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Administrative Law

TOPIC OVERVIEW TOPIC 1: INTRODUCTION AND OVERVIEW TOPIC 2: JURISDICTION TOPIC 3: STANDING TOPIC 4: REASONS TOPIC 5: GROUNDS OF JUDICIAL REVIEW I (ACTING OUTSIDE OF POWER) TOPIC 6: GROUNDS OF JUDICIAL REVIEW II (PROCEDURAL FAIRNESS) TOPIC 7: JURISDICTIONAL ERROR TOPIC 8: REMEDIES TOPIC 9: PRIVATIVE CLAUSES TOPIC 10: TRIBUNALS AND MERITS REVIEW

QUESTION STRUCTURE 1. Identify decision made and decision maker 2. Identify the section that the decision was made under 3. Jurisdiction a. Deal with ADJR first, then common law second (if applicable) 4. Standing 5. Reasons 6. Grounds 7. Remedies 8. Merits review (if applicable)

TOPIC 2: JURISDICTION a. When can an applicant seek judicial review? b. A Court must have jurisdiction for it to be able to judicially review an administrative decision. b. Jurisdiction comes from two sources: a. S.75(v) of the Constitution b. ADJR Act

Jur Jurisdict isdict isdiction ion unde underr th the e ADJ ADJR R Act a) Judicial Review can be sought in respect of: i. S5 ADJR Act – a decision 1. Allows a person to apply for an order of judicial review to the Federal Court or Federal Magistrates Court in Respect of ‘a decision to which this Act applies’ ii. Exceptions: 1. Not a decision by the Governor-General 2. Not a decision specified by Schedule 1 of the ADJR Act iii. S6 ADJR Act – conduct in relation to a decision 1. 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 1. Allows the same Courts to hear an application made by a person aggrieved by a decision-makers failure to make a decision c. Is the matter justiciable under the ADJR Act? a. The applicant must establish that there is a: decision of an administrative character made under an enactment (s3 ADJR Act) i. Decision or conduct for the purpose of making a decision 1. S5(1) or s6 2. S3(2) – a. Lists making, suspending, revoking, refusing, issuing as potential decisions i. Analogise on your facts 3. S3 – a. "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 and whether before or after the commencement of this definition) b. So it doesn’t matter if the decision hasn’t been made yet 4. It’s a decision in a Bond sense if the making of a decision is provided for the legislation a. This will usually be the final decision, but it can still be a Bond decision if it’s ancillary

5. S3(3) – a. A report or recommendation preceding a decision will be deemed to be a decision 6. S3(5) – a. A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation 7. Ancillary decisions? a. There is some uncertainty surrounding ancillary decisions b. A conclusion reached as a step along the way in the course of the ultimate decision will not generally be reviewable, unless statute provided for the making of a finding on that particular point (Mason CJ in AB Tribunal v Bond) c. However, any breach of the grounds of review, that arise in making ancillary decisions, take roost in the final decision d. As such, review can be sought based on illegalities in the process of making ancillary decisions, because they are part of the operative decision ii. Of an Administrative Character 1. S3(1) 2. The application of a general rule to a particular case (Toohey) a. State the general rule (state legislation section) b. Apply to the facts of the decision iii. Made under an enactment 1. S3(1) 2. 2 conditions need to be satisfied per Griffith University v Tang: a. Decision must be expressly required or provided by enactment (authorized) i. (you can refer back to your analysis from Bond – that the decision is authorized by statute) b. Decision must confer, alter or otherwise effect legal rights or obligations (Griffith University v Tang) i. NOTE: this doesn’t necessarily have to be the rights of the applicant (Griffith University v Tang) ii. The answer to this will always be given by a section of the empowering legislation – refer to

Jur Jurisdict isdict isdiction ion unde underr s.7 s.75(v) 5(v) o off the Con Consti sti stitutio tutio tution n b. Why would you prefer s75(v)? i. Challenging a decision under a prerogative power ii. If the decision is in schedule 1 of the ADJR Act iii. If the decision is made by the Governor General (s3 ADJR Act excludes GG) iv. If the legislation contains a privative clause 1. Privative clause can defeat the ADJR Act because it’s just a normal piece of legislation, but won’t defeat s75(v) because the Constitution prevails over ordinary legislation

c. S.75(v) of the Constitution gives power to the High Court to hear Judicial Review applications on original jurisdiction “in all matters in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth” i. Therefore, the Applicant must: 1. Have a Matter – involving some disputes about rights, duties or liabilities a. “A controversy about rights, duties or liabilities which will, by application of judicial power, be quelled” (Re McBain; Ex Parte Bishops) b. The matter must be justiciable and not involve complex policy considerations (Minister for Arts v Peko-Wallsend Ltd) c. The issue must be real and not hypothetical i. ‘Hypothetical questions give rise to no ‘matter’’ (Per Hayne J in Re McBain; Ex Parte Australia Catholic Bishops Conference) ii. E.g. if there’s just a hypothetical question about whether a decision maker can do something in due course d. JUSTICIABILITY i. If the decision that's been made is extremely politically driven/involves complex political matters, court may find the matter is non-justifiable (Peko Wallsend – a consideration here was that cabinet could not possibly provide a hearing to everyone affected by a decision that was in the ‘political arena’) ii. Problem with this 1. Article Chris Finn (Justiciability of Administrative Decisions: a redundant concept?) says this concept is meaningless a. Notion of SOP means that judicial should be able to review all executive decisions, whether or not influenced by policy b. If a decision is affected by policy, there are other stages in the process of review that will deal with that fact later on - so grounds of review might not be made out iii. If it looks like there is a lot of political concepts in your question, bring this up. Argument from Government that there can't be JR, but this goes against whole notion of admin law (cases have moved away from this currently anyway?) 1. Decision must be made by an officer of the Commonwealth – a. the Dispute must be against an employee of a government department or a minister. b. Ministers are always going to be officers of the Commonwealth c. NOTE: if there is a Privative Clause in the legislation, it will remove the jurisdiction of the Courts to Judicially Review a decision and rule on whether the decision was lawful (R v Hickman) d. Any privative clauses in the original jurisdiction of the HCA cannot affect the jurisdiction of the HCA within the confinements of s75(v). 2. Entitlement to a Remedy – i. The High Court has original jurisdiction to conduct Judicial Review under s75(v) of the Constitution in all matters in which involve a a. Expressly contained remedies: writ of mandamus, prohibition, injunction b. Implied remedies: certiorari

a. Writ of Mandamus - compel a lawful exercise of power. E.g. ordering that the matter be sent back to the original DM to remake the decision; or i. Limits of Mandamus: 1. Public Duty a. Mandamus will only be granted when there is a public duty to exercise a discretion, not when it is merely permissive (WA Field and Game Association v Minister for State Conservation) i. Consider the broad purpose of the Act – it was a Wildlife Conservation Act, so not really a focus on hunting therefor the minister didn’t have a duty to declare open season b. Prohibition - Prohibit a decision-maker from further unlawful activity; or i. Stops a decision being made from the out-set (relevant if the decision hasn’t actually been made yet) ii. Limits of Prohibition: 1. Public Power a. It is necessary that the decision was made pursuant to public power (public power includes statutory power but may be expanded) b. “A body will be said to have exercised public power where, in the absence of them performing it, the government would invariably carry it out” (Data Fin) i. However, this view has been criticized because there is no criteria for judging whether or not the government would invariably carry out a function c. Injunction - Prohibitory and mandatory; or i. Serve to operate against decisions that have already been made d. Declaration; or i. Order by the court which has no coercive effect (no consequence if you breach it) ii. , but which merely declares the legal rights and liabilities of the parties e. Certiorari - Quash an invalid decision - (implied remedy) i. Limits of certiorari: ii. Public Power: 1. Power made under statute (see above) iii. Legal consequence 1. Certiorari only operates to quash the legal effects of a decision (Hot Holdings v Creasy)

2. A legal precondition that restricts certain rights may be a legal consequence (Hot Holdings v Creasy) i. Federal Court – The Federal Court has only statutory jurisdiction and does not have inherent jurisdiction. ii. So if the HCA has jurisdiction under s.75(v) the Federal Court will have jurisdiction under s.39B ii. If you go through s75(v) in the exam, say: this analysis would also apply under s39B 1. S39B of the Judiciary Act 1903 (Cth) – The Federal Court has original jurisdiction for Commonwealth Officers with respect to a. Writ of Mandamus; or b. Prohibition; or c. Injunction iii.

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.

TOPIC 3: STANDING a. Standing – An applicant must have an interest affected by a dispute which gives them jurisdiction to take that interest to Court. b. The Attorney General’s Fiat a. The Attorney General has standing to seek Judicial Review of decisions that affect public rights b. They can bring such reviews: i. At their own motion ii. Or allow a person to bring them on their behalf c. The Attorney General very rarely, if ever uses this power in a practical sense i. However, a refusal to grant their fiat is not subject to Judicial Review (Gouriet v Union of Post Office Workers) c. Under the ADJR Act a. S5 - standing for persons aggrieved b. S3(4) – what this means ‘interests adversely affected’ c. The ADJR Act ‘person aggrieved’ is the same the common laws test for standing ‘special interest’– Tooheys v Minister for Business and Consumer Affairs d. Private interests a. A person will have standing if: i. They, compared to the public at large, are affected to a substantially greater degree or in a substantially different manner (Brennan J in Onus v Alcoa) ii. Or if “were he likely to succeed, he would gain some advantage other than satisfaction of rights a wrong; or if he failed, suffer a disadvantage other than a sense of grievance” (Per Gibbs CJ in Australian Conservation Foundation v Commonwealth) iii. Or if Judicial Review vindicates the interests of people affected in a practical/not insignificant way (Argos v Corbell) 1. E.g. in Argos v Corbell the competitor shops were affected in a not insignificant way (would suffer 10% decline in profits), but the landlord was too far removed and couldn’t demonstrate that he would likely to suffer financially from the development e. Public interest a. There must be more than a mere intellectual or emotional concern in the matter (Australian Conservation Foundation v Commonwealth) b. Indicia to apply, from NCEC v Minister for Resources (applied in Animals Angels) (none are determinative, just weigh the indicia up): i. A peak body in a certain region 1. Look at the size of the organization and if the organization is in that area ii. Recognized by the Commonwealth Government as a responsible organization 1. Shown by recurring financial grants from the government iii. Recognized by the state government as a body that should represent the particular concern on advisory committees

1. Members have taken place in official decision making and on advisory committees iv. Conducted projects and conferences on a particular concern (e.g. environment) which they receive funding for v. Makes recommendations and submissions to commissions c. Form a preliminary conclusion on whether the body has standing, from North Coast & Animals Angels, then go through Right to Life: d. The nature of the interest must be strictly limited to the legislation under which the decision is made for the group to have standing (Right to Life Association v DHHS) i. Compare the objects of the Act with the reason why the public organization is challenging the decision to determine if the reasons are beyond the scope of the purpose of the Act ii. E.g. in RTL v DHHS: 1. The purpose of the Act was to “provide for a national system of control relating to quality, safety, efficacy and timely availability of therapeutic goods” 2. The group was challenging the decision for a clinical trial for the Morning After Pill due to religious and other concerns 3. The was held to be beyond the scope of the purpose of the Act iii. Counter this decision with Argos 1. Argos stated that standing could not be limited by subject matter, scope or purposes of the legislation under which the decision in question had been made 2. (HCA in Argos didn’t explicitly overrule RTL but you can consider RTL to no longer be good law 3. Therefore, the group will have public interest standing e. Standing of organisations based on the member’s interests being affected: i. The majority of the members have to have standing in order for the association to have standing. Apply private interest model to individuals to see if they have standing, then the association will have standing ii. Shop Distributive – private interests of the members of the union were affected (50% or more), so the union as a whole was found to have standing iii. Marine Engineers – association of members, and a similar finding. f.

Third category – United Kingdom a. The UK has a modified private interest approach (Walton v Scottish Ministers) b. Standing can be established by a combination of: i. A slight private impact ii. And being involved in public organisations opposed to the decision 1. Essentially making yourself a ‘person aggrieved’ 2. W had made submissions during the decision making process c. “persons will ordinarily be regarded as aggrieved if they made objections or representations as part of the procedure which preceded the decision challenge, and their complaint is that the decision was not properly made” (Lord Reed in Walton v Scottish Ministers)

TOPIC 4: REASONS Co Common mmon Law Posit Position ion a. In Australia, there is no duty to give reasons (Public Service Board of NSW v Osmond; approved in Wingfoot Australia Partners Pty Ltd v Kocak) b. In England, while there is no general duty to provide reasons, Courts are much more prepared to find exceptions to the rule, in appropriate circumstances (Ex Parte Doody) a. “If a person the subject of a decision does not know the reasons for that decision, they could never make an effective challenge to the decision (Lord Mustill in Ex Parte Doody)

Sta Statuto tuto tutory ry Dut Dutyy a. Reasons can be obtained under ADJR Act s13 if the person has been aggrieved by the decision (advantage for using the ADJR Act over the Common Law) a. S13(1) If a person (the decision-maker ) makes a decision to which this section applies, a person (the requester ) who is entitled to make an application to the Supreme Court under section 5 in relation to the decision may, in writing, request the decision-maker to provide a written statement of reasons in relation to the decision. b. S13(2) The decision-maker must, as soon as practicable and in any event not later than 28 days after the day the decision-maker receives the request (the request day ), prepare the statement and give it to the requester. b. Certain information not required to be disclosed under s13A of the ADJR Act a. S.13A(1)(a) relates to personal affairs or business affairs of a person, other than the person making the request; and b. S13A(1)(b) is information: i. (i) that was supplied in confidence; ii. (ii) the publication of which would reveal a trade secret; iii. (iii) that was furnished in compliance with a duty imposed by an enactment; or iv. (iv) the furnishing of which in accordance with the request would be in contravention of an enactment, being an enactment that expressly imposes on the person to whom the request is made a duty not to divulge or communicate to any person, or to any person other than a person included in a prescribed class of persons, or except in prescribed circumstances, information of that kind c. Content of statement of reasons a. S25D of the Acts Interpretation Act: a. Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

d. Purpose of s13 of the ADJR Act a. Overcome real grievance people experience when not told why something was done b. Enables people to ascertain whether the decision made was illegal and thus permit them to know if they could make a successful challenge c. Promote compliance with the law (Minister for Immigration v Taveli) i. Anything less than true reasons is fraud (Taveli) e. Relaxed burden on decision makers to provide reasons because: a. They can use templates in reasons b. The court should not be overzealous in finding errors in a statement of reasons (Minister for Immigration v Wu) i. Loose language or unhappy phrasing does not show flawed decision making (Wu) ii. Don’t go through reasons with a fine-tooth comb, but read as a whole (Kirby J in Wu)

TOPIC 5: GROUNDS OF JUDICIAL REVIEW I (ACTING OUTSIDE OF POWER) Definition - Ultra vires literally means “outside power”. Purpose - If an administrative decision-maker acts ultra vires, this effectively means they have acted in a way that goes beyond the administrative power that the law has conferred on them Two basic categories of ultra vires: 1. Narrow ultra vires: Decision-maker had no power at all to make the decision 2. Broad ultra vires: Decision-maker had power, but erred in the process of making the decision

NAR NARROW ROW ULTR ULTRA A VI VIRES RES Definition – Decision-maker had no power at all to make the decision. Grounds for Review: 1. Action not permitted by Statute 2. Breach of an essential Procedural Condition 3. Improper delegation 1. Action not permitted by Statute a. Determining whether this ground is established i. Identify the decision-maker and the decision made 1. Decision of Secretary to issue a search warrant (Entick); 2. Decision of Minister to cancel visa on ground of bad character (Haneef); 3. Decision of Governor to make regulations (Shanahan, Foley, Paull); ii. Identify the possible statutory source of the decision-maker’s power to make that decision. E.g.: 1. None?; 2. Statutory provision to cancel visa in certain circumstances; 3. Statutory provision to make regulations necessary and expedient for carrying out statute’s objects. iii. Interpret what that statutory provision permits the decision-maker to do (i.e., assess the limits of the decision-maker’s claimed statutory power). iv. Based on that interpretation, assess whether the decision-maker’s decision falls outside the scope of that power (i.e. ultra vires).

b. Decision not authorised by Statute i. ADJR Act – s5(1)(d) – A decision can be challenged o...