Exam Cheat Sheet – Admin Law 2015 - Administrative Law PDF

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Jurisdictional Error – used to be very narrowly defined (outside scope of power) ‘Jurisdiction’ = “Authority to decide” (R v Bolton 1841). Anisminic (1969) UK –Priv. Clause could not preclude JR b/c only applied to ‘determinations’ not ‘purported determinations’. Commission had ‘misinterpreted its powers’. Abolition of distinction between intra and JErrors for TRIBUNALS. Later cases abol. 4 COURTS Tickner v Chaman (1995) Minister failed to properly ‘consider’. Duty to consider was required procedure prior to power to decide.” Craig (1995) – maintains distinction b/w JError and intra-error for COURTS, in dicta, suggested that there is no distinction for TRIBUNALS Tribunals cannot authoritatively define limits of own Jurisdiction (Marbury v Mad 1803): Only courts can determine Qs of law Daniel Ghezelbash: ‘administrators have a very narrow scope for making intra-jurisdictional errors. So most (but not necessarily all) errors of law made by administrators amount to jurisdictional errors.’ (See below for RARE cases where error found to be non-jurisdictional) J.Errors for Courts: 1. Pure Error – no Jurisdiction 2. Partial outside J 3. Procedural UV 4. Misconceives nature of its power under statute Intra JE. for C: 1. Mistake in identify issues 2. Mistake in formulating relevant Q’s 3. Relevant/irrel evidence 4. Relevant/irrel. Considerations. Project Blue Sky (1998): Whether a decision is void is ‘whether there can be discerned a legislative purpose to invalidate any act which fails to comply with the condition’ ascertained by language of the statute, its subject matter and objects, & consequences MIAC vLi (13) applied Wednesbury (1947) ‘so unreasonable that no reasonable tribunal could have made it’ - only applies to discretions. SAAP (2005) procedure of notification had to be strictly adhered to – failure to do so was J Error. See also SAAED (2010) SZIAI (2009) – perhaps on rare occasions, failure to make obvious enquiry about critical fact may = failure to exercise jurisdiction (dicta) Kirk (2010) – Did not accept Anisminic for Courts. JErrors for courts are; 1. Absence of J.Fact, 2. Disregarding a matter that statute requires be taken into account (or converse) 3. Misconstrued statute thereby misconstrued own power or purpose (no Jurisdiction to decide). Craig ‘errors’ are just examples – not exhaustive list. / Endorsed idea that ‘denominating some Q’s as ‘jurisdictional’ is almost entirely functional: it is used to validate review when review is felt to be necessary’ ‘Jurisdiction’ may simply ‘express the gravity of the error’. Futuris (2008) Test for ‘no-invalidity clause’: assessed as per Blue Sky test (examined extrinsic materials). Errors in process (of Exec) do not go to J, occurred within J. Endorsed Parisienne Basket Shoes (1938) Dixon J “clear distinction b/w want of J. and the manner of its exercise” FTZK (2014) applying wrong test and asking wrong question = AAT had misdirected itself. ‘failure to exercise J’ NOT words used by court. Jurisdictional FACTS “A court or tribunal cannot give itself J. by erroneously deciding that the fact or event exists” (Gummow J, Eshetu) CJ Speigelman: JFact has “objective” existence & it’s existence is essential to the validity of exercising power Timbarra v Ross Mining 1999 CASES: Pre 2000 [Waterford 1987 – Brennan J ‘no error of law in making a wrong finding of fact’, endorsed in Enfield (2000)] Clancy v Butchers (1904) ‘Subject Matter’ approach re: ‘industrial disputes’. The subjects existence or non-existence is J Fact. Parisienne Basket Shoes (1938) – Legislature can condition courts jurisdiction on the actual existence of a state of facts, rather than, the courts opinion as to the state of facts. So, it is an outstanding issue until some higher court determines whether acts did in actuality exist. Therefore: Leg. Would not condition power to decide on JF unless “clearly expressed” Bellbird (1944) ‘Satisfaction’ can be a condition of jurisdiction (No-where in case was this referred to as ‘J Fact’). Satisfaction or ‘opinion’ mus be ‘such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts’. Court does NOT substitute it’s opinion for that of DM, it enquires about whether the opinion really has been formed - Essentially tests the satisfaction for ‘reasonableness’. If opinion formed by taking into account irrelevan t considerations, it has not in actuality been formed. Hickman (1945) (re: ‘coal mining industry’ and ‘transport industry’) Endorsed subject matter approach in Clancy. See Priv Cl for H. Provisos Melbourne Stevedoring (1953) Similar to Bellbird - DM ‘must understand correctly the test provided or prescribed and actually apply it’. Must be some ‘foundation in fact’ for the satisfaction or opinion (Endorsed in S20). Sounds like ‘Some Evidence’ (Mason CJ, Bond 1990) Enfield (2000): Criterion of ‘special industry’ was a J Fact, b/c on the existence of it an obligation arose. Judges noted Bellbird test. Must have been “reasonably open for the Decision Maker to form the opinion in question” (Gaudron J) Court cant substitute its view 4 DM (Mason Peko) Summary: J. Fact is an objective fact / JF is interdependent with authority to decide / JF is thing or subject matter the existence of which gives rise to power to decide / JF decided by court on evidence before it (not before orig. DM) / Leg. Would not condition power to decide on JF unless “clearly expressed” b/c “so inconvenient a result” / opinion or satisfact. NOT J Fact / Court can’t replace its opinion for that of orig. DM CASES: Post 2000 (Opinions & Satisfactions become J Facts?) Key Q: does a state of opinion or satisfaction mandated by statute, require that it be formed by a reasonable person or with a logical process? Eshetu (1999) Under Mig Act DM had a duty to grant a visa if satisfied that certain criteria has been met. J. Fact DEFINITION: “some fact or event upon the existence of which the jurisdiction of a tribunal or court shall depend” (in dicta, Gummow J) Implies that an opinion or satisfaction could be a ‘fact or event’ because the duty (ie Jurisdiction) arose when the event of satisfaction occurred. GIVES RISE TO NEW CATEGORY OF J FACT (opinions and satisfactions). 2 TESTS: to determine if J.Fact (which is not material) really exists 1. it is tested for ‘reasonableness’ (Gummow J advocated 4 ‘reasonableness review’ which should be supported by ‘probative material o logical grounds’ relying on Deane J Bond (1990)). 2. Whether a reasonable person who correctly understands the meaning of the law under which she acts would have formed such an opinion or would have come to such a state of satisfaction. Sounds like ‘reasonably open’ (Enfield) S20 (2003) Gummow J’s ‘reasonableness review’ based on testing for ‘findings or inferences of fact supported by logical grounds’ was accepted as free-standing ground of review? In SGLB (2004) HCA relied on these comments as forming the critical Q in determining this case! Gedeon (2008) endorsed a test for whether something is a J Fact very similar to Bellbird & Melb Stevedoring. ‘a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion’ in relation to “Must not grant….if likely to…” : ‘If likely to’ = J Fact. SZMDS (2010) accepted that if ‘illogicality and irrationality’ occurs in forming opinion which is J Fact, J error is established. BUT, ‘reasonable minds’ might reach different conclusions TEST: Was it ‘open to the decision maker to engage in the process of reasoning that it did engage…on material before it?’ (note: not material before COURT – so court is NOT REPLACING, it is testing the original decision). SEE BELOW S.O.P. Gummow ACJ & Kirby J (dissenting): endorsed SGLB/S20 approach – effect of which is that courts would be replacing their opinion. Non–Jurisdictional Error REMEMBER Kirk (2010): HCA will not put limits on what J-error and non-J error are – Following are mere guides Lam(2003) McHugh & Gummow JJ refer to existence of ‘non-J errors’ in Constitutional Jurisdiction. Palme(2003) Failed to give a statement of reasons. While error of law (as it was required by statute), it did not affect the making of D. Muin(2002) Error in not giving all documents to RRT required to assist decision was error of law, but did not go to RRT’s authority to decide. Bodroddaza(2007) Time period set in Mig. Act for JR of migration decisions. Unconstitutional to limit relief under Sc75(v). BUT, No J Error – Delegate (administrator) used wrong assessment to add up ‘scores’ in application – it was an error within Jurisdiction. Futuris(2008) If legislature protects certain decisions with ‘non-invalidity clause’ errors that may otherwise be Jurisdictional, will not qualify.

Separation of Powers & Jurisdictional Fact Court decides on evidence before it, not evidence before DM. If opinion, satisfactions are to be J. Facts needs to have some reasonableness test SZMDS (2010); at Issue “Serious Irrationality” - Differing views; • The Majority: thought that the test for 'illogicality or irrationality' (for subjective J. facts) should be set at a standard as high as Wednesbury unreasonableness ‘different minds might reach different conclusions’ • Gummow ACJ & Kiefel J (dissenting): condemned the tribunal’s findings for illogicality or irrationality for want of any factual bases. Which is an easier test to meet because you don't need to show that the decision could not have been reached by any logical or rational decision maker, just that in this instance, the process was not logical or rational. • NOTE: SZMDS ‘different minds might reach different conclusions’ for J. Facts • NOTE: Wednesbury Unreasonableness for discretionary powers. If an errors importance can convert it into a J Error, then administrators can only have last word on least critical of decisions. • See Kirk: ‘Jurisdiction’ may simply ‘express the gravity of the error’. J Error: Summary: HCA future approach to J Error will depend on APPROACH TO STATUTORY INTERPRETATION. • Court has stated impossibility of conclusively defining J.Error vs non-J.Error (Kirk) – BUT, See above cases for example of non-J.error • For error of law to be Jurisdictional, it must have relevance to DM’s Jurisdictional powers. • Decisions tainted by J.Error will be void ab initio (as if it had never been) • Application of ‘Principle of Legality’ has expanded J.Error category (e.g. ‘Unreasonableness’ in Li, tribunal refused to grant adjourn) Remember: Breach of NJ is J Error (Aala 2000), so if you establish Breach of NJ, Privative Clause will not protect the decision. M61 General Issues/principles: Potential applicability of NJ to preliminary recommendations. ‘Proceedural fairness must attend the Conflicts consideration by the Min.  of whether to exercise his dispensing discretion’. Applied Annetts v McCan ‘90 (D is one that affects rights, interests) 1. ‘Steps towards exercise of stat power’ or ‘statutory step’ ‘taken as incident of exercise of stat power’ = decision (Held in: M61) vs 2. only ‘final and operative’ and not ‘steps along the way’ are justiciable (Bond 1990) 1. Purpose of Mig. Act to respond to international obligations under Refugees Convention & Protocol (Held in:M61,utilised in M70) vs 2. ‘it is the law of Australia which prevails in any case of conflict with Refugees Conv.” (QAAH 2006) - Also M47 2012 (Heydon J) ‘Mig Act does not give effect to whole of Ref’s Con. Relevant Q is what ACT provides, not Cv’ 1. Ministerial announcement could constitute a ‘decision’ – issue of ‘Justiciability’ vs - S10 (2012) distinguished from M61. Onshore applic, JR was avail. so NJ applied at review, not at Min. D. to issue guidelines - Also in S10, guidelines were laid before parliament whereas announce at issue in M61 was not (although was Cabinet D.) 1. No Estopple in public law re: statutory discretions and representations (Kurtovic 1990) vs M61 (in effect, Cth was ‘estopped’) M70 (2011) ‘Malaysia Declaration Case’ – Jurisdictional Fact and Delegated Legislation • s198A(3) The Minister ‘MAY’ (make declaration) – (i), (ii)… M70 alleged matters mentioned in 198A(3) (i),(ii)… were J Facts. • M70 filed application under s75(iii) & (v) seeking injunction in nature of prohibition restraining his removal to Malaysia. • No reference made to Blue Sky or Legislative Instruments Act - Consider Parisienne Basket Shoes – was there clear leg. Intention? French CJ: appeared influenced by M61. J Fact defined ‘factual criterion, satisfaction of which is necessary to enliven the power’. Where power conditioned upon ‘opinion, belief, state of satisfaction or suspicion’ the existence of the state of mind will be a J Fact. By construing 198A(3) (i),(ii)… as J Fact, it should NOT be construed as conferring upon courts power to substitute their judgement for that of Minister. Rather, the Minister had misconstrued the provision, he had not contemplated the practical reality of Malaysian laws. Therefore J Error = Void. Kiefel J: Facts necessary for making declaration did not exist (Malaysia could not provide relevant protection as per s 198A(3) (i),(ii)…they are objective Jurisdictional Facts. Minister had misconceived and misunderstood what the statute required. (As per Craig errors) Gummow, Hayne, Crennan Bell JJ: “the legislative intention” was to give effect to Aus. Obligations under Refugees Conv. Heydon J (Dissent): Minister not obligated to construe Act to give effect to ‘totality’ of Refugees Convention. Statutory Language: 1. does not require proof of the 4 criteria in 198A(3) (i),(ii)… be established as matters of fact, 2. relates to decision in province of Executive power pertaining to Foreign Affairs, 3. Suggests 198A(3) (i),(ii)… is for Ministerial judgement and not susceptible to judicial review. Rajamanikkam (2002) A decision can be said to be “based on” a Fact, only if that Fact was “Critical” to DM’s decision. Curragh (1992) A fact can be critical if small and one of many facts. Critical is where DM treated as an ‘essential step’ in DM process (were it not for the finding of fact, the decision would have been different [Gleeson CJ]). M47 (2012) Incorporation of requirement for positive ASIO assessment was Ultra Vires M76 (2013)  Officers did not refer RSA application to Minister to consider exercising his discretion. Failure to refer was ‘error of law’ which did not allow minister to exercise his discretion if he chose to. = J.Error because did not allow opportunity to exercise Jurisdiction. S156 (2014) Failed challenge to constitutional validity of sections added to Mig Act following M70. Matters in Mig. Act fall in Aliens Power. “what is in the national interest is largely a political Q” Plaintiff argued that Minister could not be assured that PNG would fulfill it’s assurances (like in M70), but it failed in this case because there was no Statutory Requirement for the Minister to be satisfied of these matters. IMPORTANT: Distanced from M61 & M70 re: Purpose of Migration Act. Essay – Consider these Issues! (Jurisdictional Error / Jurisdictional Fact / Privative Clauses) (See Also SOP & J.Fact above) - Purpose of P/C to make JR unavailable even where errors of law have taken place in DM process, to ensure certain of administrative decisions - BUT, P/C cannot protect decisions marred by Jurisdictional Error (S157). - Most errors of law will be J. Error for Administrators (Craig, Yusuf), including breach of NJ (Aala). - Furthermore, Any Jurisdictional Fact not adhered to will be amount to ‘no decision at all’ (Bhardwaj). - The legislative introduction of Jurisdictional Facts constituting an opinion or satisfaction of the decision-maker were designed to facilitate effective and efficient administration, removing from the authority to decide the requirement of some material, objective fact. - Such Jurisdictional Facts must be actually held by DM for power to be enlivened (Eshetu – 2 tests for reasonableness). This essentially tests the subjective opinion or satisfaction for a requirement of logicality (SGLB 2004 / SZMDS 2010). - Scope for effective PC therefore v narrow! - Court approach to Establishing J.Facts, J.Error and the effectiveness of P/C will come down to approach to Statutory Interpretation. (Blue Sky approach would mean that the mere existence of a privative clause tends to show the intention of the legislature that an error of law would not render the decision void. (adopted in Futuris re: No Invalidity Clause) BUT, critical to Futuris decision was availability of other i h i Ki k vit of h fo J di i l Di ti (d rt fo l f id JE !)

Natural Justice – Hearing Rule is implied in statute Cooper & Wandsworth (1863) unless limited w/ exhaustive statement – clear words Kioa v West (1985) Issue: “whether the exercise of the power is conditioned upon observance of the principles of NJ”. Mason CJ (common law approach): Implying a common law rules (P.O.L.) into statute. Brennan J (statutory approach): Regard must be had to 1) Text of statute, 2) Subject Matter of Statute, 3) Interests Affected, 4) Administrative Framework created by statute. S10 (2012) Plurality dismisses any difference between Mason CJ and Brennan approach “False Dichotomy”. Death of Legitimate Expectation Aala (2000) breach of NJ, no matter how trivial = JError. Inference that he had taken substance “into account” but did not? “looked at"? ‘It cannot be concluded that· the denial of that opportunity made no difference to the outcome of the proceeding’ (Gleeson CJ) Prasad (1985) It is not the job of the decision-maker to make the applicant’s case for him (Wilcox J) Macquarie Uni v Ong (1989) Notice must be given of any new adverse allegations, except if would defeat purpose or exercise of power (KvW) SZFDE (‘07) fraud upon applicant = fraud upon tribunal. NJ not afforded. SZGUR (‘11) when discretion to enquire exists, no duty to consider. SZIAI (2009) – perhaps on rare occasions, failure to make obvious enquiry about critical fact may = failure to exercise jurisdiction (dicta) Osmond (1984) – No general duty to give reasons. Wainohu (2011) duty to give reasons is an incident of the judicial function. Act invalid. Natural Justice – Rule Against Bias implied in statute Cooper & Wandsworth (1863) unless limited by clear words. Actual Bias (French CJ Jia) Must be a pre-existing state of mind that disables the DM or renders DM unwilling to undertake proper evaluation Apprehended bias Deane J Webb & Hay (1994) ‘fair minded lay observer’ would entertain a reasonable apprehension that X not bring impartial and unprejudiced mind to decision. Accepted in Ebner (2000) – lay observer need not know all facts, need not be ‘informed’. Angliss Group (1969): minds can give thought to matters, does not mean not bring fair mind to decision. RE: Kirby J & equal pay. Epeabaka (2001): Dr Hudson: comment on website AFTER decision. ‘mere lack of nicety’ not sufficient. Must be ‘firmly established’ App bias concerned with APPEARANCE OF BIAS, not actuality. NOTE: difference for Ministers & public servants from judges [much higher standard for judges; Ministers etc are naturally biased in terms of implementing and justifying their policy] (Mok Gek Bouy 1994 [radio comment by PM] test varies according to functions & circumstances. Jia Legeng 2001 Position of Minister substantially different from that of a judicial officer. NJ does not require absence of any predisposition or inclination for or against an argument or conclusion. Privative Clauses – can get around them if there is J. Error Tramways Case No.1 (1914) Privitive Cl. cannot oust HCA orig J. sc 75(v), reaffirmed in S157 (2003) Darling Casino (‘97) construe Priv Cl presuming that Leg. does not intend to deprive citizens of access to courts. Can be express/imply ousted ‘Hickman Principle’ (1945) P.Cl. is interpreted as meaning no decision is void ‘on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is: (the ‘Hickman Provisos’) a) a bona fide attempt to exercise its power, b) that it relates to the subject matter of the legislation, c) and that it is reasonably capable of reference to the power given to the body. (The board has no authority to determine ambit of its powers by deciding meaning of ‘coal mining indus...