Sample/practice exam 2017, questions and answers PDF

Preview

Summary

Download Sample/practice exam 2017, questions and answers PDF

Description

FIRST TRIMESTER, 2017 — SAMPLE HD PAPER NO. 1 Question 1 (12.5 marks) ‘The function of the [Administrative Appeals] Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. …[I]t is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.’

(Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419 (Bowen CJ and Deane J)).

Discuss the functions of the Administrative Appeals Tribunal (‘AAT’) with reference to relevant legislation and case law.

The Administrative Appeals Tribunal (AAT) effectively decides merits review cases from administrative decision makers, filling an important gap created by the separation of powers and offering citizens a cheap, efficient, accessible administrative review option. The AAT may also comment on policy. First, the AAT decides merits review cases. The AAT is an external body, created by Parliament at the Commonwealth (‘Cth’) level after the Kerr Report in 1971. The main function of the AAT is to partake in de novo hearings of administrative decisions. The enabling language of the AAT is usually fund in the statute granting an administrative body the discretion to make decisions. Over 400 statutes provide the AAT with external review power. Under the Constitution, Chapter III courts are separate from the executive and 1

legislative branches (see Boilermakers). The Chapter III courts can only review administrative decisions for legal error, so the AAT fills an important role on the executive side in that it provides merits review. Before the AAT, many people unhappy with an administrative decision would seek judicial (or legal review) even though their real issue had to do with the decision on the merits. Further, because the AAT is a general external review tribunal, Parliament can have the AAT review as many kinds of administrative decisions as parliament feels is appropriate. The AAT functions to offer citizens a cheap (much cheaper than judicial), quick (the AAT’s own terms state that is should be efficient), and accessible (the form to engage the AAT is short and simple) administrative review. Many citizens engage the AAT because it is accessible. Further, the AAT does have some court like functions: sometimes a person can be represented by a lawyer, it is adversarial in nature, and the person can request reasons. The AAT is effective in its review because the tribunal may consider the most relevant and current informational (see Shi, the migration officer who reformed himself in the time between his initial decision and review) and because it can stand in the shoes of the decision maker, hearing new information and potentially making a new decision for the person aggrieved. This is preferable to judicial review, where the judicial body cannot make a determination on the merits, the court can only quash the decision and force the tribunal to make the decision again. The AAT’s function is primarily merits review – judicial review of the lawfulness of the case is the only jurisdiction of the Chapter III courts. The AAT may comment upon policy (see Drake No 2) where the AAT applied the migration policy re: drug offenders). The commentary on the policy from the AAT is more appropriate than from the courts, as the AAT is a part of the executive power (and not the judiciary).

2

Lastly, although the AAT functions to effectively provide de novo review to those aggrieved by administrative decisions, its presence frustrates some administrative decision makers. Some administrative decision makers feel that the AAT is too pro-applicant and does not understand how policy application really works. In conclusion, the function of the AAT is to review administrative decisions for the most lawful and preferable decision. The High Court has been careful not to expand the jurisdiction of the Chapter III courts or the grounds of the review to include any merits reviews. Grounds of review like unreasonableness have been restricted because they border on merits review. Further, Australian courts have declined to adopt grounds of review, including uncertainty, proportionality, and extreme administrative error, in part because they border on merits review [merits review is a review of the decision to see if a lawful and preferable decision has been made; judicial review reviews whether the decision was lawful. It is outside the scope of judicial power (see Boilermakers) to review]. Although the primary function is merits review, the AAT does have some court like qualities (although the roles of evidence do not apply) and the ability to comment on policy. 8.75/12.5 Question 2 (12.5 marks)

‘The right to reasons has been one of the most important reforms of the “New Administrative Law” of the 1970s and 1980s. By contrast, freedom of information legislation, introduced in Australia in the 1980s, has been an abject failure, notwithstanding its laudable goals.’ Do you agree? Discuss with reference to relevant legislation and case law.

The right to reasons has not been one of the most important returns of the “new administrative law” because reasons may be unsatisfactory, judicial review compensates if 3

there were to be a lack of reasons, and there are policy reasons which would encourage reasons providing anyway. The reasons provided might not be satisfactory because they are brief (see the case where the minister only circled whether the visa would be cancelled) or not timely. Although the AD(JR) Act provides that persons can request reasons, they may not be timely delivered. Further, reasons are subject to potential manipulation by the decisionmaker. As courts have held, just because a matter was not discussed in the reasoning does not mean that the decision-maker did not consider it (see Peko-Wallsend). Further, procedural fairness compensates in some ways for when reasons may not be given. After someone satisfies the threshold test (direct interest etc.) they are entitled to procedural fairness, which requires notice, disclosure of adverse /credible information, and an opportunity to be heard. The requirement that decision makers disclose credible, adverse information to the applicant will compensate for a lack of reasons (see VEAL, where the where the decision maker did not disclose a secret, adverse letter to the applicant.) In regards to judicial review, reasons will not be taken into account for claims of nonjurisdictional error because they are not a part of the record. In addition, many of the grounds of review have evidentiary requirements that are difficult for applicants to overcome even if they have reasons, these include – bias, irrelevant considerations, and fraud. There are also policy reasons that would have likely propelled decision makers to give reasons anyway. One is that citizens are more likely to receive administrative decisions well if there are reasons attached. Although the right to reasons is important to the transparency, legitimacy, and confidence in government, I believe that there were other, more important reforms that came out of the ‘New administrative law’ including the expansion of the AAT and the creation of the Ombudsman. Both of these reforms provides greater accessibility to administrative review and checks on administrative power.

4

I do agree that the freedom of information (FOI) has been a failure because (1) a culture against disclosure will continue to fight against the legislation (2) the reforms to many FOI acts do not appear to be helping, and (3) obtaining the information is still expensive and cumbersome. The Westminster Government and its heritage from the UK made ministers, administrators and other Government officials against FOI Act. This has translated to (1) many documents being categorically excluded from review, (2) administrators being reluctant to hand over documents (see Haneef, where one agency refused hundreds of documents only to have the Court agree on 1) and 3) many more documents being only released after passing the public interest test/conditionally. This remains true even after many FOI Acts have been reformed recently. The reforms which removed the ability for ministers to issue certificates and removed external merits review from the AAT to a specialised tribunal, still have not seen much progress in making information actually available. Further, many FOI Acts have been amended to state that they are specifically pro-disclosure. Nonetheless citizens struggle to access information about government decision making. Although FOI legislation have worked well for individuals to access information about themselves, until it effectively makes Government decision making transparent to the public, at an affordable price and without requiring layers of internal and external merits review that seems to rubberstamp the previous decision, FOI Acts will largely have been a failure. Mark: 11.25/12.5 Question 3 (12.5 marks)

‘The “legitimate expectation” of a person affected by an administrative decision does not

5

provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness. It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions. …Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made.’ (Minister for Immigration v WZARH (2015) 256 CLR 326, 335 (Kiefel, Bell and Keane JJ)) Discuss with reference to relevant legislation and case law.

Although seemingly discouraged by the Courts, legitimate expectations do seem to still play a role in determining procedural fairness. This is because Courts have continued to reference expectations and statements from decision makers outside of the statute in making decisions. Further the definition of ‘interests’ seems to have been expanded to include ‘legitimate expectations’ and courts apply statutory construction principles to statutes that remove procedural fairness. The Court in Teoh upheld his claim for relief because of his legitimate expectations. In that case, the minister made the decision to cancel his visa for a drug conviction even though Teoh was the primary care taker for his children. Teoh argued that the decision maker was required to take into account the interest of the children as a primary consideration before cancelling his visa because Australia entered into an international treaty regarding the interest of children. The court agreed with Teoh that he was denied procedural fairness because of his legitimate expectation that the children would be a primary consideration did not occur. The Court has [departed from?] this rhetoric in both Lam and WZARH. In Lam, the decision maker stated that he would contact the caretaker for Lam’s children to verify that Lam was their primary caretaker, but then the decision maker never did. Lam argued that this 6

violated procedural fairness because his legitimate expectation that that conversation would occur and it did not. The Court disagreed, finding that the violation of Lam’s legitimate interests would only amount to procedural fairness if the violation resulted in unfairness occurring. Although the Court further disparaged the ‘legitimate interest’ verbiage in WZARH, it ultimately found a breach of procedural fairness because WZARH’s legitimate expectations were violated (even though the Court refused to use the words ‘legitimate expectations’). In this case, WZARH was given a new migration officer and was not given the opportunity to appear at a second hearing (as had been promised). In part because questions about refugee status hinge on credibility, the Court find that procedural fairness had been denied. Although Courts may not use terminology of ‘legitimate expectations’ courts will find breaches of procedural fairness when the violation of the ‘legitimate expectations’ is coupled with unfairness. Thus, discussing legitimate expectations as it relates to fairness will not distract from the real issues at play. Although parliament can try to remove procedural fairness as a requirement for decision makers, courts are hesitant to interpret statutes that way. There are at least two migration cases (Including Miah) in which Parliament tried to remove procedural fairness from the statute, but the courts ultimately found that procedural fairness still applied. In one, the prescribed procedure only applied to off-shore applicants (and not on-shore applicants) and thus could not have been a comprehensive statement on the issue. Similarly, in Offshore Processing Case, the Court find that procedure fairness still applied even though a government policy said it did not. There has also been a trend towards constitutionalizing important aspects of administrative law and, if parliament pushes too hard, this may happen with procedural

7

fairness. An example of this is primitive clauses; the courts will interpret them as coinciding with legality and as harmonious with other provisions. Because courts have jurisdiction under ss 75(v) and 75(iii) of the Constitution, Parliament’s primitive clause was read as to remove that jurisdiction. If clauses that remove procedural fairness are interpreted by courts as consistent with other rules of law and as harmonious with other statutes it is likely that courts will completely remove procedure fairness as a requirement, no matter what the text of the statute. Mark: 12.5/12.5 Question 5 (12.5 marks)

‘The Administrative Decisions Judicial Review Act 1977 (Cth) (‘ADJR Act’) clearly provides many important procedural reforms to judicial review at common law. Many provisions of the ADJR Act governing technical matters, such as standing …and remedies, are clear and sensible … There is clear logical force in the adoption of a range of procedural provisions which have worked well at the federal level and offer a better model than the common law. But the desire for uniformity should not give way to uncritical acceptance. Several key features of the ADJR Act are imperfect.’ (Matthew Groves, ‘Should We Follow The Gospel Of The Administrative Decisions (Judicial Review) Act 1977 (Cth)?’ (2010) 34 Melbourne University Law Review 736, 771) Discuss with reference to relevant legislation and case law. The AD(JR) is a statute that provides judicial review to certain administrative decisions. Overall the AD(JR) Act has made a positive attribution to the development of Administrative law, However, I agree that many parts of the act are imperfect. The positive contributions include simplifying remedies, procedure, and removing the concept of jurisdictional error. The imperfect features of the AD(JR) include the standing roles, the gateway/entry requirements, and ossification.

8

Part of what makes traditional judicial review so difficult is its roots in ancient UK common law. The remedies based system founded on the prorogation writs, the concepts of the jurisdictional and non-jurisdictional error, and procedure that is based in the Constitution are outdated and confusing. The AD(JR) Act does a good job of abandoning these old traditions in favour of easy to understand remedies, removing the concept of jurisdictional/non-jurisdictional error, and streamlining procedure. There are several features of the AD(JR) Act that are imperfect. For one, it is a statute and a creature of Parliament. This means that Parliament can remove it entirely and alter what review is available under it easily. An example of this is Schedule 1 of the AD(JR), which lists the decisions that cannot be reviewed under it. Another example is the Migration Act, which was and is now not a part of the AD(JR). The standing rules can also be problematic. Although the AD(JR) does codify one (person aggrieved) standing test – this is different than the common law which arguably has different standing tests depending on the remedy – this is not that much of an advantage now that the common law standing tests have (more or less) merged into one (special interest). Further, the standing test for third-party organizations is expanded under the AD(JR) to include organizations that have the purpose related to the action listed under their objectives. This standing test for third-party organizations is too broad, and allows organizations to contest individual decisions even when they do not have a direct interest. Further, the gateway requirements still operate to exclude applicants, even though the AD(JR) act is remedial and should be read broadly. In Griffith v Tang, Tang pursued AD(JR) Act review after being expelled from the university while pursuing her doctorate. The Court found that the decision made by the university was not ‘under enactment’ because Tang and

9

the university had a consensual relationship. This is an example of how the language of AD(JR) works against its purpose of being remedial legislation. Lastly, the AD(JR) act is old and suffers from ossification. The Act has not been updated and items like the inability to bring an action against the Governor General – still exist. As the common law is fluid and reacts to changing times, the language of the AD(JR) Act seems to be set in stone. This has led to an underutilisation of certain grounds of review and States declining to adapt similar legislation. One other aspect of the AD(JR) Act that is imperfect is the list of grounds of review. Although the list of the grounds of review is helpful to practitioners, the general grounds of review have not operated to create any new grounds at review. Only when the ground of review has been established by the common law will courts find it in relation to the AD(JR). It would be more pragmatic to have only one ground of review – legal error. The list of the grounds review has skewed which grounds of review are utilized and which are not. In conclusion, the AD(JR) has simplified judicial review to make it easier to understand, cheaper, and more accessible. However, it is imperfect, and Parliament should consider adopting many of the ARC suggestions to make the AD(JR) current and to adjust it for modern day administrative law issues. Mark: 10/12.5

10...