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UTS:Law Assignment Cover Sheet for Online Submissions Instructions for students: 

Please complete and include this cover sheet when submitting online assignment.

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The cover sheet should become page 1 of your assignment – do NOT submit this coversheet as a separate document to your assignment.

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Please note that by submitting this form you are agreeing to the following ACADEMIC HONESTY DECLARATION:

ACADEMIC HONESTY DECLARATION

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I confirm that I am aware of the University rules regarding plagiarism and academic misconduct.

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I confirm that this assignment is entirely my own work and I have not previously submitted any part of it for assessment at UTS or any other institution.

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I confirm that I have read and understood the current version of the UTS:Law Guide to Written Communication.

STUDENT DETAILS (to be completed by student) Student Number:

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Family Name:

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Given Name(s):

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Subject Number:

70617

Subject Name:

ADMINISTRAIVE LAW

Subject Coordinator:

ANTHEA VOGL

Word Count:

2,000

Date of Submission:

6/2020

PART A

1. JURSIDICTION: As it concerns a Commonwealth Act, Common Law and ADJR jurisdictions will apply. So, the matter may be heard in HC s75(v)CC, FC and FCC courts s 39B JD- Evans. It is common practice for HC to remit matters to the FC under JAs44(2A). Furthermore, HC is restrictive in that only Common Law will apply, so FC Court is the preferable avenue where both CL and ADJR can be argued concurrently.

The decision is of ‘administrative character’, as there is an application of a general set of rules to a particular case ( Roche). The decision is to make a ‘determination’ (s3(2)(a)) whether to grant the license, and it appears to be final (Bond). 2. JUSTICIABILITY/ STANDING:

No Issues on justiciability as it is not a royal prerogative, national security claim or decision of cabinet/GG. Additionally, if matter is found to have political reasonings, this would not render it non-justiciable (Bennet).

Standing is determined on a case-case basis, and in practice CL and ADJR tests are converged to consider both ‘sufficient interest’- ACF and ‘person aggrieved’- ADJR ss5-7. N, as president of a ‘public interest group’ ( North Coast) has been ‘adversely affected’ by the decision (s3(a) (a)(i)) and holds more than a mere ‘intellectual or emotional’ interest as she would gain the advantage of obtaining the license, and perhaps even employment (Shop Distributive), inferred from her intent to ‘run’ the community space, if successful. Followingly, all rules of

Procedural Fairness must be followed – Kioa;Miah, unless excluded (matter of statutory interpretation). POWER TO GRANT REMEDY:

Under Common Law, FA will have access to the Constitutional Writs, but for this to occur there must be Jurisdictional Error (JE). However, for review of ADJR decisions under s5, JE is not required and has an analogous effect. Because there are no privative clauses to oust the jurisdiction of statutory remedies, ADJR would be the best route.

GROUNDS OF REVIEW: Procedural Fairness (PF) Under CL, JE is required, but identical grounds are available at ADJR s5(1)(a) and s6(1)(a) regardless of JE. The universal application states that PF is presumed in administrative decision to protect the ‘right, interests and legitimate expectations’, unless excluded ( RidgevBaldwin). However, in Miah, where the Minister has to follow other formalities, natural justice may be excluded. Here, the Minister must request a written report assessing application from subordinate under s4(3) and provide reasonings for his decision per s4(4) of the Act. Although courts are not quick to waive PF, but in this case, there is a possibility. The Hearing Rule is not satisfied through the Minister’s observance of s4(3) of the Act. Although notice along with reasoning’s were provided to N, it was not given prior to the decision being made (RvThames). N was never given an opportunity to answer, hence, hearing rule is not satisfied.

The fact that the Minister’s son is another potential candidate (although the Minister is not yet aware of the application, his son has directly communicated his interest), through an objective lens may lead a fair-minded observer ( Johnson) to reasonably believe that there is a very real possibility that the DM’s decision may be influenced by his son’s interests, and by extension his own: “nothing could be better for a politician…like me”, and may not be bringing an impartial and unprejudiced mind (Ebner) . The Ministers express statements and family relation exhibit strong favouritism and partiality, thus in the absence of any exclusions, this would fall under ‘disqualification by association’ (Webb). Therefore, it is likely that a finding of Apprehended Bias will be established. A decision made in breach of procedural fairness may involve jurisdictional error ( Plaintif S157). Preconditions For the Minister to have jurisdiction to make the decision he must have complied with all the procedural requirements in the Act. Here, the Minster has failed to comply with a PF requirement under s4(4), which requires him to request a ‘report’ not a ‘quick memo’ from an employee before granting/refusing license. In construing the language of the clause, the use of ‘must’ and ‘before’ indicates legislative intention ( Timbarra) to impose a preliminary to the exercise of power i.e. refusal/grant of license, and thus the ‘report’ is a jurisdictional fact that must objectively exist prior to a valid decision being made ( Enfield;Anvil). The purpose (Timbarra) of this clause is to provide an extra measure of control as the decision is pivotal to those affected (Enfield).

Furthermore, the Minister’s decision of refusing the license is conditional upon the fact that he must have the state of mind (SOM) or hold a subjective belief on reasonable grounds that N is not a ‘fit and proper person’ as defined in s3. The definition requires ‘demonstrated capacity to manage’, on the facts N has applied for many grants for various purposes and failed to fulfil on only two accounts. Hence, a reasonable and logical conclusion would be that she has in fact demonstrated ability to manage at the very least ‘small to medium-sized’ community organisations. And as SOM must be based on reasonable grounds, the SOM does not exist and the Minister will not have jurisdiction to make the decision, and it is invalid. Mistake as to the existence of jurisdiction fact or a statutory requirement may identify as jurisdictional error (Craig). Irrationality/Illogicality In his reasoning behind refusing N’s proposal, the Minister believes that ‘community spaces should be awarded to proposals that seek to improve…’ the area. A reasonable and rational decision maker would view the equipping of young people with the useful skills of ‘graphic design’, a potential career path, inter alia, as a method of improving the community. Any other conclusion is simply not open, or logical, on the evidence ( SZMDS). Abuse of Power The Minister having competing proposals (written from N, oral from son) in respect to the same area, must apply the same line of reasoning to both. So, what differentiates his son’s proposal of an ‘art centre’ for which on the facts he expressed pride and approval, from N’s ‘graphic design courses’ which also falls under the ‘art’ umbrella. Without any rational

justification of this discrimination, the decision would be rendered invalid, and the Minister will be held in abuse of power. 3. REMEDIES: Even if jurisdictional error exists, the requirement for it to appear on the ‘face of the record’ poses difficulties. The same remedies are consolidated under ADJR remedies, without all the technical restrictions. Also, where the writs are not available, equitable remedies may still be granted (Ainsworth;Bateman’sBay). Statutory: ADJR Using ss 15 and 15A, the appellant court will have the power to suspend the operation of the decision until matter is resolved, so no other individual/group can receive a license for the contested area. S16(1)(a) will have the effect of quashing or setting aside the Minister’s decision (certiorari) of refusing to grant the license and s16(a)(b) will mandate (mandamus) the re-examining of the application.

Certiorari is usually an ancillary remedy (Aala) that will not be granted without the presence of another remedy such as Mandamus. But as the ADJR is supposed to be interpreted as free from the confines placed on constitutional writs, this may not apply.

Furthermore, in respect of the biased conduct the Minister engaged in making the decision, an order under s16(2)(b) can be brought to prohibit the Minister from making a determination, and instead another superior may assess the case in his place, or whatever

the courts see necessary to do justice. The equitable remedy of injunction can be engaged to achieve a similar outcome.

4. DELEGATED LEGISLATION. IS REGULATION 1 VALID?

Delegate legislation may only be challenged under Common Law, for Commonwealth legislation s 39B Judiciary Act would apply.

Legislation Act s8 -

a) It is of legislative character as it purports to determine the content of the Act by attaching conditions to the definition of ‘community space’ under s3 of the Act.

b) The regulation was made in exercise of the power delegated by the Act, under s22 which gives the Minister the power to make further regulations as ‘necessary or convenient to give effect to the Act.’

To test validity, we go the SA v Tanner’s reasonable proportionality test. The purpose of the Act outlined in s2 is the establishment of government community spaces ‘to bring communities together’. Although M has the power to make the delegated act, s2 and s3 both do not include any political requirements, so it would seem that this regulation is more for the convenience and interests of the Minister, and less for the purposes the Act was intended. This goes to another ground of illegaility: Improper Purpose, where if an act stipulates the purpose for which the power must be exercised, and the Minister uses it for an ulterior purpose, it will be invalid ( Brownwells). So, Regulation 1 can be construed as an attempt to supplement the Act by widening the purposes of the Act, which is not ‘necessary or convenient’ (Union Steamship).

Hence, Regulation 1 is not valid as it is made with improper purpose and goes beyond the scope of the parent legislation. PART B (Q2)

I agree that privative clauses contradict with principles of fairness and judicial review, consolidated by the Separation of Powers (SoP) doctrine (Boilermakers). They are controversial as they attempt to oust the courts’ jurisdiction to adjudicate on the lawfulness of administrative decisions, which, in the absence of judicial review, gives Parliament free reign in determining their own limits; putting them at odds with the Rule of law. The purpose of judicial review in administrative law is to hold ‘commonwealth officers’ accountable for their actions and increase transparency in administrative decisions and allows the opportunity to challenge them if necessary.

Privative clauses generally fall under the following categories:

1. Clauses seeking to make orders/decisions final 2. Clauses forbidding the court from granting the traditional remedies 3. Clauses stipulating grounds for judicial review 4. Clauses prescribing time limits for judicial review

The issue in these clauses is clearly evident; where an Act may seek to limit powers granted to a decision maker, these clauses seeking to remove judicial review would nullify the practical effect of those limitations (Hickman).

The courts have attempted to apply a narrow and restricted interpretation of privative clauses. Most recently, privative clauses have been at the forefront of migration and state

industrial relations decisions, most notably Plaintif s157 and Kirk. In Plaintif S157 a Category 2 privative clause, could not oust the High Court’s original jurisdiction preserved under the Constitution. However, the court was reluctant in pronouncing the privative clause as invalid, but instead held it must be read down to conform with Ch 3 and s75(v).

Similarly, in Kirk, the High Court made a finding of jurisdictional error to circumvent the privative clause, claiming that the rules of evidence were not correctly applied, and thus, the decision maker misapprehended their scope of power. Importantly, this case is also significant as it concerns a statutory administrative decision, regarding which the High Court stated that Supreme courts, by way of court appellate structure, have jurisdiction to conduct judicial review in cases involving jurisdictional error. So, it follows that statutory restrictions for non-jurisdictional errors may remain (SAAP).

The cumulative result of these cases is that although the High Court did not completely strike down privative clauses, they managed to read them down to the extent that it is unsure what more is left for them to do.

The reasons for the government’s attempt to remove judicial review, in conjunction with the High Court reluctance in completely invalidating privative clauses lies in contextual concerns. This includes, fears of non-citizens seeking avenues of judicial review as a way of prolonging their stay in Australia, without any merits to support their case. Furthermore, costs of reviewing such unmeritorious applications and the pressure it would place on the High Court, was also a contributing factor.

Hence, the current view is that privative clauses are beneficial in that they promote finality of decision, but they must be read within constitutional limits to preserve judicial independence and SoP doctrine....