LLB 230 - EXAM Scaffold (JR - Adjra) PDF

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JUDICIAL REVIEW – ADJR ACT JURISDICTIONAL LIMITATIONS -

The Federal Court & Federal Circuit Court have jurisdiction to hear and determine judicial review applications o S 8 – Administrative Decisions (Judicial Review) Act 1977 (ADJRA)

DECISION - A decision is defined under S 5 – ADJRA and requires the following elements. SCOPE OF A DECISION -

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The meaning of a decision is means one with administrative character. o S 3 – ADJRA Definition of Decision: (S 2 – ADJRA) o (a) Making, suspending, revoking or refusing to make an order, award or determination. o (b) Giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; o (c) Issuing, suspending, revoking or refusing to issue a license, authority or other instrument; o (d) Imposing a condition or restriction; o I Making a declaration, demand or requirement; o (f) Retaining, or refusing to deliver up, an article; or o (g) Doing or refusing to do any other act or thing; A decision refers to administrative activity that is: o Final or Operative  Capable of having a real impact on a person’s rights, interests or obligations. o Determinative  Of the issues of fact. o Substantive  Not a hypothetical, based on the evidence. A decision is not a mere expression of opinion or statement. o Australian Broadcasting Tribunal v Bond A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision will not amount to a reviewable decision. o Unless the statute provided for the making of that decision as an intermediate step to the making of a final decision.  Australian Broadcasting Tribunal v Bond  Century Yuasa Batteries v Federal Commissioner of Taxation

EXCLUDED DECISIONS - Decisions made by: o Security Intelligence Bodies. o Commonwealth/state ministerial councils. o To do with foreign investment approval. o Taxation assessment. o Industrial arbitration. o Defence force discipline. o Criminal prosecutions.

ADMINISTRATIVE CHARACTER -

The term administrative character is not defined in ADJRA. Types of Decisions: o Administrative  Cannot be exactly defined.  May include:  The adoption of a policy.  The making and issuing of a specific direction.  The application of a general rule to a particular case in accordance with the requirement of policy of expediency or administrative practice. o Legislative  The creation and promulgation of a general rule of conduct without reference to particular cases. Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee  Court stated the following factors point to a decision of legislative character:  Determine the rules of general application rather than the application of general rules to a particular case.  Parliamentary control of a decision. o Disallowance by Parliament  Public notification  Public Consultation.  Broad Policy Considerations  Executive cannot vary or control. o An examination of the particular case will determine the type of decision.  Federal Airports Corporation v Aerolineas Argentinas

DECISION MADE UNDER AN ENACTMENT -

Enactment o Defined as an instrument (including rules, regulations or by-laws) made under such an act.  S 3 – ADJRA o Constitution is not enactment. o A decision will only be made under an enactment if:  The power to make the decision was expressly or impliedly authorised by the Act.  Griffith University v Tang  It derived from the enactment the capacity to affect legal rights and obligations.  Griffith University v Tang

CONDUCT -

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Conduct is defined under S 6 of the ADJRA. o Where a person has engaged, is engaging, or proposes to engage, in conduct for the purposes of making a decision. o A person who is aggrieved by the conduct may apply to the Federal Court or Federal Circuit Court for an order of review. Conduct refers to administrative activity preceding a decision that reveals a flawed administrative process. It looks to the way in which proceedings have been conducted rather than decisions made along the way with the view to the making of a final determination. In relation to a conduct complaint, the complaint is that the process of the decision-making was flawed.

FAILURE TO MAKE DECISIONS -

A failure to exercise statutory power in making a decision is outlined in S 7 – ADJRA. o (1) Where:  A person has a duty to make a decision to which this Act applies.  There is no law that prescribes a period within which the person is required to make that decision.  The person has failed to make that decision. o (2) Where a person is aggrieved by the failure to make a decision, may apply to the FC or the FCC for an order of review for unreasonable delay in making the decision.  A person has a duty to make a decision to which this Act applies.  A law prescribes a period within which the person is required to make that decision.  The person failed to make that decision before the expiration of that period.

STANDING -

The doctrine of standing (locus standi) means the right to commence legal proceedings in a court or tribunal.

APPLICATIONS FOR REVIEW OF DECISION -

Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision, a person who is aggrieved by the conduct may apply for an order of review in respect of the conduct. o S 6 -ADJRA

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A person who is aggrieved by a decision may apply to the court for an order of review. o S 5 – ADJRA

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A ‘person who is aggrieved’ includes a person whose interests are adversely affected by the decision. o S 3(4)(a)(i). -ADJRA ‘A person’ is not confined to someone who can show that they have a legal interest in the decision. o A person has standing where he or she can show ‘a grievance which will be suffered as a result of the decision complained of beyond that which he or she has an ordinary member of public’.  Tooheys v Minister for Business & Consumer Affairs The effects of the decision must be clear and imminent rather than remote, indirect or fanciful. o Australian Institute of Marine and Power Engineers v Secretary, Department of Transport. Where the objectives of the person differ remarkably from the objectives of the act under which the decision was made, this will provide a strong reason against standing. o Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health Where a person establishes that their business will suffer a significant loss of profitability a right to standing will arise, as this would amount to unfair competition and not mere competition with competitors. o Once it is shown that the person would suffer a significant loss of probability in their business, no further inquiry is required in order to determine whether their interests were adversely affected by the decision in question. o Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development

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SEEKING TO UPHOLD PUBLIC INTEREST (SPECIAL INTEREST) Australian Conservation Foundation v Commonwealth (ACF v Cth) - A person can enforce a public right in one of two situations: o Where interference with the public right is such that some private right of theirs is at the same time interfered with. OR o Where no private right is interfered with, but the person, in respect of their public right, suffers special damage to themselves from the interference with the public right (Special Interest).

JOINDER & AMICUS CURIAE JOINDER -

Allows a 3rd party to be jointed in an existing proceeding as an intervener. 3 examples: o S 12 - ADJRA  Confers a discretion on the court to allow a person interested in a decision that is being challenged in proceedings before the court to be made party to those proceedings. o S 30(1)A - AAT  Confers a discretion of the tribunal concerning any other person whose interests are affected by the decision. o S 78 – JUDICIARY ACT  Confers power on the Attorney-General of the Commonwealth and the states to be joined as a party in any case in which a constitutional issue arises.

AMICUS CURIAE (FRIEND OF THE COURT) -

A court may allow a person to participate in proceedings as amicus curiae. o ‘A friend of the court.’ It is the role of the amicus curiae to make submissions on issues of interest. o R v Murphy

ASSOCIATED AND ACCRUED JURISDICTION OF THE FEDERAL COURT (FC) ASSOCIATED JURISDICTION - Jurisdiction is conferred on the FC in respect of matters not otherwise within its jurisdiction that are associated with matters (the core matters) in which jurisdiction of the Court is invoked. o FC can deal with matters associated with the core matter (the decision being reviewed).  S 32 - Federal Court of Australia Act 1976 ACCRUED JURISDICTION - The inherent jurisdiction of a superior court to settle the controversy before it by dealing with all the issues that arise out of common transactions and facts. o Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd - Extends to non-federal claims. o However, the federal claim that attracts jurisdiction must be a substantial part of the controversy.

GROUNDS FOR REVIEW – STATUTORY GROUNDS (ADJR ACT) ULTRA VIRES -

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A decision-maker or government has exceeded its legal authority. o Acting ultra vires (Beyond it power). This principle is enshrined as a judicial ground of review in the ADJRA, which provides than an order of review can be sought: o That procedures that were required by law to be observed in connection with the making of the decision were not observed.  S 5(1)(b) – ADJRA o That the person who purported to make the decision did not have jurisdiction to make that decision.  S 5(1)(c) – ADJRA o That the decision was not authorised by the enactment in pursuance of which it was purported to be made.  S 5(1)(d) – ADJRA o The decision involves an error of law, whether or not it appears on the record of the decision.  S 5(1)(f) - ADJRA The ADJR grounds do not apply to government action that does not have statutory authority to support it but relies on the executive power of government. o Minister for Immigration and Multicultural Affairs v Vadarlis

STATUTORY CONSTRUCTION To decide what shade of meaning is to be preferred to determine if the decision was beyond its purpose, the cardinal rule of statutory interpretation requires the words of a statute to be read in their context. LANGUAGE OF THE STATUTE - In interpreting the language of the statute there are two different approaches: - Literal Approach: o Requires the words of the statute to be given their ordinary and natural meaning. o Consider context and look at headings, parts, divisions and definitions etc. o However, the words do not always have a clear and unambiguous meaning. - Purposive Approach o Where the words do not have a clear and unambiguous meaning statutory purpose must be taken into account. o Requires a construction that would promote the purpose or object underlying the Act.  S 15AA - Acts Interpretation Act 1901 (Cth) (AIA)  S 33 - Interpretation Act 1987 (NSW) (IA) o To determine this regard contemporary materials that is extrinsic to the Act can be used. (Second Reading Speeches, explanatory memoranda etc.)  S 15AB - AIA  S 34 – IA -

COMMON LAW CONSTRUCTION All common law presumptions are rebuttable. Some common law presumptions are easily rebutted by the words of the statute or an implication can be drawn from it, or presumptions are more resilient and prevail unless a statute contains clear, express or unambiguous words to the contrary. o Johnson v Director of Consumer Affairs Victoria PRESUMPTION OF REGULARITY - The decision or action of an official has been properly made or taken, unless proven contrary. o Royal British Bank v Turquand IMPLIED INCIDENTAL POWER - The principle of implied incidental power will only operate where the decision made is necessarily incidental. - Necessarily incidental means activities that are necessary for the fulfillment of permitting those acts and matters that are expressly authorised by the statute. o It is not enough that the acts are economic or convenient.  Kent v Johnson ESTABLISHED FREEDOMS & IMMUNITIES - Statute is presumed not to abrogate a fundamental right, freedom or immunity other than by unmistakable or unambiguous language; or by implication. o Coco v The Queen o Evans v State of New South Wales -

UNAUTHORISED PURPOSE COMMON LAW - A person or body upon whom a statutory power is conferred can lawfully exercise that power only for the purpose for which it was conferred. o An exercise of the power for a different or ulterior purpose will be invalid.  Municipal Council v Campbell  R v Toohey; Ex parte Northern Land Council - A statute will define the purpose for which a power can be exercised. o Municipal Council of Sydney v Campbell - Absent an express purpose, it is usually possible to imply a purpose, by looking at the title, structure and text of the Act, and the nature of the power being exercised. o R v Toohey o Ex Parte Northern Land Council; Schlieske v Minister for Immigration and Ethnic Affairs - TEST o Whether the unauthorised purpose was a substantial or dominant purpose in the sense that the power would not have been exercised had there not been a desire to achieve the unauthorised purpose.  Samrein Pty Ltd v Metropolitan Water Serving and Draining Board ADJRA - This principle is enshrined as a judicial ground of review in the ADJRA, which provides than order of review can be sought in respect of an exercise of power for a purpose other than the purpose which the power is conferred. o S 5(2)(C) – ADJRA

IRRELEVANT CONSIDERATIONS COMMON LAW - An irrelevant consideration refers to matters which the decision maker is not permitted to take into account. o Minister for Aboriginal Affairs v Peko-Wallsend Ltd - It is often it is necessary to draw inferences from other features of the legislation, including: o Language of the statute. o Purpose or object of the statute. o Subject matter of the statute. o Nature of the power being exercised. o The nature of office held by the decision-maker.  Minister for Aboriginal Affairs v Peko-Wallsend Ltd - The scope of relevant considerations with regard to the legislation can be read: o Expansively  Murphyores Inc Pty Ltd; or o Restrictively  Roberts v Hopwood - Policy o It is not appropriate for the court to substitute its views on policy provided the commission has acted in good faith.  Water Conservation and Irrigation Commission v Browning ADJRA - The principle is enshrined as a ground of judicial review in the ADJRA, which provides that an order of review can be sought in respect of taking an irrelevant consideration into account in the exercise of power. o S 5(2)(a) – ADJRA

FAILING TO CONSIDER RELEVANT CONSIDERATIONS COMMON LAW - A relevant consideration refers to a consideration that the decision-maker must take into account in making a decision. o Sean Investments Pty Ltd v MacKellar - A decision may be invalid where a decision maker has failed to give consideration to a relevant matter in reaching a decision. o Sean Investments Pty Ltd v MacKellar - A failure to consider a relevant matter only applies where the law mandates that a particular matter be considered. o Decision-maker has actual or constructive knowledge over the matter. o Failure by the decision-maker to conduct an inquiry to obtain relevant information.  Sean Investments Pty Ltd v MacKellar - OBLIGATION TO CONSIDER o The statute will specify expressly the particular matters that must be considered.  However, if the relevant factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of Act  Minister for Aboriginal Affairs v Peko-Wallsend Ltd o The courts emphasise the obligation of a decision-maker to consider the impact of a decision on the interests of a person who has made a submission drawing attention to that potential adverse impact.  Minister for Aboriginal Affairs v Peko-Wallsend Ltd.  Hindi v Minister and Immigration and Ethnic Affairs. - FAILURE TO CONSIDER o Courts are prepared to accept a face value assertion by an official that a matter was considered, or to draw that inference from the fact that the matter is mentioned in a statement of reasons, or in a briefing paper that was adopted by the decision-maker.  Sean Investments Pty Ltd v MacKellar o Other cases express a more demanding standard, emphasising the obligation of a decision-maker to give proper, genuine and realistic considerations to all relevant matters.  Lafu v Minister for Immigration and Citizenship o Absence of any reference to the matter in a statement of reasons.  Schaeffer v Department of Housing [No 2] o Inflexible application of administrative policy.  ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (NSW) o The way in which a minister went about considering a matter.  Tasmanian Conservation Trust Inc v Minister for Resources ADJRA - This principle is enshrined as a ground of judicial review in the ADJR Act, which provides that an order of review can be sought in respect of failing to take a relevant consideration into account in the exercise of a power. o S 5B(2) – ADJRA

UNREASONABLENESS COMMON LAW - Unreasonableness is a freestanding ground for legal challenge, but only in the sense that a decision is so unreasonable that no reasonable authority could ever have come to it. o Wednesbury Case - In Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation, the court held there are three paradigm cases of unreasonableness. - LACK OF PLAUSIBLE JUSTIFICATION o Unreasonableness applies where a decision, on its face, is devoid of any plausible justification.  Parramatta City Council v Pestell - CAPRICIOUS USE OF POWER o A decision will be unreasonable for a capricious use of power where it has a harsh impact on the enjoyment of rights by the plaintiff, due to the decision being inconsistent with the terms of the legislation and where the decision-maker is responsible for taking into account the effects.  Edelsten v Wilcox - EVIDENTIARY WEIGHTING o In some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance or has given excessive weight to a relevant factor of no great importance.  Minister for Aboriginal Affairs v Peko-Wallsend Ltd - DUTY OF ENQUIRY o Where it is obvious that material is readily available which is centrally relevant to the decision to be made to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.  Minister for Immigration and Citizenship v SZIAI ADJRA - This principle is enshrined in the ADJR Act, which provides than an order of review can be sought in respect of an exercise of power that is so unreasonable that no reasonable person could have so exercised the power o S 5(2)(g) - ADJRA

PROCEDURAL FAIRNESS (NATURAL JUSTICE) -

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Although a statute may fail to express a requirement for natural justice, no person is to be deprived of their property without having an opportunity to be heard. o Cooper v Board of Works for the Wandsworth District The rules of natural justice are not confined to conduct of strictly legal tribunals but are applicable to every tribunal or body of persons with authority to adjudicate upon matter involving civil consequences to individuals. o Ridge v Baldwin The rules of natural justice regulate the exercise of power unless they are excluded by plain words of necessary intendment o Jarratt v Commissioner of Police (NSW)

BIAS -

A decision-maker must be free of any suspicion or apprehension of bias or preconception, arising from the circumstances such as the decision-maker’s financial or previous role in the decision to be made...