Judicial Review Complete 2 PDF

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Judicial Review Notes...

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Judicial Review

ADJR ACT

Judicial Review

s75 Constitution

Commonwealth

Mechanism for administrative law review

s39B Judiciary Act

Merits Review

Administrative Appeals Act

Judicial Review

Common Law Judicial Review

Merits Review

NSW Civil and Administrative Tribunal

State

Court must have Jurisdiction

Common Law High Court – s75 Constitution & s39B Judiciary Act Federal Court – s39B Judiciary Act NSW Supreme Court – s23 Supreme Court Act (NSW) Jurisdiction – High Court S75 Constitution S75(v)

Original jurisdiction of the High Court -

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The constitution specifically vests authority and jurisdiction in the HC to exercise Judicial Review via s75(v) It confers JR jurisdiction on HCA as part of its original jurisdiction Remedies – gives power to HCA to issue injunctions and writs mandamus and prohibition

S75(iii) – key broadening of JR  Easy to argue

Project Blue Sky

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Key elements to s75(v)

1. Matter

Where no JE shown Project Blue Sky – does not require JE – if you are unsure then mention s75(iii) and use this case. “in all matters… in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, the HC shall have original jurisdiction”. 1. Matter 2. Writs/Remedy present 3. Officer of the commonwealth Re McBain; Ex part Australian Catholic Bishops Conference (2002) A matter is – per Hayne J:  Matter is more than a legal proceeding  Must be an immediate right, duty or liability to be established by the Court’s determination  Hypothetical questions do not give rise to a matter  Federal judicial power has a core duty to be exercised to ‘quell’ matters

Re McBain; Ex part Australian Catholic Bishops Conference (2002) This case – McBain administered fertility treatment. Act restricted (no lesbian or single) was challenged. Catholic Archbishops – is it a matter? No there is no controversy

The case – they were asking a hypothetical “should the law allow fertility treatment to be given to lesbian or single mothers”. Parliamentary question it is not a discussion for the judiciary. 2. HC’s original jurisdiction (writs)

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HC has original jurisdiction under the Constitution which is derived from CL. The basic functions of these remedies is to “quash” – deprive of legal effect – invalid or unlawful “prevent” – illegal administration acts or decisions “require” performance of a duty by a ADM Note – Certiorari – is ancillary to s75(v) due to Aala

Certiorari – main writ – decision stepped outside the power – ancillary due to Refugee Review Tribunal; ex Parte Aala 2000

Limits to s75(v)  No direct mention of grounds of review in this section  Certiorari is not mentioned in s75(v)  These writs need Jurisdictional Errors before they can be invoked.

Mandamus – performance of a duty. You need ADM to decide and grant a licence but they haven’t.

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3. Officer of the Commonwealt h

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Brings about the privatisation limit O of C – basically a public servant

Prohibition – preventing something from happening

NEAT v AWB – satisfying approach – HC – just look to the source of the bodies power. Is there an

act of parliament that creates a statutory government body? Is it regulated? If it is a private incorporated body then it is not. E.g. UTS Pty Ltd CONTRAST R b Panel on Take-Overs and Mergers, ex parte Datafin – UK case – does the DM do something that looks like a public function? If they do then they are a public actor and should be regulated by JR and admin law. Jurisdiction – Federal Court – ADJR and Judiciary Act S39B Judiciary Act S39B(1) – just like s75 CC to empower federal court to have writ powers and the benefits of pushing back parliament S39B(1A) – attacks Delegated Legislation directly. If you prove a section of the regulations are unlawful then you can strike it down. DL does not go through the same discrepancies as an act of parliament goes through O31.01 of Federal Court Rules 2011 (Cth)

Can combine s39B and ADJR

To directly challenge DL

S38B(1A)(c) Judiciary Act

Jurisdiction – NSW - CL S23 Supreme Court Act 1970 (NSW)

The court shall have jurisdiction which may be necessary for the administration of justice

S69 Supreme Court Act 1970 (NSW)

Proceedings in lieu of writs. - If you have an error of law on the face of the record – a ground - Ask directly for the court to stop something or quashing order

ADJR Act Jurisdiction Applies to Federal Court and Federal Circuit Court (not CL) BUT NOT TO HC and NSW Supreme Court

ADJR Act 1977 Cth

Details grounds of review – ss5 and 6

S8 S5

Gives jurisdiction to the Federal and FC Court Applications for the review of decisions – a person who is aggrieves Applications related to the conduct of making decisions – e.g. bias conduct Failure to make a decision  A decision to which this act applies – s5  Proposed and actual conduct engaged in for the purpose of making a decision to which this act applies – s6  A failure to make a decision to which this act applies – s7 S3 – (1) 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) (a) Under an enactment referred to in (a) (b) (c) or (d) (b) By a commonwealth authority or an officer of the Commonwealth under enactment referred to OTHER THAN (c) A decision by the GG or (d) A decision included in any of the classes of definitions set out in schedule 1

S6 S7 When can these courts have Jurisdiction?

What is a decision to which this act applies?

Exemptions

1. Decision vs Conduct

A decision of administrative character made under an enactment  Decisions made by GG are exempt from JR under ADJR  Decisions listed in schedule 1 – decisions made in tax assessment, criminal process, migration, security and defence ABT v Bond ABT v Bond Facts: Premier of QLD. Notoriously corrupt. Peterson. Sued channel 9 for slander. He has been accused of slander, Bond owned channel 9 and had a media licence. It ended in a pay out to Peterson – suspiciously large payout. Rumours were that Bond wanted to bribe. ABT launched an enquiry. Was Bond a fit and proper person to hold a broadcasting license? If he wasn’t should it be cancelled? ABT released a decision on the facts –

the decision said Bond is not a fit and proper person. Bond challenged the decision on the facts seeking JR and this decision to be quashed – certiorari. The main issue was what is the decision and when can you challenge it. It could not be challenged because the licence was not abolished or amended 

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A decision must be final and operative decision which is determinative of he issue of consideration A decision must be a substantive decision They read the scope of decisions narrowly because of s6 (conduct) AND because of the separation of powers.

Edelsten v Health Insurance Commission E had been exploiting medicare system by overservicing clients. Overcharging medicare. Regulatory body reviewed this in 3 stages. 1. The doctor prepare the report. 2. Report goes to committee that recommends the minister and 3. The minister decides. E wanted to get involved in stage 2-3 . because there are stages in the legislation was it a decision? HC said no not until the minister review if he can practice.

Edelsten v Health Insurance Commission

THIS AFFIRMS BOND 2. Administrative Character

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Not defined in ADJR act Main distinction is between legislative acts and administrative acts Legislative – creates a general rule of conduct without reference to a particular case Administrative – would apply this to a case Griffith v Tang – excludes decisions of legislative or judicial character

Factors that show an instrument is of legislative character  Creates new rules of general application  Has binding legal effect  Has to be publicly notified in a gazette  Made after wide consultation  Incorporates or has regard to wide policy consideration  Cant be varied or amended by executive – only parliament  Can be reviewed by parliament Federal Airports Corporation v Aerolinas Argentinas 1997

Griffith v Tang.

Federal Airports Corporation v

Aerolinas FACTS: aerolinas want to land in our airport. FAC Argentinas 1997 charges landing fees. They wanted to impose a landing fee that was general. Question as whether this was an administrative decision or legislative. The FC said this was a decision of administrative character. FAC is executive and was acting in its role as administrator. In the judgement they weighed the factors of general and specific and who can amend and change. Shows that it is complicated but they err towards administrative 3. Under an enactment

Privatisation issue

S3(1) defines enactment An ordinance or an instrument – rules, regulations, by laws

Griffith University v Tang 2005

Griffith University v Tang 2005 GU was created by a Commonwealth Act. Gave power to delegate administrative DM to various committees. Under the Act, the awarding or granting of PHD’s was given to the uni directly. Directly empowered Tang was kicked out. She wanted the decision to be challenged under JR. was she excluded to study made under an enactment? Is the uni able to exclude students? Is it a contract with the uni? HC  the decision to expel was broadly authorised by the act but not a decision under enactment, it affected private law obligations and rights. It is not made under the act and therefore no jurisdiction As more public services are privatised. Contrast NEAT and Datafin – D occurred in a particular circumstance that led to the decision

Court must accept issues are justiciable

Justiciability is about the appropriateness of a question for judicial resolution. The suitability for, or amendability to, judicial review of a particular administrative decision or a class of decisions Non-justiciable areas are:  

Prerogative powers National security and defenceo Council of Civil Service Unions v Minister of civil Service o Minister for Arts, Heritage and Environment v Peko Wallsend o Hicks v Ruddock and others 2007 o TEXTBOOK 394-401

Applicant must have standing

Common Law Function and Purpose of Standing

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ADJR vs Common Law OPEN STANDING

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Who can gain access to courts judicial review jurisdiction and secure powerful remedies against administrative decision makers Standing rules at both common law and ADJR In practice there is little difference today in approach – Right to Life 2005 Consider whether courts are moving toward a less restrictive position

Environment East Gippsland Inc v Vic Forests 2010  Standing has changed – its more accessible, easier to get standing  Open standing = floodgates question. The power of law is the law itself, it is a language of power then you can win over people who don’t agree with you. Common Law Standing

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Depends to an extent on the remedy Generally, requires a special interest in the subject matter of the action ACF v Cth 1980  Test reformulated from Boyce v Paddington to ACF An ordinary member of the public who has no interest other than as a member of the public is upholding the law, has no standing. Someone who has special interest - ACF  First try to get a private or financial interest  A mere intellectual or emotional concern is not enough  Special interest Special interest Edwards v Santos - This case special interest was made out Examples of special interest  Unions interest in decision to permit Sunday trading – Shop Distributive  Members of indigenous group in

Right to Life 2005

Environment East Gippsland Inc v Vic Forests 2010

ACF v Cth 1980 FACTS: ACF sued Cth seeking an injunction and declaration challenging decision to build tourist resort in central QLD. Problem was ACF did not live near the resort or have financial interest, they said they had a special interest in environmental matters. This was not made out.

Edwards v Santos Involved a group of aboriginal people negotiating in

preventing construction on land containing relics of which group was custodian – Onus v Alcoa 1981  Private company that conducted a funeral benefit fund interest in preventing a statutory authority from setting up a similar competitive fund – Batemans Bay 1998 NOT MADE OUT  Interest of right to life association in government decision to refuse to cease trials of abortion drug – Right to Life Association

relation to land over which they had a NT claim

Onus v Alcoa 1981  Aboriginal elders sought protection of cultural relics against Alcoa which planned to build an aluminium smelter in Portland, Victoria.  Act s21 of Archaeological and Aboriginal Relics Preservation Act 1972  Problem was the Act was passed for the benefit of the public at large  Elders need to prove interest greater than general public or Aboriginal people in general  A specific cultural connection  Standing was granted as custodians of cultural relics with long dies to the land  “The position of a small community of aboriginal people of a particular

Onus v Alcoa 1981

group living in a particular area which that group has traditionally occupied, and which claims an interest in relics of their ancestors found in that area, is very different from that of a diverse group of white Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian” Gibbs J

ACF and Public interest groups

To show special interest, the courts have emphasised factors such as Northcoast 1994: 1. Prior involvement in the particular matter 2. Group recognised or funded by government 3. Whether group represents a significant strand of public opinion 4. Expertise of the organisation North Coast reply to the factors 1. Was the peak environmental organisation for north NSW, with 44 environmental member groups. Sawmills exported woodchips from north coast NSW 2. Was recognised by Cth via regular Cth

Northcoast 1994 North Coast Environmental council sought reasons for a decision made by minister for resources issuing sawmillers exporters Pty Ltd licence to export woodchips from North Coast

grants and recognised by NSW with nominees on forestry policy advisory committee 3. Has organised environmental projects/events funded by cth 4. Had made submissions re: forestry management to resource assessment commission, funded forestry studies 

AFTER ACF implications

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Court seems to be moving towards a more open standing – construe as an enabling rather than a restricting requirement But courts continue to check against the statute if feel the interests are not within the zone of the legislation then standing is denied – Right to Life (court said government decision was about drug trial abortion not about the right to life) There is a degree of judicial discretion involves – Onus v Alcoa

Standing under ADJR Standing under ADJR -

Person aggrieved = interchangeable with special interest.

Section 3(4) Person aggrieved – includes a person whose interests are or would be adversely affected by the decision To all intents and purposes this has been applied consistently with the special interest test at common law

Right to Life Batemans Bay North Coast

Court must have power to grant a remedy

Non Jurisdictional Error What are they? Refer to lecture notes. Hardly likely to be a non-JE in the final

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Consequences of a breach At CL three possible

Less serious than Jurisdictional Errors Don’t involve the DM asking itself the wrong question or identifying the wrong issue Doesn’t materially affect the outcome of the decision Minor error

1. No remedy – valid – only if the error

Farook v Minister for Immigration and Border Protection 2014

outcomes for errors of law

was minor 2. Retrospective validation – invalid – crushes the decision, as if it was never valid – JE. IOT means it is void from the beginning (ab initio) 3. Prospective unlawfulness – voidable, unlawful – not as powerful as 2. It was valid but after the court heard the decision they agreed it was unlawful

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Project Blue Sky 1998

Important case because: 1. For the primacy of interpreting effect of a decision in breach of a statutory requirement, statutory interpretation using purposive approach is central and imperative 2. For using that approach to decide what effect a remedy will have if given by the court  This is the authority for purposive approach of statutory interpretation and uses purpose approach to give effect to a remedy  High Court used trichotomy of retrospective invalidity, prospective unlawfulness or validity. “An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with that condition”  HC said the breach of the statute did not make the decision invalid but nonetheless was unlawful

Minister for immigration v Bhardwaj 2002

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Following PBS, in this case, Gaudron and Gummow set out an important general principle – “a decision that involves JR is a decision that lacks legal foundation and is properly regarded in law as no decision at all” Important as it overcomes Privative Clauses. PC are written into the Act to say no JR

Key take away:  Read the statute

Facts: issue on TV licensing. About whether a NZ company PBS could broadcast on Australian TV. How much Australian content or foreign content could be on TV. HC said the person who gives the license made a mistake, the consequence would turn TV off for all because of the channel. On its face this case is illegal but the consequences were too dire.

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Hossain v Minister for immigration and Border Protection 2918

Consider the purpose of the statute Consider the consequences (do the consequences fit the purpose of the Act)  Following the above two cases the HC introduced a new principle An error must be material in order to be a JE.  Material = compliance with the condition could have resulted in the making of a different decision. An error that means a different decision would have been made. HELD:  1. AAT finding was correct  2. AAT made an assessment based on the wrong date. Technically applicant did submit visa request in time AAT’s error not a JE because it could have made no difference to the decision that was made in the circumstances in which the decision was made.

Facts; Applicant sought renewal of a visa. Failed according to 2 criteria. 1. Owed debt to cth at date of the decision. Debt to commonwealth is enough to not be granted a visa. And 2. Applicant did not submit request for new visa within 28 days expiry of previous visa (this was wrong)

Procedural Fairness: How does PF interact with the consideration of materiality? - PF serves to respect the dignity of individuals affected by Administrative decisions - Materiality may not play a...