Mid Semester Administrative Law Take Home Assignment PDF

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48 hr take home exam, 73% Distinction mark...

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Mid-Semester Assignment U6514741 Question 1. A breach of an administrative law norm does not necessarily result in a decision being invalid but invalidity will occur where it is found that a jurisdictional error has occurred. 1 Project Blue Sky alleviated ambiguity regarding when a breach of administrative law norms would amount to a jurisdictional error. Fundamentally, Project Blue Sky held that questions of validity must be determined by considering whether the intent of the legislature was such that a contravention of a relevant statutory provision should be considered invalid.2 However, in the aftermath of the 2018 High Court decision in Hossain v Minister for Immigration and Border Protection, queries regarding whether the court extended itself and reformulated the Project Blue Sky test have arisen.3 Per Project Blue Sky, recourse was to be taken to the statute in question to determine if the legislature intended for an error to be a jurisdictional error. To ascertain whether this was the case, consideration was to be given to a number of factors including subject matter, language and nature of obligations contained within the statute, nature of provision breached, impact of the breach and levels of public inconvenience. The most glaring distinction between Project Blue Sky and Hossain v Minister for Immigration, is the incorporation of the new concept of ‘materiality’ into the lexicon of determining jurisdictional errors.4 In the wake of Hossain, the query became whether noncompliance with an obligation in the course of reaching a decision would result in a materially different outcome.5 The error is still to be considered but in determining whether the decision as a whole should be invalidated, the question becomes whether the same result would still have been reached if not for the breach.6 If the same decision would have been 1 Courtney Raad, ‘Hossain v Minister for Immigration and Border Protection: A Material Change to the Fabric of Jurisdictional Error?’ (2019) 41(2) Sydney Law Review 265. 2 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 3 Raad (n 1). 4 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. 5 Ibid. 6 Ibid.

reached irrespective of the breach, then the decision will stand. 7 For instance, if failure to provide procedural fairness occurred but did not deprive the person denied the opportunity for a successful outcome, the materiality concept precludes a jurisdictional error from being found.8 The adoption of the principle of materiality in the wake of Hossain has proven significant as it has marked a transition away from the traditional principles of administrative law in favour of a more pragmatic approach to jurisdictional error. Given that a decision can now be maintained even if it was not reached in compliance with fundamental administrative law norms, it has potentially lessened the principality of those norms. That is not to say though that it has unnecessarily muddied the waters of the Project Blue Sky test. The Hossain decision provides an example of the natural progression that courts take to resolving contentious areas of law by building upon established case law. Project Blue Sky’s role has changed, it now provides a basis by which consideration of whether a jurisdictional error has occurred can commence but ultimately, the Hossain decision increases the pragmatism of such an analysis by compelling the actual effect of any potential breach to be considered.

7 Ibid. 8 Ibid.

Question 2. The Saeed and VEAL cases, go some way towards elucidating the relationship between the statutory context of decision making and the requirements of procedural fairness as a fundamental principle of common law that inform the construction of statutes which confer decision making authority. Saeed illustrated that in the process of statutory construction, fundamental principles of common law should not be displaced unless expressly stated.9 In the instance of Saeed, a woman had applied for a skilled worker Visa as a cook only for her employment to have been denied by the restaurant she had worked for.10 She was not presented with this adversarial information prior to her Visa being denied and thus natural justice was ultimately obstructed in her situation.11 During her appeal, the Minister for Immigration argued that the explanatory memorandum and second reading speech had demonstrated intent for the principle of common law natural justice to be displaced, and whilst the High Court accepted that this was the case it held extrinsic materials are not to displace fundamental common law principles. 12 Per Saeed, the only point at which such principles can be displaced during statutory interpretation by authorities conferred with statutory decision-making powers is if Parliament displaces them with definitive clarity in the statute.13

The principles established in Saeed are supplemented by those upheld in the earlier VEAL case. In VEAL, an applicant appealed the rejection of their protection Visa but before the appeal was heard the Tribunal received a letter containing adverse allegations made against the appellant. This was kept secret from the appellant, but allegedly there was no weight put 9 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252. 10 Ibid. 11 Ibid. 12 Ibid. 13 Ibid.

into the claims of the letter because they were unsubstantiated. 14 The appellant alleged that they had been denied procedural fairness in respect to the letter not having been disclosed. 15 VEAL built upon the earlier decision of Kioa v West, to assert that adversarial information is only required to be disclosed if it is ‘credible, relevant and significant’ as otherwise there would be a cumbersome oversaturation of inquiries into administrative decision making. VEAL established a relatively low threshold for credibility, with the letter being approved merely because it lacked obvious incredibility.16 However, it was noted that a person must be provided the opportunity to respond to any adversarial information that could engender prejudice, even if subconscious.17 VEAL indicates a willingness by the courts to work towards ensuring that appellants are not denied procedural fairness in the context of administrative decision making. Ultimately, the cases of Saeed and VEAL illustrate that unless explicitly displaced by a relevant statute, there are basic requirements of procedural fairness that inform statutory construction for authorities with decision-making authority conferred upon them. Drawing upon these cases, and the manner in which the judiciaries sought to allow natural justice to come to the fore, it could be deduced that courts ultimately seek to hold decision making authorities accountable to the principles of procedural fairness.

14 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous

Affairs (2005) 225 CLR 88. 15 Ibid. 16 Ibid. 17 Ibid....