Tutorial Questions Week 7 PDF

Preview

Summary

A good reference for summaries or revision....

Description

Tutorial Questions (week 7): Law, Fact and Evidence 1. Describe some of the bases on which judicial review may be had of a purely factual error. GTE (Australia) Pty Ltd v Brown (1986) 14 FCR 309: court held that serious fact-finding error constituted breach of several grounds of review – if severe can be a jurisdictional error. 

Reliance by a decision-maker on a non-existent fact



Failing to base a decision on logically probative evidence



Breach of natural justice



Decision not authorised by the enactment pursuant to which it was purportedly made



Failing to take a relevant consideration into account;



Wednesbury unreasonableness



Failing to satisfy a jurisdictional fact – precondition



Jurisdictional error

2. That a decision-maker has committed a ‘jurisdictional error’ is a conclusory statement. Identify some actions a decision-maker may take that would point to that conclusion. A jurisdictional error arises where a decision-maker has exceeded the authority or power conferred upon them. A violation of power or jurisdiction may arise in different ways, including by ignoring relevant material, relying on irrelevant material, breaching natural justice or fraud. 3. Section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the tribunal is ‘not bound by the rules of evidence but may inform itself in such manner as it thinks appropriate’. Explain, then, how principles of evidence become relevant to the tribunal’s function. 

S 51H



The evidence that Ts will have regard to depends on the nature of the matter and its context.



Concurrent evidence: = Where all witnesses are sworn in at once. All expert evidence needs to be looked at, announce what they agree on and what they disagree on.



S 33(c): RULES OF EVIDENCE DO NOT APPLY TO Tribunals – But Tribunal may inform itself in such manner as it deems relevant.



What is the standard of fact finding? How is the standard to be defined?



Note: Jones v Dunkel: If there is a witness that could support your case and you don’t call them, the tribunal can infer that it won’t support the case.



Two major difference: admissibility in rules of evidence (Casey Repritation Comm); hearings may be conducted over the phone



At end of day, must not base findings on illogical material.

4. What was the significance of the High Court’s decision in SZMDS? Discuss whether the decision represents a positive e development in administrative law. Facts: Sections 36 and 65 of the Migration Act 1958 (Cth) required the Minister to grant a protection visa if "satisfied" that, among other things, the applicant was a non-citizen to whom Australia owed protection obligations. Issue: Was the “satisfaction” of the Minister a jurisdictional fact? Test for irrationality: could a logical or rational DM arrive at the same decision on the same evidence? Only if rational DM couldn’t have. May expose greater scrutiny on judicial review. 5. Explain the statutory route by which a disappointed party may ‘appeal’ from the Administrative Appeals Tribunal to the Federal Court and explain any threshold issues that arise in relation to that ‘appeal’. 

There is a right to appeal against a tribunal decision => on the merits (that is, on issues of fact or law), either internally to an appeal panel of the tribunal, or externally to another tribunal.



ADDITIONALLY: Legislation commonly provides a right of appeal from the tribunal system to the judicial system on a question of law.



E.G. Right to appeal from the AAT to the FC in AAT Act s 44; Right to appeal from the ADT to the SC Court of Appeal in ADT s 113



Repatriation Commission v Owens: The purpose of limiting an appeal to a qu of law is to ensure that the merits of the case are

dealt w/ not by the Federal Court, but by the Administrative Appeals Tribunal. This distribution of function is critical to the correct operation of the administrative review process. 6. Suppose that your client, A Pty Ltd, wishes to allege that a delegate made an error of fact in refusing to grant it a particular statutory grant. Explain the differences in approach between review in the Administrative Appeals Tribunal and judicial review in the Federal Court. Right to appeal from AAT to Fed Court restricted to qns of law only. 7. What role does the jurisdictional fact concept play in judicial review proceedings? Conditional on fact/circumstance. 8. Is the law/fact distinction a “false dichotomy”? Premised on idea that judciaal branch: qn of law; exective of fact Tension b/w -...