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Admin final exTEMPLATE ANSWERS OUSTER CLAUSE In dealing with OUSTER CLAUSES, parliament often seeks to preclude or restrict judicial review of administrative decisions. In the current scenario, it is evident that INSERT SECTION does not permit the court to review a decision made by a THE MINISTER OF (INSERT) as his decision is deemed final and conclusive. The courts will only allow ouster clauses to block them if the words of the LEGISLATION are clear, explicit and comprehensive ( Hockey v Yelland 1984). As evident in the facts, the clause is clearly explicit in its intention to prevent any sort of judicial review. Additionally, in Abebe v Commonwealth (1999) the Court held that since the Commonwealth Parliament established the Federal Court by legislation, it could limit the court’s jurisdiction without infringing on the judicial power of the Constitution. Therefore, the ouster clause is valid in relation to ousting the jurisdiction of the Federal Court. However, in ( Hockey v Yelland 1984), the court determined that the words ‘final and conclusive’ and ‘shall have no right to have any of those matters heard and determined by a magistrate or by way of appeal, by any court or judicial tribunal’, prevented a further hearing but did not preclude an inquiry into whether the determination was reached in accordance with the law. Therefore, the Federal Court will not be able to hear the matter; however, they will not be precluded to making an inquiry into whether the determination was reached in accordance with the law.

The parliament cannot oust the original jurisdiction of the HC by the Constituion s 75(v) that includes writs of prohibition and mandamus. (Hockey v Yelland 1984). On a final note, (Plaintiff s 157/2002 v Commonwealth (2003)), the HCA held that a section in an act will be invalidated if it attempted to oust the Jurisdiction of the HC under s 75. Therefore, as evident in the facts, the attempts to oust the jurisdiction of the HC will be invalidated. WHICH COURTS HAVE JURISDICTION TO HEAR THE CASE In most circumstances, the Federal Court will have jurisdiction under s 3 of the Administrative Decision (Judicial Review) Act 1977, to hear any matter made under a Cth Legislation, however, since the jurisdiction of the Federal Court is ousted, this will not apply. The HC of Australia will have original jurisdiction under s 75(v) of the Constitution to hear any matter, regardless of an ouster clause (Plaintiff s 157/2002 v Commonwealth (2003)), as the ADJR Act does not apply to the HCA. In stating this, pursuant to s 44 of the Judiciary Act 1903, the HC can still remit cases to the Federal Court if they choose to, giving them the jurisdiction under s 75 of the Constitution. Whether he has standing and his challenge would be justiciable In Ogle v Stickland (1987) the court stated that standing requires that a person must have a special interest and be aggrieved by the decision under the relevant legislation. Additionally, ACF V Commonwealth it is further viewed that a litigant must have a special interest in the subject matter of litigation which is more than an intellectual or emotional

concern. Special interests as observed by Mason J in this case are relating to property, business or economic interests. It is evident in the facts that (insert name) has special interests as their decision is affected by the MINISTER because it would provide for significant economic loss etc. Regarding Justiciability, in Aye v Minister for Immigration and Citizenship [2010], “a number of subject areas have been regarded as falling outside the scope of judicial review, among them treaty making, recognition of the government of a foreign state and of the boundaries of a foreign state, declaring war, conducting foreign policy, and decision relating to national security. In order for a matter to be justiciable, it must be a decision where a court considers that the decision-making function lies within the province of the executive and that it is appropriate for the court to intervene (Thomas v Mowbray 2007). The matter before us is of administrative nature as it involves a decision made by the minister which is subject to judicial review R v Toohey [1982]. The case could show national security, so use Council of Civil Unions v Minister for the Civil Services [1985], to demonstate that their should be enough evidence that a reasonable decision maker would deem it as urgency of national security.

WHETHER THE SHORT NOTICE GIVEN MAKES THE DECISION INVALID (COME BACK TO ) In addressing this question, the first issue is whether one day is considered a reasonable time. It does not seem reasonable to

expect (INSERT NAME) to prepare a written submission of statement to show cause as to why he should not be removed as Commissioner with one days notice. (Guiseppe v Registrar of Aboriginal Corporations [2007]. The reason provided by the minister to support one days’ notice of her intention to remove him is that was a matter of urgency on the grounds of (INSERT NAME). For the exception of national security to be satisfied, there needs to be enough evidence for a reasonable decision maker to conclude that a hearing would be prejudicial to national security . (Council of Civil Unions v Minister for Civil Services) [1985]. WHETHER REGULATIONS A AND B ARE VALID In order for regulations A and B to be valid, it must be established that the regulations fall within the power of the parent act (NAME ACT). Where the operation of power from the administrative decision maker is confined to the “field of operation”, from empowering legislation and applied to the following scenario, the Minister has gone outside the field of operation Shanahan v Scott 1957 and apply it to the following scenario, the Minister has gone outside the field of operation SCRTANISE WORDS 1. 2. 3.

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The above are definitions which are difficult to define and applying principles in the King Gee Clothing Co Pty Ltd v

Commonwealth(1954), the setting of prices and declaring maximum prices was too discretionary and Dixon J found the regulations invalid as they were ultimately too uncertain to be valid. It requires a clear connection that promotes the actual “objectives and purpose” of the act as Dixon J’s judgment in the King Gee Case was followed in Racecourse Cooperative Sugar Association v Attorney-General (Qld)(1979). In Vanstone v Clark [2005], the word “misbehaviour” for obstructing police was deemed misbehaviour in the eyes of the Minister. However, its an issue of simple ultra vires where the court found suspending Clark was ‘invalid’. In this current scenario, where (INSERT NAME) was unfairly cancelled their (license) the Legislation (Insert name) did not specify the word ‘misbehaviour’ in the act (Black CJ). As founded in Paull v Munday (1976), it found regulation 7 invalid as the words “open fire” for example were not defined by the act and here we can apply the same reasoning to invalidate the act. Further in the Austral Fishieries case, the court held the ways in which the executive may violate the Act by exceeding the power delegated to it is by being, inter alia, uncertain, unreasonable. WHETHER THE MINISTER HAS EXEEDED THEIR POWERS IN TERMS OF RELEVANT AND IRRELEVANT CONSIDERATIONS, IMPROPER PURPOSE AND UNREASONABLENESS There is a formulation in Federal Court rulings that a decision must give “proper, genuine and realistic consideration to the

merits of the case.” (Kahn v Minister for Immigration and The Ethnic Affairs (1987)

In Roberts v Hopwood [1925] the court stated that the test for relevant and irrelevant consideration is a duel one including both a positive requirement to take into account all relevant considerations and a negative commands not to take irrelevant materials. It was further stated that where the legislation falls silent as to the irrelevant considerations, they must be implied from an examination of the legislation as a whole. In Sean Investments v Mackellar (1981) it must be shown that the Minister had failed to take into consideration of factors she was bound to consider, when exercises her discretionary power. In doing this in Minster for Aboriginal Affairs v Peko-Wallsend (1986), it was stated that the factors that a decision maker is bound to consider is to be determined by implications of the subject matter, scope and purpose of the Act. In the current scenario, the relevant considerations that can be implied from the act are strictly those relating to the (INSERT REASON FOR ACT). Therefore, anything that falls outside the scope of the Act (INSERT) would be an irrelevant consideration taking into account the Peko-Wallsend case.

In the facts, it does not appear to be any facts that would demonstrate a failure to take into account relevant considerations. On the contrary, it can be shown that the Minister has in fact taken into account irrelevant considerations when making their decision regarding (INSERT).

When making the decision, a decision maker must not take into consideration any material irrelevant to the matter otherwise the decision would be made ultra-virus (Padfield v Minister of Agriculture, Fisheries and Food [1968]). As noted, the relevant and irrelevant considerations are not set out in the act, nor the regulations, therefore, they must impliedly be derived from the scope, subject matter and purpose of the Act. Minster for Aboriginal Affairs v Peko-Wallsend 1986. There is nothing to suggest that the act made it necessary for the Minister to consider Jim’s political viewpoint when arriving to his decision. Regardless, it is strongly implied that the minister had considered his political stance into account. Roberts v Hopwood [1925]. IMPROPER PURPOSE Administrative decisions must be designed to achieve a purpose of object authorised by the empowering legislation and will be invalidated where the powers are used for an improper purpose. In Thompson v Randwick Municipal Council (1950), the HCA has determined that the purpose for which power is conferred is a question of statutory interpretation and only needs to be a substantial purpose rather than the sole purpose. Further in R v Toohey (1981) it was stated that the court could look behind the words of a regulation to examine the relevant documents to determine the purpose for which the regulations were made. In this case, the claim of improper purpose will be on the basis that the decision to cancel (Whatever) is on the basis of his political beliefs, rather than actual issues of (Purpose of the act).

This can be seen as ‘bad faith’ as the lack of genuine attempt to undertake a task and involved personal attacks of political views as their motif (SCAS V MINISTER OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS) (2002). UNREASONBLENESS In Associated Provincial Picture Houses v Wednesbury Corporation the court stated that the test for unreasonableness should be stated as something so absurd that no sensible person could ever dream that it lay within the powers of authority. Although its hard to prove the notion of unreasonableness, turning our attention to Minister for Immigration and Citizenship v Li (2013), where the threshold of unreasonableness is less strict, it can still be viewed that (Come Back to )

Whether the Minister has denied procedural fairness, either because he was given no fair hearing or the minister was politically prejudiced against him. May use this: In Cooper v Wandsworth Board of Work (1863)- the court stated that although a statute does not require that the party shall be heard, the justice of the common law will supply the omission of the legislature. Although there are no clear manifestations of a contrary intention to dispense with the principles of natural justice in the Legislation (Re Minister for Immigration and Multicultural Affairs ), 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. Minister for Immigration and Border Security v WZRAH [2015]. In Kioa v Minister for Immigration and Ethnic Affairs (1985), the court stated that when an order is made which will deprive a person of some right or interest he is entitled to know the case sought be made against him and to be given an opportunity to reply to it. It is noted that the order to cancel (Whatever), it will deprive that person of an economic right and interests, which will entitle him to procedural fairness Dale v NSW Trotting Club (1978). Therefore, even though in this case the parliament has created a statutory power to destroy and/or defeat persons right to interests parliament is taken to intend that the power is to be exercised fairly and in accordance with natural justice Barrat v Howard [1999]. HEARING RULE In Barrat v Howard [1999], the court stated that it may dilute the right to a hearing to require only the rights to make a written submission. This was found to be particularly so in high-volume decision making cases involving the use of public resources such as Social Security (Reinke and Security, Department of Social Services [2016]. However, although there is no automatic right to a full hearing, in Chen v Minister for Immigration (1993), IT WAS HELD that there may be cases were applicants are entitled to an oral hearing, particularly if their credibility were challenged. So basically, political prejudice, or anything that attacks his persona.

FURTHER, it may be argued that 24-hours GIVE TO (Insert name) to make a written submission based on ‘urgency’ seems ridiculous as highlighted above. In Commissioner of Police v Tanos (1958), the principle to require urgent attention will only apply to the use of such powers, where the situation is actually urgent. Conclusively, unless the Minister can show that the breach would have made no difference to the result, Stead v Government Insurance Commission [1986], the applicant would be entitled to a remedy for breach of natural justice.

BIAS Although government ministers have not always been held to the same standards of impartiality as judicial decision-makers (Hot Holdings v Creasy 2002), there have been occasions whereby the court has applied the standard expected of a judge (Century Metals and Mining v Yeomans (1989). However, although the standard is said to be lower than that of a judge, ministers are not immune from a bias test (Minister for Immigration and Multicultural Affairs v Jia [2001]) In this scenario, it would be prudent to argue perceived bias rather than actual bias as the test is much easier to prove (Gamaethige v Minister for Immigration and Multicultural Affairs (2001)) The court stated in Minister for Immigration & Multicultural Affairs v Jia [2001] in making a decision the Minister must have been free of any perceived bias, that is, conduct that may appear to a fair minded observer to affect their impartiality in reaching a decision. However, it must be shown that the time

interval between the decision and the comments were not such that the Minister had abandoned old perceptions or took new ones (Ex Parte Epeabaka 1998). This is demonstrated in the scenario because although the time is not stipulated, the minister has based their decision regarding political discrimination. THE REMEDIES AVAILABLE EITHER (1) PREVENT THE MINISTER FROM PROCEEDING IN THIS MANNER (2) QUASH A DECISION BY THE MINISTER TO CANCEL THE LICENSE

Usually, it would be relevant to consult the remedies under the statutory remedies under the ADJR Act, HOWEVER, it will not apply in this case as the Federal Court jurisdiction has been ousted and the HC is exercising jurisdiction under the Constitution s 75(v). In Ex Parte AALA (2000), the HCA ruled that it has the jurisdiction to grant all forms of prerogative relief including common law and equitable remedies. However, it must be noted that the courts have a discretion to an application for relief under its original jurisdiction (Ex Rel Kerr v T [1983]). (1) Prevent the minister from proceeding in this manner to cancel his license A party may seek an order for prohibition, which applies before a final decision has been made to prevent the minister from proceeding in his manner. In order to provide with a prohibition order the party must prove they are a person aggrieved R v Justice of Surrey [2005].

So, party has suffered an economic loss because of cancellation of his license rendering him unable to work. In saying this, R v White [1910]states that writs of prohibition lie only in respect of acts which are done judicially, and are not subject to acts within the ministerial or administrative in their nature. Therefore, the PARTY may seek an injunction to restrain the Minister in cancelling his license. Injunctions may be used to retrain people from acting in a manner inconsistent with their legal duty, or to require people to act in a certain way; they are available against decision makers regardless of whether they are bound by procedural fairness ( Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund (1998). Further, the issues must be real and not theoretical question and the applicant must have a special interest in the subject matter (Australian Conservative Foundation v Minister for Resources (1989). It is evident that the party satisfies the special interest requirement and it is evident that this is a real issue concerning his license. (b) Quash a decision made by the Minister to cancel his license In order to quash the decision the party may seek an order for certiorari which orders the decision-maker to desist from undertaking an unlawful act and /or desist from some excess of jurisdiction. The writs (including certiorari) are available wherever any body of persons having legal authority to determine questions affecting the rights of subject, and having the duty to act judicially, act in excess of their authority ( R v Electricity Commissioners; Ex Parte London Joint Committee

Company (1920)). In this instance, it is evident that the decision made against the person has legal affect, as he loses …… Additionally, Certiorari remains restricted to jurisdictional errors. In Plaintiff S157/2002 v Cth, THE HCA stated that a denial of procedural fairness constitutes a jurisdictional error. This is exemplified in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005], the court granted an order for certiorari to quash a decision and an order of mandamus to require the tribunal to review the decision according to the law after it was found that the Minister had breached a procedural requirement under the act. In the current scenario, it has been highlighted that the minister has breached several procedural requirement issues therefore; a claim for remedies under jurisdictional error is concrete....