under laws made by Parliament, other than criminal matters. 3. S33 of the Federal Court Act grants the Federal Court accrued jurisdiction in respect of matters (arising under any laws made by Parliament) not otherwise within its jurisdiction that are associated with matters over which the FCA has jurisdiction 4. S44(2A) of the Judiciary  Act 1903 (Cth)  – Allows the High Court to remit any proceedings initiated under original jurisdiction to the Federal Court for determination. V.

Is the matter justiciable at Common Law? a. Must be ‘justiciable’ – Even if the High or Federal Courts have original jurisdiction to conduct a judicial review, they can refuse to hear a matter on the basis of non-justiciability. i. Non-justiciable – “We are declaring Martial Law in Melbourne”  – it is an executive decision and not justiciable. ii. s39B of the Judiciary Act replicates the same requirements of justiciability present under s75(v) for the Federal Court [Peko ] b. Court will Consider: i. The Source of the Power ● i.e. Constitutional or prerogative vs. statute ii. The Status of the Decision-Maker ● i.e. Authority of decision-maker iii. Nature of the Decision-Making Power ● i.e. National Security per Civil Services Union v Civil Service iv. Is the issue ‘real’ or ‘hypothetical’ 6

● Re McBain; Ex Parte Australia Catholic Bishops Conference Gleeson CJ- ‘Courts do not have a mandate to seek out interesting and important questions of law, and decide them, irrespective of the parties desire to litigate’. Hayne J - ‘Hypotheical questions give rise to no ‘matter’ Justiciable controversies must concern the rights and duties of parties; and the powers of those who hold office. VI.

Is the matter justiciable under the ADJR Act? a. The applicant must establish that there is a i. Decision or conduct for the purpose of making a decision ● S5(1) or s6 a. Decision and Conduct per – s3(2) & s3(5) ii. Administrative Character ● S3(1) iii. Made under an enactment ● S3(1) iv. About a person aggrieved ● S3(4) – A persons whose ‘interests are affected’ b. Relevant ADJR Act Sections i. S3(1) ADJR Act – Definition of ‘Enactment’ ● Enactment defined as a Commonwealth Act and “an instrument (including rules, regulations or by-laws) made under such Act”. ● Includes subordinate legislation. ‘Instrument’ is apt to include documents of an administrative as well as legislative character. ● To qualify as ‘instrument’ the document must be of such kind that it has the capacity to affect legal rights and obligations. ii. S5 ADJR Act – Grounds for Review of a ‘Decision’ ● Allows a person to apply for an order of judicial review to the Federal Court or Federal  Magistrates Court a. Decision - In Respect of ‘a decision to which this Act applies’ (Hicks v Ruddock) ● S3(1) – 1. A decision of ‘administrative character’ a. Inferring any admin decision 2. Made under ‘enactment’ – s(3) 3. Not a decision by the Governor-General 4. Not a decision specified by Schedule 1 of the ADJR Act b. Person Aggrieved - If the person is ‘aggrieved’ by that decision iii. S6 ADJR Act – Grounds for Review of ‘Conduct’ 7

● Allows the same Courts to hear an application made by a person aggrieved by conduct for the purpose of making a decision to which this Act applies. iv. S7 ADJR Act – Failure to make a decision ● Allows the same Courts to hear an application made by a person aggrieved by a decision-makers failure to make a decision c. Common Law Considerations i. ABT v Bond (Decision must be ‘final and operative’) ● Held: a. Reviewable Decision – A reviewable decision is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final  or operative and determinative – at least in a practical sense of the issue of fact falling for consideration. b. Decision is substantive – A decision is substantive in nature. c. Conduct is not substantive – It is procedural rather than reviewing the making of the final decision. d. Reviewable conduct refers to consideration of the way proceedings have been conducted in a body making a decision. e. A finding of fact is generally neither a decision nor reviewable conduct. A finding of fact can only amount to a decision when the statute requires that the decision-maker make a finding of fact during the decision process ii. NEAT v AWB (‘Administrative Character’) ● Held: Private corporations may be reviewable under the ADJR Act, if they exercise public power. This turns entirely on the facts. a. Here, the HC held the actions of a trading company (incorporated under the Corporations Law) performing a regulatory function under a national marketing scheme for wheat to be non-reviewable under the ADJR Act. b. AWB’s commercial charter meant that it was free to adopt a policy designed to maximise its own commercial interests and was not required to consider matters other than this. c. The Wheat Act was neither the express nor the implied source of AWBI’s power to refuse consent, furthermore AWB did not owe its existence to the Wheat Act but derived it status as an entity incorporated under the Corporations Law. iii. Roche v NDPSC (decision of ‘Administrative Character’) ● Held: Matters which can be regarded as relevant to the distinction include: 1. Whether the decisions determined rules of general application or whether there was an application of rules to particular cases 2. Whether there was Parliamentary control of the decision 8

3. Whether there was public notification of the making of the regulation 4. Whether there has been public consultation and the extent of any such consultation 5. Whether there were broad policy considerations imposed 6. Whether the regulation could be varied 7. Whether the power was of executive variation or control 8. Whether provision exists for merits review iv. Griffith University v Tang (Nexus between Decision and Act) ● Held: There must be a nexus between the decision made by the DM and the empowering enactment a. Made Under Enactment – Two criteria ● Decision must expressly or impliedly require or authorized by the enactment ● The decision itself must confer, alter or affect legal rights or obligations b. A decision will only be made under ‘enactment’ if both these criteria are met. ● If Authorized by Statute – then decision is made under enactment otherwise it is not.

ADJR Act s3 (1) - In this Act, unless the contrary intention appears... "decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1. (2) In this Act, a reference to the 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 any other act or thing; and a reference to a failure to make a decision shall be construed accordingly. (3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.

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Standing I.

Standing – An applicant must have an interest affected by a dispute which gives them jurisdiction to take that interest to Court and obtain a remedy. o Private Interests – Rarely ever an issue as the interest affected is the persons own and there they have standing o Public Interests – More difficult as who has standing when an issues affects “all the public”?

II.

Invoking Locus Standi (Standing) – A person entity or group who has “standing” in relation to a complaint has the right to: 1) Invoke the jurisdiction of the Court 2) To be heard by the Court in relation to that complaint 3) To have the complaint determined by the Court in favor of, or against, the person who has standing. a. Standing at *** Common Law*** Originates from Boyce v Paddington Borough Council i. A party can obtain relief where public rights or interests are involved such that: 1. Interference with the public right  is such that some private right of the person was at the time interfered with. 2. No Private Right was interfered with but a person in their capacity with a public right has suffered special damage from the interference with the public right. ii. What is the test for ‘special damage peculiar to himself’? 1. Australian Conversation Foundation v Commonwealth a. Held: ‘Special damage peculiar to himself’  is equivalent to having a ‘special interest in the subject matter of the decision’ b. Special Interest – A person has a ‘special interest’ if: i. They are like to gain some advantage if the action succeeds (other than some mere satisfaction like ‘winning a contest’) ii. Likely to suffer some disadvantage if the action fails (other than a costs award) iii. It is not a mere intellectual or emotional concern. (Right to Life Association NSW )

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iv. It need not amount to a legal right. Special interest not established by the ACF, which was simply a group of people sharing a common concern for the environment. 2. Onus v Alcoa of Australia Ltd a. Held: HCA stated that a plaintiff has no standing to bring an action to prevent the violation of a public right if he has: ‘no interest in the subject matter beyond that of any other member of the public … the litigant must have a “special interest in the subject matter of the action”’ b. That is the interest must be greater in comparison to any other member the public. Interest of a spiritual or emotional nature may ground standing to seek an injunction. (Here, the special position of the aboriginals in terms of aboriginal customary law gave them standing where environmental groups seek standing to restrain development in breach of environmental and planning legislation may have more difficulty in establishing a 'special interest'.) c. Upheld in Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (SA) b. Standing under s75(V) of the Constitution or s39B Judiciary Act I.

Must have Jurisdiction under s75(v) etc (REFER ABOVE)

II.

There must be a matter

Is the issue ‘real’ or ‘hypothetical’ Re McBain; Ex Parte Australia Catholic Bishops Conference Hayne J - ‘A person who has no more than a theoretical interest in the subject matter to agitate a question about the rights, duties or liabilities of others will not give rise to a matter’. c. Standing under the ***ADJR Act*** i. Must have Jurisdiction under ADJR Act (REFER ABOVE) ● ADJR Act defines a 'person aggrieved' as a person whose interests are adversely affected by a decision or determination to  which the ADJR Act applies. The test of standing therefore depends  upon the decision  being justiciable under the ADJR Act. ii. The applicant must establish that there is a 1) Decision or conduct for the purpose of making a decision S5(1) or s6 Decision and Conduct [per s3(2) & s3(5)] 2) Administrative Character → S3(1) [Bond, Roche, NEAT v AWB ] 3) Made under an enactment → S3(1) [Tang] 12

4) About a person aggrieved →   S3(4) – A persons whose ‘interests are affected’[ACF, Tooheys ] iii. The ADJR Act ‘person aggrieved’ is the same the common law’s test for standing (special interest in ACF) – Tooheys v Minister for Business and Consumer Affairs iv. A person may join an application for review if they have ‘special interest’ (s12). Furthermore, the AG has standing as of right in any review (AG’s fiat under s18). This fiat may also be granted to other parties to enable standing (Re McBain ; Ex-parte ACBC). v. Common Law Considerations Australian Institute of Marine & Power Engineers v Secretary, Department of Transport Held: HCA held ‘meaning  of a person aggrieved’ is not encased in any technical rules’ . Rather it depends on the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of public.

Northwest Coast Environment Council v Minister for Resources Held: The applicant must demonstrate  the importance of their special interest in the subject matter. This  can be demonstrated by: ● Illustrating the importance of its concern with the subject matter of the decision ● The Closeness of its relationship to that of the subject matter. ***Special Interests do not equate to Commercial Advantage*** Alphapharm v Smithkline Beecham & Minister for Family Services Held: If a decision concerns the affairs of  one person alone, other persons may not institute proceedings merely because it would be to their commercial advantage that the person should not receive a benefit or should suffer a disadvantage. The pure competitive or economic interest of Smithkline in protecting  its market share was not an interest which the Act recognizes.

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Privative Clauses a. Definition: A privative clause is the Parliament, through the legislature, enacting a ‘privative’ or ‘deprivation clause’ such that it a. Removes the jurisdiction of the Courts to judicially review such decisions; and b. Prevents the Courts from ruling on whether they are lawful. ● "Finality" and "no appeal" clauses ● "No certiorari" clauses (and similar) ● "Conclusive evidence" clauses ● "Time limit" clauses ● Limiting review grounds b. Rationale of Such Clauses The creation of privative clauses create fundamental paradigms in relation to the exercise of power i. Parliamentary Supremacy – Parliament can create any legislation which simply removes the judicial arm of government through such clauses. ii. Separation of Powers – The judicial branch must determine the law as its function and not the repository of Parliamentary. Evidently, this is why Courts dislike – greatly – privative clauses. iii. Rule of Law – Administrative decision makers must not be able to made decisions which exceed their power. iv. Constitutionalism – The only  exception seems to be s75(v) of the Constitution which even Parliament cannot alter. c. Common Law Considerations ● R v Hickman; Ex Parte Fox and Clinton (Subsumed by judgment in S157) HCA held in Hickman that Privative clauses that purport to exclude even Certiorari can validly restrict the scope of Judicial Review provided that: 1. The Protected decision must constitute a bonafide attempt to exercise the power conferred on the decision maker 2. It must relate to the subject matter of the legislation; and 3. It must be reasonably be capable of reference to the power given to the body. ● The decision does not display a jurisdictional error on its face ● The decision is not in breach of a specific statutory limitation on the tribunal’s power which it is reasonable to suppose Parliament intended to be supreme (the breach is not intended to be protected by the operation of the clause.

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DEPSITE THIS: Original Jurisdiction of the HCA vested in s75(v) for officers of the Commonwealth to whom the respective prerogative writs lie. (See S157, Kirk ) Any privative clauses in the original jurisdiction of the HCA cannot affect the jurisdiction of the HCA w...