ADMINISTRATIVE LAW

NOTES
What is Administrative Law?
- area of public law that regulates the relationship between the citizen and the state,
ensuring that an administrative body acts within the law
- extended to private bodies, such as trade unions, perhaps because they exercise certain
powers of a semi-public character e.g. procedural fairness
- central precepts (principles): parliamentary sovereignty, ministerial responsibility to
parliament, the constitutional conventions surrounding the reserved powers of the Crown,
the rule of law and the separation of legislative, judicial and administrative powers.
- The constitutional framework: Executive which determines what the law should be and
often intends to make life easier for itself - ignores role of HC in interpreting the rigid
document of the Constitution

Parliamentary rule or responsible government

- Origins in the struggles between the English monarch, heading a federal aristocracy and
the parliament, representing the emerging mercantile and capitalist class.
- the Crown and the Privy Council through the Star Chamber exercised central power
- judicial control = prerogative (entitlement) writs such as certiorari, mandamus, prohibition
and habeas corpus- form the heart of the old administrative law
- tribunals, FOI legislation and Ombudsmen, infringes the notion of ministerial responsibility
- responsible govt: bureaucracy (government) has a watch dog
o involves the idea that governments and ministers are – and should be – answerable to
parliament
o pg 29 - Thynne and Goldring (1987): executive is becoming less responsible to
Parliament due to the power of the political parties and the complexity of modern
bureaucracies

Sovereignty of parliament
- English revolution = parliament became the legal sovereign, determining what is law by
legislation subject to the separation of powers with the judiciary and the executive.
- Events in the early years of the 21st century underscored the limits of parliamentary power
e.g. the wide use of executive power and tighter restrictions on public and parliamentary
scrutiny.
- parliaments do not have unfettered power but must share it according to the various
heads set out in the Constitution

The rule of law

- Fundamental: all equally subject to the same body of stable/certain law, not subjected to
arbitrary rule.
- Not binding rule = no guarantee of the protection of legal and democratic rights. Involves
judicial power to protect the rights of citizens
- Dicey saw admin law as a manifestation (demonstration) of – rather than a means of
restricting – bureaucratic power
- urged the apolitical and objective nature of the law to emerge
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- Legal equality by no means assures social equality – latter mocks former when poorer or
more vulnerable applicants lack access to the resources to adequately pursue their claims.
- Dicey identified three concepts:
1. No one was punishable by the state unless they committed a breach of the law and this
breach was established before an ordinary court of law
2. All citizens irrespective of status were subject to the law as administered by law courts,
including every official, from the Prime Minister down to the police constable
3. In contrast to the American system, personal liberties and freedoms are derived from
common law principle, and not written guarantees of freedom.

The separation of powers

- the three “arms” of government are legislative, judicial and executive (latter equivalent to
administrative) to provide checks and balances against each = 3 institutions designed to
give independence to each branch of government = limit on power of each branch
- clash with responsible government – doctrine requires executive to be answerable and that
true separation is answerable – roles of the court and administrative decision makers are
similar
- Mistrust of government implicit in the ‘separation’ of powers doctrine doesn’t sit well with
the assumption that each branch will respect the right of the other
- Separation of powers exists by convention (agreement) at State level, entrenched
(established) protection for judicial independence and for judges but not the jurisdiction
- High Court drawn a sharp distinction between courts and tribunals.
- Judicial and executive powers constitutionally cannot be conferred (applied) on the same
body.
- Tribunals cannot make final and enforceable decisions on questions of law
- Higher courts can exercise quasi-legislative power; their decisions establish broad legal
rules or principles. In Mabo v Qld (1992) the HC created a legal entity known as native
title.
- The courts defend separation of the judicial power. In Boilermakers, the HC upheld a strict
distinction between the powers, denying bodies other than courts exercising judicial power
of the Commonwealth.
- Commonwealth courts cannot be given general executive powers, e.g. to review the merits
of decisions
 Merits review vs. legal review
o Merits review is generally confined to tribunals
o Tribunals have the power to reconsider a decision - same power as the original decision
maker
o Courts can only determine whether a decision was made lawfully- set aside to be re-made
o unlawful decision can be reconsidered without any change to the outcome - Green v
Daniels (1997)
o Litigation may serve to highlight issues and be part of the battle to determine rights on a
wider scale.
o Mason J in Peko-Wallsend: The limited role of a court reviewing the exercise of an
administrative discretion must constantly be borne in mind. It is not the function of the
Court to substitute its own decision for that of the administrator by exercising a discretion
which the legislature has vested in the administrator. Its role is to set limits on the exercise
of that discretion...” – pg 434

Human rights and Admin Law

 Principles: open government (FOI and reasons for decisions); honest government (anti-
corruption measures such as ICAC, the Crime and Misconduct Commission and Whistle
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 blowing legislation); and fair government (consistent, rational and impartial decision
making).
 Professor A W Bradley: the ability of individuals to seek judicial review of government
decisions which adversely affect them; the existence of an appeals process from a first
instance decision by an official to a judicial (or quasi-judicial) body; and the ability of the
courts to further review decisions both in terms of legality and merits can together
constitute the right to administrative justice.
 The best and preferable decision must be made consistent with human rights principles
enshrined in Australian Law.
 Providing reasons recognises the dignity of members of society and treats those subject
to decisions with respect.
 Freedom of Information can be seen not only as an aspect of administrative justice but
as giving credence to the doctrine of freedom of speech.
 A right to know what government and other institutions of power are doing, in order to
assess the value of decisions in order to be sufficiently informed to make the exercise of a
vote meaningful.
 The Ombudsman and anti corruption bodies can be seen as mechanisms available for
individuals to rectify abuses of human rights. Ombudsman can investigate, recommend
changes, and report to Parliament in attempt to bring about change. Anti corruption bodies
may also intervene if necessary.
 The rules of procedural fairness can be seen as ensuring justice is not only done but
seen to be done – another fundamental aspect of “due process”.
 Unless there is a clear intention to the contrary, statutory provisions are to be read
consistently with international law is of great value in the protection and promotion of
human rights.

Rise of Admin Law

- Menzies proposed that government would play a limited role in regulating affairs,
bureaucracy would have restrictive function.
- Failed to cut down Cth Public Service and the overlap of functions between Cth and State
bureaucracies.
- High Court decisions on the subject did not interfere with administrative decision making.
- By 1960s two main concerns: control of bureaucratic policy making and control of
bureaucratic decisions which affect particular individuals.
- Led to attempts to develop institutions to increase administrative co-operation with
government policy and establishment of committees to recommend major reforms.

- Decline of Parliament: Brugger and Jaensch (1985) Australian Politics: Theory and
Practice: Parliament is in decline, and the only debate is about when. Parliaments are
divided and are in a competition for esteem which does not contribute to the welfare of
citizens. Parliaments do provide a channel whereby the public might be kept aware of the
actions of the executives, so they aren't altogether redundant, they are just weak.
- One of the reasons cited for rise of admin law is the limited power of parliament. Problems
with the argument: the rise in admin does not mirror the said decline. Further it is not clear
why the increasingly powerful executive would wish to allow its control of parliament to be
diluted. Finally, why would one expect a strengthened administrative law to be chosen as a
solution to a weakened parliament? There are more logical steps which would have been
taken. Admin law is not there to fix unsatisfactory parliaments but to act as a response to
individual grievances.
- Political power tends to lie with the Executive. (However there is a shift towards powerful
parliaments in the 1990's.)

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- Ministers and Administrators: Relationship between ministers and their departments is
an area of concern for politicians. Ensuring a politically responsive public service due to a
growing interest in politicians to have an active role in policy making (rather than leaving it
to public servants.) However suspicion of administrators has meant that (through the new
administrative law) ministers have made them more susceptible to the administrative law
system.

- Individualism and Administrative Rights: Rise of individualism led to assertion of

rights and demands for increased democracy. Consensus politics (let the rulers govern)
was clearly over. In a growth economy, those concerned about lifestyle could see no sense
in simple obedience to authority. The Vietnam War politicised a generation for providing a
stimulus and focus for anti-authoritarian ideology. The ideology of rule of law was
mobilised.
- Individuals became empowered by the belief that they have an entitlement to government
benefit. Karen Green case expressed the hopes of those committed to protecting individual
rights and insisting on legality of decision making. A rights approach to admin law
suggested the need for a streamlined process for review of administrative decisions, cases
heard by an arbitrator on the basis of merits.

- Perceived Inadequacies of admin law

a) Judicial Review v Review on the merits - Investigate the legality of the decisions of inferior
courts, tribunals and administrative decision makers - limited to questions of law. The
separation of powers doctrine would not allow review on questions of fact, or merit. Courts
are hesitant to trespass into the sphere of politics.
b) Grounds of review- Administrative law review can fall into two categories; on principles of
legality (ultra vires), or on grounds of procedural fairness (Natural justice). Ultra vires: The
administrative action cannot exceed the limit of the grant of power. Procedural Fairness:
Decision makers must make decisions which result in as fair an outcome as possible. They
must act as if they have no interest in the final outcome.
d) Access to the courts - The cost of bringing an action to the high court is high, putting it out
of reach to most people. A litigant must also prove they have sufficient standing to bring
forward a case.
e) Reason and Evidence - One cannot validly challenge a decision if there is no reason given
for that decision. What would you argue?

- New Administrative Law: As a result of the Kerr report, four key pieces of legislation
were passed which changed the face of administrative law: These were the Administrative
Decisions (Judicial Review Act) 1977, the Administrative Appeals Tribunal Act 1975, the
Freedom of Information Act 1982 and the Ombudsman Act 1986.
a. Administrative Decisions (Judicial Review Act) 1977 - Grounds for challenging an
administrative decision set out in this act (s5-7)
b. AAT - The AAT is empowered to stand in the shoes of the original decision maker;
consider the facts of the case and make determinations on the merits of a case.
c. Administrative Review council - Created from the AAT Act 1975, this council is an
independent advisory body which has general oversight over the system of
administrative review. The ARC also considers its function to include promotion of
knowledge of the review process.
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 d. Ombudsman - A “Watchdog” with wide power to investigate action that relates to
matters of administration. Exist on both state and Commonwealth level.
e. Freedom of information: provides access to govt information. Designed to allow
individuals access to personal information held about them, and to allow individuals the
opportunity to challenge and where appropriate have that info amended
f. Reasons for decisions: the new admin law package accepted that in order to
challenge govt decisions, individuals need to be provided with reasons for the decision

Reformation
- not just to remedy legal complexities, also seen as some sort of solution to the growth of
the bureaucracy and the decline of parliament
- new admin law was seen as important to the restructuring and reorganisation of the public
sector
- Tomasic (1987): admin law reform: who benefits?: Governments have realised that 2
substantial benefits flow from the existence of this body of federal admin law:
1. The legitimatisation of govt decision making processes which the existence of the new
admin law procedures provides: the FOI act and the ombudsman are the most important
legitimating mechanisms
2. managerial benefit: routinisation and rationalisation of decision making processes has
taken place
 Allars (1991): managerialism and admin law: based upon a new conception of
accountability through efficiency in organisation/administration, owing much to corporate
mgmt principles of private sector
Post 1970’s legislative reform:
- The new admin law with its 1970’s conception of accountability through fairness and
openness remains firmly in place
- Reform of the late 1980’s introduced innovations: the independent commissions against
corruption, whistle blowing legislation and rule making. Also public demand for steps to be
taken to deal with the perceived evidence of entrenched corruption at high levels of the
executive
- Rationality: admin law and managerialism share a concern to ensure rationality in public
administration through Fairness (procedural), Equity (combination of procedural fairness
and individual justice in terms of outcomes of decisions), Openness (public access to
information) and Statutory rule making procedures which envisage a harmony between
norms of efficiency, including cost benefit analysis, and those serving openness.

Administrative Law in Decline

1. The capacity of the admin law system to function effectively is dependant funding and
accessibility
2. Moves intended to restrict access to review in the migration area
3. tendency for Aust govts to adopt a private sector model as the basis for organising the
public service
4. The effects of privatisation, corporatisation and contracting out = decisions
unreviewable

Ch 7 Non Judicial Review of Administrative Action

Paths of review
1. Request for review by the original decision maker
2. Approach your local member of parliament

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 3. Approach a higher official within the administrative agency involved.
4. External review by specialist tribunal
5. Application to the Administrative Appeals Tribunal
6. Ombudsman

- Ford (1985) The Role of Preliminary Negotiations: First port of call should always be
the primary decision maker. The advantages of conducting a case this way has been quite
obvious:
 -There is a huge saving of costs to the client
 -Matters can generally be resolved far more quickly than they can through a court or
tribunal
 -The discretionary powers of the bureaucrat to grant the relief sought by your client are
usually far wider than the discretionary power vested in the court or tribunal

1. Formal Internal Review

- First step in dealing with an unsatisfactory administrative decision, original decision to be
reconsidered on the merits of their case.
- Internal review may also become institutionalised. Bureaucracies and governments may
establish review procedures for a number of reasons: as a form of quality control, as a
means of appeasing clients, as a means of reconciling the demands of rapid decision
making etc.

2. External Review: Specialist Tribunals

- Includes a disparate group of bodies. Some are de facto courts, tribunals of distinctive
concern and the administrative review tribunal.
- the power to review decisions, but with the power to exercise the same discretions as
those conferred on the primary decision maker
- Fourth type of tribunal is a hybrid tribunal. In NSW, the Administrative Decision Tribunal
exercises both public law and private law jurisdiction
- Criticism: some tribunals are partial to the government, difficult for outsiders to know
whether they meet the kind of minimum standards which one might legitimately expect of
tribunals.
- The Cth’s response was the establishment of the Administrative Appeals Tribunal (AAT)

3. External Review: The Administrative Appeals Tribunal

- the need for cases to be reviews on their merits suggested an alternative strategy to
resort to in courts
- Harris (1991): “first, a single tribunal empowered to review the merits of administrative
decisions, particularly those in which discretion and, therefore, policy may be involved,
secondly, a position of institutional separation from ordinary court systems and finally, an
appropriate separation if not divorce from the bureaucratic system itself.”
- The AAT consists of a President, who is a judge of the Federal Court of Australia,
Presidential Members (judges), Deputy Presidents (legal practitioners with at least 5 years
experience) senior members and members, all appointed by the Governor General: AAT
Act 1975 (Cth) s6
- Wilson v Minister of Aboriginal and Torres Strait Islander Affairs (1996)- public may confuse
the judge acting in a non-judicial capacity with the judge acting in a judicial capacity – pg
248

Jurisdiction

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- The AAT is not vested with general power, it may review decisions specifically made
subject for review by the AAT by express inclusion by the legislation.

AAT Act S25 (6) – where jurisdiction is conferred upon the tribunal - “made in the exercise of
powers conferred by that enactment”

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd- Whether the AAT has
jurisdiction in cases where the decision to be reviewed was beyond the powers of the
decision-maker?
 Facts: license granted under Customs Act, cancelled by the Collector of Customs. Argued
that the collector had exceeded his powers. The AAT found in the licensees favour and
ordered that the purported cancellation be set aside. Collector appealed arguing, inter
alia, that if the purported decision was indeed ultra vires, the AAT lacked the power to
cancel the license.
 Bowen J: Must depend upon the interpretation given to S25 of the AAT Act. “made in the
exercise of powers conferred by that enactment”
 approach taken that it should read “in purported exercise of powers conferred by that
enactment”- the act is clearly intended to give a person whose interests are affected by
an admin decision an effective appeal
 The AAT would have jurisdiction to entertain an appeal from a decision in fact made,
which purported to be made in the exercise of power under the enactment. It could then
proceed to determine whether the decision was properly made in fact and in law.

Standing
- ARC (1999) - What Decisions should be Subject to Merits Review? : Council has
developed principles which it applies to each class of decision under consideration.
Guidelines are not binding
 council believes that an admin decision that will or is likely to, affect the interest of a
person should be subject to merits review
 S 27(1) AAT Act – persons whose interests are affected by a decision may apply to the
AAT for review of that decision
 The section does require the applicant to demonstrate that an interest of theirs was
genuinely affected
- S 27(2) – an organization shall be taken to have interests which are affected by a decision
if the decision relates to a matter included in the objects or purpose of the organization
- S 31 – a decision by the AAT that a persons interests are affected by a decision shall be
conclusive (Comptroller-General of Customs v Akai)- this right did not give those who were
already parties to appeal against the joinder of a further party
- NSW S 4 – interested person means a person entitled under an enactment to make an
application

Accessibility
- Applications must be in writing, doesn’t matter if the grounds on which review is sought
are not precisely expressed
- lodged within 28 days of notification of the decision, may accept late applications
- NSW – applications are to be made only after internal review
- a filing fee $500 (fee is not payable with respect to veterans benefits and those under the
social security Act) fees need not be paid if the applicant is financially incapable
- fee is refundable if proceedings have terminated in a manner favourable to the applicant

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- It is likely that being literate, articulate and represented is of some assistance
- The AAT must be provided by the decision maker with relevant documents, so they will
already have some idea of the case
- Budgen 1992 – the AAT does vary its procedures from when both parties are legally
represented to when an unrepresented party appears

Evidence and Procedures

- tribunal to determine the procedures it is to adopt, but enjoins the tribunal to proceed with
as little formality and technicality and as much expedition as possible
- Informality – use of preliminary conference. Presided over by a member or an officer of the
AAT. They inform the parties of the procedures to be adopted and the type of evidence
which will be produced at the hearing – 70% of cases withdrawn before formal hearing
- AAT act now provides for mediation – S 34a - and the tribunal now encourages the use of
mediation however the costs must be borne by the parties
- the right of parties to be represented by an agent is subject to the tribunals power to order
parties not to be represented for the presentation of oral submissions
- In receiving evidence the tribunals are not bound by the strict rules of evidence only legal
professional privilege and procedural fairness
- can rely on evidence which might not be admissible in judicial proceedings
- O’Neill (1996): The rules of evidence and admin law: Tribunal members can adopt a range
of techniques and questioning styles depending on the subject and nature of the decision.
Cultural or linguistic factors must be taken into account when obtaining or weighing
evidence.

Decision Making Powers

- The AAT is empowered to review a decision on its merits. s 43(1) of the AAT Act: ‘for the
purpose of reviewing a decision the tribunal may exercise all the powers and discretions
that are conferred by any relevant enactment on the person who made the decision’
- The AAT may confirm, dismiss, vary or set aside the decision or it may remit the decision
for reconsideration under any directions or recommendation= a completely fresh inquiry.
- Where the law has changed between the time of the primary decision and the time when
the AAT makes the decision, the AAT applies the law applicable at the time of its decision.
- AAT is required to give oral or written reasons for its decision. Oral reasons given where
the law and facts are clear = Within 28 days of a decision with oral reasons, a person may
request written reasons

 Esber v CTH- Esber injured in 1982. Under the 1988 Act he was entitled to compensation.
Under the 1971 Act he was entitled to request for the compensation in a lump sum. In
1987, he requested a lump sum and the commissioner refused the request. The AAT heard
his application in 1991 and applied the 1971 Act.
 Held: On appeal to the full federal court, a majority held that the relevant legislation was
the 1988 + 1971 Act. Mason, Deane, Toohey and Gaudron: The tribunal was required to
stand in the shoes of the decision maker and arrive at its own decision: Drake v Minister
for Immigration

Drake v Minister for Immigration and Ethnic Affairs- policy issues

Facts: the AAT affirmed a decision to deport the applicant. It took account of the govts
criminal deportation policy. Drake argued that the tribunal had not made an independent
assessment of the policy
Bowen and Deane:

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- An admin officer in the absence of specifically defined criteria or considerations, to take
into account govt policy - where not under a statutory duty to being bound by that policy,
the tribunal is entitled to treat such policy as a relevant factor in the determination of an
application for review of that decision
- If govt policy is to be taken account, it is a matter for the tribunal to determine in the
context of the particular case and in the light of the need for compromise, in the interests
of good govt, the desirability of consistency in the treatment of citizens under the law, and
on the other hand, the ideal of justice in the individual case
- The court concluded that the tribunal had failed to make an independent assessment of
the relevant policy and remitted the matter to the tribunal

Re Drake and Minister for Immigration and Ethnic affairs (no. 2)

Brennan J (president):
- The tribunals function to form its own judgement of what is the correct or preferable
decision in the circumstances of the particular case as revealed in the material before the
tribunal
- Tribunal is at liberty to adopt the policy it chooses, or no policy at all in fulfilling its
statutory function
- free to adopt reasoning different from the reasoning which led to the making of the
reviewable decision
- “The tribunal is able to refine a broad policy, but the laying down of a broad policy on
deportation is a political function to be performed by the minister...Ministerial policy can be
an aid to consistency among tribunal decisions”
- Brennan found that the magnitude of Drakes criminal activity warranted deportation.
Brennan’s decision however shows that the tribunal may be reluctant to challenge
ministerial policy to avoid conflict with the government. Especially so where the issue has
already been subject to parliamentary scrutiny.

Federal Commissioner of Taxation v Swift

Facts: the Commissioner assessed the Swifts for tax owing under the Act. The case went to
the AAT where they succeeded. The Commissioner appealed to the Federal court. The court
dismissed the appeal on the grounds that the decision of the AAT was not wrong at law, even
if some of its findings of fact may have been incorrect
French J:
- s 43(1) of the AAT Act: ‘for the purpose of reviewing a decision the tribunal may exercise
all the powers and discretions that are conferred by any relevant enactment on the person
who made the decision’
- The tribunal was bound to consider the relevant facts and to decide the correct or
preferable decision was. It was neither entitled nor required to place weight upon the fact
that the Commissioner had exercised his discretion in a particular way
- Entitled to take admin policy into account as a relevant factor in the achievement of a
desirable consistency in decision making: Drake… ‘Inconsistency is not merely inelegant: it
brings the process of deciding into disrepute, suggesting an arbitrariness which is
incompatible with commonly accepted notions of justice’
- The need to maintain the perception and reality of equal treatment is an important factor
in the administration of all laws and not least in those relating to taxation

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 Chapter 4 (p.51 – 71)

Non –judicial review of administrative action

Judicial review will be sought as a last resort once all other avenues of review prove futile.

Flow chart of avenues of review

1. Review by the original decision maker

↓
2. Internal (departmental) review
↓
3. Approach to a member of parliament or minister
↓
4. Specialist Tribunals
↓
5. Peak administrative tribunals
↓
6. Alternative avenues: Ombudsman and Freedom of Information laws
↓
7. Review by Federal Magistrates Court or Federal Court or Supreme Court
↓
8. Appellate review by High Court

Initial avenues of review

Non judicial review maybe formal or informal.

Informal means are:

1. Request for a review by the original decision maker

2. Applications for internal review by higher officials or bodies within the administrative
agency involved
3. Approach to a member of parliament or minister to intervene

Primary formal avenues:

1. External review by one of the specialist tribunals established to hear particular

categories of administrative dispute
2. Application to the peak administrative tribunal, AAT or state equivalent (ADT).

For federal agencies, a discretionary payment of compensation can be made under one of two
administrative schemes (as an act of grace payment under s 33 Financial management and
accountability act 1997 or by an agency under the government approved scheme for
compensation for detriment caused by defective administration (CDDA).

Negotiating with officials

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Informal review may have negative effects on your clients cause in terms of time, cost and
compromising your grounds of appeal.

Negotiating with officials may also give rise to inconsistency and local and regional variation
leaving the underlying cause of the alleged injustice undisturbed.

Internal review

Some internal review procedures are an essential pre-requisite to tribunal proceedings.

It is a compulsory first step at least under the SSA Act.

Statistics indicate that an internal review can be quick and reasonably likely to secure a
reversal of a decision.

Representations via members of parliament

MP’s and ministers may have considerable scope for effectively overcoming an adverse
decision or for placing pressure on the authorities for a more acceptable outcome.

Likely steps – initial phone call then a written submission providing the necessary
documentation.

Note: once a matter is before the courts – and the same will apply to tribunals – an MP or
minister will be reluctant to intervene.

Review by specialist tribunals

Administrative review tribunals are meant to provide a more accessible and less technical
forum for hearing challenges to administrative action. Usually armed with the power not
simply to review decisions but to exercise the same discretions anew as those conferred on
the primary decision maker.

The AAT and its states equivalents were introduced in part to overcome and regularise this
diversity, but a number of distinct tribunals still exists. Four main specialist federal
administrative review tribunals (SSAT. MRT, RRT and VRB).

Applicant VEAL of 2002 v MIMA [2005] HCA - tribunals may now be under an obligation to
inquire into the evidence. H.C. said that the inquisitorial character of the tribunals gave them,
as a requirement of procedural fairness, a duty to inquire into the facts and circumstances of
the case.

The AAT has been more court – like with the right to representation by lawyers and a more
adversarial procedure.

AAT

Established in 1975. The tribunals are a hybrid: neither court nor administrative agency.

Most significant changes introduced with this legislation:

- The availability of review on merits, not just the legality of decisions

- A right to obtain reasons for decisions
- Arguably, an ability by the AAT to review administrative or even government policy.

The AAT finalised 72% of cases within 12 months of the date of lodgement and 85% within 18
months.

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Headed by a president who must be a judge of the Federal court and the deputy presidents
must be legal practitioners.

Objectives

Fair and quick –

Purpose of improving the capacity of the AAT to manage its workload and ensuring that
reviews were conducted as efficiently as possible. (AAT Amendment Act 2005)

s.2A (of AAT Amendment Act 2005) – ‘in carrying out its functions, the tribunal must pursue
the objective of providing a mechanism of review that is fair, just, economical, informal and
quick.

MIMA c Eshetu – court said the purpose was to ‘free tribunals at least to some degree from
constraints otherwise applicable to courts of law’.

AAT President has the power to issue directions in relation to the operation of the AAT and the
conduct of reviews.

The president must consent before a question of law may referred to the Federal Court. The
Federal Court has the power to make findings of fact when it conducts appeals form the AAT
on questions of law.

Jurisdiction

Three main issues have arisen about the jurisdiction of the AAT:

Firstly -

Not vested with general power to review administrative decisions but only those areas
specifically made subject to its review by individual pieces of legislation. In order to
determine whether the AAT can review a decision, and precisely what powers it can exercise
in doing so, one must consult the legislation under which the original decision was made.

Secondly –

Whether the AAT is exercising judicial or executive powers under the constitution and the
doctrine of the separation of powers. If it were exercising judicial powers it would be invalidly
constituted. Members do not have judicial tenure.

Drake v Minister for Immigration and Ethnic Affairs (1979) – F.C. dismissed an argument that it
was constitutionally impermissible for a judge to sit on the tribunal.

Bowen CJ and Deane J argued that the judge was appointed to the AAT in a personal capacity
and therefore his appointment did not confer administrative power on a judicial body.
However, the AAT was under a duty to act judicially, that is, with judicial detachment and
fairness.

Doctrine of appointment in a personal capacity has constitutional limits.

Thirdly –
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Whether the AAT can validly review cases in which the decision to be reviewed was ultra vires
or beyond the power of the original decision maker.

Federal court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) - ruled
that this was not a barrier to tribunal’s jurisdiction. Bowen CJ interpreted s 25 to mean in
“purported” exercise of powers conferred by enactment, even if the power did not actually
exist.

Secretary Department of Social Security v Alvaro - AAT had jurisdiction to hear an appeal not
only where the decision was defective but also where the decision maker lacked power to
make the decision.

Re Baran and secretary department of primary industries and energy (1988) – the AAT can
substitute its own decision even if the initial decision was beyond the power of the original
decision maker.

Re Reserve bank of Australia and Comcare – tribunal asserted its right to decide a case even
when it was unlikely that the Act under which the decision had been made was
unconstitutional.

Re Mckie and Minister for Immigration, Local and Government and Ethnic Affairs – can
consider constitutional objectives, but if it considers that the legislation in question may be
unconstitutional, it has no power to make a ruling and should refer the question of law to the
Federal Court under s 45 of the AAT Act.

Re Costello and Secretary, Department of Transport (1979) – AAT has said it cannot rule
delegated legislation invalid and should instead refer the issue to the Federal Court.

Re Jonsson and Marine council - tribunal said circumstances were so adverse to the
applicant’s interests that he should not have to wait for the Federal Court to rule invalid a
regulation that was clearly unlawful.

Standing

Identify who is entitled to seek review of a relevant administrative decision.

FOI Act 1982 (Cth) – establishes a right to nay person seek access to a document, and hence,
by implication to seek review of any decision by the Information Commissioner to deny
access.

S 27 (1) of the AAT Act – an applicant must be a person “whose interests are affected by a
decision”.

S 27 (2) – the matter must be within the “objects or purposes of the organisation”

S 27 (3) – denies standing to an organisation established retrospectively for the purpose of

challenging a decision.

S 44 (2) provides for an appeal to the FC against an AAT decision to reject standing.

S 31 provides that a positive ruling by the AAT that a person’s interests are affected shall be
conclusive.

Comptroller – General of Customs v Akai Pty Ltd - federal court said s 31 does not exclude
judicial review of that decision.

Accessibility
13
Applications were once free, now cost more than $700 (excluding veterans, students, health
concession card holders, indigent and social security’s beneficiaries).

Reasons for original decision

S 28 of the Act provides that a person entitled to apply for review of administrative decision
may apply for a written statement of the reasons for that decision, even if an application for
review has not been made. The original decision maker must provide the statements within
28 days.

To satisfy s 28 the reasons provided must be intelligible. Set out the findings of fact, refer to
other material relied upon and give the reasons.

S 28 (1AAA) provides an exception for decisions reviewed by the Security Appeals Division
and s 28 (2-5) allows the Attorney General to certify that some information not be provided on
certain ‘public interest’ grounds, such as security, defence, international relations, cabinet
deliberations and crown privilege.

Procedure

AAT has notified a decision maker that an application for review has been lodged, must
prepare and lodge the following documents with the tribunal under s 37 of the AAT act:

- A statement of reasons for the decision

- All documents considered relevant to the review of the decision.

The above are known as (T documents).

A copy of the T documents to each of the parties is to be provided by the decision maker.

Applicants must participate in a conference, and may engage in mediation, before being
entitled to a full hearing (s 34, 34A).

S 33 of the Act allows for directions hearings- enhance flexibility of approach, depending on
the nature of the case.

Act’s requirement (s 33 (1) that the AAT proceed with as little formality and technicality as
possible.

Formal AAT hearings are ordinarily heard in public. The AAT is not bound by the strict rules of
evidence.

Sullivan v department of transport - that s 39 of the Act recognised an obligation that he law
would, in any event, imply – a party must be given a reasonable opportunity to present his
case.

Fletcher v FCT - must give the parties an opportunity to first address the issue.

If a tribunal were to reach a decision on a basis other than that relied upon by the original
decision maker, it must reveal that to the applicant and give them a chance to respond:
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006).

Inability to obtain the assistance of counsel does not breach procedural fairness, even if the
matter is complex - FCT v La Rosa (2002)

In Minogue v HREOC – judge should not intervene to such an extent that he or she cannot
maintain a position of neutrality in the litigation.
14
McDonald v Director – General of Social Security – the applicant will normally have to
establish an entitlement but they have no legal onus to prove all relevant aspects of their
claim.

FOI Act 1982 (Cth) – requires a government agency to establish that a personal records
document is exempt from disclosure.

S 29 of the Act – refers to correct or preferable decisions. Allows the tribunal to ask an
applicant to clarify what they regard as not correct or preferable about the decision they are
challenging.

RE Cirkovski and Secretary, Department of Social Security - claims for social security
payments are usually determined by applying the legislation in force when the application
was initially made, at least if the legislation was more beneficial at that date.

Policy Review?

Drake – controversial issue of whether the AAT can make decisions contrary to government
policy.

Drake (No 2) - tribunal will be very reluctant to challenge ministerial policy.

Haoucher v Minister for Immigration - H.C. Held that minister’s contrary decision to deport
Haoucher to be a breach of procedural fairness.

Importance to a policy developed in the political arena after consultation with the relevant
industry, in that case the taxation industry.

AAT review could not be excluded by simply applying the label of policy to a site –specific
decision that belied such a label.

Legal status of AAT Decisions

Same legal status as the original decision under review.

Re Ganchow and Comcare (1990) – unless decisions by the AAT president and presidential
members were followed, the tribunal could gain a reputation for inconsistency if not disarray.

AAT is the final line of review, as far as merits of review is concerned. Appeals lie from the
AAT to the Federal Court on questions of law only: AAT Act s 44. This is only from final
decisions of the AAT not preliminary findings – Director – General of Social Services v Chaney
(1980).

Other forms of judicial review are also available – under s 45 or via the Federal Court’s judicial
review jurisdiction.

Security Appeals Division

AAT’s security Appeals Divisions sits in secrecy behind closed doors when reviewing decisions
involving adverse security assessments. These procedures are set out in s 39A and 39B
(severely restrict the right of the applicants to see the material used against them). Place in
private (s 39 A (5) of the AAT act.)

15
Covers applications for review of preventative detention orders under the counter-terrorism
laws as well as review of adverse security assessments made by ASIO and review of decisions
regarding access to ASIO records under the Archives Act 1983 (Cth).

AAT has jurisdiction to review both the ASIO assessment and the passport cancellation.

Particular evidence or submissions are of such a nature that their disclosure would be contrary
to public interest on the basis that it would prejudice security or the defence of Australia ( s
39 A (6). Where such a certificate exists, the applicant is not allowed to be present and the
applicants representative may be present only if the minister consents (s 39 A (8)).

ASIO evidence can be disclosed only to tribunal members.

16
FOI, Right to Reasons and the Ombudsman

Chapter 3: Freedom of Information and Open Government

- Australian Law Reform Commission and Admin. Review Council: FOI discussion paper: As a
general rule, govt info should be accessible by the people because it belongs to the
people. Access to govt info is a prerequisite to the proper functioning of a democratic
society. Any mechanism for disclosing govt info must have regard to issues of access and
equity
- Democratic rationale behind FOI: public interest in access to information. The public
interest concept is both personal and communal
- FOI legislation has 3 main objectives: openness, accountability and responsibility. Has
resulted in accountability of the government – see pg 98 for deficiencies

- Exemptions: many general exemptions exist, including:

internal working documents or ‘deliberative processes’

documents subject to legal professional privilege

material relating to judicial functions of a court or tribunal

documents subject to secrecy provisions in other legislation

matter obtained in confidence

documents affecting the economy or the financial or property interest of a state

documents affecting the national security and defence

documents concerning mgmt and personnel practices

documents subject to contempt proceedings

 Subject to the public interest test, to refuse access the agency must show that it
would, on balance, be contrary to the public interest to release them. Applies to:
i. documents affecting relations between the Commonwealth and the States (s33A)
ii. documents affecting the financial or property interests of the Commonwealth (s39)
iii. documents concerning certain operations of agencies (s40)
 The acts provide that an agency has the discretion in every case to make documents
available even though they appear to qualify as exempt.
- Ministerial certificates: the effect of a certificate is to establish conclusively that the
relevant documents are exempt from disclosure – these have been removed by the
Freedom of Information (Removal of Conclusive Certificates and Other
Measures) Act 2009

Re Celestin & Department of Family & Community Services and Aboriginal and
Islanders Affairs (1993) 1 QAR 60 Facts: Journalist applied for access to documents
relating to the Mabo case and the Department refused access based on exceptions: s36
(Cabinet Matter), s41 (matters relating to deliberative processes) and s43 (professional
privilege) of the Queensland FOI Act. On review to the Information Commissioners in regard to
the claim made under s41. Commissioner held that non disclosure contradicts the aim of FOI
legislation which is to “allow citizens access to documents that will permit informed
participation in the development of government policy proposals which are of concern to
them” (pg 103)
Harris v Australian Broadcasting Corporation (1983) 78 FLR 236; 50 ALR 567
Federal Court of Australia Fact: Restraint to grant access to reports of the legal department
of ABC made by Law Society to another ABC employee- employee argued that the non release
of the reports hinder a proper inquiry into her performance- sort order to declare the reports
were exempt under ss40, 43 and 36 of the FOI Act (Cth).
Beaumont J

17
- Contrary to the public interest? “In evaluating where public interest ultimately lies in the
present case, it is necessary to weigh the public interest in citizens being informed of the
processes of their govt and its agencies on the one hand against the public interest in the
proper working of the govt and its agencies on the other hand (Sankey v Whitlam (1978)”
Outcome: Beaumont J ordered that the ABC only disclose those parts of the report which
were considered to consist of purely factual, investigative material

A Presumption in Favour of Disclosure?

- FOI legislation embodies a conflict of protecting certain private and public interests, every
time an application for access is made under the legislation, public interests that will weigh
against disclosure

a. News Corporation Ltd v National Companies and Securities Commission- Facts:

News Corp access to document in relation to NCSC’s investigations- NSCS refused
access under s38 (secrecy exemption)- applicant appealed to Federal Court
Bowen CJ and Fisher J
-The object of the Act is described in some detail in s3, it is to extend as far as possible the
right of the Australian community to access information in possession of the Govt and Cth by:
(a) Making available information about the operations of departments and public authorities
and,
(b) creating a general right of access to information in documentary form in the possession of
Ministers, departments and public authorities limited only by exceptions and exemptions
necessary for the protection of essential public interests and the private and business affairs
of persons
Outcome: “The rights of access and the exemptions are designed to give a correct balance
of the competing public interests involved. Each is to be interpreted according to the words
used, bearing in mind the stated object of the Act”

b. Series Australia P/L v Public Interest Advocacy Centre (PIAC) & Department
Community Services & Health (1992) 36 FCR 111; 108 ALR 163 Federal Court of
Australia - Facts: PIAC sort access to documents from the Department of Health- although
access was granted to certain docs a large number were held to be exempt under ss40 and 43
(operations of agencies and business affairs exemptions) of FOI Act.
Davies, Wilcox and Einfeld JJ- submitted that s3 of FOI Act required the court to adopt a
“leaning approach” to the interpretation and application of the exemption provisions of the
FOI Act- that is that they should “lean” in favour of disclosure. Outcome: The court found that
the AAT had made an error of law in its construction of s43.

C. Re Cleary and Department of Treasury (1993) 31 ALD 214, 18 AAR 83

Administrative Appeals Tribunal - Facts: Cleary (journalist) sort access to economic
forecasts- Dept. refused under s36 (1) (deliberative processes exemption) of Cth FOI Act-
Cleary appealed claiming no reasonable grounds and contrary to public interest
O’Connor J
-Object of the Act is to “extend as far as possible the right of the Australian community to
access to information in the possession of the Govt”
-requires “compelling justification” for any grounds said to show that disclosure of a
deliberative process document would be contrary to the public interest
Outcome: O’Connor affirmed the decision of the Department. Her Honour found that
reasonable grounds did exist for the claim in the certificate that disclosure of the documents
18
would be contrary to the public interest on the grounds that there was the potential for public
misunderstanding if the documents were released

Chapter 5 (p. 73-99)

Other avenues of review: The Ombudsman, Freedom of Information and the Right
to Reasons

Both the Ombudsman and the FOI systems may be useful in obtaining information that may
be necessary to determine whether to pursue formal review options.

Ombudsman

Grounds for Investigation

Created at the federal level and in all states and territories during the 1970s. Concerned with
remedying maladministration more generally.

Governments can also refer cases or inquiries, often of a politically sensitive character to
Ombudsmen.

In 2005 – limited modifications in the mandatory detention of asylum seekers – the measures
included a review every 6 months by the ombudsman of each case where a person has been
detained for more than 2 years.

Commonwealth Ombudsman is also now involved in sensitive national security matters.

Ombudsmen are not necessarily obliged to pursue an individual s complaint, even if it falls
within their jurisdiction. Nor do complainants have any right to a hearing or any control over
how the investigation or adjudication on their case is conducted.

Grounds for investigation, generally include:

- Unreasonable, unjust, oppressive or improperly discriminatory;

- Based either wholly or in part on mistake of fact or law;
- Based either wholly or in part on improper motives, irrelevant grounds or irrelevant
considerations
- No reasons given
- Otherwise wrong (Ombudsman Act 1976 (Cth) s 15).

To determine whether the original decision was unreasonable. The Ombudsman’s function is
more limited than that of the tribunal.

Jurisdiction

Limited jurisdiction.

Glenister v Dillon 1976 - ruled that the Ombudsman had no jurisdiction to investigate the
complaints about the crowns solicitors’ failure to bring two people to trial. Court held, related
to judicial arm of government.

19
Booth v Dillon 1976 - matters of policy were outside the Ombudsman’s jurisdiction which was
restricted to specific decisions or failures to act.

Standing and discretion

No locus standing requirement for complaints to the Ombudsman. Any person, including a
non- citizen, a company and an unincorporated association can make a complaint.

They can do so even if they are not a “person aggrieved”.

The ombudsman has discretion to refuse to proceed, and one ground for exercising that
discretion is that the complainant does not have a sufficient interest in the subject matter.
Other grounds or exercising the discretion not to proceed include:

- The complaint is vexatious, frivolous or not in good faith

- Alternative remedies are available
- An investigation is not warranted in all the circumstances
- Complaints relating to the commercial activities of a department or authority could be
more conveniently or effectively dealt with by another agency, for e.g. the
Telecommunications Industry Ombudsman (Ombudsman Act 1976 (Cth) s 6).

Procedure

Generally little that the complainant has to do once making a complaint – it is left in the hands
of the Ombudsman. Complainants will ordinarily be required to pursue their cause with the
department or agency involved and to exhaust that avenue first before the Ombudsman will
proceed, unless there are special circumstances or undue delay.

Complainants have no control over how investigations are conducted. They have no right to
participate in a hearing and may not even have a right to obtain a final report.

Ombudsman has discretion as to how formal investigations are conducted, but must give
notice to the head of the relevant public authority.

Advantages
- Informal, free, easy
- Flexible redress and systemic
approach
- No strict standing approach
Disadvantages
- Discretionary
- No control by applicant
- No binding decisions
- Starved of resources
- High level of dissatisfaction

Powers, recommendations and reports

No determinative powers but can only make recommendations to the agency concerned.

Chairperson ATSIC v Commonwealth Ombudsman (1995) - Ombudsman cannot make definite

findings of guilt against an office holder and must inform an affected official of all the grounds
of criticism before publishing an adverse report. The actions of the Ombudsman are subject to
judicial review whether by way of the Administrative Decisions Act 1977 or by reference by
head of an agency (under s 11A of the Ombudsman Act) or by reference by the Ombudsman
to the Federal Court.

Appointment and removal

20
 Appointment is by the Governor General for a limited term not exceeding 7 years (see
Ombudsman Act 1976 (Cth) ss 21 – 22).

S 28 of the Act stipulates that an Ombudsman may only be removed or suspended from office
by the Governor General on the ground of “misbehaviour or physical or mental incapacity”
and subject to approval by each house of parliament.

FREEDOM OF INFORMATION

Three objectives:

- Increase the public scrutiny and accountability of government

- Increase the level of public participation in policy-making and the processes of
government.
- Provide individuals with access to personal information held about them by government

Essential test of FOI Provisions is access to non-personal official information that maybe
politically or bureaucratically sensitive.

Changes introduced in the year 2009-2010

The abolition of application fees, a recasting and narrowing of some of the exemptions that
governments can use to refuse access to documents, the abolition of ‘conclusive certificates’
that previously permitted governments to bar access to sensitive document and the
appointment of information commissioners with powers to review government decision’s to
deny access and to monitor the performance of the FOI processes.

Key changes included:

- A new objects clause (s3) which declares that it is in the intention of the parliament to
increase recognition that information held by the government is to be managed for
public purposes and is a national resource.
- Introduction of a new single from of public interest test that is weighted towards
disclosure
- Information commissioner guidelines must be applied

FOI request process included: -

- An FOI request can now be sent by email to an agency or minister, as well as posted or
hand delivered
- If an agency or minister cannot meet the 30 day time limit for processing a request,
they are expected to approach the Information Commissioner (IC) for an extension of
time
- Agencies must publish on their website details of information that has been released in
response to FOI requests
- The IC can provide advice and assistance to public about making FOI requests
- Applicants denied access can seek review internally or via the IC with further review
available from the AAT and the Federal Court.

Main changes:

- Stronger objects (s 3) to facilitate access

- No conclusive certificates
- Information commissioner review
- Stricter exemptions

21
 - Public interest factors
- Onus always on government
- Information commissioner guidelines

Factors favouring disclosure:

- Objects of the FOI Act

- Informing debate on matters of public importance
- Promoting effective oversight of public expenditure
- Allowing a person access to their own personal information

Factors that cannot be considered:

- Potential loss of confidence or embarrassment to the government

- High seniority of the author of a document

FOI acts are limited to giving the public the legal right to documents held by a government
agency. Applicants can ask for documents relating to a particular matter. They may be
required to have knowledge of, and nominate, a specific document rather than exercise the
wider right.

ADVANTAGES DISADVANTAGES
- Access to personal files - Confined to known documents
- Some access to public - Crucial agencies shielded
information - Many exemptions
- Agencies required to publish - Public interest limit’s
information

Objects of the FOI Act –

s. 3 –

- to give the Australian community access to information held by government, by

requiring agencies to publish that information and by providing for a right of access to
documents
- to promote Australia’s representative democracy by increasing public participation in
government processes, with a view to promoting better informed decision making
- to promote Australia’s representative democracy by increasing scrutiny, discussion,
comment and review of government activities
- to increase recognition that information held by government is to be managed for
public purposes and in a national resource
- to ensure that powers and functions in the FOI act are performed and exercised, as far
as possible so as to facilitate and promote public access to information, promptly and
at the lowest reasonable cost.

Information commissioner and the guidelines

- An FOI applicant can apply to the commissioner for merits review (IC Review) of an
access refusal decision by an agency or minister
- An affected 3rd party can apply for IC review of an access grant decision

22
- Commissioner can affirm the agency’s or ministers decision, vary that decision or
substitute a new decision
- A party to the IC review can apply to the AAT for review of the commissioners decision
except in some limited circumstances
- Can also investigate action taken by agencies under the FOI act
- To challenge an access denial decision, IC review is available.
- Cth Ombudsman retains authority to investigate complaints under the FOI Act but it is
expected that the OAIC will deal with most complaints
- FOI Act (s 93A) empowers the Commissioner to issue guidelines

Coverage of the Act

Act applies unless it is expressed not to apply

Cover some documents created or held by a contractor or subcontractor relating to the

provision of services to the public or third parties on an agency’s behalf (s 6C)

Some agencies are exempt with regard to particular documents:

- ABC for program material

- Comcare in relation to its commercial activities
- Department of Defence for documents covering the collection, reporting or analysis of
operational intelligence or special access programs (s 7 and schedule 2)

Totally exempt: (s 7 and schedule 2)

- Auditor general
- ASIO
- Inspector general of intelligence and security
- Certain defence intelligence agencies
- (Part 2 of guidelines)
- Governor General

Act only applies to the official secretary to the Government General for access to
documents that relate to matters of an administrative nature (s 6A)

Act does not apply to requests for access to documents that relate to the Governor
General discharge of official functions conferred by the Constitution or an enactment.

Access, fees and charges

s.4 (1) – defines documents – to include maps, photographs and any article from which
sounds, images or writing are capable of being reproduced.

s. 15 (3) – agencies must take reasonable steps to assist a person to make a request in a
manner that complies with the formal requirement s of the FOI Act.

s. 24 (1) – an agency or minister may refuse an FOI request if satisfied that the work
involved in processing it would substantially and unreasonably interfere with the
performance of the ministers functions

s. 24 a – access can also be refused if all reasonable steps have been taken to find the
document and the agency or minister is satisfied that it cannot be found or does not exist

23
 s. 11 (2) - A person’s right of access is not affected by any reasons they give for seeking
access or any belief the agency or minister may have as to the reasons for seeking access

Exempt documents in Division 2 of Part IV are:

- Documents affecting national security, defence or international relations (s 33)

- Cabinet documents (s 34)
- Documents affecting enforcement of law and protection of public safety (s 37)
- Documents to which secrecy provisions of enactments apply (s 38)
- Documents subject to legal professional privilege (s 42)
- Documents containing material obtained in confidence (s 45)
- Documents disclosure of which would be contempt of parliament or contempt of court
(s 46)
- Documents disclosing trade secrets or commercially valuable information (s 47)
- Electoral rolls and related documents (s 47A)

Agencies and ministers can always provide access to a document where the law permits, even
if the document is exempt (s 3A)

3 exceptions to the general cabinet exemption rules:

- A document is not exempt merely because it is attached to a cabinet submission,

record or briefing (s 34 (4))
- The document by which a cabinet decision is officially published is not itself exempt (s
34 (5))
- Purely factual material in a cabinet submission, record or briefing is not exempt unless
its disclosure would reveal a cabinet deliberation or decision and the decision has not
been officially discloses (s 34 (6))

Conditionally exempt under Division 3

- Cth state relation s (s 47B)

- Deliberative processes (s 47C)
- Financial or property interests of the Cth (s 47D)
- Certain operations of agencies (s 47E)
- Personal privacy (s 47F)
- Business (s 47G)
- Research (s 47H )
- The economy ( s 47 J)

If a document is assessed as conditionally exempt, you must give access to it unless in the
circumstances access would, on balance, be contrary to public interest (s 11A (5)

S 11 A (b) – The agency or minister must give the person access to the document if it is
conditionally exempt at a particular time unless access to the document at that time would on
balance be contrary to public interest.

- The public interest tested is weighted in favour of giving access to documents

FOI Act sets out 4 factors favouring access. Disclosure would:

- Promote the objects of the act

- Inform debate on a matter of public importance
- Promote effective oversight of public expenditure

24
 - Allow a person to access his/her personal information (s 11B (3))

Irrelevant factors:

- Access to the document would result in embarrassment to the Cth government, or

cause a loss of confidence in the Cth government
- Access to the document could result in any person misinterpreting or misunderstanding
the document
- The author of the document was (or is) of high seniority in the agency which the
request for access to the document was made
- Access to the document could result in confusion or unnecessary debate (s 11B (4).

Procedural fairness

Hearing rule – agencies are required to provide reasonable assistance to persons to make FOI
requests (s 15)

Notify an applicant that a request has been received s 15 (5)

Allow an applicant a reasonable opportunity to revise a request before it is refused for a

practical refusal reason (s24AB)

Allow an applicant to respond before a charge is imposed (s 29)

Provide to the applicant a written statement of the reasons for the decision s 26

Advise the applicant of their right to seek internal review or IC review of an adverse decision
(s 26 (1) (c)

Review procedures
Internal Review
Internal review also applies to decisions on FOI charges

A person is not required to apply for internal review before applying for IC review

No fee or charge applying to either internal or IC review

Internal review is not available, however, if an access decision was made by a minister (s 54
(a) and 54 A (a) or personally by the principal officer of an agency (s 54 (1) and 54 A (1) ) or is
a deemed decision of an agency to refuse access to a document (s 15AC) or to refuse to
amend or annotate a personal record (s 51 DA) because the statutory timeframe was not met
(s 54E (b)).

Information Commissioner Review

IC review is a merits review process

In an IC review of an FOI request (s 150 or application to have personal records amended (s

48) the agency or minister has the onus of establishing that the decision is justified.

The IC can access all relevant material. The IC can also consider additional material, including
relevant new material.
25
Commissioner cannot determine the exempt status of documents that have become
documents of an agency or minister after the date of the applicants FOI request (Lobo and
department of immigration and citizenship [2010]

An FOI applicant may apply for IC review of an access refusal decision within 60 days after the
day notice of the decision was given under s 26

Chapter 4 Understanding Decisions: Reasons, Discovery and Evidence

- relevant documents necessary to enable a judgement to be formed as to whether the

decision was simply arbitrary, whether a policy was applied inappropriately or an unfair
policy adopted, or whether an error of law was made
- Knowing the policy, an individual who will be affected by its application is in a position to
present coherent argument and to make available to the decision maker relevant
information
- McHugh J in Soulemezis saw that these other interests rested on the principle that “justice
must not only be done but it must be seen to be done”
- Duty at common law - Osmond’s Case- HC rejected the argument that there exists a
common law duty to give reasons for decisions
 Osmond v Public Services Board of NSW [1984] 3 NSWLR 447 NSW Court of
Appeal
- Facts: Osmond joined the NSW Public Services- studied for qualifications- applied for
promotion- was not recommended- appealed and sort a declaration of reasons for its
decisions- NSW Supreme Court found that he was bound by “judicial hierarchy. ‘Majority of
the Court of Appeal held that there was a common law obligation that required the Board
to give reasons for decision
- Kirby P: “The rules of natural justice and the duty to accord fairness require that at least
those officials who exercise public power under the law should be obliged to state their
reasons, save in the limited classes of cases mentioned”
 Public Service Board of NSW v Osmond
Gibbs CJ:
- “No general rule of the common law, or principle of natural justice, that requires reasons to
be given for admin decisions” (pg 130)
- Similarly it has been held that domestic tribunals are not bound to give reasons for their
decisions – Pure Spring Co Ltd v Minister for National Revenue
- In NSW the court of appeal in Taylor v Public Service Board rejected the contention that a
decision should be quashed because the board failed to give reasons for its decision
- Held that cases relating to the duty of judges to give reasons did not imply that
administrators were under a similar duty

Cypress Pty Ltd v Retail Shop Leases Tribunal

Fitzgerald P:
- Osmond – there is no general rule of the common law or principle of natural justice which
requires reasons to be given for admin decisions
- It is now clear that a duty of procedural fairness arises, if at all because the power
involved is one which may ‘destroy, defeat or prejudice a person’s rights, interests or
legitimate expectations’ – may be incidental of procedural fairness to disclose reasons
- Osmond – at that time those who made admin decisions were not required to give reasons
because that was established by a long line of authority

26
 Statutory rights to reasons for decisions.
 Statements of reasons – S 28 AAT Act
- S 13 ADJR Act
- S 26 FOI Act
- Acts Interpretations Act 1901
- Para 15(2)(e) of the Ombudsman Act authorizes the ombudsman to take action
- S 13 of the ADJR Act, s 28 of the Cth AAT Act, ss 49-50 Admin Decisions Tribunal Act 1997
(NSW).
- AAT Act and the ADJR Act provide that persons who are given rights to seek review of
decisions under them are entitled to obtain reasons for the decisions
- FOI Act was passed – gives all members of the public a right to gain access to all govt
information unless specific provision is made to exclude the class of information concerned
- AAT Act 1975 s 28 – not every admin decision is subject to review by a tribunal; a special
legislative provision is required. If the decision-maker considers that the applicant is not
entitled to the statement of reasons, the applicant must be notified of this within 28 days
- The reasons given must be intelligible and must set out the substantial reasons for the
decision
- One exception, Crown privilege – a matter in the opinion of the govt might prejudice public
interest in Aust’s security, defence or international relations or would involve disclosure of
cabinet discussions or otherwise would be entitled to crown privilege
- S 13 reasons for the decision – the decision maker must furnish, within 28 days of the
application, a written statement - S 13 does not apply if the reason is required to be
provided under the AAT Act
- S 13A – the decision maker need not include in the statement of reasons any information
“relating to the personal affairs or business affairs of a person”
- The right to reasons arises only in the case of decisions reviewable under the ADT -Act S
49(1); applications must be made within 28 days of notification of the decision s 50(1);
reasons are to be given as soon as possible and in any event, within 28 days s 49(2);
reasons must include the usual particulars.

Discovery and Interrogatories

- Parties to civil litigation are often able to demand that their adversaries disclose info which
is known to them, or embodied in documents within their control or possession.
- may be able to issue “interrogatories”, written questions, which the other parties must
answer on oath or able to demand that the other party “discover” relevant documents in
their possession
- grounds for believing that these processes will yield worthwhile info, at the discretion of
the court
- WA Pines Ltd Pty v Bannerman – Full Fed Court upheld a refusal by Toohey J to allow
discovery and interrogation
- Not required to disclose documents if these documents are not relevant and/or privileged.
A document is privileged if a relevant person could object to its presentation as evidence
in court

The Ombudsman

- Statutory watchdog over the administration - a measure adopted to meet demands for
more general access to info held by official agencies and for wider opportunities for review

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 of govt actions, beyond courts and tribunals - makes report/recommendation to
complainant and agencies –no binding power.
- In recent times both the NSW and Commonwealth Ombudsman has publicly criticised the
government for cutting their resources and making it extremely difficult for them to fulfil
their role.
- The second problem for the 1990’s is privatisation and corporatisation. Once an entity is
not longer a government authority, the Ombudsman no longer has jurisdiction to
investigate its activities.
- Primary role is to investigate complaints concerning defective administration by
government. The secondary role of the ombudsman is to improve to quality of public
administration.

Grounds for investigation

- Wider scope, are concerned with remedying maladministration more generally. They can
initiate their own inquiries however not obliged
- s15(1) - The grounds for investigation are broad and include:
 contrary to the law
 unreasonable, unjust, oppressive or improperly discriminatory;
 based wholly or in part on mistake of law or fact;
 based wholly or in part on improper motives, irrelevant grounds or irrelevant
considerations;
 no reasons given;
 Otherwise wrong.
o Ombudsman does not make the decision anew, but determines whether the
original decision was unreasonable

Exclusions
 Minister’s Actions: OA (Cth), s 5(2)(a)
 Proceedings in Parliament for purposes of parliamentary privileges legislation: OA (Cth),
s 5(2)(aa)
 Actions by judges, chief executive officers of courts: OA (Cth), s 5(2)(b)-(ba)
 Certain magistrate actions: OA (Cth), s 5(2)(c)
 Action taken with respect to employees of public service or the service of prescribed
authority, being action taken with respect to that employment: OA (Cth), s 5(2)(d)
 Action taken by Department/prescribed authority in appointing person to statutory
office or position: OA (Cth), s 5(2)(g)

Jurisdiction
- A generally described but limited jurisdiction. The Ombudsman Act 1976 (Cth), s5 refers to
actions or lack of action of an ‘administrative’ character by a department or prescribed
authority. The ombudsman has no jurisdiction to deal with judicial matters (Glenistor v
Dillon).
- citizen complaint: No specific interest required by complainant, only have to be apparently
directly affected
- The Ombudsman may investigate administrative action of their own volition: OA (Cth), s
5(1)(b)

Standing and discretion

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- No standing requirement. Any person, including a non citizen, a company and an
unincorporated association can make a complaint. They can even do so if they are not a
‘person aggrieved’ by the conduct complained of.
- Under s6 of OA (Cth) discretion to refuse to proceed if the complainant does not have a
sufficient interest in the matter. Other grounds for exercising the discretion:
 the complaint is vexatious, frivolous or not in good faith;
 alternative remedies are available;
 an investigation is not warranted in all the circumstances

Procedure
- It is in the nature of the ombudsman that even when a case is taken up, very few proceed
beyond preliminary inquiries. Procedures are inquisitorial
- Advantages- informal, free, easy, flexible redress, no strict standing rule
- Disadvantages- discretionary, no control by applicant, no binding decisions, starved of
resources, high level of dissatisfaction
- Have no determinative powers but can only make recommendations to the agency
concerned. They have a wide range of recommendations open to them
- Ombudsman may, for the purposes of this Act, obtain information from such persons,
and make such inquiries, as he or she thinks fit: OA, s 8(3)
- Not necessary for the complainant or any other person to be afforded an opportunity to
appear before the Ombudsman regarding an investigation: OA, s 8(4) – subject to 8(5)
- Ombudsman cannot make report where there are express/implied criticisms of a
Department/prescribed authority/person before:
o If department/prescribed authority – given principal officer of department/authority
opportunities to appear before Ombudsman and make submissions they think fit:
OA, s 8(5)(a)
o If person – given person opportunities to appear before Ombudsman and make
submissions they think fit OA, s 8(5)(b)
- Ombudsman may report their recommendations to the concerned Department/prescribed
authority: OA, s 15
- If reports/recommendations aren’t adhered to in an adequate amount of time, Ombudsman
may inform the Prime Minister in writing: OA, s 16(1)
- appointment is by the govt of the day for a limited term, not exceeding 7 years

Case studies
Chairperson ASIC v Cth Ombudsman: ombudsman can’t make definite findings of guilt.
The case confirms that the actions of the ombudsman are subject to judicial review
1. The Australian Tax Office Case & Commonwealth Ombudsman. Annual Report
1996-97
- Decision by ATO to go against one of the Commissioners Income Tax Ruling 2313 (which
deals with the use of s218 power in the context of the sale of mortgaged properties). S218
allows the Commissioner to obtain funds from a third party who owes money to a taxpayer
with an income tax debt to the Cth. Not a public (and therefore) binding ruling on the ATO.
However, taxpayers could expect this ruling to be abided by unless very good reasons are
provided for not doing so.
- ATO failed to recover $42,000 which it would have had it followed the ruling. This caused
two innocent buyers of property to incur $5500 in legal costs while contesting it.
- Buyer’s solicitor took Supreme Court Action, seeking declaration that ATO did not have the
priority it was asserting via s218 notice. Resulted in the deposit being refunded and both
parties bearing their own legal costs. The buyers wanted reimbursement for Costs since it
was the Cths fault.

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- ATO took issue with Ombudsman’s investigation. (Saying court was the proper forum for
determining of Commissioner of Taxations actions.)
- ATO advised purchasers they were not prepared to compensate them.
- Special Tax Advisor raised the matter with the ATO and was advised as follows: ATO
justified its approach on the basis that ruling 2500 authorises departure from rulings were
the ruling is no longer appropriate. Special Tax Advisor noted the lack of apology to the
buyers and the indifference to them
- ATO agreed to pay legal costs and said it would review application of 2313.

2. Cotton Case
- Demonstrates the limitations and the difficulties of the Ombudsman’s functions. Highlights
the limitations of the ombudsman’s function when an agency refused to acknowledge the
ombudsman’s jurisdiction
- Case considers the jurisdiction of the Ombudsman to investigate the actions of the ABC
(Australian Broadcasting Commission).
- Ombudsman was called in to investigate a matter where the Principal of Perth Technical
College felt that he had been misrepresented on national television. When his case was
reviewed and dismissed by the internal mechanisms of the ABC, it was referred to the
Ombudsman.
- The case spanned 5 years, and 5 annual reports of the Commonwealth Ombudsman.
- The Ombudsman expresses clearly that its role was to only investigate where subject
matter was published which portrayed false or misleading information about an individual,
or sought to prejudice the legitimate interests of the community.
- It notes that under the Ombudsman’s Act s11a - The ABC has a right to challenge the
Ombudsman in federal court if it feels the ombudsman is acting outside of its jurisdiction.
- The Ombudsman’s report was tabled in parliament, as per s17 of the Ombudsman Act,
where the matter is of interest to Parliament. It appeared 3 years subsequently from its
first appearance in 1986. Of note was the recommendation that the legislation be changed
so that; even if the matter was under the scrutiny of parliament, the Ombudsman should
not be restrained from making a decision on the case.

3. Hyde Park Case

- Overshadowing of Hyde Park, without the involvement of the Ombudsman a development
against the interests of Sydney citizens would have occurred.
- The case spanned 3 years, and involved the administrative decisions of the Height of
Buildings Advisory Commission (HOBAC). It decided to allow the construction of a building
which would overshadow Hyde Park.
- The ombudsman became involved on behalf of Sydney residents, and ended up having the
decision overturned by the Land and Environment court. It found the decision as wrong,
and it was left to the Attorney General to take the matter to court.
- If the ombudsman had not investigated the matter, it is almost certain that the proposed
tall building would have been built, pursuant to a void approval

Biganovski (1991): The Australian Ombudsman - Another Guardian of the Public

Interest
- Ombudsman cannot create law or formulate policy. Can just strive for equity in individual
cases where administration has produced an unfair result. Remedial action should follow to
provide relief to complainant who has sustained loss/disadvantage as a result of
administration defect.
- Complaints concerning general government operations or cabinet policies or mere
dissatisfaction with general admin will not warrant a full investigation. (Needs to be
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 illegality, mistake, wrong or patent unreasonableness/injustice.)
- There is a struggle to separate the Ombudsmen from Executive. The line is often blurred
due to informality of the Office.
- A complainant may lack 'standing.' In these cases the Ombudsman can investigate of their
own initiative and the complainant will still receive the full benefits of the results. May
result however in the complainant only getting "knowledge and satisfaction" of being right
rather than tangible result.

Coates (1992): Review of the Office of the Commonwealth Ombudsman

- Finance and Public Administration Committee’s review of the office of Cth Ombudsman was
prompted by concerns about resources and aimed to review powers, jurisdiction and
performance of office.
- The review was from a public administration standpoint - It was concluded that the
Ombudsman has made positive contribution to Australian public administration.
- Office has since settled toward resolving large numbers of minor complaints - provides a
check on the powers of government which can be of great significance to individuals.
- Cheap, accessible remedy of bringing equity in society and should be treasured. Promotes
efficiency. Institution of the ombudsmen has spread to private sector and government
bodies. Consensus is that it has been of great benefit.

Recommendations:
- As main contribution is to admin and not law, first recommendation was to consider legal
and non-legal candidates for the job - would bring admin decisions of court and tribunal
registries, parliamentary departments and statutory bodies and govt companies under
Ombudsmen scope
- The office may review files on Internal Investigations of complaints about police and
investigate them, but only one has been undertaken in the last ten years and there are
long delays. Committee felt this was unacceptable. Proposed that more funds be allocated
so there is acceptable level of review of police complaints.

Week 4 Delegated Legislation

- It is commonplace to delegate rule-making power to members of the executive, statutory
authorities, tribunals and courts
- delegated legislation is legislative in form and executive in source - must be within power
of the maker of the relevant decision
- 2 reasons why the delegation of rule making power has been seen as problematic:
1. maxim of delegates non protest delegate - the delegate may not delegate
2. the separation of powers doctrine

Meakes v Dignan – is there any limit to delegated legislation?

- The HC upheld the validity of the regulations, ruling that they did not infringe the notion of
the separation of powers, effectively approving delegation of the executive
- There were three objections – the maxim that the delegate may not delegate; the
separations of powers doctrine; and the abdication of parliament’s legislative power under
the constitution.
- All but the last were rejected as possible challenges to the delegated legislative power, on
the grounds that otherwise effective govt would be impossible = would only apply where
the parliament purported to transfer the entire power

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- Dixon: ‘the well known maxim ‘delegatus non potest delegare’, applicable to the law of
agency in the general and common law, is well understood and has had wider application
in the construction of the federal and state constitutions that it has in private law
- the constitution draws a clear distinction between the legislative, executive and judicial
functions
- “because of the distribution of the functions of govt and of the manner in which the
constitution describes the tribunals to be vested with the judicial power of the Cth, and
defines the judicial power to be invested in them, the parliament is retrained both from
reposing any other than that judicial power in such tribunals” – separation of powers – pg
306

- Evatt: legislative power connoted the power to deposit or delegate legislative power
because this was implied in the idea of parliamentary sovereignty itself. It was always
understood that the power of the delegate could be withdrawn by the parliament that had
created it
- it is no longer disputed that if parliament passes a law within its powers it may as part of
its legislation, endow a subordinate body with power to make regulations for the carrying
out of the scheme described in the legislation – basis for transferring power – pg 308
- “The following matters are material in examine the question of the validity of an act of
parliament which purports to give power to the executive or some other agency to make
regulations and by laws:
1. a grant of power made to the executive assists the validity of the legislation
2. scope and extent of the power of regulation making conferred is important: the greater
the extent, the less likely it is with respect to a head of power
3. restrictions placed by parliament upon the exercise of power by the subordinate law
making authority is important
4. the circumstances existing at the time when the law conferring power is passed or is
intended to operate is important to the question of validity
5. conferring powers to make regulations for the purpose of carrying out a scheme
contained in the statute will not prevent it from being a law with respect to legislative
power
6. Cth enactment is valid if it is a law with respect to a granted subject matter
7. if the statute conferring power to regulate is valid and the regulation is not inconsistent
with such statute” – pg 309

Minister for Primary Industries and Energies v Austral Fisheries Pty Ltd – test of
validity
- general rule that for subordinate legislation to be valid it must be shown to be within the
powers conferred by the statute
- “The test of validity of delegated legislation is whether there is a ‘real connection’ between
the delegated legislation and the purpose for which the regulation making power was
granted by parliament. The test of invalidity is on the ground that no reasonable mind
could justify it as ‘only a way of stating the conclusion that no real connection with the
purposes of the power can be seen’” -
- “delegated legislation may be declared invalid on the ground of unreasonableness if this
leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that
legislation of this offending kind cannot be within the scope of what parliament intended
when authorising the subordinate legislative authority to enact laws”

Process of Making Subordinate Legislation

(a) a matter of terminology

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- empowering legislation confers the power to make rules which might be called regulations,
statutory rules etc
- courts posses rule making power; local govts possess limited legislative powers
(b) consultation requirements
- govts need to consult those who might be affected by regulations; it can take time
(c) ‘professional vetting’
- in several jurisdictions, subordinate legislation may not be submitted to the Governor
unless it has been submitted to external scrutiny
(d) publication rules
- publicity must be given to the making of subordinate legislation
- Cth regulations must be published in the Gazette and details must be provided of where it
can be obtained

- Golden-Brown v Hunt: the notice must clearly and definitely describe the place where
the copies can be purchased. It must give an adequate address. The Ordinance in question
was not notified in accordance with the provision of the Act. It was therefore not operative
at the time the police purported to act under it or at the time of the hearing

- Watson v Lee:
- Barwick CJ Notification procedure set out in s48(1) of the Acts Interpretation Act-
where acts confer power to make regulations, then, unless the contrary intention appears,
all regulations made accordingly:
a. shall be published in the Gazette
b. shall, subject to this section, take effect from the date of notification, or, where another
date is specified in the regulation from the date specified and
c. shall be laid before each House of the Parliament within 15 days of that House after
the making of the regulation
- alternative method of notification- s5(3) of the Rules Publication Act- copies of the
regulation which has been made are available for purchase = sufficient compliance with
statutory rules required by an Act
- question of proof of the availability of the copies of the regulation - onus of establishing
that they were not is upon the person raising the question
- Gibbs J: I consider that although copies of that amending regulation were not available for
purchase until about ten days after the notice was published in the Gazette, least copies
became available after substantial compliance the requirements
- Note: Failure to comply with publication requirements means that the relevant subordinate
legislation is void. In NSW failure to publish is not fatal to the validity of the rule, but the
rule takes effect only from the date of its gazettal

(e)The Tabling Requirements

- Legislation in all nine jurisdictions provide for the tabling of delegated legislation =
subordinate legislation must be laid before both houses within a prescribed number of
sitting days of its making, otherwise, it must be laid before the sole house
- Cth and State level, parliaments have established committees to scrutinise subordinate
legislation e.g. the Senate Regulation and Ordinances Committee

 Thorpe v Minister for Aboriginal Affairs

- It was upon this fact that the applicant based her claim before this Full Court that the first
round of elections was unlawful, void and of no effect

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- was required to obey the legislative command of s100 of the Act to conduct the elections
in accordance with the provisions of the Acts and the Regional Council election rules
- The words of s100 in their ordinary required the Commission to conduct the elections from
beginning to end in accordance with the rules in force at the beginning of the election
period
- The provisions of s48 of the Acts Interpretation Act give effect to the policy of the
Parliament that it maintain supervisory control of sub-ordinate or delegated legislation
made by the Executive pursuant to powers conferred by the Parliament. Outcome: Appeal
must fail

Sunset Clauses
- Subordinate legislation automatically ceases to have effect at the end of a prescribed
period.
- In jurisdictions with “sunset” provisions, regulations expire either on an anniversary after
their making or on 1 September, following that anniversary (NSW). The relevant
anniversary is the regulation’s 5th anniversary in NSW.
- The regulation which expires is the principal regulation, along with subsequent
amendments – Subordinate Legislation Act 1989 (NSW) s19 (2).

The Legislative Instrument Bills

- It was recommended that a new Act, to be called the Legislation Instruments Act
(proposed) (Cth) should be enacted to prescribe procedures for the making, publication
and supervision of delegated legislative instruments.
- This Act was designed to take the place of s46A and Part XII of the Acts Interpretation Act
1901 and the Statutory Rules Publication Act 1903 which it was proposed should be
repealed
- Proposed that the LIA should apply to every delegated instrument that is legislative in
character, that is, every Cth “rule”, unless expressly excluded by its enabling provision.

Ch 9: Duty to Act within Powers (Ultra Vires)

1. Ultra Vires – decision maker purports to exercise power beyond what is

conferred in common law/statute

Ruddock v Vadarlis [2001] FCA 1329 (Tampa Case) - whether the Cth’s actions could be
justified under its executive powers pursuant to s 61 of the constitution? It concerned the
actions of the Government of Australia in preventing asylum seekers aboard the
Norwegian cargo vessel MV Tampa from entering Australia in late August 2001 (see Tampa
affair). The Victorian Council for Civil Liberties were seeking a writ of habeas corpus (an order
for the asylum seekers to be released). Prerogative power are powers belonging exclusively
to the Crown, such as the power to make treaties or the power to declare war as per s61.
Majority held there was a prerogative power in place to deny entry.

Black CJ (dissent):
- Solicitor-General’s argument was that the applicants acted in the exercise of a prerogative
power
- Concluded that the authorities provided little support for the existence of such a power
- pg 348: Test to determine whether a prerogative power has been displaced by statute:
whether the legislation has the same area of operation as the prerogative

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- De Keyser, if the whole ground of something which could be done by the prerogative is
covered by statute, it is the statute that rules
- Laker Airways v Dept of Trade, the 2 powers are inextricably interwoven. I don’t see why
we should hold that parliament intended that a prerogative power should have survived
the passing of the statute
- “he concluded that that the legislation demonstrated a parliamentary intention that the
exclusion, entry and expulsion of aliens was to be regulated by statute, to the exclusion of
an prerogative power which might have hitherto existed” – pg 350

2. Statutory Interpretation
a) interpretation statutes: Acts Interpretation Act 1901
- 15AA(1): in the interpretation of an Act a construction that would promote the purpose or
object shall be preferred
- 15AB: can have regard to extrinsic materials
b) presumptions
- statutes are not intended to derogate (deviate) from common law rights
- statutes are to be interpreted in a manner which minimises the discrepancy between
domestic and international law
c) Statutory Interpretation in action
 Paull v Munday- held that the regulation was beyond power – pg 134 HEAD. Example of
strict approach to statutory interpretation. Paull operated a tip which disposed of industrial
waste through open fires, which emit large amounts of smoke. Charged by the Health
Inspector for burning an open fire without approval (under reg7 of the Clean Air
Regulations.) The terms of the regulation was not "open fire" but "air impurity source."
Court held that an open fire did not fall under an air impurity source and that accordingly
reg7 was ultra vires.
- Gibbs: a power to do one thing cannot be validly exercised by doing something different,
even if the effect of what is done is the same as that which would have resulted from doing
what was permitted...where a statute allows certain means to be adopted, it does not
permit the adoption of different means; which happen to lead to the same end – could not
prohibit as burning rubbish may not cause air emission/impurity – read strictly
- Stephen: to use this quite specific regulation making power to make a regulation which
prohibits not some emission of air impurities but all open fires is ‘under the guise of giving
better effect to the provisions of a statute, to extend the statute to the prohibition of
matter which are not included in the statute

d) Regulation and Prohibition

 Melbourne Corporation v Barry: the power to regulate does not include the power to
prohibit. Compare above.
 Foley v Padley: Council was given powers to make by laws ‘regulating , controlling and
prohibiting’ any activity in the mall that would affect the enjoyment of the Mall
o Gibbs: -the power to regulate, control or prohibit is wide enough to include any degree or
form of conditional prohibition and the subject of the power is not something
indispensable to the life of the community...the by law is valid
o Murphy (dissent): by prohibiting all activities, subject to the exercise of the council’s
discretion in an ordinary meeting, the council avoids the statutory safeguards. The by law
is a curtain behind which the council can exercise its powers, potentially on an entirely ad
hoc and inconsistent basis...appeal should be allowed
o Brennan (dissent): the scope of a statutory power to make a by-law must be ascertained
by construing the statute. Swan Hill Corp v Bradbury: first and often most decisive step
is to ascertain the true scope of the measure impugned and the legal effect it would
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 produce...a by-law which purports to regulate, control or prohibit a particular activity is
invalid if the council could not reasonably have formed the opinion that the activity is
likely to affect the use or enjoyment of the mal... too wide and is invalid

3. Excess of Power
- administrators only have such legal powers as are conferred upon them
a) Powers of rule makers and powers of administrators
- distinction between jurisdictional errors and errors within jurisdiction
- decision maker possess an unfettered discretion
- a rule has general application

b) the power to make errors of law

- jurisdictional errors are fatal: they assume a body assuming powers other than those
allotted to it
- non jurisdictional errors are not fatal
- this distinction still applies to errors by courts of limited jurisdiction: Craig v South
Australia
 Craig v SA
- the court recognised the continued validity of the distinction between jurisdiction and non
jurisdictional errors
- Brennan, Deane, Toohey, Gaudron and McHugh JJ: an inferior court falls into jurisdictional
error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or
disregards the nature or limits of its functions or powers in a case where it correctly
recognises that jurisdiction does exist...most obvious where the inferior court purports to
act wholly or partly outside the general area of its jurisdiction, by entertaining a matter or
making a decision which wholly or partly lies outside the limits of its functions and powers

c) the power to make procedural errors

- distinction between directory and mandatory requirements
 Australian Broadcasting Commission v Redmore Pty Ltd
- Mason, Deanne and Gaudron: HC treated a procedural requirement as only directory where
invalidity would impact on an innocent third party. The general structure of the Act and its
context support a directory construction of s70, about the manner and exercise of powers
conferred and confined by other provisions and as not concerned to confine the actual
content of those powers or to invalidate or render unenforceable contracts with innocent
outsiders made in the exercise of them

d) the power to make errors of fact

- the courts reluctance to allow administrators to make errors of law contrasts with their
willingness to allow administrators to make errors of fact - all errors of fact are virtually
non jurisdictional
 Parisienne Basket Shoes v Whyte
- The plaintiffs allegedly underpaid two of their employees. The summonses were out of
time
Dixon:
-whether or not an information was laid too late is a question committed to their decisions; it
is not a matter of jurisdiction

e) mistakes about the source of one power

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 Abbot v City of Heidelberg
- a bylaw which had purportedly been made under a section of the Act which did not permit
the making of the by law, could not be justified as an exercise of power under another
section of the Act
- clear authority for the proposition that if a body exercising power made no reference to the
source of that power, its exercise of power would be valid so long as it in fact possessed
the relevant power

Judicial Review: Jurisdiction, Justiciability and Standing

- Judicial review will normally be a strategy of last resort –more costly than other forms of
review and concerned with relatively narrow issues – with the legality of the decision,
rather than whether the decision maker’s findings of facts were correct, or with whether
the decision maker should have exercised a discretion differently.
- wherever the cases concern cutting edge issues or where the government has curtained
merits review rights, there has been a growing recourse to the courts e.g. immigration and
refugee cases
- The HC has remitted many Migration Act matters to the Federal Court, which has itself
transferred cases to the Federal Magistrates Court.

1. Jurisdiction and has it been mobilised?

- Two questions arise:
1. Was the decision made under Commonwealth or State law?
2. Which court has jurisdiction?
- Federal decisions must go to the Federal courts and State (and local government)
decisions to the State Supreme Courts
- Superior courts of general jurisdiction are traditionally regarded as having inherent
jurisdiction to review administrative actions and to grant the traditional common law
remedies of writs, declarations and injunctions.
- Federal Magistrates Court now has jurisdiction to hear a range of applications under the
ADJR Act and certain appeals from the AAT (AAT Act (Cth) s44AA)
- s75 of the Constitution it provides that the HC shall have original jurisdiction in all matters:
“(iii) In which the Cth or a person suing or being sued on behalf of the Cth, is a party”, and
“(v) In which a writ of Mandamus or prohibition or a injunction is sought against an officer
of the Cth”

Restrictions embodied in s75:

- Curtails the ability of the federal government and parliament to legislate to limit the
jurisdiction of the courts. The Federal Court is a statutory creation, the HC has allowed its
jurisdiction to be curtailed by legislation (Abebe v Cth)
- substantially prevents the HC’s original jurisdiction being ousted by a privative clause that
purports to prevent any judicial review of an administrative action – referendum needed to
amend constitution
- create a constitutional guarantee of access to the HC to challenge actions taken by the Cth
government or in its name- it assures the “rule of law”
- In Re Refugee Review Tribunal; Ex parte Aala (2000), the court ruled that it has the power
to grant all forms of prerogative relief, including certiorari
- The court further held that denial of procedural fairness will result in a decision made in
excess of jurisdiction, allowing prohibition to lie under s75(v) of the Constitution

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- Plaintiff S157/2002 = the HC reinforced this view and applied it to prevent the court’s
jurisdiction being blocked by the “super privative clause” inserted in the Migration Act in
late 2001

Timing of Applications
- Applications for judicial review should be made within a short period of the making of the
decision.
- Hunter Valley Developments v Cohen (1983) 3 FCR 344: Whether extensions of time
will be granted: Wilcox J: the section does not in terms, place any onus of proof upon an
applicant for extension. Court will not grant the application unless positively satisfied that
it is proper to do so. The prescribed period of 28 days is not to be ignored.

2. Justiciabililty
- the Courts will not review the exercise of certain prerogative powers, and may decide no to
intervene in sensitive political or national security decisions
- “Prerogative Powers”- appointment and dismissal of Prime Ministers, and decisions relating
to foreign policy, declarations of war, national security and such matters as the award of
royal honours, were regarded as lying outside the purview of the courts
- A variety of formulae known as “privative” or “ouster” clauses have been included in
legislation in an attempt to keep the courts at bay – parliament intention behind legislation
misinterpreted
- -The Cth ADJR Act 1977 s4 provides that the Act is to override ouster clauses in force at
the date of commencement of the Act

- Minister for Arts, Heritage and Environment v Peko-Wallsend- Federal Court ruled that the
challenge was un-justiciable and should be “decided in the political arena.”
- One exception is that there will be no review of an Attorney-General’s decision not to
intervene in a case (Batemans Bay Local Aboriginal Land Council v Aboriginal Community
Benefit Fund p/l)

3. Administrative Decisions (Judicial Review) Act 1977 (Cth)

1. For a decision to be reviewable under the Act the decision must be “of an administrative
character proposed to be made, or required to be made, as the case may be… under an
enactment” s3 (1).
 Minister for Industries and Commerce v Tooheys Ltd: Bowen CJ, Northrop and
Lockhart JJ:
“The distinction between legislative and administrative acts is...essentially between the
creation or formulation of new rules of law having general application and the application
of those general rules to a particular case.” Latter is administrative
2. The second condition is that they must be made under an enactment (ANU v Burns)
3. It must satisfy one of three conditions. It must be a decision (s5); conduct for the purpose
of making a decision (s6); or failure to perform statutory duty (s7).
 Australia Broadcasting Tribunal V Bond: Mason CJ: I would reject the notion accepted in the
federal court that the findings adverse to Mr Bond was a “decision… not authorized by”
the Act within the meaning of s 5(1). In s 6 the word conduct points to action taken, rather
than decisions made, for the purpose of making reviewable decision. In other words, the
concept of conduct looks to the way in which the proceedings, rather than the decisions
made along the way with a view to the making of a final determination. The finding that Mr
Bond would not be found to be fit and proper person to hold a broadcasting licence was
not procedural and was no more than a step in the Tribunals process of reasoning, and so
the findings did not amount to “conduct”.

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4. National Security Cases
- Courts are unlikely to intervene in the politically sensitive area of national security
 Church of Scientology Inc v Woodward- Church challenged ASIO’s assessment of it as a
security risk. HC dismissed the notion that ASIO could act lawfully beyond the limits set by
the Australian Security Intelligence Organisation Act 1979 (Cth) (the ASIO Act)
 pg 748 Mason J described security as a “concept with a fluctuating content, depending
very much on circumstances as they exist from time to time
 Onus was on the plaintiff to establish that there was “no reasonable basis to conclude that
the actions in question have a real connection with security”
 Issue of vagueness of “national security”- in A v Hayden “the HC declaimed forcefully that
security intelligence authorities had no right to breach criminal law”- the majority of the
court refused to rule out the possibility that under certain circumstances, the interests of
“national security” could override those of “the administration of justice.”

o Public Interest Immunity -Alister v R- the majority said a higher standard of “public
interest” was required where the information requested related to a criminal convention.
Brennan J- “a balance struck between the security that is desirable to protect society as a
whole and the safeguards that are necessary to ensure individual liberty

5. Standing
- Aust law supplements the jurisdictional, justiciability and arguable case requirements with
a further requirement that the party have standing to sue
- locus standi or standing- a sufficient interest in the matter- before being given the right to
take action
- In Australia there is no “public interest standing” and the HC in ACF v Cth ruled out open
standing, that is, the right of any citizen to take action to enforce a public duty
- Mason J equated “special interest” to property, business or economic interest, or perhaps
social or political interests.
- in 1981 in Onus v Alcoa of Australia the HC adopted a more liberal approach giving two
members of an aboriginal tribe standing to challenge Alcoa’s breach of a Conservation Act-
Gibbs J stated that “they had a substantially greater interest in the subject matter than
other members of the public”- Stephens emphasised the plaintiff’s relationship with the
subject matter- “cultural and spiritual significance”
- Alphaharm Case- the Full Federal Court held that a corporations’ commercial interest in a
decision did not satisfy the test “interest are affected” because it was not an interest of
the kind the Act was meant to protect

- Australian Conservation Foundation Inc v Cth (1980) 146 CLR 49

Facts: Iwasaki proposed to establish and operate a tourist area in QLD. This required Cth
approval. Before a final impact statement being issued by Iwasaki, the minister announced
the proposed development would proceed. The ACF sought declarations and injunctions.
Aickin J struck out the arguments on ACF’s lack of standing. Gibbs, Stevens and Mason JJ
upheld that the act did not create any private rights.
Gibbs J:
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- ordinary member of the public has no standing to sue to prevent the violation of a public
right or the enforce the performance of a public duty
- rules as to standing are the same whether the plaintiff seeks a declaration or an injunction
- The broad test of special interest is the proper one to apply, in my opinion: pg 846
- New rule: Allowing standing to any private citizen to enforce public duties, unless the court
in its discretion considered it advisable that the action should be allowed to proceed
- An interest for present purposes does not mean a mere intellectual or emotional concern.
- A person is not interested unless he is likely to gain some advantage, other than the
satisfaction of righting a wrong, upholding a principle or winning a contest: pg 846
Mason J: pg 847
- Depending on the nature of the relief which he seeks, a plaintiff will in general have locus
standi when he can show actual or apprehended injury or damage to his property or
proprietary rights, to his business or economic interests
- Court is not a legislature and has no general charter to reform or change the existing law –
sep of powers
Murphy J: (dissenting) pg 848
- a special relationship b/w parties on either side of the record is not always required for
standing
- the interest need not be peculiar to the plaintiff

 Prerogative Writs
- In Re Smith, Ex parte Randle The court observed that the rules of standing are more liberal
in the case of the prerogative writs, certiorari in particular, than for an injunction or
declaration
 Prohibition and Certiorari - What is given when standing is granted, may be taken away
at the point where the court exercises its discretion.
 John Fairfax and Sons v Police Tribunal of NSW: An order for non-publication of
evidence having been issued, the plaintiff sought belief in the nature of certiorari. pg 866
Mahoney JA:
- where the ground relied on lacks jurisdiction, it has frequently been said that a stranger
may seek a prerogative relief
- In the present case the tribunal acted beyond its jurisdiction - The plaintiff has standing to
make the application for the prerogative relief
- Where jurisdiction is exceeded a stranger is entitled to prerogative relief as of right or as of
course or whether the court retains a discretion to refuse such relief...the discretion will
ordinarily be exercised in favour of the grant of it

 Alternatives
- An alternative to seeking standing may be to take part as an “amicus curiae” or friend of
the court - US Tobacco v Minister for Consumer Affairs
- Another alternative is intervention- Levy v Victoria- the judges gave media proprietors the
right to intervene on the grounds that their “legal interests” were affected, but not the
media employees union, the Media, Entertainment and Arts Alliance.

Standing and Substantive Grounds for Review

- In Kioa Brennan J even suggested that an interest sufficient to ground a claim to standing
would normally be sufficient to ground a claim to procedural fairness.

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- Those who have a right to procedural fairness in relation to the making of a particular
decision will almost invariably have standing in relation to that decision.
- It certainly seems that those who have exercised a right to be heard will often be accorded
standing in disputes about subsequent decisions.
- Whether the law of standing should be reformed considered by the ALRC - Any person
should be able to commence proceedings unless:
- The relevant legislation clearly indicates
- In all the circumstances it would be in the public interest to proceed

“Extended” Ultra Vires: Abuse of Power

Improper Purpose
Irrelevant or Relevant Considerations
Unreasonableness or Irrationality
Uncertainty
No Evidence
Inflexible application of Policy
Acting under dictation
Sub-Delegation

1. Improper purpose and Bad Faith

- admin decisions must be designed to achieve a purpose or object authorised by the
empowering legislation
- expectation that powers are conferred for particular public purposes and should not be
used for private purposes or for “illegitimate” public purposes
- Sydney Municipal Council v Campbell: decision was quashed because it was not
actuated by a proper purpose. If the purpose is not explicit, courts will look to the implied
purpose
- If exercised partly for a proper purpose and partly for an improper purpose - canvassed in
Thompson’s Case.
- The problems of proof and the scope of the application of the principles of proper purpose
and good faith are discussed in Toohey’s Case
- s5(1)(e) + 6(1)(e) of ADJR Act cover improper or bad faith exercise of power

Thompson v Randwick Municipal Council (1950) 81 CLR 87, 50 SR (NSW) 248 High
Court of Australia
Facts: Council resolved to resume land pursuant to Local Government Act 1919. Owner of the
land sought an injunction to restrain Council from resuming the land. Appellants appealed
from Roper J to the High Court
Williams, Webb and Kitto JJ
- In the present case it is clear that the lands proposed to be resumed exceed what is
required to construct the new road, and that there is no evidence that it is reasonably
incidental to any purpose under s235 of the Act that this excess should be acquired under
s535
- In the present case the only work the Council proposes to do is to construct the new road
and path. It proposes to resume far more land than is required for this purpose. It does not
propose to do any work upon the balance of the land. It only proposes to sell this balance.
- “it is not necessary that this ulterior purpose should be the sole purpose…it is still an
abuse of the councils power if such a purpose is a substantial purpose” (if a decision
wouldn’t have been made except for that part of an improper purpose= ultra vires) pg 408

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- appeal allowed , entitled to an injunction restraining the defendant from acquiring or
attempting to acquire the lands of the respective plaintiff’s by resumption

R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981)

151 CLR 170; 38 ALR 439 High Court of Australia
Facts: Council claiming alienated land as a part of Darwin- Toohey (Commissioner) found that
the land was not available for claim- A writ for certiorari to quash that decision and a writ of
mandamus directing Toohey J to exercise his jurisdiction under the Act and hear a claim was
sought
 not only are decisions of cabinet ministers examinable as to purpose, but so are those of
representatives of the Crown exercising statutory powers
 a court can look beyond the words of a regulation to examine relevant documents to
determine the purpose for which the regulation was made
Gibbs J
- Mr Heathwood, a town planner, expressed the opinion that the land on the Cox Peninsula
was not reasonably required to be set aside for town planning purposes as land adjacent to
Darwin.
- Planning Regulations “depends upon the land specified having some connection with a
town planning purpose.”
- This case is one which the Administrator has exercised a power conferred on him by
statute
- In the present case, the appellant was, in my opinion, entitled to challenge the Planning
Regulations, and if necessary also the Town Planning Regulations, on the grounds that they
were made for a purpose which was to a planning, or town planning purpose.
- If the regulations were invalid, there was no justification for him to fail to continue to
exercise this function under s50 (1) (a). For the reasons given the Commissioner has not
exercised his function in accordance with the law and the case is a proper one for
mandamus – pg 412
- where regulations clearly go beyond the purposes of the Act then, ‘in this respect the
Crown stands in no different position from any official to whom a statutory power is
entrusted’
Gibbs CJ
- In my opinion the present case comes within the principle which forms the basis of the rule
that denies privilege to communications made to further an illegal purpose
- In the present case the findings of Kearney J, confirmed in the Full Court, that there was
prima facie evidence that the communications with the legal advisers came into being as
apart of a plan to defeat the land claims was plainly sustainable.
- For these reasons each of the four appeals should be dismissed

2. Duty to take into account Relevant considerations

- This involves a positive requirement to take into account all relevant considerations and a
negative command not to take into account irrelevant matters - express or implied
- we look to statutory interpretation
- Roberts v Hopwood: irrelevant considerations- socialism and feminism were not relevant
considerations under the act- could only have reference to ‘just and reasonable
remuneration’
- The Administrative Decisions (Judicial Review) Act: The issue of considerations is under
improper exercise of power. s5(2) & 6(2) provide improper exercise is
o Taking an irrelevant consideration into account.
o Failing to take a relevant consideration into account.

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Sean Investments v Mackeller:
- Where relevant considerations are not specified, it is for the decision maker to determine
which matters he regards as relevant and the comparative importance to be accorded to
matters to which he so regards.
- failure to take into account a relevant consideration will only be made good if it is shown
that the decision maker has failed to take into account a consideration which he was, in
the circumstances, bound to take into account for there to be a valid exercise of the power
to decide
- 5 factors a court should weigh up in determining relevant/irrelevant considerations:
1. what was the decision maker bound to take into account
2. matter of statutory interpretation
3. court should only intervene if the factor not taken into account is material
4. court cant substitute their own decision
5. the previous principles do apply to minister as well as other decision makers…however,
broader policy considerations need to be taken into account when it is a decision made
by a minister of the crown

- minister had acted unlawfully by not considering the company’s written objections, even
though he wasn’t aware of them: the company’s interests were a relevant consideration
the Minister failed to take into account
- court rejected the argument that the Minister could delegate to his staff consideration of
such matters
-Mason: the factors that a decision maker is bound to take into account and consider can be
determined by implication from the subject matter, scope and purpose of the Act

Minister for Aboriginal Affairs v Peko Wallsend:

- Facts: Commissioner recommended land in Alligator Rivers be granted to Aboriginal
claimants under Aboriginal Land Right Act. Included land where Peko Wallsend et al had
applied for mineral leases.
- Companies considered that Commissioners report did not deal with the effect the land
grant would have on commercial activities and they told successive ministers.
- Minister granted the land on the basis of a departmental brief/company’s written
objections and did not refer to the new submissions. This decision was challenged.
Mason
- “the failure of a decision maker to take into account a relevant consideration in the making
of an administrative decision is one instance of an abuse of discretion entitling a party with
sufficient standing to seek judicial review of ultra vires administrative action” – pg 433
- Respondents contend an improper exercise of the power conferred on him by the Act as he
failed to take into account a relevant consideration, namely the extent to which they would
be detrimentally affected.
- Two questions arise. Was the minister bound to have regard to respondent’s submissions
so failure to do so amounted to failure to take into account relevant factor? If yes, should
relief have been refused on discretionary grounds?
- Minister argued that if submissions are brought to Ministers office, and his officers
summarise it, and he considers the summary, then he has taken all details into account.
He is entitled to have his staff summarise.
- Held that a minister could not delegate in this way and this his involvement was vital.
However it was held that there was no evidence of delegation of this kind in this case.

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- Ground of failure to take into account relevant consideration can only be made out if
decision maker fails to consider something he is bound to take into account. (Sean
Investments v MacKellar)
- If the matters to be taken into account are not expressly stated, they must be determined
by implication from the subject matter, purpose and scope of the Act. Where a statute
confers and unconfined discretion, the factors that may be taken into account in the
exercise of it are also unconfined, as long as they fall within the above.
- Failure to consider an insignificant factor will not lead to setting aside the decision – pg 433
- Where the statute does not say or implicate matters to be taken into account, it becomes a
matter for decision maker, not a matter for the court. Over-ruled where a decision is
“manifestly unreasonable” – pg 434 (Wednesburys reasonableness test).
- The Act does not expressly state that the Minister needs to take the Commissioners
comments into account, but consideration of subject matter, scope and purpose of the act
indicates that it is implied by the statute.
- A minister is bound to consider submissions put to him by parties who may be adversely
affected by a decision. This is analogous to natural justice.

3. Unreasonableness and Irrationality

- traditional test: decision makers should not make decisions that are so unreasonable that
no reasonable decision maker, acting according to law, could have made them
- common law test: Wednesbury case: ‘something so absurd that no sensible person could
ever dream that it lay within the powers of the authority’
- Minister for Immigration and Multicultural Affairs v Eshetu: ‘in essence, an
unreasonable decision is one for which no logical basis can be discerned’- pg153 HEAD
- S20/2002 case: court drew a distinction between Wednesbury unreasonableness and
‘irrationality and illogicality’ as 2 different grounds of review
- unreasonableness cannot be used to challenge unreasonable fact finding, only decision
makers exercise of discretionary powers
- categories of unreasonableness:

a. Discrimination:
- Parramatta City Council v Pesto: rate levy discriminated against different land users: not
permitted by Act – pg 155 Head
- ATSIC case: geographic discrimination
- it is unlawful if it is discrimination that is not envisaged by the Act

b. Reasonable Inquiries
- Prasad v Minister for Immigration and Ethnic Affairs: suggests a role for unreasonableness
where the decision maker should and could have made inquiries that would have revealed
facts that would have placed a different complexion on the matter – pg155

 Prasad v Minister for Immigration and Ethnic Affairs

- Facts: Prasad sought permanent residence in Aust on the grounds of his wife’s residence
status, but his application was denied because officers of the department considered that
Prasad “contracted a marriage for the purpose of claiming residence in Aust” and that a
“genuine on-going marriage relationship does not exist”
- Prasad challenged the minister’s decision, arguing that it was ultra vires. Set aside
remitted to Minister.
Wilcox J:
- “the exercise of a power that is so unreasonable that no reasonable person could have so
exercised the power” s5(2)(g) ADJR Act
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- I agree with this common law position – Picture Houses v Wednesbury Corp [1948] “it is
true to say that if a decision on a competent matter is so unreasonable that no reasonable
authority could ever have come to it, then the courts can interfere…to prove a case of that
kind would require something overwhelming.”
- Conduct which no sensible authority acting with due appreciation of its responsibilities
would have decided to adopt
- In a case where it is obvious that material is readily available which is centrally relevant to
the decision to be made…to proceed to a decision without making any attempt to obtain
that info

 Tickner v Bropho (1993) 40 FCR 183

- Facts: Minister for aboriginal Affairs had refused to make a declaration in relation to a
significant aboriginal site on the grounds that there was no serious or immediate threat of
injury or desecration to the site.
- Black CJ held that the circumstances of the case were such that the minister’s conduct was
unreasonable
- Requirement that an error be material if it is to be grounds for a successful challenge
- Test for non-materiality:
1. To focus on the unreasonableness of the decision, given the additional info.
2. A broader test would focus on the question of whether assuming that the decision
maker had been fully informed, the decision actually made could be challenged
(preferred)

c. Disproportionality:
- South Australia v Tanner: ‘reasonable proportionality’ test: it held the decision to be
reasonable proportionate to the object of the enactment
- reasonable proportionality between the means used to achieve an end and the value of
that end
- Bruce v Cole: no such ground exists as per Spigelman CJ pg 156

4. Uncertainty
- King Gee Clothing v Cth: Dixon ruled out uncertainty as a ground of invalidity. Instead he
found the regulations to be invalid on the basis of being beyond power
- Television Corporation v Cth: Kitto asserted that uncertainty of meaning and application
was a ground for challenge
- Racecourse Cooperative Sugar Association v Attorney General: followed Dixon’s approach
in King Gee case
- ADJR Act: treats uncertainty as a specific type of abuse of power (S 5(2) (h) and 6(2)(h))

5. No Evidence
- Decision makers enjoy considerable freedom to make errors of fact, but there are limits to
this freedom.
- Courts classify errors of fact as “intra-jurisdictional”= may be reviewable under a variety of
heads.
- Some errors of fact may amount to errors of law.
- The ADJR Act - A person may apply for an order for review where “there was no evidence
or other material to justify the making of the decision” - ss5(1)(h), 6(1)(h)
- this is qualified in ss5(3) and 6(3) – the no evidence ground will not be made out unless:

45
 a) the person who made the decision was required by law to reach the decision only if a
particular matter was established;
b) the person who made the decision based the decision on the existence of a particular
fact, and that fact did not exist
- (1) of the ADJR Act and s28 of the AAT Act = a decision could be judged more readily
because the materials which were before the decision maker would be known and the
reasons for the decision would be adequately explained.
- S 5(1) (h) provides a ground of review that there was no evidence or material to justify the
decision. But s5(3) limits the operation of s 5(1)(h)

i. Jurisdictional fact doctrine

- Erroneous decisions of facts on which jurisdiction depends are fatal - although courts afford
decision makers with wide discretion in relation to such facts
- R v Aust. Stevedoring Industry Board: a case of error of fact going to jurisdiction: on
the facts it had no jurisdiction =lack of evidence or material to justify a decision may
support the inference that the tribunal is applying the wrong test or is not in reality
satisfied of the requisite matters acting out of its jurisdiction

ii. General Rule: ‘no probative evidence’

- errors of fact may be reviewable if is no evidence (no cogent or probative evidence) to
justify the making of the decision
- lack of probative evidence may infringe procedural fairness or may be considered
unreasonable in the Wednesbury sense
- In Bond Mason CJ said “at common law, according to Aust authorities, want of logic is not
synonymous with error of law”= A finding of fact will be overturned on an appeal on a
question of law only if that finding was not open

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
- Pochi applied for Aust citizenship. 1977 Pochi was convicted and jailed for supplying Indian
hemp. After his sentence, an order was made for his deportation based on evidence from
members of the NSW Police Force
- Pochi challenged the decision to deport him in the AAT, where Brennan recommended that
the deportation order be revoked
Brennan J: pg 461
- s 33(1)(c) of the AAT Act provides that “the tribunal is not bound by the rules of evidence
but may inform itself on any matter in such manner as it thinks appropriate”
- the tribunal and the minister are equally free to disregard formal rules of evidence in
receiving material on which facts are to be found
- procedure does not go so far as to justify orders without a basis in evidence having
“rational probative force”
- majority judgments in R v War Pensions; Ex Parte Bott show that the tribunal is entitled to
have regard to evidence which is logically probative whether it is legally admissible or not
- the Minister for Immigration and Ethnic Affairs appealed to the Fed Court against the
recommendation of the AAT, arguing that the AAT was entitled to consider hearsay,
suspicion and other evidence which was not “rationally probative” when reviewing admin
decisions

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Deane J pg462:

46
- in my view the tribunal was bound, as a matter of law, to act on the basis that any conduct
alleged against pochi should be established, on the balance of probability, to its
satisfaction by some rationally probative evidence
- it is an ordinary requirement of natural justice that a person bound to act judicially “base
his decision” upon material relevant to the issue to be determined
- a decision of such a statutory tribunal must ordinarily be based on evidence which is
reasonably capable of sustaining it
- the requirement that findings of material fact of a statutory tribunal must ordinarily be
based on logically probative material…be based upon such findings of material fact and
not on mere suspicion or speculation
- in February 82 pochi was given 72 hours to get the details of his deportation, the HC that
the Cth had wide power to legislate for the deportation of aliens and rejected Pochi’s
argument
- Murphy J commented that it would be a misuse of power to enforce the deportation in
circumstances that would break up the family
- Minister for Immigration persuaded by Murphy’s reasoning revoked the deportation order

Aust Broadcasting Tribunal v Bond - Whether in finding as it had, ABT had made a
reviewable error of law.
Mason CJ:
- findings of facts and inferences of fact are not reviewable under the ADJR Act, may be
reviewable under the Act for error of law – S5(1)(h)
- the making of findings and the drawing of inferences in the absence of evidence is an error
of law, “there is no error of law simply in making a wrong finding of fact”
- the AAT Act alone provides for review on the merits; the 2 acts draw a sharp distinction
b/w errors of fact and law
- the concept of “error of law” in s 5(1)(f) is intended to reflect the content of that
expression as it was understood at common law
- the opening part of para (a) restricts the “no evidence” ground to decisions in respect of
which the decision maker was required by law to reach that decision only if a particular
matter was established
- courts exercising judicial review should leave the finding of facts to the public body
appointed for that purpose by the legislature except where the public body acts
“perversely”(acting without any probative evidence)
- Decisions may be set aside because, they appear to be an improper exercise of the power
conferred or arbitrary or because there was no evidence

Other Grounds of Challenging Admin Decisions

The ADJR Act allows admin decisions to be challenged where the decision breaches one of the
above mentioned rules, or where the decision was:
- “otherwise contrary to law”, ss5(1)(j) and 6(1)(j); or
- Where the decision involved an exercise of power “in a way that constitutes abuse of
power”, ss5 (2) (j) and 6(2) (j).
- Kirby J recommended that judicial restraint be exercised when challenge is brought under
the latter head. Inconsistency is not, however, necessarily fatal to a decision. Different
treatment does not amount to inconsistency.

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 Week 7 “Extended” Ultra Vires: Refusal to Exercise a Discretion

Inflexible Application of Policy

Acting under Dictation
Sub-Delegation

1. Inflexible Application of Policy:

- Stephen J ruled that the Director General of Social Security had wrongly precluded himself
from asking the question posed by s 107 (c) of the Social Services Act 1947 (Cth)
- The court made clear that the discretion was limited by the objective criteria of s 107
- Stephen j referred to “the application of a flexible policy” or perhaps better expressed as
“the inflexible application of a policy”
- The policy applied was inconsistent with the eligibility criteria for unemployment benefits
set down by the parliament
- The act did not give the Director General a general discretion but laid down specific criteria

 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
- interrelationship b/w ministerial policy and sections of the Migration Act
- “To paraphrase the test applied by Brennan J, a minister’s policy must leave him or her
free to consider the unique circumstances of each case. This is not to deny the lawfulness
of an appropriate policy that guides but dose not control the making of decisions, a policy
which is informative of the standards and values that the minister usually applies”

 Green v Daniels (1977) 51 ADJR 463; 13 ALR 1, High Court of Australia

Facts: 16 yr old school leaver who was denied payment of benefits due to policy of school
leaver not being able to apply till Feb the next year, even though stated differently in the SSA.
Stephens J
- Issue: The question is, therefore, whether he wrongly precluded himself form attaining the
requisite state of satisfaction, and if he did do so, what are the consequences in law for the
plaintiff and the remedies open to her
- Defendant argued the departmental policy was no more than a quite appropriate general
rule, which was subject to exception for special cases and which was necessary to provide
general guidance in dealing with the difficult case of school leavers and their entry into the
workforce.
- This is not a case of a person in an exceptional situation...been dealt with in accordance
with a general administrative rule intended for just such an ordinary case as hers
- The question is then whether this general rule is no more than a permissible instruction by
the Director General to those whom he has delegated his power under s107 (c)
- No general discretion is conferred upon him; instead specific criteria are laid down by the
Act and all that is left for him to do is to decide whether or not he attains a state of
satisfaction that the circumstances exist to which each of these criteria refer
- It does not, however, in my view, entitle him to impose a quite arbitrary time of almost
three months before this criterion is to be regarded as having been complied with.
- I am not satisfied that there existed some appropriate duty of care owed by the
defendants to the plaintiff. Accordingly I make no order as to relief in respect of this claim

2. Acting Under Dictation:

- ADJR Act ss5 (1) (e) and 6(2) (e), coupled with ss5 (2) (e) and 6(1) (e) = provide for review
of exercises of administrative decision making power, which is “an exercise of a personal
discretionary power at the discretion or behest of another person”

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- Not be bound by the discretion of anyone else, including a superior body or minister.

 R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177

- clash b/w govt’s two airline policy and a discretionary power vested in the Director General
of Civil Aviation to issue charter licenses and grant permission to import the necessary
aircraft
- DG rejected its application under the Air Navigation Regulations (Cth), and also refused
permission for it to import aircraft under the Customs (Prohibited Imports) Regulations
(Cth)
- he commented that he had taken into account the govt’s policy
- Windeyer J stated that in deciding on then importation of aircraft, “the only consideration
by which the DG could properly have been guided was the policy of the govt,”
- Kitto J concluded that the DG was obliged to arrive at his own decision – “it is a general
principle of law that a discretion allowed by statute to the holder of an office is intended to
be exercised according to the rules of reason and justice, not according to private opinion;
according to law, and not humour, and within those limits which an honest man,
competent to discharge the duties of his office, ought to confine himself”
- Menzies J: drew a distinction b/w a discretion given to a minister and one given to a
departmental head. When the latter is nominated he must arrive at his own decision on
the merits

 Ansett Transport Industries (Operations) Pty Ltd v Cth (1977) 139 CLR 54
- whether a grant of permission to import aircraft breached a contract with Ansett under the
two airlines policy
- Barwick CJ: Secretary of the Dept of Trade “would be bound to carry out the communicated
policy of the govt
- Murphy J said “the duty of those in a dept is to carry out the lawful directions and policy of
their minister
- Mason J said that the secretary should have regard to relevant govt policy but not abdicate
the responsibility of making a decision by acting merely on a direction given by the
minister – “the authorities give no support to the notion that a minister can, without
statutory authority, direct an officer to whom a statutory discretion is reposed, how he will
exercise that discretion”
- To sum up: A departmental head faces a stark choice b/w either falling into line with the
minister according to the position of Windeyer, Barwick and Murphy JJ, or exercising an
independent discretion in accordance with the position of Menzies, Kitto and Mason JJ/

3. Sub-Delegation:
- Alter ego principle (Carltona), requires that a discretionary power specifically given to a
minister or departmental head must be exercised by that person and cannot be delegated
to subordinates, unless the Act or Regulations specifically say so.
- Latin Maxim: delegatus non potest delegate – a person invested with a power must
exercise it personally.
- The courts have often allowed for wide delegations, or at least sharing, of many powers, so
as not to stand in the way of the practicalities of Govt.
- Cases establish that where a minister is entrusted with admin functions he or she may, in
general, act through a duly authorized officer.

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 Carltona v Commissioner of Works [1943] 2 All ER 560 and Re Golden Product [1976] Ch.
300
- both establish that, because of the special position of constitutional responsibility that
ministers occupy and because of their multifarious functions, the business of govt could
not be carried out if they were required to exercise all their powers personally

 O’Reilly v State Bank of Vic Commissioners (1983) 153 CLR 1

- applied and extended the alter ego principle to a power given to a senior public servant
- Gibbs CJ: “since there are literally millions of taxpayers…it would reduce the admin of the
taxation laws to chaos if the powers conferred by those sections could be exercised only by
the Commissioner or a deputy Commissioner personally,”

 Ex parte Forster; Re Uni of Sydney [1963] SR (NSW) 723

- the senate of the uni was regarded as being in the same position as the tax commissioner
- it concerned an appeal by an economics student against a decision by a committee of the
economics faculty to excluded him from repeating courses that he had failed
- Court declared “without the most ample authority for delegation the affairs of a uni could
not be carried on at all”

- Cases where even a ministerial power has been interpreted as intended to be exercised
personally.

 Chapman v Tickner (1995) 55 FCR 316 (Hindmarsh Island Bridge Case)

- full fed court held that the ministers duty to “consider” a report and representations
concerning the cultural significance of a site to aboriginal people required personal
involvement by the minister

 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24

- HC also held that a duty to consider a report from a mining company could not be
delegated to a minister’s staff

Week 9 Procedural Fairness (Natural Justice)

- Kioa v West Mason J stated: “The law has now developed to a point where it may be
accepted that there is a common law duty to act fairly, in the sense of according
procedural fairness in the making of administrative decisions which affect rights, interest
and legitimate expressions, subject only to the clear manifestation of a contrary intention”

What is Procedural Fairness?

- fundamental issue: the natural justice (NJ) and Procedural Fairness (PF) rules involve 2
related issues
- 1st is there a duty to afford NJ or PF to a particular individual or group? 2 nd is what is
required by the rules of NJ and PF?
- NJ has traditionally been seen as requiring 2 things:
a. The right to a fair hearing (hearing rule)
b. The right to an unbiased decision (bias rule)
- recent times, certain Australian judges have suggested two further strands
c. The right to have a decision based on logically probative material.
d. The right to be given reasons for a decision (PSB v Osmond)

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 Right to a duty of pf? In Kioa v West (1985) Mason J found that “there is a common law
duty to act fairly, in the sense of according procedural fairness, in the making of decisions,
which affect rights, interests and legitimate expectations, subject only to the clear
manifestation of a contrary intention.”

- Banks v TRB - HC proceeded on the basis that a taxi license was a form of property and
that a license holder was therefore entitled to a hearing before a decision was made on
whether to cancel the license. House of Lords accepted that public employees did not
enjoy a right to NJ if their rights were contractual
- Requirement that the aggrieved individual possess a “reasonable expectation” or a
“legitimate interest” in a particular state of affairs
- Heatley v TAS Racing and Gaming - the court rules that the NJ could be a requirement
notwithstanding the absence of an expressly super-added requirement to act judicially
- The doctrine is one of common law - an underlying right said to exist to the extent that it
is not clearly extinguished by statute - “chameleon-like” character of its rules (Brennan J in
Kiao)
- How legislation affects the common law requirements of procedural fairness was
considered at some length in Ex parte Miah: Haynes and Gleeson JJ: “The true construction
of the statute will determine not only whether the rules of natural justice apply, but also
what those rules require”
- procedural fairness is a doctrine that extends in some circumstances to private bodies
such as clubs and professional associations (Dale v NSW Trotting Club)
- the courts have tended to extend the rights to procedural fairness to matters where not
only definite legal rights are at stake but also various broader interests, notably (a)
commercial interests, (b) employment, (c) individual liberty and (d) reputation =
courts have termed “legitimate expectations” of the protection of certain interests

Natural Justice or Procedural Fairness?

- Terms used interchangeably, the more modern term is arguably both broader and thinner
as pf cover a wider range of decision makers and may also involve more than a hearing by
an unbiased decision maker (such as the right to be given reasons) - It is thinner because
the standards required may be easier to meet
- In Kioa v West Mason J: “The expression “procedural fairness” more aptly conveys the
notion of a flexible obligation to adopt fair procedure which are appropriate and adapted to
the circumstances of a particular case”
- various enactments retain the older terminology, without discernibly affecting the
interpretation of the courts e.g. ADJR Act
- The modern rationale for the principle is said to rest on three bases:
1. Fairness to the individual or business
2. The rule of law- that is protection from arbitrary power
3. Good administration

In assessing how the principles of procedural fairness apply to a given situation,

two inter-related questions arise
1. Whether the duty to observe procedural fairness exists
2. The content of the duty in this circumstance
In deciding whether the duty exists, the following issues arise:
a. Is the duty expressly provided for by the relevant legislation or alternatively, does the
legislation exclude or limit it?

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 b. Is the duty to be implied, either on general principles or under one of the recognised
categories?
c. Is the duty excluded by one of a number of factors

Statutory Inclusion?
- Where legislation specifically includes or excludes procedural fairness, the issue is beyond
doubt
- In NSW, the ADJR Act 1997 s73 requires the tribunal to abide by natural justice
- At the federal level the AAT is not on the list although the courts have held it to be bound
by the duty to provide natural justice (Sullivan v Dept of Transport)
- In some cases. The legislation may state explicitly that the duty does not apply, or may
exclude natural justice as a grounds of review, as in the Migration Act 1958
- In most cases, however, the statute will be on the question, leaving it for the courts to
imply such a duty
- In the Commissioner of Police v Tanos the HC stated that any legislative intention to
exclude the principles of natural justice had to be very clear = express words of plain
intendment

The Implications of the Duty: General Principles

- HC test in FAI. Procedural fairness is more likely to be enforced if:
1. The interested affected is legally recognised or substantial
2. The power being exercised and the body making the decision are quasi judicial, rather
than the political or highly discretionary
3. The decision, or the sanction to be imposed, has serious consequences

- Forbes v NSW Trotting Club (1979) - the HC held that the club was obliged to afford
procedural fairness before issuing a “warning off” notice excluding a race goer for all
racing meetings- Both Gibbs and Murphy JJ also suggested that the club had such a duty in
its capacity as a landowner as well as administrator of the rules - pf doctrine extends to
private bodes such as racing authorities, trade unions, social clubs, political parties and
professional disciplinary bodies.
- In FAI and Kioa the success of the applicants was attributed to the fact that the original
decision made against them turned, at least in part, on their individual attributes

- The broader approach to natural justice was fully embraced by the HC in FAI Insurance the
HC adopted the phraseology of “legitimate expectation”
 FAI Insurance Ltd v Winneke; Fire and All Risks Insurance Co Ltd v Winneke
(1981) involved the interests of a large insurance company not to be excluded from
providing workers compensation coverage, which it had provided for many years
o held that FAI had no legal right to be approved but declared that it had legitimate
expectation that a renewal of approval would not be withheld - interpreted as an
objective test independent of the applicant’s state of mind
o the court rejected the objection that by vesting the Governor in Council- effectively
the cabinet- with a broad power of approval, the parliament intended the decision to
be made in the political, not the administrative or judicial arena
o Murphy J dissented, arguing that the courts should not interfere with such political
decisions made by cabinet

Wilson J:

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- Cooper v Wandsworth, “although there are no positive words in a statute requiring that the
party shall be heard, yet the justice of the common law will supply the omission of the
legislature”
- It may be enough if an interest or privilege is affected
- Breen v Amalgamated Engineering, If a man has a legitimate expectation, it would not be
fair to deprive him without a hearing or reasons given
- Whether the principle should be applied or not: these three matters, 1 st what is the nature
of the property? 2nd in what circumstances is the person claiming to be entitled to exercise
the measure of control entitled to intervene? 3 rd when a right to intervene is proved, what
sanctions in fact is the latter entitled to impose upon the other?
- The company’s solicitors seeking the deferment of a decision until the company had had a
reasonable opportunity to answer the case against them. The decision had been made to
withhold the approval
- S72 of the Act confers on an applicant insurer no legal right to be approved
- The nature of the interest of the company in the renewal of its status as an approved
insurer is such as to give rise to a legitimate expectation that a renewal of approval would
not be withheld
- It is said to be impossible to read into the statute a legislative intent…an opportunity to be
heard before any decision is made
- AG Canada v Inuit Tapirisat of Canada, “the essence of the principle of law here operating
is simply that in the exercise of a statutory power the governor in council, like any other
person or group of persons, must keep within the law as laid down by parliament or the
legislature”
- It is the legislative intent of the statute in question which will determine the availability of
judicial review

Kioa v Minister for Immigration and Ethnic Affairs (1985)

Facts: Mr Kioa applied for an extension of his temporary entry permit. The Kioas left their then
current address without notifying the Dept. An officer of the dept wrote to Kioa requiring him
to make immediate arrangements to leave Aust with his family. The Kioas failed to do so. The
Dept made a report recommending deportation. The Kioas sought review of the decision on
the grounds that they had been denied PF.
Appeal to the Full Fed Court was dismissed, they appealed to the HC.

Mason J:
- given no opportunity of replying to the matters stated in the directors submission to the
delegate
- s13 of the ADJR, there is an obligation under s13(2) upon the person making a decision, to
furnish a statement in writing setting out the findings on material questions of fact,
referring to evidence or other factors which those findings were made
- common law generally speaking, “when an order is to be made which will deprive a person
of some right or interest or the legitimate expectation of a benefit, he is entitled to know
the case sought to be made against him and to be given an opportunity to reply to it”
Twist v Randwick
- The act or decision which attracts the duty is an act or decision “which directly affects the
person individually and not as a member of the public. An executive or admin decision of
the latter kind is truly a policy or political decision and is not subject to judicial review”,
Salemi (No. 2)
- What does the duty to act fairly require in the circumstances of the particular case?...The
need to bring to a persons attention the critical issue or factor on which the admin

53
 decision is likely to turn so that he may have the opportunity of dealing with it, FAI
Insurance
- As the paragraph was extremely prejudicial the app should have had the opportunity of
replying to it
Wilson J:
- to order the deportation of Kioas must be set aside for want of PF
- decisions made under s18 must be attended with PF

Implications of the Duty: Particular Categories

The recognised category where procedural fairness applies includes:
a. acts conducted by the administrator
b. undertaking by the administrator
c. the application of international covenants
d. dismissals
e. where reputation is at stake
f. investigations

Acts by administrators
- If administrators base decisions on matters personal to those affected by the decision,
they are obliged to give people an opportunity to make submissions in connection to those
matters
- Council of Civil Service Unions v Minister of the Civil Service Court held that an
established policy of allowing employees of the Government to belong to a trade union
gave the unions a legitimate expectation of having this right continue- said that the
principle extended to consultation over important alterations in the conditions of service

Undertakings
- Haoucher v Minister for Immigration (1990) - an example of where the duty to provide
procedural fairness was implied by an undertaking given by the decision maker
- the court expressed the opinion that where applicants had gone to the effort and expense
of securing a tribunal finding in their favour they were entitled to have a legitimate or
reasonable expectation that the minister would abide by the AAT recommendations
- However the case was decided by 3-2 on the narrower ground that the Minister had
published a statements of policy stating that AAT deportation decisions would be
overturned only in “exceptional circumstances”
- The HC extended this notion of an official undertaking giving rise to the right to procedural
fairness

Application of International Covenants

- Minister for Immigration and Ethnic Affairs v Teoh - Teoh successfully appealed
against a denial of application for permanent residence status on the grounds that his wife
was not given a hearing, as parent of their children
- Shortly before the original decision to reject his application, the federal government
ratified the UN Convention on the Rights of the Child, which provided that in all actions
concerning children, the best interests of the child shall be a primary consideration
- Mason CJ and Deane J, the court held that “ratification of a convention is a positive
statement to the world and to the Australian people that the executive government and its
agencies will act in accordance with the Convention. That positive statement is an
adequate foundation for a legitimate expectation, absent statutory or executive indications

54
 to the contrary, that administrative decision-makers will act in accordance with the
Convention”.
- The AAT has held this statement to be effective to end any legitimate expectations based
on such treaties: Re PW Adams and Aus Fisheries Management Authority (No 2)

Dismissal from office of employment

- There is now considerable authority that a person can not be subject to disciplinary action
or removed from their employment or a club or society without a hearing
- Barratt v Howard - extended and reinforced the law in this area- hearing must be given
even when it can be dismissed at will by the minister- someone can be dismissed at will
- Gleeson CJ- Where Parliament confers a statutory power to destroy, defeat or prejudice a
person’s rights, interests or legitimate expectations, Parliament is taken to intend that the
power be exercised fairly and in accordance with natural justice unless it makes the
contrary intention plain. This principle of interpretation is an acknowledgement by the
courts of Parliament’s assumed respect for justice.

Investigations
- the HC in the case of Annetts v McCann (1990) made it clear that the rules of procedural
fairness will apply generally to investigations (see D&J 613)
- However the scope of the duty to act fairly and at which point in an investigation it comes
into play may depend on a number of factors:
1. Whether specific charges or general allegations are likely to be made against a person
or company
2. Whether the investigation’s findings have any effect or must be considered by an
authoritative body

Reputation
- In Ainsworth v Criminal Justice Commission the HC held that where a person’s
reputation might be adversely affected by a report, the maker of the report has to afford
procedural fairness

Preliminary Decisions
- How far preliminary decisions makers will be bound to provide procedural fairness depend
on the relevant legislation and the impact of the decision involved, particularly if it is one
that will be announced publicly.
- The HC used to take a restrictive approach to the duties of preliminary decision makers,
such as the company’s office inspector in Testro v Tait (1963) 109 CLR 353, but
procedural fairness is now more widely required. For example Laws v Australian
Broadcasting Tribunal
- In Li Shi Ping Drummond J said that where an applicant’s credibility is of critical
importance to a decision, the initial decision maker might have to hear the applicant in
person

Exclusionary Factors
- The courts have required procedural fairness at different levels
- The exclusionary factors include
a. where an effective appeal is provided for
b. political decisions
c. implementation of policy or rule making
d. the making of an interim decision only
e. necessity, secrecy and national security

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Appeals
- Where the legislation specifies an appeal process, two conflicting arguments arise
1. The primary decision maker does not need to act fairly because any injustice can be
rectified on appeal
2. The existence of an appeal mechanism may show that important interests are a stake and
therefore the right to procedural fairness should be required in the first instance
 Twist v Council of the Municipality of Randwick- The HC held that Twist had no right
to a hearing before Council
 Courtney v Peters, Lee J ruled that merits review by the AAT did not strip a Veterans
Review Board of the duty to provide procedural fairness
 The HC majority upheld this approach in Ex Parte Miah and extended it to original
decision maker. McHugh J listed seven factors
 Nature of the original decision
 Original decision made in public or private
 Formalities required for original decision
 Urgency of original decision
 Nature of the appellant’s body- judicial, internal, domestic
 Breath of appeal- limit on merits, facts etc
 Nature of the interest and subject matter

**Continuing trend towards procedural fairness at initial stages of review, even

without appeal**

Political Decisions

- Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd: The full court
held that the certain exercises of power were non-justiciable and that affected parties were
not entitled to insist that they be awarded procedural fairness.
Bowen CJ: “It is to Cabinet that the highest decisions of policy affecting Australia are
brought. Often the question s arising involve intense conflict of interests or of opinions in
the community. In Cabinet these conflicts have to be resolved. Decisions have to be taken
in the public interest, notwithstanding that the lives, interests and rights of some individual
citizens may be adversely affected by the decision.”

Policy and rule-making

- Policy making and rule making are generally regarded as belonging to the political sphere
and not subject to hearing processes.
- In South Australia v O’Shea, the HC drew a sharp distinction between the expert
decision of the Parole Board, where the Act expressly secured procedural fairness and the
political decisions to be made but the Governor in Council that is the cabinet.
- In policy and rule making cases, conceptual and practical problems also arise because of
(a) The difficulty of ensuring that all affected persons can be heard, and
(b) The instability of a situation where a rule or policy might be overturned on the basis of
individual concerns
- decisions of a wide ranging character it is impossible to seek procedural fairness to every
person affected by that issue

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- decisions effecting a class of people, the HC find that it is most likely not a matter of
procedural fairness or that the legislation does not intend procedural fairness

Secrecy, urgency, necessity

- In the Council of Civil Services Unions case mentioned earlier, the House of Lords held
that if there is enough evidence for a reasonable decision maker to conclude that a
hearing would be procedural to national security, there is no obligation to afford a hearing
- Despite the notorious vagueness and dangers of political bias involved in declaring
something to be contrary to national security, the court declared that the assessment was
one to be made by the government, not the court
- Some powers that require urgent action, for example to destroy dangerous animals,
quarantine persons with infectious diseases, or forcibly enter premises at a time of fire or
natural disaster, by their nature exclude natural justice: see Marine Hull & Liability
Insurance v Hurford (1985) 62 ALR 252

Procedural Fairness (Natural Justice)

What is Procedural Fairness?

Natural Justice:

 Right to a fair hearing

 Right to an unbiased decision

Kioa v West, Mason J:

A common law duty to act fairly, in the sense of according procedural fairness, in the making
of administrative decisions which affect rights, interests and legitimate expectations, subject
only to the clear manifestation of a contrary intention. (At 584)

The common law and legislation interface

Legislation may determine whether the duty to provide procedural fairness exists, what it
requires on the facts of the case.

Re Minister for immigration and Multicultural Affairs; Ex parte Miah [2001]

Hayne J:

57
The true construction of the statute will determine not only whether the rules of natural
justice apply, but also what those rules require. In the present case, the statute addresses the
subject of procedure with particularity, manifesting an intention to address in detail the
presently relevant requirements of procedural fairness, then the intention of Parliament as to
the issue that has arisen will be decisive. (At [53])

Semi-Public decision-makers

Procedural fairness doctrine extends to private bodies such as racing authorities, trade
unions, social clubs, political parties, professional disciplinary bodies and even churches – if
these bodies are exercising decision-making powers of public character.

Courts may examine the constitution or rules of these bodies to gauge the extent to which
procedural fairness should apply to the making of a particular decision.

Dale v NSW Trotting Club Ltd [1978] – a bias case was dismissed book maker objected to
being disqualified by a stewards committee that had exercised its right under the Rules of
Trotting to retain a barrister to assist it in the hearing. Reasonable observer would be familiar
with the club’s rules and would have understood that the barrister was wielding the powers of
the committee but merely properly assisting it.

Historical evolution

Dr Bentley’s Case [1723]

By stripping Dr Bentley, a renegade academic, of his degree, Cambridge University had

deprived him of what amounted to a “property” right.

Courts extend the right to procedural fairness to matters where not only definite legal rights
are at stake but also various broader interests, notably (a) commercial interests, (b)
employment, (c) individual liberty and (d) reputation, “Legitimate expectations” of the
protection of certain interests. “Legitimate expectation” can also arise because of official
representations made to a person, more so than because of the nature of the interest
affected.

Natural justice or procedural fairness?

Broader because procedural fairness may cover a wider range of decision-makers; thinner
because the standards required may be lower therefore easier to meet.

Kioa v West, Mason J:

Flexible obligation to adopt fair procedures which are appropriate and adapted to the
circumstances of a particular case.

Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) retains the expression
“natural justice” in providing for judicial review:

 Fairness to the individual or business, given appropriate opportunities to have their

arguments heard.
 Rule of law – protection from arbitrary power, requirement for a fair process.
 Good administration, decisions carefully made, after all aspects and sides to the issue
have been properly and impartially considered.

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Method of approach

Assessing how the principles of procedural fairness apply to a given situation:

 Whether the duty to observe procedural fairness exists

 The content of the duty in the given circumstances

Whether the duty to provide procedural fairness exists:

 Is the duty expressly provided for by the relevant legislation, or, alternatively, does the
legislation exclude or limit it?
 Is the duty to be implied, either on general principles or under one of the recognised
categories?
 Is the duty excluded by one of a number of factors?

Statutory provisions

Example – s 501 of the Migration Act 1958 (Cth) gives the minister two alternative powers to
deny a visa on grounds of bad character.

Administrative Decisions Tribunal Act 1997 (NSW) s 73 require the tribunal to abide by natural
justice. (See Sullivan v Department of Transport (1978) 20 ALR 323, where Deane J s 39 of the
Administrative Tribunal Act 1975 (Cth) recognised an obligation that the law would, in any
event, imply – a party must be given a reasonable opportunity to present his or her case.

Migration Act 1958 was amended to specify in s 51A that the code was “an exhaustive
statement” of the hearing rule in relation to the matters it deals with.

In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR
1009, required strict adherence to another section of the Act that said a refugee visa
applicant must be given a witness’s evidence in writing.

Saeed v Minister for Immigration and Citizenship [2010] HCA 23 the High Court held that s
51A did not apply to offshore visa applicants. Minister was obliged to afford an applicant the
opportunity to comment on information before the minister that was adverse to the applicant,
before making a decision on the application.

Commissioner of Police v Tanos (1958) 98 CLR 383 High Court stated that any legislative
intention to exclude the principles of natural justice had to be very clear. Such an intention “is
not to be assumed nor is it to be spelled out for indirect reference, uncertain references or
equivocal considerations. The intention must satisfactorily appear from express words of plain
intendment” (at 396).

Implication of the Duty: General Principles

Whether procedural fairness is required, or how much must be afforded, three kinds of factors.
Procedural fair-ness is more likely to be enforced if:

 The interest affected by the government decision is legally recognised or substantial

 Power being exercised is subject to specific criteria, rather than being highly political or
highly discretionary
 Decision, or the sanction to be imposed, has serious consequences.

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The broadening scope of procedural fairness

Broadening of this approach – Durayappah v Fernando [1967] 2 AC 337

Flexible general test for when the duty to provide natural justice arises, focusing on the three
matters listed above: (1) the interest affected – what is the nature of the property, the office
held, status enjoyed or services to be performed by the complainant of the injustice?; (2) the
nature of the power – what circumstances or upon what occasions is the person claiming to be
entitled to exercise the measure of control entitled to intervene?; and (3) the sanction
imposed – When a right to intervene is proved, what sanctions in fact is the latter entitled to
impose upon the other?

Ridge v Baldwin and Durayappah v Fernando were evident in 1968 in Banks v Transport
Regulation board (Vic) (1968) 119 CLR 222 – revocation of the of the appellant’s taxi licence
Was in breach of procedural fairness. Court felt constrained to rule that a taxi licence was a
form of property, so that a licence holder was entitled to a hearing before it was cancelled.

Forbes v NSW Trotting Club (1979) 143 CLR 24 – club was obliged to afford procedural fairness
before issuing a “warning off” notice excluding a racegoer from all race meetings. Members of
the public had a legitimate expectation to be given permission to attend race meetings if they
were not drunk, disorderly or otherwise unfit to be admitted.

Modern approach

Broader approach to natural justice FAI Insurances Ltd v Winneke; Fire and All Risks Insurance
Co Ltd v Winneke (1981) 151 CLR 342.

“Legitimate expectation” of some interest or privilege that it would be unfair to deprive a

person of without a hearing. The court said it would be wrong to give an exhaustive
classification of the cases where the principle should be applied.

Court said FAI had no legal right to be approved but declared that it had a legitimate
expectation that a renewal of approval would not be withheld.

Court rejected the objection that by vesting the Governor in Council – effectively the cabinet –
with a broad power of approval, parliament intended the decision to be made in the political,
not the administrative or judicial arena.

Court also overcame the practical objection that the Executive Council could not be forced to
grant a hearing. Duty to provide a fair hearing should be delegated to the appropriate
minister, the one charged by the statute with the responsibility of making a recommendation
to the Executive Council.

Relevant test to apply was no longer whether the duty to act fairly should be implied but
whether the underlying and assumed right to procedural fairness has been met.

S 5(1) of the ADJR Act, under which the deportation was challenged, does not create an
entitlement to natural justice in connection with all decisions to which it applied.
Nevertheless, the right established by that Act to have reasons given for decisions implied a
right to be fairly heard.

Kioa, Brennan J broadened his test to “any interest possessed by an individual”.

In FIA and Kioa the original decision made against them turned, at least in part, on their
individual attributes.

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SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 in
conducting a hearing by video link, had made a jurisdictional error by summarising orally the
adverse evidence given minutes earlier by another witness (a daughter), rather than
providing that evidence in writing as required by 424A of the Migration Act 1958 (Cth).

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs
(2005) 225 – Refugee Review Tribunal (RRT) denied procedural fairness by not disclosing the
contents of an adverse letter to the applicant, even though the Tribunal stated that it had
disregarded the letter. The judgement relied on two propositions. No problem of confidentiality
arises an opportunity should be given to deal with adverse information that is credible,
relevant and significant to the decision to be made. The second proposition was “information
of that kind created a real risk of prejudice, albeit subconscious, and it is unfair to deny a
person whose interests are likely to be affected by the decision an opportunity to deal with
the information”.

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367, a
delay of more than five years in a Refugee Review Tribunal was sufficient to deny procedural
fairness because of delay.

Gleeson CJ expressed the test of whether the delay was “so extreme” that there was a “real
and substantial risk” that the Tribunal capacity to assess the applicant was impaired.
In VEAL, the court held that procedural fairness did not require the RRT to give an applicant a
copy of an informant’s letter or provide the informant’s name. Procedural fairness only
required the Tribunal to tell the applicant “what was the substance of the allegations made in
the letter” and ask him to “respond to those allegations”.

Both VEAL and Kumar were based on s 359A of the Migration Act, Acts “exhaustive”
procedural code. Confidences are not protected in relation to the commission of crimes and
fraud.
To pull back from the extension of procedural fairness.

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37, the failure by RRT to comply
with a notification requirement under the Migration Act does not necessarily result in an unfair
hearing or a denial of natural justice.

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, the RRT had not fallen into
jurisdictional error when it failed to make further inquiry concerning the authenticity of certain
certificates relied on by an applicant in his claim for a protection visa.

Implication of the Duty: Particular Situations

Situations where procedural fairness applies include:

 Undertakings by the administrator

 Acts or conduct by the administrator
 Dismissals from office
 Where reputation is at stake
 Investigations

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Undertakings

Duty to provide procedural fairness made by implied by an undertaking given by the decision-
maker. Century Metals and Mining NL v Yeomans (1989) 40 FCR 564 : Members of the public
are entitled to expect that the person who will make the decision will bring to that task a mind
that is both uncommitted in fact and which appears to be uncommitted. (At 598).

Haoucher v Minister of State for Immigration (1990) 169 CLR 648 – Immigration Minister chose
not to accept an AAT recommendation revoking the applicant’s criminal deportation. Opinion
that where applicants had gone to the efforts and expense of securing a tribunal finding in
their favour, they were entitled to have a legitimate or reasonable expectation that the
minister would abide by the AAT recommendation.

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. Teoh successfully
appealed against a denial of application for permanent residence status because his wife was
not given a hearing, as parent of their children.

[R]ratification of a convention is a positive statement to the world and to the Australian

people that the executive government and its agencies will act in accordance with the
convention.

Attorney-General and Foreign Minister tabled a joint statement to parliament, declaring the
assumption of treaty obligations did not, and was not intended to, convey the expectation
that the government would be obliged to any individual to carry out the obligations of the
treaty.

Secure the substantive overturn of Teoh’s case, the government drafted the Administrative
Decisions Bill that expressly provided that no treaty obligation gave rise to a right to
procedural fairness.

Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502 – majority
took a restrictive view of the “legitimate expectation” produced by the UN Convention on the
Rights of the Child.

In Lam, the court also qualified the understanding of “legitimate expectation” more broadly.
The immigration department cancelled the applicant’s permanent visa on character grounds,
without contacting the carers of his children. Court held that not every departure from a
stated intention necessarily involves unfairness, even if it defeats an expectation. The
ultimate question remained whether there had been unfairness, not whether an expectation
had been disappointed.
Lam – Example – if a decision maker inform as a person affected that he or she will hear
further argument upon a certain point, and then delivers a decision without doing so, it may
be easy to demonstrate that unfairness is involved.

Kirby J – NAFF of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2004]
HCA 62 at [70]. Procedural fairness had been denied to an applicant whom an RRT member
had informed would be given a further opportunity to respond to the tribunal’s questions
about alleged inconsistencies in his evidence. The Court ruled to the applicant’s favour even
though the RRT was under no statutory obligation to provide such a further process.
Kirby J “Legitimate expectation”: The invalidating element is not the disappointment but the
anterior failure to conform to the law.

Acts by administrators
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If administrators base decisions on matters personal to those affected by the decision, they
are obliged to give people an opportunity to make submissions in connection to those matters
– Kioa.

Council of Civil Service Union v Minister for the Civil Service [19580 AC 374 – established
policy of allowing employees of the Government Communications Headquarters to belong to
trade unions a legitimate expectation of having this right continue.
In Geelong Community for Good Life Inc v Environment Protection Authority [2008] VSC 185.

(1) Public bodies could terminate, by appropriate means, legitimate expectations based on
previous practices; (2) the doctrine of legitimate expectation had no application to
statutory processes not directed toward third parties, such as the plaintiff; (3) the
relevant statutory framework counted against such a right; and (4) the interactions
between the parties did not give rise to any legitimate expectations.

Dismissals from office

Considerable authority that a person cannot be subject to disciplinary action or removed from
their employment or expelled from a club or society without a hearing. In Annetts v McCann
(1990) 170 CLR 596 at 598. The rules of natural justice regulate the exercise of a power to
dismiss a public official “unless they are excluded by plain words of necessary intendment”.
Jarratt v Commissioner of Police (NSW) (2005) CLR 44 – Commissioner of Police recommended
to the Governor that the applicant be dismissed from the office pursuant to the Police Service
Act (1990) (NSW) s51. Officer could be removed from office at any time by the Governor on
the recommendation of the Commissioner. Deputy Commissioner Jarratt was given no
hearing. The court held that s 51 did not specify that the power of removal could be exercised
without giving an officer a fair opportunity to be heard. Jarratt’s dismissal was invalid.

Macrae v Attorney General (NSW) (1987) 9 NSWLR 268. Magistrates not reap-pointed by the
government when it replaced petty sessions courts with local courts had a right to a hearing.

Annetts v McCann (1990) 170 CLR 596 – rules of a procedural fairness will apply generally to
investigations.
Factors including: (1) Whether specific charges or general allegations are likely to be made
against a person or company; and (2) whether the investigation’s finding have any effect or
must be considered by an authoritative body.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564>
The High Court held that where a person’s reputation might be adversely affected by a report,
the maker of the report has to afford procedural fairness.

Preliminary decisions?

Laws v Australian Broadcasting Tribunal. After meeting 2GB executives but not laws, the
tribunal announced that the broadcast had breached program standards that prohibit. The
Federal court held that the decision to hold an inquiry, which attracted much publicity, was
vitiated by a breach of the rules of natural justice because Laws himself had not been given a
hearing.

Edelsten v Health Insurance Commission (1990) 27 FCR 56 – Federal Court did not require a
departmental officer and minister’s delegate to give Dr Edelsten a hearing when finding there
was sufficient evidence of over-servicing to refer the matter to an inquiry. Factors operating to
exclude or limit procedural fairness.

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 Exclusionary and Restricting Factors

Exclusionary and curtailing factors include;

 Where an effective appeal is provided for;

 Political decisions, or policy or rule-making;
 Necessity, secrecy and national security

Where appeals are provided for

Twist v Council of the Municipality of Randwick (1976) 136 CLR 106. Randwick Council
condemned Twist’s property as being dilapidated and unsightly under the New South Wales
local government legislation without giving him a hearing. But an appeal lay to a judge of the
District Court, on both facts and law, an appeal that Twist did not pursue in time.
Barwick CJ said the right to a hearing was fundamental but could be excluded by statute,
provided that such an intention was unambiguously clear.
Courtney v Peters (1990) 27 FCR 404, where Lee J ruled that merits review by the AAT did not
strip a Veterans Review Board of the duty to provide procedural fairness. Lee J emphasised the
unnecessary expense and delay involved in pursuing an appeal to the AAT.
The High Court majority upheld this approach, and extended it to an original decision-maker,
in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22.

Kirby J – adverse determinations by delegates of refugee applications in Australia are rarely

disturbed by the Tribunal. If this so, it lends still greater emphasis to the importance of
ensuring that the initial decision is correct.

Policy and rule-making

South Australia v O’Shea (1987) 163 CLR 378. Turning on policy considerations. Decisions to
release prisoners, particularly those convicted of sex offences involving children, as O’Shea
was, are often regarded as sensitive political decisions for a government to make.

Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274. Cabinet
decision to include Stage II of the Kakadu National Park for inclusion on the World Heritage List
was a complex and sensitive political one involving a variety of competing interests and
therefore did not require procedural fairness to be afforded to the company.

Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, the Federal Court ruled that a
delegated legislation-making power to determine pathology services tables did not require
procedural fairness. If affected a broad range of medical practitioners and patients.

Bread Manufacturers of NSW v Evans (1981) 56 ALJR 89 – drawing of a distinction between an

action that directly affects a person individually and one that affects him simply as a member
of the public or a class of the public. An executive or administrative action of the latter kind is
a “policy” or “political” decision and is not subject to judicial review.

Secrecy, urgency and necessity

Powers that require urgent action, for example to destroy dangerous animals, quarantine
persons with infectious diseases, or forcibly enter premises at a time of fire or natural
disaster, by their nature exclude natural justice, see Marine Hull & Liability Insurance v
Hurford (1985) 62 ALR 253. This principle will only apply to the use of such powers where the

64
situation is actually urgent: see Commissioner of Police v Tanos (1958) 98 CLR 383.
Edelsten v Federal Commissioner of Taxation (1985) 85 ALR 226. Einfeld J dismissed
Edelsten’s claim that he had been denied natural justice by not being given advance notice of
a taxation Departure Prohibition Order.

Grech v Featherstone (1991) 33 FCR 63. Heerey J ruled statutory power of arrest to be totally
inconsistent with any recognisable form of natural justice.

National security may also be an exception. In Council of Civil Service Unions v Minister for
the Civil Service (1985) AC 374, if there is enough evidence for a reasonable decision-maker
to conclude that a hearing would be prejudicial to national security, there is no obligation to
afford a hearing.
Assessment was one to be made by the government, not the court.

Leghaei v Director-General of Security [2005] FCA 1576. ASIO’s director-general was only
obliged to positively consider how much information might be disclosed to the applicant
without unduly detracting from national security.
“It is well recognised that reasons of national security may make it impossible to disclose the
grounds on which the executive propose to act.”
Church of Scientology v Woodward (1982) 154 CLR 25 at 76, which the public interest in
national security would rarely yield to the public interest.

Coutts v Commonwealth (1985) 157 CLR 91 – decided that because of public policy
considerations attached to appointment in the armed forces, an air force pilot could be
compulsorily retired on medical grounds without a hearing.

“The rule of necessity would ensure that the tribunal is not disabled from performing its
statutory functions”. They said: “The rule of necessity permits a member of a court who has
some interest in the subject matter to sit in a case when no judge without such interest is
available to sit (at 88).

Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 123 ALR 323, the court
emphasised that sometimes it may be necessary for a judge not to disqualify himself or
herself too readily for perceived bias.

Requirements of Procedural Fairness: Hearing Rule

- The requirements of procedural fairness are ultimately subject to any relevant legislation.
- If legislation lays down rules relating to the decision making process and it is clear from
the express language of the legislation or from its overall scheme that these are to prevail
over the procedural fairness requirements, then the legislation will prevail
- where legislation is silent, the standards expected of the decision maker are determined by
reference to what seems appropriate given the context within which the decision is to be
made
- Those who barely succeed in establishing their right to procedural fairness will be entitled
to no more than a relatively attenuated (satisfying) form of procedural fairness. Those who
effortlessly establish their right to procedural fairness will be entitled to expect that the
decision maker complies with rigorous standards

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The Content of the Hearing Rule

1. The form of the hearing

- This is determined by reading the common law tradition of natural justice in light of
relevant legislation. May simply be a mere submission of written responses. The factors
that indicate a duty for procedural fairness will also affect the substance of the hearing
required (nature of applicants’ interests, etc)
-

2. The right to know matters to be considered

- A minimal requirement for procedural fairness.
- An affected person must be told of prejudicial material and be given a chance to respond
(Kioa v West)
- Re Macquarie University, Ex parte Ong: While people must be informed of the kind of
matters a decision maker is taking into account, they need not be informed of he precise
nature of matters which decision makers might take into account

- Restricted not to include documents in the process of an investigative process, only an

adversarial hearing. Right to reply only exists as evidence is given to the tribunals, not
during investigations (Bond v ABT)
- Bond v Australian Broadcasting Tribunal (No 2) - question whether Bond was a fit
and proper person to hold a broadcasting licence. Some particulars of the matters the
Tribunal was considering were provided, but Bond objected they were inadequate. Wilcox:
did not grant Bond the right to be informed of all the matters to be considered in the
inquiry. The inquiry was an investigative and inquisitorial proceeding and not an
adversarial one
- May be negated on policy grounds, like confidentiality. In Ansett v Minister of Aviation
there was no obligation to provide confidential documents to Ansett
- Contrast: In Minister for Immigration v Kurtovic - Kurtovic was given the chance to
make submission with respect to the proposed deportation but was not shown the contents
of the reports, nor advised to their general affect. The reports were not made available to
Kurtovic, but they were to his lawyers. This ensured that the confidentiality and safety
interests of the parole officer and informants could be protected

- Sometimes a decision maker must warn applicant of possible adverse findings (Somaghi v
MILGEA) (Heshmati v MILGEA) where the administrator acts on the basis of prejudicial
material whose existence is not known to a person who is thereby adversely affected
-
- Somaghi v MILGEA and Heshmati v MILGEA: Jenkinson J: ‘an unfavourable
animadversion, by the decision maker or expressed by a departmental officer to the
decision maker, upon the conduct of an applicant, or even of another person whose
interest in a decision favourable to the applicant is to be weighed by the decision maker,
should be disclosed to the applicant so that he may respond, if the animadversion is not an
obviously natural response to the circumstances which have evoked it’

3. Rights arising from administrative norms

- Acts and undertakings of administrators may affect the way a hearing must be conducted,
this may mean providing equal treatment to all applicants.

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- Hamilton v Minister for Immigration - Held an applicant not given proc fairness when
was not provided with explanatory notes given to all people filing out applicant forms as
this was not a consistency of treatment/equal access to usual procedures.
- “In the normal course, a decision maker is not obliged to provide an applicant with
assistance or advice. However in circumstances such as the present an applicant as a
matter of procedural fairness, is entitled to the assistance of those notes.”
- “As a general rule, consistency of treatment of persons the subject of administrative action
is of primary importance in good administration”

4. The Right to make oral submissions

- May dilute right to hearing to only written submission (Barratt v Howard)
- This is particularly the case in high volume decision making where there is not anything
exceptional (Chen v Minister for Immigration)
- While traditional court hearings are highly oral, oral proceedings are scarcely a pre-
requisite for justice
- courts have recognised numerous circumstances where procedural fairness will be
satisfied by inconsistence on, and acceptance of written submissions

5. The Right to Legal Representation

- Cains v Jenkins “There is no absolute right, even where livelihood is at stake.” The
requirement will vary depending on the seriousness and complexity of the matter and
legal/factual issues and the circumstances of the person (deaf, non English speaking, etc)
- A person with tertiary qualification and normal amount of confidence is said not to require
representation in front of a lay body (Kristic v Australian Telecommunication
Commission)
- The tribunal is expressly empowered to “inform itself in such manners as it thinks fit” and
to determine its own procedures (Kristic)
- Where a witness is denied legal representation due to legal aid, this will not halt
proceedings of a commission. (NSW v Canellis)

6. The Right to Cross Examine

- Where there is a right to a hearing before a tribunal, it does not follow that there is a right
to cross examine witnesses. (National Companies and Securities Commission v News
Corp).
- Especially so where this would be contrary to the purpose/nature of the hearing.
- O’Rourke v Miller, HC denied probationary constable the right to cross examine evidence
of informants whose evidence had him terminated. However this was a case where there
was no formal right to a hearing.

7. A right to have all members consider the evidence?

- Appears no right exists. (Re Macquarie University; Ex parte Ong)
- Might be different where body is acting on material presented directly to itself or if it is
reasonable to expect each member to acquaint him/herself with the evidence.

 The effect of a minor breach: If a right to fair hearing is denied the result is
theoretically void. But a remedy may be withheld if the breach would have made no
difference to the result. Where a breach might not effect a decision, there is discretion
to refuse remedy. (Hamilton)
 The test applied is that a proper hearing “could not possible have produced a different
result.” (Stead v Government Insurance Commission)

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 The Bias Rule, Reasons and Probative Evidence

- the requirement that decision makers approach their task with an open mind is implicit in
most of the grounds for judicial review
- covers not only actual bias but “reasonable apprehension of bias”
- courts are generally willing to tolerate both a limited amount of actual and apparent bias
- The Bias Rule - Actual and Perceived Bias
1. No one should be a judge of his or her own cause
2. Justice must not only be done, but must be seen to be done

a. Actual bias: requires proof that the mind of the decision maker was actually partial and
not amenable to persuasion by any evidence. This is more difficult to prove than showing
that a reasonable observer would perceive bias: Gamaethige v Minister for Immigration
and Multicultural Affairs
 Laws v Aust Broadcasting Tribunal: Complaints were made to the ABT that Laws
had infringed upon the standards laid down by the tribunal under the Broadcasting Act.
The tribunal found there was a breach and announced that it would be conducting a
public inquiry into the consequences which should follow. Laws commenced proceedings
seeking review of the tribunal’s decision that he had breached the standards.
 Mason CJ and Brennan J:
- the defences to the action of defamation give rise to a suspicion of pre-judgment or
because the members of the tribunal have a conflicting interest in defeating that action
- the existence of apprehended bias is a question of fact
- in assessing what the hypothetical reaction of a fair-minded observer would be, we must
attribute to him or her knowledge of the actual circumstances of the case
 Gaudron and McHugh JJ:
- a fair minded observer would infer that, in filing the defences justification and contextual
justification, the members of the tribunal formed the opinion that the assertions in those
defences were true
- a reasonable bystander does not entertain a reasonable fear that a decision maker will
bring an unfair or unprejudiced mind to an inquiry merely because he has formed a
conclusion about an issue involved in the inquiry

b. A Reasonable Apprehension of Bias: the test is that of a reasonable observer

 Bird v Volker
- the grounds that alleged biases were not reasonable grounds and they would never enter
into the decision making process- culture may not cause bias from the standpoint of a
reasonable observer
- even if the applicant was genuine in his perception of bias, his belief was not reasonable
 Laws v ABT - the test was modified to be that of a reasonable and fair minded
observer, with some knowledge of the actual circumstances of the case and also of the
normal considerations applying to legal actions

c. Varying Standards (impartiality standards)

4 levels
1. courts
2. quasi judicial bodies (e.g. industrial commissions)
3. domestic or consensual bodies
4. ministers and political decision makers

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Courts - highest level of impartiality
 Pinochet case - Lord Hoffman was disqualified from the case because he and his wife
worked for Amnesty International
 Kartinyeri v Cth - Callinan J was involved in the Hindmarsh Island Bridge case and
didn’t disqualify himself despite his connection with the issue. It was later found that his
connection to the case was stronger than what he had said so he disqualified himself
from the case
 Ebner v Official Trustee - HC cast aside the principle of automatic disqualification for
judges who have a direct pecuniary interest in a case, no matter how small. They
suggested that the question of whether a pecuniary interest may give rise to a
reasonable apprehension of bias should be determined according to the same reasoning
as all other cases

Domestic Tribunals - professional, sporting and trade union associations

 Maloney v NSW National Coursing Association Ltd - court emphasised the lower
standard of impartiality required of a domestic tribunal where the members of an
association impliedly consented to be governed by a body that by its nature could not
be free of personal differences and factional strife
 Dale v NSW Trotting Club Ltd - Barrister was retained to assist in the hearing.
Primary judge ruled that a reasonable person would have concluded that the barrister
would exercise a prejudicial influence over the committee. Court of appeal overturned
the decision, stating that a hypothetical observer would have to be a club member
familiar with the rules and would have understood that the barrister was not wielding
the powers of the committee but merely assisting it
 Cain v Jenkins -the court said a lower standard applied to a consensual tribunal than
to a statutory one

Ministers - More leeway has been given to govt ministers and others making political
decisions in the sense of allowing them to make decisions in accord with previous
statements of their intention or general policy
 Franklin v Minister of Town and Country Planning -Minister can make decisions in
accord with previous statements of their intention or general policy…this does not
mean he approached the matter ‘with a closed mind’
 Century Metals and Mining NL v Yeomans - Fed Court applied to a minister the
standard of impartially required of a judge. The court accepted this principle, but said
that it did not apply in the case because of an undertaking by the minister that the
relevant decision would be made by an impartial assessor
o ‘if a minister…chooses to announce that a particular decision will be preceded by an
‘impartial’ assessment, members of the public are entitled to expect that the person
who will make the decision will bring to that task a mind that is both uncommitted in
fact and which appear to be uncommitted’

d. Institutional Bias
 Minister for Immigration, Local Govt and Ethnic Affairs v Mok Gek Bouy -
refugee challenged the rejection of her application for refugee status. 2 years earlier
the PM had publicly declared that boat people were not genuine political refugees. Fed
Court rejected her allegation of a reasonable apprehension of bias

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  Re Refugee Tribunal; Ex parte H - where the alleged bias is individual, albeit
reflecting systematic or institutional bias, the prospects of success may be higher. HC
decided that the constant interruptions and challenges to the evidence of the applicant
by the tribunal member constituted a reasonable apprehension of bias

e. Judges with known beliefs

 R v Cth Conciliation and Arbitration Commission; Ex parte Angliss
- judges are entitled to express prior views, provided they do not appear to have closed
their minds to the argument
- grater leeway is given to bodies such as industrial commissions which are expected to
make policy assessments
- “those requirements of natural justice are not infringed by lack of nicety but only when
it is firmly established that a suspicion may reasonably be engendered in the minds of
those who come before the tribunal or in the minds of the public that the tribunal or a
member or members of it may not bring to the resolution of the question arising before
the tribunal fair and unprejudiced minds...such a mind is not necessarily a mind which
has not given thought to the subject matter or one which, having though about it, has
not formed any views or inclination of mind upon or with respect to it”

f. Judges who express provisional (temporary) views

 Vakauta v Kelly - given leeway to express such views, particularly where it might be
necessary of helpful in order to give the parties an indication of how the courts opinions
are developing
 Kaycliff Pty Ltd v ABT - it can be useful for the parties to be given an insight into
some or all of a courts or tribunals developing opinions. The court was of the opinion
that statements made outside or without the authority of a court or tribunal by non
members cannot, in general, disqualify it from proceeding

g. Prosecutors acting as judges: the Stollery principle

 FAI Insurances Ltd v Winneke: the minister or his delegates were, in a sense, both
prosecutors and judges. Investigated grounds for licence and then made a decision.
Dual purpose administered by statute, not legally objectionable. Issue lies when the
decision maker will hear complaints from other sources and will impose penalties
 Stollery v Greyhound Racing Control Board: someone who is the
prosecutor/investigator should not be the judge. HC held that Smiths (witness) mere
physical presence during the Boards deliberations was sufficient to give rise to a
reasonable apprehension of bias, even if his presence had no actual bearing on the
outcome. Smith was in the position of an accuser as well as being an influential person
in the sport

Chapter 12

The Content of the Hearing Rule

If a decision-making process involves a duty to provide procedural fairness, what must a
decision-maker do to meet that requirement?
How much can an applicant insist upon by way of a fair process?

What kind of Hearing?

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Fair procedure may range from a full court-style hearing, complete with legal representation
and cross-examination of witnesses, to a mere submission of written responses.

Written Submissions May Suffice

Barratt v Howard (No 2) [1999] FCA 1183. Only the right to make a written submission. High-
volume decision-making involving a one-off decision by the Defence Minister.
Chen v Minister for Immigration (1993) 45 FCR 384. Applicant for refugee status.
Might be circumstances where applicants were entitled to an oral hearing, particularly if their
credibility were challenged.
Li Shi Ping v Minister for Immigration (1994) 35 ALD 557, Drummond J said that, where an
applicant’s credibility is for critical importance to a decision, the initial decision-maker might
have to hear the applicant in person.

A Minimal Content?

Graham v Baptist union of NSW [2006] NSWSC 818. Looks to see whether in any particular
case in all the circumstances fairness has been done. (At [34])

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37. Failure by the Refugee
Review Tribunal (RRT) to comply with a notification requirement under the Migration Act does
not necessarily result in an unfair hearing or denial of natural justice.

The Right to Know the Matters to be considered

Minimal requirement person affected by a decision must be told of material prejudicial to their
case and be given a fair opportunity to respond. Kioa v West (1985) 159 CLR 550, SAAP v
Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and Applicant
VEAL of 2002 v Minister for Immigration and Multicultural and indigenous Affairs [2005] HCA
72.

Re Macquarie University; Ex parte Ong (1989) 17 NSWLR 113.

Brennan J in Kioa v West adverse information that is “credible, relevant and significant”.

Mason J in Kioa v West common law would require the decision-maker to bring to the attention
of the person the critical issue or factor on which the decision was likely turn.

Bond v Australian Broadcasting Tribunal (no 2) (1988) 19 FCR 494. Inquiry remained an
investigative proceeding, rather than an adversarial hearing.

Procedural fairness required only that bond be given a change to reply to such a prejudicial
material as was presented to the inquiry.
The right to the informed of prejudicial material might be negated on public policy grounds. In
Ansett v minister for Aviation (1987) 72 ALR 469. Ansett was not entitled to access to
confidential material supplied to the minister by one of its competitors.

Minister for Immigration v Kurtovic (1990) FCR 193, Federal Court did not allow considerations
of confidentiality and safety of an officer and informants to stand in the way of supplying
reports to a prisoner facing deportation, or rather to the prisoner’s lawyer.

Delay

Undue delay as a denial of procedural fairness, NAIS v Minister for Immigration and
Multicultural and Indigenous Affairs (2005). Lengthly delay, during which circumstances could

71
change or witnesses and other evidence become more difficult to provide, can unfairly hinder
an applicant’s ability to present a case.

Gleeson CJ, the test is whether the delay was “so extreme” a “real and substantial risk” that
the tribunal’s capacity to assess the applicant was impaired. Extraordinary delay could violate
procedural fairness in some circumstances.

Administrative Norms

Hamilton v Minister for Immigration (1993) 35 ALD 305, an applicant was denied procedural
fairness when she was not provided with the explanatory notes normally given to people
filling out application forms. Beazley J said procedural fairness normally require consistency of
treatment and equal access to the usual procedures.

Cairns v Jenkins (1979) 28 ALR 219 was no absolute right to legal representation, even where
livelihood is at stake.

Krstic v Australian Telecommunications Commission (1988) 20 FCR 486. Restrictive view of

the right to representation before a lay body.

“A person with a tertiary qualification and a normal amount of self-confidence should require
no representation or assistance”.

New South Wales v Canellis – “there is no authority for the proposition that the rules of
procedural fairness extend to a requirement that legal representation be provided to a party
at a trial, let alone a witness at an inquiry”.

The court rejected the extension of the principle of Dietrich v R (1992) 177 CLR 292.

Cross-examination of Witnesses

It does not follow that a person affected necessarily has a right cross-examine witnesses: see
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296.

The High Court the right of the NCSC to refuse that application.

O’Rourke v Miller (1985) 156 CLR 342 denied a probationary constable, who was terminated
on the evidence of informants, the right to cross-examine them.
No right to a formal hearing before a tribunal or even the Police Commissioner.

Must All Members Consider the Evidence?

Re Macquarie University; Ex parte Ong, no such right exists. Not necessary for the university
council members to personally consider the material.

The Effect of a Minor Breach

Stead v Government Insurance Commission (1986). The test applied to deny relief was
whether a properly conducted hearing “could not possibly have produced a different result”.

VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs v Awan
[2003] FCAFC 140. In some circumstances it was appropriate to refuse relief if the breach of a
procedural requirement of the Migration Act 1958 (Cth) was merely technical and did not
affect the outcome, or the applicant was not in fact disadvantaged.

Need for judicial caution before concluding that a breach is immaterial – Kioa v West, where
the applicants ultimately obtained a different substantive outcome.
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Exercising Appeal Rights or Waiving the Right to a Fair Hearing

Calvin v Carr [1980]. Concerned an appeal de novo – that is an appeal hearing all the issues
afresh. The New South Wales Supreme Court had found a denial of natural justice by the
stewards but that the appeal had cured the breach.

The Privy Council said no clear and absolute rule could be laid down on whether defects in
natural justice at an initial hearing, either administrative or quasi-judicial, can be “cured”
through an appeal.

Ackroyd v Whitehouse court ruled that by exercising a right to appeal, the plaintiff had not
disqualified himself from seeking relief.

R v Magistrates Court at Lilydale; Ex parte Ciccone [1973] VR 122, barred the applicant from
seeking relief from a biased decision of a magistrate because the applicant and his lawyer had
chosen to let the bias pass in the hope of securing a favourable decision from the magistrate.

Vakauta v Kelly (1989(167 CLR 568 – failure to object to alleged bias amounted to a waiver.

Chapter 13

The Bias Rule, Reasons and Probative Evidence

Bias rule, possible tenets of procedural fairness – the right to be given reasons for a decision
and the right to have a decision based on probative evidence.

The Bias Rule – Categories of bias: actual and perceived

Perceived bias – imputed, presumed, ostensible or apprehended bias. Perceived bias is

ordinarily the allegation pursued in judicial review, because it is much easier to establish.

Test for perceived bias is sometimes referred to as the “two might’s” test. Entertain a
reasonable apprehension that the decision-maker might not bring an impartial and
unprejudiced mind to the resolution of the question involved in it.

Cases of actual bias are rare because success requires proof that the mind of the decision-
maker was actually partial and not amenable to persuasion by any evidence. This burden of
proof is more difficult to satisfy than showing that a reasonable observer would perceive bias:
See Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 at
442-3.

The test for imputed bias is not purely subjective, that is, to be determined by whether an
aggrieved party considers the decision-maker to be biased. The Standard is that a reasonable
observer: would such a person perceive bias?

Ebner v Official Trustee (2000) 205 CLR 337, a High Court Majority essentially collapsed the
three categories into two: actual and perceived.

Minister for Immigration and Multicultural Affairs v Jia Legeng

“Imputed Bias”
“In all the circumstances the parties or the public might entertain a reasonable apprehension
that [the decision-maker] might not bring an impartial and unprejudiced mind to the
resolution of the question involved in it.”
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Amendments of the Migration Act 1958 (Cth) (“The Act”) limited the grounds upon which the
Federal Court can review decisions. Relief has been confined, relevantly, to cases of “actual
bias”

The contention that a Minister, discharging powers conferred upon him by statute, made a
decision for reasons of personal prejudice, bias and unalterable prejudgment against an
individual, clearly involves a most serious accusation.
Accusations are distinctly made and clearly proved. The accusation of such bias must be
“Firmly established”.

Bird v Volker
Re Finance Sector Union of Australia; Ex parte Elation Pty Ltd (1992) “caution must be
exercised by the courts in relation to these applications” [for disqualification of a judge].

His belief was no reasonable. Bird v Minister for Schools, Vocational Education and Training
(1994). Drummond J said Bird’s arguments were “such that no person, acting reasonably,
could possibly think that there was any substance in any of them” (at 556).

A complicated application of the “reasonable person” test was Laws v Australian broadcasting
Tribunal (1990) 170 CLR 70. A reasonable and fair-minded observer, with some knowledge of
the actual circumstances of the case and also of the normal considerations applying to legal
actions.

Glynn v Independent Commission against Corruption (1990) 20 ALD 214.

Mythical reasonable observer had to be credited with the knowledge that judicial officers and
legal practitioners legitimately expose provisional views for debate.

Varying standards?

Four-tier layer of standards:

 Courts; R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte

(No 2) [2001] 1 AC 119.
Callinan J – Hindmarsh Island Bridge case in 1998, notwithstanding his prior connection
in the issue (Kartinyeri v Commonwealth [1998] HCA 52).
Ebner v Official Trustee (2000) 205 CLR 337 majority discarded the principle of
automatic disqualification for judges who have a direct pecuniary interest in a case, no
matter how small.
Strict standard of detachment applied to judges Antoun v R [2006] HCA 2. A trial judge
presented an appearance of prejudgement by stating that an application for “no case to
answer” would be unsuccessful, even though the application had no substance.

In Rajski v Wood (1989) plaintiffs must not be permitted to use the bias rule to “forum
shop” for a favourable judge:
 Quasi-judicial bodies (e.g., industrial commissions); Keating v Morris [2005].
Recognition of the Inquiry’s inquisitorial and reporting function and its powers allowed
the Commissioner to take a more active, interventionary and robust role in ascertaining
the facts and a less constrained role in reaching conclusions than applies in litigation.
In Re Maurice; Ex parte Attorney-General the Aboriginal Land Commissioner should be
disqualified from proceeding further with the kenbi claim because he had made
remarks that would give rise to a reason-able apprehension of bias.

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 Domestic or consensual bodies; Maloney v NSW National Coursing Association Ltd
[1978] court dismissed a bias allegation where the committee that expelled Maloney
included two members who gave evidence against him. Lower standard of impartiality
required of a domestic tribunal where the members of an association impliedly
consented to be governed by a body that by its nature could not be free of personal
differences and factional strife.
Dale v NSW Trotting Club Ltd [1978], a bias case was dismissed where a bookmaker
objected to being disqualified by a stewards committee that had exercised its right
under the Rules of Trotting to retain a barrister to assist it in the hearing.
Stating that a hypothetical observer would have to be a club member familiar with the
rules and as such would have understood that the barrister was not wielding the
powers of the committee but merely properly assisting it.

Cain’s v Jenkins (1979) Federal Court dismissed a bias allegation made by Cains. Cains
rejected the right of eight committee members to participate in the decision because
they had been involved in laying the charges against him. A lower standard applied to a
consensual tribunal than a statutory one. Decision against Cains would only be vitiated
if the committee members had prosecuted the charges against him and were
“invincibly biased: in the sense of not being open to reason or argument.

 Ministers and political decision-makers; Franklin v Minister of Town and Country

Planning [1948] made a speech affirming his decision before receiving an inspector’s
report from a public hearing into objections to the minister’s original announcement.
Reaffirmed his decision. Minister had considered the objections and the report and had
not approached them with a closed mind. That was all that was required.
Hot Holdings v Creasy (2002) government ministers should not be expected to abide by
the same standards of impartiality as judicial decision-makers.

Century Metals and Mining NL v Yeomans (1989) Court applied to a minister the
standard of impartiality expected of a judge. Because of an undertaking by the minister
that the relevant decision would be made by an impartial assessor.

If a Minister, chooses to announce that a particular decision will be preceded by an

‘impartial’ assessment, members of the public are entitled to expect that the person
who will make the decision will bring to that task a mind that is both uncommitted in
fact and which appears to be uncommitted. (At 598).
A more stringent approach to ministerial bias was taken by Lloyd J of the New South
Wales and Environment Court in Gwandalan Summerland Point Action Group Inc v
Minister for Planning (2009) in the case of a power exercised by a minister, the
standard depended upon the nature of the task given to the minister. Exercising his
powers as a public office-holder in the capacity of an administrative decision-maker
determining a particular development proposal.

Institutional bias

Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994). A
refugee challenged the rejection of her application for refugee status. Two years earlier,
the Prime Minister had declared publicly that boat people were not genuine political

75
refugees and he would ensure that they would not be allowed to “queue jump”. Rejected
her allegation of a reasonable apprehension of bias.

Alleged bias is individual, the prospects of success may be higher. In Re Refugee Review
Tribunal; Ex parte H (2001) the High Court granted constitutional writs quashing a decision
of the Refugee Review Tribunal where the constant interruptions of, and challenges to, the
evidence of the applicant by the tribunal member exceeded vigorous testing of the
evidence and constituted a reasonable apprehension of bias.

Decision-makers with known beliefs

Bias in semi-judicial bodies: R v Commonwealth Conciliation and Arbitration Commission;

Ex parte Angliss (1969) CLR 546. But only when it is firmly established that a suspicion
may reasonably be engendered in the minds of those who come before the tribunal or in
the minds of the public that the tribunal or member or members of it may not bring to the
resolution of the questions arising before the tribunal fair and unprejudiced minds.

Decision-makers who express provisional views

There is an ill-defined line beyond which the expression by a trial judge of preconceived
view about the reliability of particular medical witnesses could threaten the appearance of
impartial justice: Vakauta v Kelly (1989). Dismissed a second ground of bias, conversation
between the chairperson’s husband and another that statements made outside and
without the authority of a court or tribunal by non-members cannot, in general, disqualify
it from proceeding.
McGovern v Ku-Ring Gai Council [2008] two councillors had indicated their support for the
approval of a land development well before the council made a final 7 to 3 decision to
approve the application.

Investigators acting as adjudicator’s: the Stollery principle

Stollery v Greyhound Racing Control Board (1972). Stollery apparently sought to bribe
(with $200) Smith, a member of the Greyhound Racing Control Board and the manager of
a racing association, with a view to getting a start for his dogs. Smith gave evidence at the
Board’s subsequent inquiry, which was present for the entire inquiry. Smith’s mere physical
presence during the board’s period of deliberations were sufficient to give rise to a
reasonable apprehension of bias, even if his presence had no actual bearing on the
outcome. The court said Smith was in position of an accuser, as well as being an influential
person to the sport. This has become known as the Stollery principle.

Re Macquarie University; Ex parte Ong (1989) Vice Chancellor wrote to members of the
University council supporting a committee recommendation that his position of head of
university’s law school be declared vacant. She did not attend the council meeting. Her
letter constituted participation in the meeting.

Reasons for Decision

Public Service Board of New South Wales v Osmond (1986), the High Court rejected the
argument that procedural fairness requires reasons, or at least said it was not required on
the facts of the case. Deane J said more inclined to find a duty to give reasons implied in
legislation in the absence of clear intent to the contrary. Cypressvale v Retail Shop Leases
Tribunal (1996)

Probative Evidence
76
 Re Pochi and Minister for Immigration and Ethnic Affairs (1980) they must base their
decision “upon material which tends logically to show the existence or non-existence of
facts relevant to the issue to be determined.”
In Australian Broadcasting Tribunal v Bond (1990).

Week 12 Limits to Fairness, the Status of Irregular Decisions and Ouster clauses.

I. Limits of Fairness

a. Curing Departures from Procedural Fairness

- Failure to comply with the rules of procedural fairness is normally a ‘fatal error’ - normally
treated as void. The decision maker will then be required to reconsider the matter.
- Position may change if the ‘victim’ of the denial of procedural fairness has chosen to
appeal against the decision, using a formal review avenue open to people who are upset
by the decision.
- Twist v Council of the Municipality of Randwick -found that appealing a decision to a higher
authority, even when natural justice has not occurred, is an acceptance that the decision
was valid, and therefore returning to the original decision maker on the grounds of lack of
natural justice would not be allowed.
o Held (per Mason J): “But if the right of appeal is exercised and the appellate authority
acts fairly and does not depart from natural justice, the appeal may then be said to have
“cured” a defect in natural justice or fairness which occurred at first instance. This is
because the party affected has elected to treat the administrative decision as a valid,
though erroneous decision, by appealing from it, in preference to asserting his right to a
proper performance by the authority of its duty at first instance.”
- The courts have taken a different approach when appeals are made under legislation to a
minister of Parliament.
- Ackroyd v Whitehouse, Kirby P stated that there is no principle that an appellant is to be
put out of court, and denied the discretionary intervention of the court to uphold the
principles of natural justice, on the basis that he has elected to appeal. If an original order
was invalid, for want of observance of the rules or natural justice, he can still complain of
it, notwithstanding the appeal: Annamunthodo v Oilfield Workers Trade Union, he argues
that.

b) Waiving the right to an unbiased decision maker.

- Situations will arise where people become aware that they are being denied procedural
fairness, but fail to protest until the appeal has been concluded
- Vakauta v Kelly: GIO personal injury decision, action to the Supreme Court of NSW. Medical
evidence was given by a doctor who was obviously biased. At no time did GIO complain in
this respect. The case was found against the plaintiff. GIO appealed.
- Toohey J found that ostensible bias existed on the part of the doctor in question. The
question was raised that the appellant had waived his right of appeal because it had not
complained of the bias on the day in question. Could there be a waiver of ostensible bias?
o Held: Based on the clients conduct, the client had waived their right to appeal on the
grounds of ostensible bias. “When a party is in a position to object and takes no steps to
do so, the party cannot be heard to complain later that the judge was biased.”

c. A Duty to Afford Substantive Fairness?

 Minister for Immigration, Local Govt and Ethnic Affairs v Kurtovic

77
- Kurtovic was warned that a further conviction would lead to a reconsideration of the
decision. However the following year the minister issued a fresh deportation order
- on whether the minister was estopped from issuing a further order, the court (Neaves,
Ryan and Gummow) held:
1. that the letter did not constitute an undertaking
2. that there was no evidence that Kurtovic had relied on the evidence to his detriment,
but that
3. in any case, the letter should not serve to stop the Minister from sub sequentially
exercising a still extant discretion to deport
 Gummow: “the general proposition is that: estoppel cannot operate to prevent or hinder
the performance of a positive statutory duty, or the exercise of a statutory discretion which
is intended to be performed or exercised for the benefit of the public or a section of the
public”
 it acknowledged that the decision-maker might sometimes be prevented from revisiting a
decision not by estoppel but because his power has been spent and the proposed 2 nd
decision would be ultra vires
 The underlying principle is that the Crown cannot be estopped from exercising its powers,
whether given in a statute or by common law, when it is doing so in the proper exercise of
its duty to act for the public good, even though this may work some injustice or unfairness
to a private individual. It can however be estopped when it is not properly exercising its
powers, but is misusing them; and it does misuse them if it exercises them in
circumstances which work injustice or unfairness to the individual without any
countervailing benefit for the public

II. Status of Unlawful Decisions

- it may be necessary to establish that the irregularity can be classified as a jurisdictional
error or an error of law on the face of the record
- This may be because some remedies (prerogative writs) require such errors or because the
legislation under which the administrative decision was made contains an ouster or
privative clause purporting to shield the decision for judicial review
- They affect three main issues
1. The effect of invalidity: void or voidable?
2. The availability of some remedies, particularly the writs, including the “constitutional
writs” under s75 of the Constitution
3. The operation of ouster or privative clauses

Jurisdictional Error
- The courts draw a distinction between jurisdictional and non-jurisdictional errors
- Jurisdictional errors invalidate the decision made because they involve tribunals, courts or
officials, assuming powers that are not allocated to them - they cannot be protected by
ouster clauses
- In Craig v South Australia the court held that the distinction between jurisdictional and
non-jurisdictional errors still applies to lower courts, although not to administrators and
administrative tribunals: “The ordinary jurisdiction of a court of law encompasses authority
to decide questions of law, as well as questions of fact, involved in matters which it had
jurisdiction to determine.”
- persistent difficulties in distinguishing between the two types of errors have been resolved
by virtually making all legal errors jurisdictional, whether they are ultra vires or in breach
of procedural fairness
- In Plaintiff S157 the HC reiterated earlier rulings that a denial of procedural fairness
constitutes a jurisdictional error

78
- There may still be administrative errors, which can be called non-jurisdictional. These are
breaches of so-called directory requirements, that is, procedural rules whose breach does
not render a decision void
- Dickson v Perrignon (1973)- a prison officer dismissed by the Public Service Board
lodged an appeal with an Appeals Board and then challenged the Appeal Board’s
jurisdiction- the Appeal Board then ruled that it had no jurisdiction- the court held that a
dismissal had taken place and therefore the Board had wrongly refused to exercise its
jurisdiction.

 if you can prove jurisdictional error, you can overcome the ouster clause

Error of Law on the Face of the Record

- all errors of law are now regarded as jurisdictional, there may be some instances…
particularly in those State jurisdictional matters where review is purportedly excluded by
an ouster clause

There must be a legal error and it must be on the record

 Hope v Bathurst City Council- the HC held that the Land and Valuation Court had made
an error of law in deciding that a person was not conducting a “business” on rural land.
 Collector of Customs v Agfa Gevaert- five HC judges adopted five propositions:
1. Whether a word or phrase in a statute is to be given its ordinary meaning or some
technical or other meaning is a question of law
2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact
3. The meaning of a technical legal term is a question of law
4. The effect or construction of a term whose meaning or interpretation is (judicially)
established is a question of law
5. Whether facts fall within the provision of a statute is generally a question of la (Hope v
Bathurst)

- Craig v South Australia limited the scope of what is on the record to no more than the
documentation that initiates the proceedings, the pleadings and the adjudication and not
the transcripts, the exhibits or the reasons given for a decision.

III. Privative or Ouster Clauses

- Parliaments often seek to prevent judicial review of administrative decisions, using a
variety of “privative” or “ouster” clauses e.g. Migration Legislation Amendment (Judicial
Review) Bill (Cth)
- The courts will only allow ouster clauses to block them if the words of the
legislation are clear, explicit and comprehensive.
- Generally such clauses will not be permitted to protect jurisdictional errors and errors of
law on the face of the record.
- In addition, parliament cannot oust the original jurisdiction vested in the High Court by the
Constitution [s 75 (v)], which includes the writs of prohibition and mandamus against
Commonwealth officers.

 The Hickman Principles - Dixon J

- a clause is interpreted as meaning that no decision which is given by the body concerned
shall be invalidated

79
- provided always that its decision is a bona fide attempt to exercise its power; that it
relates to the subject matter of the legislation, and that it is reasonably capable of
reference to the power given to the body
- Plaintiff S157 a refugee test case on the “super privative” clause. The HC held
unanimously that s474 would be invalid if it attempted to oust the jurisdiction of the HC
under s75 of the Constitution. The joint judgment of Gaudron, McHugh, Gummow, Kirby
and Hayne JJ declared that the Hickman principle was simply “a rule of construction
allowing for the reconciliation of apparently conflicting statutory provisions”
- the judgement concluded with a reiteration of the High Court’s rule in guaranteeing that
the Commonwealth government was subject to the “rule of law”
- In Abebe v Commonwealth - the HC upheld the validity and constitutionality of
provisions of the Migration Act removing the jurisdiction of the Federal Court over entire
fields of judicial review of decisions under the Act
- There is one final way for parliaments effectively to prevent judicial review, and that is to
rely on heavy filing fees to deter applicants. The courts said it could inquire into the
validity of such delegated legislation where:
(1) An essential statutory procedural requirement had not been complied with;
(2) The delegated legislation was inconsistent with the parent Act;
(3) The delegated legislation was “patently or absurdly irrelevant” to the parent Act.

Chapter 14

Substantive Fairness? Estoppel: Undertakings Regarding the Future Exercise of

Power

Australian courts will not allow estoppel to waive statutory requirements in a way that would
effectively extend a public power, such as a power to grant an aged pension. Formosa v
Secretary, Department of Social Security (1988)

Case study: The Bali 9 Case

Finn J strongly dismissed a claim for the substantive protection of legitimate expectations.
There was no law in Australia of substantive legitimate expectation that would require the
police not to breach any promises they might have made to prevent harm coming to Rush.
Finn J also rejected the argument that the police owed a duty of care to Rush.

The Restrictive Australian Approach

Minister for Immigration and Ethnic Affairs v Teoh (1995) and Re Minister for Immigration and
Multicultural Affairs; Ex parte Lam (2003).
Formosa, Australian courts will not allow estoppel to waive statutory requirements, such as for
a written application for an aged pension.
Estoppel cannot normally, if ever, apply where an administrator lacks the power to make the
decision sought. Minister for Immigration and Ethnic Affairs v Petrovski (1997).
Where the decision-maker has a discretion, judges have emphasised that the exercise of the
discretion cannot be unlawfully fettered. Gleeson CJ Save the Showground for Sydney Inc v
Minister for Urban Affairs and Planning. In Waverley Transit, decision-maker had acted
“unconscionably”. The Statutory authority responsible for regulating metropolitan bus
services had encouraged an existing bus operator in the belief that its contract would be
renewed, then proceeded to accept the tender of a rival.
Rubrico basis of an interpretation of the relevant sections of the Migration Act, which has
since been amended. Not argued before the court. The immigration department had issued an
80
entry permit without the requisite endorsement, while possessing full knowledge of the
circumstances that require an endorsement.
An estoppel by representation may not be argued where the effect of such an estoppel would
be the prevention of the performances of a statutory duty or exercise of a statutory discretion.
But the argument does become available.

Kurtovic and Quin: Some Chinks Left open?

Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) revoked a
deportation order. The minister sent Kurtovic a letter warning that a further conviction would
lead to a reconsideration of the decision. Minister issued a fresh deportation order.
Denial of procedural fairness, (1) the letter did not constitute an undertaking; (2) there was no
evidence that Kurtovic had relied on the letter to his detriment and (3) the letter could not
serve to estop the minister from subsequently exercising a still existent discretion to deport.
Gummow J. “Estoppel cannot operate to prevent or hinder the performances of a positive
statutory, or the exercise of a discretion which is intended to be performed or exercised for
the benefit of the public or a section of the public.”

 Decision-maker might sometimes be prevented from revisiting a decision not by

estoppel, but because his power had been spent, and the proposed second decision
would be therefore ultra vires (see Brickworks Ltd v Warringah Shire Council (1963) 108
CLR 568.
 Applicants might succeed where the legislation permitted the decision-maker to waive
procedural requirements, or where observance of the procedural requirements might be
regarded as directory rather than mandatory.
 Possibility that the future of principles of ostensible authority and presumption of
regularity might be drawn from the law of agency in private law and from company law
to bind a government to undertakings given by an official in apparent authority.
 Public authorities may be estoppel from denying contracts unlawfully entered into
under statutory discretionary powers, referring to Ansett Transport Industries v
commonwealth (1977).

Attorney General (NSW) v Quin (1990). Traditional policy of reappointing judicial officers could
not preclude the government from adopting a new policy.

“Undoubted doctrine” that there is no estoppel against the exercise of a discretion under a
statute. The High Court has not entirely shut the door to estoppel, notably in the context of
exercises of administrative discretion.

A Sad Conclusion and Summary

Li Fang v Minister for Immigration (1992). Estoppel could only assist an aggrieved person in
restricted circumstances. In this case, the applicant could not rely on estoppel because the
visa carried no guarantee against revocation nor in favour of an entry permit being granted.
Exception from Quin and Vanden where the decision-maker has arguably reneged on a
promise involving the exercise of a broad discretion, from Brickworks, Kurtovic and Rubrico
where the decision maker has in effect, revoked a decision already made or one that he or she
had indicated had been made.

Chapter 15
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 Status of Unlawful Decisions and Ouster Clauses

May be necessary to establish that the irregularity can be classified as a jurisdictional error or
an error of law on the face of the record.

 Effect of invalidity; make a decision completely void

 Availability of some remedies; entitle a claimant to a writ or an order in the nature of a
writ;
 Operation of ouster or privative clauses; defeat an ouster clause

By ruling that a jurisdictional error was made, a court can declare that the resulting decision
was nullity and therefore not immune from judicial review.

Anisminic Ltd v Foreign Compensation Commission [1969] widened the notion of jurisdictional
virtually all errors, including abuse of power and denial of natural justice, mean that a tribunal
has exceeded its jurisdiction and therefore its decision are a nullity. Where the Act sought to
protect the decisions of the Foreign Compensation Commission from challenge in any court of
law. In effect, the House of Lords negated that ouster clause by declaring that the decision
they were considering was a “nullity” and therefore not covered by the ouster clause.

Craig v South Australia (1995) – if an administrative tribunal falls into an error of law, identify
a wrong issue, wrong questions, ignore relevant material, rely on irrelevant material, make an
erroneous finding, mistaken conclusion, tribunals exercise, is thereby affected, exceeds its
authority or powers. Such an error of law is jurisdictional error invalidate any order or decision
of the tribunal that reflects it.

The Broadening approach to jurisdictional error

All legal errors jurisdictional, whether they are ultra vires or in breach of procedural fairness.
In Plaintiff S157/2002 v Commonwealth (2003) a denial of procedural fairness constitutes a
jurisdictional error.

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) court found
that by breaching a procedural requirement of the Migration Act, the Refugee Review Tribunal
had committed jurisdictional error. Granted certiorari to quash the RRT decision and
mandamus to require the tribunal to review the decision according to law.

NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) a
technical breach by the RRT of a procedural requirement under the Act was not jurisdictional
error.

Administrative Decision (Judicial Review) Act 1977 (Cth), allows review for non-jurisdictional
error of law. Principles of jurisdictional error control the constitutional writs, but not the
remedy of injunction, in s 75 of the constitution. A deliberate failure of administer the law
would amount to a jurisdictional error.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 for “illogicality” or
“irrationality” to give rise to jurisdictional error, the tribunal’s decision must be one at which
no rational or logical decision-maker could arrive on the same evidence. “Clearly unjust” or
“arbitrary” or “capricious” or “unreasonable” in the Wednesbury sense.

Minister for Immigration and Citizenship v SZJSS (2010) the RRT had not fallen into
jurisdictional error by choosing to give no weight to the letters produced by the applicant.
Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs
82
[2005] rejected an appeal against denial of refugee status. RRT had not committed
jurisdictional error when it distinguished between Christians in Iran who quietly go about their
devotions and those who actively or conspicuously proselytise, and considered that only the
latter group would encounter a real chance of persecution. Appellant S395/2002 v minister for
Immigration and Multicultural Affairs (2003) RRT committed jurisdictional error when it applied
a wrong test in ruling that a homosexual was not persecuted.

Administrative errors which can be called non-jurisdictional. Breaches so-called directory

requirements, procedural rules whose breach does not render a decision void.

Judicial tendency to broaden the concept of jurisdictional error is Dickinson v Perrignon [1973]
the provision did not apply because the broad had not given any decision in exercise of
jurisdiction under the Act. It had refused to exercise the jurisdiction.

Error of law on the Face of the Record

If an applicant fails to prove that a jurisdictional error was committed, it may be necessary to
establish, alternatively that an error of law was made on the record. Instances where the error
of law on the record requirement must be met, particularly in those State jurisdictions where
applicants may still have to seek writs, such as certiorari, or where the review is purportedly
excluded by an outer clause. To come within this doctrine, there must be a legal error, and it
must be on the record. Meaning of a term with a technical legal meaning.
Mahony v Industrial Registrar of New South Wales (1986) the court held that the question to
whether the relationship between jockeys and horse owners was one of employment or for
services was one of fact, not law.
Hope v Bathurst City council (1980) Land and Valuation court has made an error of law in
deciding that a person was not conduction a “business on rural land”.

Collector of Customs v Agfa Gevaert Ltd (1996):

 Whether a word or phrase in a statute is to given its ordinary meaning or some

technical or other meaning is a question of law.
 Ordinary meaning of a word or its non-legal technical meaning is a question of fact
 Meaning of a technical legal term is a question of law
 Effect or construction of a term whose meaning or interpretation is (judicially)
established is a question of law
 Whether facts fall within the provision of a statute is generally a question of law (hope v
Bathurst is cited as authority for this proposition).

High Court’s narrow view see Hockey v Yelland court held a decision by a specialist workers
compensation board that a cerebral haemorrhage was not caused in the course of
employment disclosed no error of law on the record.

Hocky v yelland (1984) a privative clause. A determination by a Medical Board shall be final
and conclusive and claimants shall have no right to have any of those matters heard and
determined by an Industrial Magistrate, or, by way of appeal or otherwise, by any court of
judicial tribunal whatever,

High Court nevertheless, heard the applicants appeal, subject’s right of recourse to the courts
is not to be taken away except by clear words. Words of the section prevented a further
hearing but did not preclude an inquiry into whether the determination was reached in
accordance with law.

83
Federal level, attempts to oust the original jurisdictional vested in the High Court by the
Constitution s 75 are unconstitutional.

The courts will only allow ouster clauses to block them from hearing a case if the words of the
legislation are clear, explicit and comprehensive.

The impact of Plaintiff s157

A federal clause forbidding High Court review of a “purported decision” would be

unconstitutional.

The High Court held unanimously that s 474 would be invalid if it attempted to oust the
jurisdiction of the High Court under s 75 of the Constitution. It found that the section could not
prevent review by the High Court for denial of procedural fairness.

Basic rules of construction which apply to the interpretation of privative clauses. “If where is
an opposition between the Constitution and any such provision, it should be resolved by
adopted [an] interpretation [consistent with the constitution if] that is fairly open.
Second basic rule, that it is presumed that the Parliament does not intend to cut down the
jurisdiction of the courts save to the extent that the legislation in questions expressly so
states or necessarily implies. Accordingly, privative clauses are strictly construed.

The judges were unequivocal in emphasising that a privative clause can never oust the High
Court’s jurisdiction under s 75 of the Constitution: A privative clause cannot operate so as to
oust the jurisdiction which other paragraphs of s 75 confer on this Court, including that
conferred by s 75(iii) privative clause cannot operate so as to allow a non-judicial tribunal or
other non-judicial decision-making authority to exercise the judicial power of the
Commonwealth.

Access to judicial review was also a constitutional principle at the State level; Kirk v Industrial
Relations Commission (NSW exceeded its power in convicting an employer did not identify the
acts of omissions which constituted the offences alleged. Two jurisdictional errors justified
quashing the conviction and sentencing of the defendants.

S179 of the Industrial Relations Act 1996.

Other way of curtail judicial review

A section in the Migration Act imposing strict time limits on the seeking of remedies in the
High Court was declared invalid in Bodruddaza v Minister for Immigration and Multicultural
Affairs (2007)

Alebe v Commonwealth (1999) upheld the validity and constitutionality of provision of the
Migration Act removing the jurisdiction of the Federal Court over specific fields of judicial
review of decision under the Act, unreasonableness and perceived bias.

Inquire into the validity of such delegated legislation where (1) an essential statutory
procedural requirement had not been complied with (2) the delegated legislation was
inconsistent with the parent Act; and (3) the delegated legislation was “patently or absurdly
irrelevant” to the parent Act.

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 Judicial Remedies
Introduction
- Two types of remedies are available – common law and statutory.
- At Common law the traditional remedies are:
i. the prerogative writs (principally certiorari, prohibition and mandamus)
ii. the former equitable remedies (declarations and injunctions)
- The main statutory remedies are those available at the federal level under the ADJR Act.
At the state level there is none in NSW.
- Because of doubts about the applicability of a remedy you may need to seek several
remedies, as alternatives in one action.
- Before examining these remedies 4 subsidiary issues require brief mention:

1. Reconsideration
- In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, the HC
held that the MRT could reconsider a decision made in breach of procedural fairness,
where the error was subsequently brought to its attention.
- This decision may open up possibilities of directly asking tribunals to reconsider erroneous
decisions.

2. Collateral attack
- An applicant affected by an unlawful administrative decision may be able to sue for
damages under the torts of trespass, negligence or false imprisonment, and may have a
defence to a civil or criminal action against them.
- In Cooper v Wandsworth Boards of Works, Cooper’s house was demolished without a
hearing. The case did not arise by way of a challenge to the validity of the decision.
Instead, Cooper sued for trespass.
- In R v Ousely the HC held that it was permissible for a criminal defendant to make a
collateral attack on a decision to issue a search warrant. It was doubted whether this
would have been the case had the error not been apparent on the face of the warrant.
- Attacking administrative decisions collaterally in private legal actions or as a defence to a
prosecution is fraught with difficulties. Generally speaking a person seeking to challenge
a faulty decision or failure to act must make a direct attack by seeking a remedy from a
tribunal or court.

3. Damages arising from an unlawful administrative act

- Applicants will have trouble suing for damages unless they can prove malice, intention to
cause them harm or negligence on the part of the administrator. That is because a
separate tort must be proved.
- For the common law tort of misfeasance in a public office, the plaintiff must be a member
of the public to whom the defendant owed a duty not to commit the particular abuse
complained, and has to show that the act was knowingly or recklessly performed without
power.
- In Northern Territory v Mengel inspectors made an order restricting movements of the
plaintiff’s castle. The inspectors lacked the power to make the restrictions. They weren’t
liable in tort because there was neither an intention to cause harm nor negligence on the
part of the inspectors. Any other purported basis for assigning liability was untenable.

4. Interim relief

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- Under legislation such as the ADJR Act and also under their own rules, courts have powers
to make interim orders suspending the operation of decisions and restraining decision-
makers from implementing decisions, pending the outcome of litigation.
- Interim relief can be an effective means of halting a decision, forcing the decision-maker
to reconsider or offer a settlement.
- Stays will only be ordered where there is a serious issue to be tried - will also be
influenced by the balance of convenience which usually favours the applicant.
- Where the public interest would be adversely affected by granting an injunction,
applicants may have to show that their case is likely to succeed. Otherwise, they only
have to present a ‘serious’ legal issue to be tested: Mason ACJ, Castlemaine Tooheys v Sth
Australia.

REMEDIES:

The Common Law Prerogative Writs

These writs are now called ‘constitutional writs’ when sought under s75 of the Constitution.
 Prohibition – orders a decision-maker to desist from undertaking an unlawful act
 Certiorari – lies to quash an irregular decision.
 Mandamus – orders an official to perform a public duty that is regarded as mandatory.
There are 3 additional prerogative writs:
 habeas corpus – provides for a person unlawfully detained to challenge the
imprisonment in court, requiring that cause be shown to justify the detention. Superior
courts generally regard themselves as having an inherent jurisdiction to grant habeas
corpus: Ruddock v Vadarlis (the Tampa Case).
 quo warranto – challenging a public office holder’s right to office; rarely used and has
been abolished in NSW.
 Procedendo – provides the power to make subordinate (lower) courts make a decision
after unjustified delay. It has never been used in Australia.
- The prerogative writs are not available in relation to legislative decisions.
- Prerogative writs now lie against decisions of the Crown: R v Toohey, Ex parte Northern
Land Council.
- They normally apply only to public bodies, but perhaps also bodies that possess a mixture
of private and public features.

Certiorari and Prohibition

- Certiorari lies once a body has made a decision. Prohibition only applies until a body has
made a decision, or at least until enforcement procedures have been completed.
- Certiorari lies to quash decisions made in excess of jurisdiction, as well as non-
jurisdictional errors of law ‘on the face of the record’.
- Prohibition lies to restrain bodies from acting in excess of jurisdiction, but not for non-
jurisdictional error of law, even if it is apparent on the face of the record.
- Writs of prohibition lie only in respect of acts done judicially: R v Wright; Ex parte
Waterside Workers Federation of Australia: “Acts which are ministerial in their nature or
administrative only or amount to the exercise of a subordinate legislative power are not
subject to the writ, even though what is done involves an excess of authority.”
- Certiorari can normally be sought once the erring body has made its decision.
- Certiorari lies to quash both decisions made in excess of jurisdiction and non-jurisdictional
errors of law ‘on the face of the record’.
- Note that certiorari can normally be sought once the erring body has made its decision.

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The general test: Electricity Commissioners
Lord Atkin of the House of Lords in R v Electricity Commissioners; Ex parte London Joint
Committee Company (1920) Ltd [1924] 1 KB 171 set out the following test: 2 factors
necessary before issuing certiorari and prohibition. Requirements are that:
• The decision must be an exercise of a public power/ authority;
• It must sufficiently affect the applicant.

Element 1: public power/authority?

The decision cannot be based upon private law/derived from contract.
• Writs not available to quash decision to dismiss employee made pursuant to terms
of contract of employment: Ex parte Lavelle
• Decision to discipline using powers derived from industrial agreement not amenable
to the writs: Whitehead v Griffith Uni - Lecturer being investigated for increasing
mark of foreign student. Investigation dropped but VC said he was “formally
disciplined” for not cooperating with inquiry. Lecturer wanted remedy for VC not
referring it to tribunal. Held that this was based on industrial agreement therefore
no remedies available.

Element 2: sufficiently affect the applicant?

Decision must have sufficient capacity to impact on the applicant’s rights or interests: Ex
parte lain
• Administering ex gratia payments satisfied this element in Ex parte lain as the
scheme affected rights of an applicant as it was designed to determine eligibility for
compensation and confirm the lawfulness of a payment.
• Where reports are of no legal effect or consequence, certiorari not likely to be
available (declaration will be awarded instead): Ainsworth v CJC
• Hot Holdings: where Minister had statutory power to hold ballot to prioritise
applications – applicant sought certiorari of decision to hold the ballot. HC concluded
certiorari was available as the ballot has apparent legal effect on applicant’s rights.
• Ainsworth v CJC, where damage to reputation was held not to affect legal rights;
{note availability of declaration}
• Hot Holdings v Creasy, where an interim decision will affect rights if it is a condition
precent to a final decision;

 Jurisdictional errors and errors on the record

- Certiorari remains restricted to jurisdictional errors and ‘errors of law on the face of the
record’.
- What constitutes the record? = Craig v South Australia limited the scope to no more than
the documentation that initiates the proceedings, the pleadings and the adjudication and
not the transcripts, the exhibits or the reasons given for a decision.
- Re Smith; Ex parte Rundle: courts may still give a wide interpretation to what is the
‘record’ in cases that concern administrative or ministerial decisions rather than judicial
ruling.

General framework for determining availability of certiorari regarding

preliminary/advisory decisions
Majority in Hot Holdings identified two situations where the “legal effect” requirement is in
issue:
1. Where decision challenged is the ultimate decision in DM process and the question is
whether that ultimate decision sufficiently ‘affects rights’ in a legal sense
a. Ainsworth falls under this category because issuing of report was final decision
by Commission in process of discharging its function of investigating and
reporting

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 2. Where the ultimate decision to be made undoubtedly affects legal rights but the
question is whether a decision made at a preliminary or recommendatory stage of DM
process sufficiently ‘determines’ or is connected with that decision
a. Under this type, necessary to show that preliminary/advisory decision has
necessary legal effect on ultimate/final decision.
i. Majority in Hot Holdings held it will have this effect if statute established it
as condition precedent to making of a final decision
ii. This type will be satisfied where maker of the final decision is bound to
consider the preliminary/advisory decision: Hot Holdings

Mandamus
- For mandamus to be available, there must be a duty to act, and there must have been a
failure to perform that duty - only applies to public duties, not private bodies such as trade
unions or clubs. There, the usual remedy would be a declaration or injunction.
- There may be one category of case where mandamus will lie, that is where an
administrator is under a public duty, yet not a duty to provide procedural fairness.
- It’s available against: inferior courts, public bodies, statutory corporations and officials.
- In Ainsworth, mandamus not available as the premier ASKED for report to be made. CJC
statute set no requirements/circumstances for making report (declaration was given
though).
- declarations and injunctions can be ordered alongside:
 Few restrictions on the ability of applicants with standing to seek legally binding
declarations of their rights. Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
 Injunctions 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 Pty Ltd.
- Mandamus can compel discretionary exercises – in Padfield, Minister had
discretionary power to refer complaints to a body but refused to do it. His refusal was
based on irrelevant considerations therefore was amenable to writ of mandamus.
Compelled decision to be made according to law (doesn’t compel making a specific
decision
- Note: Mandamus does not entitle people to the decision they want, it merely compels a
decision to be made UNLESS there is no other result possible

What is a public duty? Western Australian Field and Game Association v Minister
for State for Conservation
Facts: The Minister was empowered to declare an open season in respect of any fauna and
traditionally did so each year in relation to game, after taking account of representations by
the Association. However in 1992 the Minister made no decision. The Association argued
that he had a duty to do so and sought mandamus. Malcolm CJ:
- The mere fact that environmental considerations or any other relevant considerations are
such as would make it possible to declare an open season does not have the result that
the Minister is under a duty to consider whether he should declare an open season.
- The power given to the Minister was akin to a legislative one. In general terms, the area
of determination of policy is an area into which the court will not intrude.
- Where a person possesses a discretion, their duty is to exercise that discretion in
accordance with the law; a court will not order them to exercise that discretion in a
particular way.

Restrictions on prerogative writs

There are restrictions on issuing prerogative writs, relevant where is that:
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 • They do not lie against the Crown – that is governor/governor in council: FAI
Insurances v Winneke (State Governor/Governor-in-Council)
• Legislative powers amenable to writs where exercise of power carries with it duty to
afford natural justice: Bread Manufacturers
• Prerogative writs are discretionary remedies. Factors affecting exercise of
discretion include:
o Delay in instituting proceedings
o Futility of proceeding
o Availability of a more appropriate alternative remedy
o Applicant’s reasons or interest in seeking review (e.g. frustrating a contract)

Note: Constitutional writs might avoid some of these issues - these factors may not be
relevant for the constitutional writs under Const.75 (v) [and s.39B of Jud Act] where
jurisdictional error is established SAAP v MIMI (the HC held that the nature of, or seriousness
of, the breach of statutory procedural fairness provisions (which conditioned the exercise of
power) was not a discretionary consideration)

Constitutional writs
High Court
Section 75(v) of the Constitution grants the HC an inalienable power to grant writs of
prohibition and mandamus. The power to issue certiorari is considered incidental to the
power under s 75(v): Ex parte Aala. The power under s 75(v) can only be used to correct
jurisdictional errors: Ex parte Aala.
• Certiorari for ‘error of law on the face of the record’ cannot issue under Constitution
s.75 (v) but possibly under ss.73 (iii) or 76.
• Available against officers of the Cth, which includes federal court judges (except
High Court judges), magistrates, Ministers, public servants, members of statutory
bodies or tribunals and other government officials.
• Injunctions: s 75(v) allow for making injunction which is not confined to correcting
jurisdictional error: Plaintiff S 157/2002 v Cth
• Although they are discretionary remedies, SAAP v MIMI indicates that ‘nature or
seriousness’ of the breach will not be a discretionary consideration where the
breach = jurisdictional error

Federal Court
The federal court has HC’s original jurisdiction under s 39B (1) JA.
Equitable remedies
Equitable remedies are available in the form of:
• Injunctions: an order forbidding repetition of an act/compelling performance. They
are enforceable by way of contempt of court
• Declaration: non-coercive statement as to party’s rights. Though non-coercive
initially, it can be supported by an injunction if it is not adhered to

Equitable remedies likely to be awarded:

• Where the regimes of statutory JR not available
• against an exercise of delegated legislative power
• Against a decision by a Gov. or GG.

Statutory Remedies – Administrative Decisions (Judicial Review) Act 1977 (Cth)

- For matters to be reviewable under the ADJR Act, there must be:
(1) a ‘decision’ (s5) or ‘conduct engaged in for the purpose of making decisions’ (s6); or
failure to make a decision where the person is under s duty to do so (s7)
(2) it must be of ‘an administrative character’ (s3) and
(3) it must be proposed to be made or required to be made ‘under an enactment’: (s3)
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  decisions by the G-G are not reviewable (s3)
 decisions listed in Schedule 1 of the Act are not reviewable (s3)
 where jurisdiction has been ousted decisions are not reviewable
 The Constitution is not an enactment. As a result, decisions made under the
inherent executive power are not reviewable under the ADJR Act: Dixon v A-G
(1987).
- Actions must be brought within 28 days of the making of the decision or the giving of
reasons, if reasons have been sought. After that, applications can only be made with
leave (s11).
- Jurisdiction is conferred on the Federal Court and the Federal Magistrates Court to hear
applications brought under the Act (s8).

Section 16 ADJR Act – Remedies

- Orders under s16 (1) are available where there has been a decision under s16 (2) in
respect of conduct and under s16 (3) where there has been a failure to make a decision.
- The Act provides for remedies that are, in their scope, roughly equivalent to those
provided by the common law. A court can make 5 types of orders under s16 of the Act.
1. It can quash a decision with effect from a date of its choosing: s16 (1) (a) (like
certiorari).
2. It can refer the matter back to the decision-maker with such directions as it sees fit:
s16 (1) (b).
3. It can make an order declaring the rights of the parties: s16 (1) (c), (2) (a), (3) (b) (like
a declaration).
4. It can order a party to do or refrain from doing specified things where the court
considers such an order is necessary to do justice between the parties: s16 (1) (d), (2)
(b), (3) (c) (like prohibition or an injunction).
5. It can direct the making of a decision: s16 (3) (a) (like mandamus).
- The first 4 orders are available where there has been a decision: s16 (1) (a).
- The 3rd and 4th orders are available in connection with conduct: s16 (2).
- The last 3 orders can apply where there has been a failure to make a decision: s16 (3).
- While the orders are analogous to the traditional remedies, there are several importance
differences: timing & justice between parties

Discretion in Granting Remedies

- The grant of remedies, both at common law and under the ADJR Act (Re Refugee Review
Tribunal; Ex parte Aala (2000) is a matter of discretion. Remedies are rarely refused on
discretionary grounds.
- There is authority to the effect that the writs of prohibition and certiorari must be granted
to an aggrieved party as of right when excess of jurisdiction has been proved: R v Justices
of Surrey (1870) 5 LR QB 466. The position in relation to writs of prohibition sought under
s75 (v) of the Constitution is now clear.

Deception
- Applicants may also be denied a writ if they have been guilty of deception in bringing their
proceedings R v Galvin; Ex parte Bowditch (1979)

Inconvenience to others
- A remedy may be refused if harm would be caused to someone who relied upon the
unlawful decision.

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- An order under the ADJR Act can be delayed to avoid or minimise the harm to an innocent
beneficiary of an unlawful decision. R v Muir; Ex parte Joyce

Futility
- A court will decline to grant a remedy if it would be futile, in that it would not help the
applicant or change his or her legal position, although a declaration may still be issued to
clarify the legal issues between the parties: FAI Insurances v Winneke

De minimis
- Relief may be refused on the grounds that an error is trivial.
- In Ansett Industries Ltd v Minister for Aviation, Lockhart J considered the question whether
the Minister had made correct calculations of traffic on relevant routes. After concluding
that the Minster’s decision had been made according to law, he added that even if this
conclusion was wrong, the maximum effect of any error would be 0.136% of the traffic
forecast. This being so, he would have exercised his discretion and neither quashed nor
interfered with the Minister’s decision.

The existence of alternative remedies

- Courts have sometimes refused jurisdiction where a right of review exists before a
tribunal.
- The ADJR Act s 10(2) (b) (ii) also allows a court to reject an application on the grounds that
the applicant can seek review other than under the ADJR Act. However, remedies are
rarely refused on these grounds.
- Mandamus will not generally be granted where the applicant has a right of appeal against
a decision: McBeatty v Gorman [1975].

Waiver
- An applicant who accepts an unlawful decision-making process without objection may be
regarded as having waived his rights to a remedy.
- This consideration may be outweighed by the need to ensure due observance of the
legislation set down by parliament: GJ Coles & Co Ltd v Retail Trade Industrial Tribunal
(1987).

Damages
- Where a decision is a legal nullity, it will have no status in law. A different situation arises
when a person has suffered harm because they have acted on the basis of the assumed
validity of an administrative act
- Beaudesert Shire Council v Smith: independently of trespass, negligence or nuisance
but by an action for damages upon the case, a person who suffers harm or loss as the
inevitable consequence of the unlawful, intentional and positive acts of another is entitled
to recover damages from that other
- If the administrator’s error is the result of negligence, as distinct from error of judgement,
and if the error has caused foreseeable loss, an action in negligence will lie. However such
actions are rare.
- First they must establish a duty to care coupled with negligence.
- Second they must show that the beyond powers decision has caused them loss and they
may fall foul of the requirement that they act to mitigate damages
- attempts to seek damages as a public law remedy have been unsuccessful: Park Oh Ho v
Minister for Immigration and Ethnic Affairs

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Flow Chart for Considering an Administrative Law Issue

1. Note the jurisdiction- Federal or State

2. Carefully read any relevant statute, note key phrases and apply rules of statutory
interpretation

3. Carefully read any delegated legislation, note key phrases and apply rules of statutory
interpretation. Is it authorised by the parent Act?

4. Is the case justiciable?

5. Does the applicant have standing?

6. Has the decision maker exceeded power?

a) Simple Ultra Vires

b) Procedural Ultra Vires

c) Extended Ultra Vires

 Improper purpose
 Irrelevant and relevant considerations
 Unreasonableness
 Uncertainty
 No evidence
 Inflexible application of policy
 Acting under dictation
 Sub-delegation

7. Has the decision maker afforded procedural fairness?

a) Is there a duty to provide procedural fairness?
 General principles
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  Recognised categories
 Exclusionary factors

b) Content of duty
 Hearing rule
 Bias rule: actual and imputed
 Probative evidence
 Reasons for decision?

8. Clarify the status of any error: jurisdictional, error of law, void or voidable?

9. Consider the effectiveness of any ouster clauses

10. Review the applicable or preferable remedies:

a. writs
b. declaration or injunction
c. statutory (ADJR Act) d. discretion

Chapter 16

Judicial remedies and the ADJR Act

At common law, remedies are (1) the prerogative writs, principally certiorari, prohibition and
mandamus, and (2) the former equitable remedies, declaration and injunctions. Statutory
remedies Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

Order of Approach

Most common and effective remedies sought, federal level, seek an order under the ADJR Act,
except if you are seeking access to the High Court’s original jurisdiction, which is not covered
by the ADJR Act. When courts interpret remedial legislation, judges have tended to construe
the judicial review legislation in the light of the common law remedies.

Reconsideration

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) High Court held that the
Immigration Review Tribunal could reconsider a decision made in breach of procedural
fairness, where the error was subsequently brought to its attention.

Collateral Attack

An applicant affected by an unlawful administrative decision may be able to sue for damages
under the torts of trespass, negligence or false imprisonment, and may have a defence to a
civil or criminal action against them.
Cooper v Wandsworth Board of Works (1863)-Director of Public Prosecution v Head.

The ability of an applicant to rely upon such an action or defence will be affected by the
vagaries and uncertainties of whether the unlawful administrative act is classified as void or
voidable. Its void treated as a legal nullity applicant can successfully defy it. Only voidable
may be effective until challenged by way of judicial review.

A person seeking to challenge a faulty decision or failure to act should make a direct attack by
seeking a remedy from a tribunal or court.
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Damages arising from an Unlawful Administrative Act

Applicants will have problems suing for damages unless they can prove:

- Malice
- Intention to cause them harm
- Or negligence on the part of the administrator

Negligence – difficult to establish: requires foreseeable loss and mitigation of loss,

Common law tort of misfeasance – applies only where a person suffered purely economic loss
because the defendant knowingly, whether or not maliciously, committed an intentional and
wrongful act amounting to an abuse of his or her public office.

Plaintiff must be a member of the public to whom the def owed a duty to not commit the
particular abuse complained of – Northern territory v Mengel.

Mengel rejected an attempt to apply the so-called Beaudesert principle.

Noori v Leerdam – Smart J rejected an app to strike out an action for torts against a solicitor
from a private law firm. In the NSWCA, the court rules that an action for misfeasance could
not succeed unless the alleged conduct was by a public officer in the course of performing a
public power (Leerdam v Noori [2009] NSWCA)

Difficulties associated with obtaining damages for unlawful administrative action via judicial
review, it may be advisable to seek compensation from a federal or State statutory scheme
for losses suffered as a result of defective administration.

Interim relief

Under the ADJR Act courts have power to make interim orders suspending the operation of
decisions and restraining the decision makers from implementing decisions pending the
outcome of litigation.

Stays will generally be ordered only where there is a serious issue to be tried and where the
so-called balance of convenience favours the applicant.

Castleimaine Tooheys v South Australian 1986 – only have to present a “serious” legal issue to
be tested.

Minister for Arts, Heritage and Environment v Peko Wallsend – cautioned against courts trying
to decide a question of law, and dismiss an application where “arguments are complex and
profound and have ramifications far beyond the confines of the present case.

Re Minister for Immigration and Multicultural Affairs, Ex Parte Fejzullahu - refused to grant
interlocutory injunctions to delay the removal of Kosovo safe haven refuges who had fled the
Balkans during the NATO bombing of Serbia.

The Common Law Prerogative Writs

Prerogative writs – certiorari, prohibition and mandamus.

Certiorari – quash an irregular decision.

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Prohibition orders – a decision maker to desist from undertaking an unlawful act – desist from
some excess of jurisdiction whether that be procedural or substantive.

Mandamus – is an order to an official to perform a public duty that is regarded as mandatory.

If standing is likely to be a contested issue, a writ may be applicable because of the less
stringent locus standi requirements attached to them. Writs will often have to be sought in
the High Court.

Re Refugee Review Tribunal; Ex parte Aala – “constitutional writs” when sought under the
Constitution s 75.

Additional prerogative writs: habeas corpus, quo warranto and procedendo.

Habeas Corpus – provides for a person unlawfully detained to challenge the imprisonment in
court - requiring the cause be shown to justify the detention.

Quo Warranto – challenging a public offence holder’s right to office.

Prerogative writs are not available in relation to legislative decisions. R v Toohey; ex parte
Northern Land Council (1981) – lie against decisions of the Crown.

Chapmans Ltd v ASK (1994) - prerogative writs might apply to decisions made by the ASX.

Dorf Industries Pty ltd v Toose (1994) – Ryan J – certiorari could die against a decision whether
advertisements breached the Media Council’s Code of Advertising.

Such cases rarely arise because declaratory and injunctive relief will usually be available,
independently of whether the body is public or private.

Prohibition and Certiorari

State level – applicants often prefer to seek the less technically complicated equitable
remedies of declarations and injunctions.

Writs made a comeback in the federal jurisdiction – constitution s 75.

Use of prohibition - R v Arbitration commission; Ex parte Angliss

Use of certiorari – R v Toohey; Ex parte Northern land council

The differences between certiorari and prohibition

Certiorari – more frequent as it lies once a body has made a decision. Certiorari lies to quash
decisions made in excess of jurisdiction, as well as non-jurisdictional errors of law “on the face
of the record.”

Prohibition – only applies until a body has made a decision or at least until enforcement
procedures have been completed. Aust courts grant prohibition broadly because s 75 of the
Constitution gives the HC specific power to grant prohibition but not certiorari. Restrains
bodies from acting in excess of jurisdiction but not for a non-jurisdictional error of law.

The general test: Electricity Commissioners

R v Electricity Commissioners;Ex parte London Joint Committee Company 1920 – wherever

anybody of persons having legal authority to determine questions affecting the rights of
subjects and having the duty to act judicially, act in excess of their legal authority they are
subject to the controlling jurisdiction of the King’s bench exercised in these writs (at 205).
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Test focuses on three issues:

- Legally binding authority

- The interest at stake
- The existence of a duty to “act judicially”

R v Criminal Injuries Compensation Board; Ex parte Lain [1967] – authority for the proposition
that the requirement of “legal authority” includes tribunals that exercise prerogative power
and domestic tribunals whose power derives form contractual obligations between members.

Ansetts v McCann (1990) – HC held that prohibition applies where a person is entitled to
procedural fairness

“Duty to act judicially” may prevent the application of certiorari to exercises of legislative and
arbitral power.

Certiorari and legally binding decisions

Decision flawed through a lack of procedural fairness can be quashed only if it has legal
effect.

Ainsworth v CJC (199) – certiorari was denied by the HC because the report by the CJC had no
legal effect or legal consequence.

R v Collins;Ex Parte ACTU solo Enterprises pity ltd – court refusing certiorari in relation to a
tribunal with only investigative and advisory powers

Hot Holdings v Creasy (1996) - liberalised the test, Granted certiorari where the preliminary
decision had to be taken into account by the body entrusted with the power to make a binding
determination of legal rights.

R v Wright; Ex Parte Waterside workers federation of Aust (1955) – reluctance to extend writs
beyond quasi-judicial decisions to rule-making bodies. Prohibition was not allowed against an
order of the conciliation and arbitration court regulating weekend work on the waterfront.
Writs of prohibition lie only in respects of acts to be done judicially. It regarded the arbitration
order as one regulating future conduct, not determining existing rights.

Sankey v Whitlam (1978) – committal proceedals would be reviewable by the writs.

Jurisdictional errors and errors on the record

Certiorari remains restricted to jurisdictional errors and “errors of law on the face of the
record”.

Meaning of record:

GJ Coles v Retail Trade industrial tribunal (1987) – extending the record to the transcript and
record of proceedings.

Craig v South Australia – HC rejected that view. Record will comprise no more than the
documentation that initiates the proceedings, the pleadings and the adjudication and not the
reasons given for a decision.

Re Smith; Ex parte Rundle (1991) – record included a ministerial certificate. Formation of the
minister’s opinion was a condition precedent to the exercise of its discretion and since he did
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not, in fact, form that opinion a jurisdictional fact did not exist. Sufficient grounds for
certiorari, even if not on the record.

Mandamus

An order to perform a duty or make a decision. Only sought in conjunction with other writs or
orders. There may be only one category of case where mandamus will lie but the other two
writs will not. This is where an administrator is under a public duty, yet not a duty to provide
procedural fairness.

Judicial review can be greatly curtailed by provisions stating that the statutory decision maker
is under no obligation to exercise the statutory power. E.g. S 417 (7) of the Migration act
1958 (cth) as seen in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex
parte Applicants S 134.2002 (2003) – court accepted that such a provision precluded the
issuing of a writ of mandamus.

What is a public duty?

Mandamus only applies where the decision maker is under a public duty to act or make a
decision - WA Field & game Association v Minister for Conservation (1992) - minister was not
under a duty to consider whether to declare an open season for game or any other particular
fauna for that matter.

Where a person possesses a discretion, their duty is to exercise that discretion in accordance
with the law; a court will not order them to exercise that discretion in a particular way.
Ainsworth v CJC – HC declared that the CJC was under no duty to investigate Ainsworth only to
consider whether to do so.

Randall v Northcote Corporation (1910) – if the decision maker is exercising a discretionary

power, the court will only order the proper exercises of that discretion.

Can mandamus lie against the Crown?

FAI Insurances v Winneke (1982) – vice-regal representatives are immune from mandamus.

Declarations and injunctions

Equitable remedies lie against private associations as well as public bodies. Apply to
legislative as well as administrative decisions, regardless of the status of the person
exercising the power and irrespective of the source of the power, that is, whether it is
statutory or not.

These remedies are discretionary and one factor taken into account is eligibility for other
forms of relief.

Declarations

HC has been willing to exercise its judicial discretion to grant a declaration where a writ was
not available – plaintiff M61/2010E v Cth; Plaintiff M69 of 2010 v Cth (2010)

Plaintiff M69 of 2010 v Cth (2010) – Gibbs J – jurisdiction of the court to make a declaration
was very wide and indeed almost unlimited, subject only to its own discretion. Question to
be determined must be real and not merely theoretical. Pending proceedings were only

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before a mining warden and not an ordinary court and that complex legal issues arose that
required judicial consideration.

News Ltd v printing & kindred industries union – inappropriate to declare invalid a decision of
a superior court.

Young v Public Service Board – Lee J said he had the jurisdiction to grant a declaration that
effectively overturned a decision of the Industrial Commission but he declined to do so
because the Industrial Arbitration Act evinced a clear intention that industrial matter would be
dealt with finally by the commission.

Johnco Nominees Pty Ltd v Albury Wodonga 1977 – court declined to grant a declaration to
the effect that a policy statement establishing the Albur-Wodonga development area had
determined the zoning of land by Johnco. A declaration would not add to Johnco’s legally
enforceable rights.

A declaration can only quash a previous decision – Minister for Immigration & Ethnic Affairs v
guo (1997).

Green v Daniels – Stephen J granted Karen Green a declaration that she had been unlawfully
denied unemployment benefits over summer. Green was not, however, entitled to a
declaration that she was qualified to receive unemployment benefits – that remained a
decision for the Director General.

Injunctions

To restrain people from acting in a manner inconsistent with their legal duties or to require
people to act in particular ways. Injunctions cannot be used to quash decisions and have only
limited scope to instruct that officials behave in a certain way.

Attorney General (QLD); Ex rel Kerr v T (1983) – injunctions may be refused on discretionary
grounds.

A case study in the flexible use of common law remedies

Challenge by Christmas Island detainees to the procedurally unfair process used to determine
their refugee protection visa applications and their exclusion from seeking review by the
court. The judges granted declarations to the plaintiffs even though writs of mandamus were
not applicable.

Re minister for immigration and multicultural and indigenous affairs; ex parte applicants s
134/2002 (2003) - the unavailability of mandamus meant that there was no utility in granting
certiorari. Declaratory relief is directed here to determining a legal controversy; each plaintiff
should have a declaration moulded in terms similar to the declaration made by this Court in
Ainsworth.

Statutory Remedies: Administrative Decisions (Judicial Review) Act

Someone challenging a federal decision would first seek an ADJR act remedy in the federal
court (section 5). ADJR act is not available in the HC original jurisdiction. Decisions made in
the name of the Governor-General are not reviewable (section 3) nor are the classes of
decisions listed in Schedule 1 of the ADJR Act. ADJR act remedies can be excluded by other
statutes – e.g. Anti-Terrorism Act 2005 (Cth) which excluded preventative detention orders
made under division 105 of the Criminal Code and added that Division to the Schedule 1 list.

Remedies under ADJR Act – s. 16

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A court can make 5 orders under s 16:

1. Quash a decision with effect from a date of its choosing (s16(1)(a) – similar to certiorari
– available where there has been a decision
2. Refer the matter back to the decision maker with such directions as it sees fit – (s16(1)
(b) available where there has been a decision
3. Can make an order declaring the rights of the parties (s16 (1) (c), (2) (a), (3) (b), like a
declaration) - available where there has been a decision. Also available in connection
with conduct 16 (2). Can apply where there has been a failure to make a decision. 16
(3)
4. Can order a party to do or refrain from doing specified things where the court considers
such an order is necessary to do justice between the parties (s 16(1) (d), (2) (b), (3) (c)
like prohibition or an injunction) - available where there has been a decision (16 (2) and
also available in connection with conduct 16 (2). Or a failure to make a decision 16 (3).
5. It can direct the making of a decision (s 16 (3) (a) like mandamus).

Justice between the parties

Another difference with the common law is the power to make orders “necessary to do
justice between the parties”

Park Oh Ho v minister for Immigration and Ethnic Affairs (1988) – seven applicants
successfully demonstrated that the deportation order under which they had been
incarcerated was invalid and a nullity, because it was vitiated by the improper purpose of
detaining them on behalf of the DPP. Not entitled to damages. It held that damages could
not be awarded in the context of an application under the ACT.

In order to “do justice between the parties” the applicants were entitled to declaratory
orders that the detention was unlawful.

Minister for Immigration and Ethnic Affairs v Conyngham (1986) – raised the power of the
court to make an order instructing the decision maker to make a particular decision.

Jurisdictional disputes

ADJR act – has given rise to frequent jurisdictional disputes.

For matters to be reviewable under ADJR Act there must be:

- a “decision” or “conduct engaged in for the purpose of making a decision”;

- it must be of “an administrative character”, and
- must be proposed to be made or required to be made “under an enactment” (section 3)

“Of an administrative character”

The courts will usually strive to classify a decision as administrative in order to have
jurisdiction.

Minister for Industry & Commerce v Tooheys Ltd (1982) – designation of the decisions as
“by-laws” did not necessarily mean that the power was legislative, the issue had to be
determined by their content and subject matter. Under the Act, the minister was given
discretion to decide whether specific goods fell within the general rule by describing in
broad terms the goods which were to have the benefit of the reduced duty. Court said
that the minister was not changing the law but merely applying it in the exercise of his

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discretion to a particular set of circumstances. The court widened the scope of
“administrative character”

QLD medical Laboratory v Blewett (1988) – Gummow J rules that the minister was making
a decision of a legislative character in setting a new pathology services table. The fact
that the decision immediately changed the content of a law – minister’s authority as of an
essentially legislative character.

In determining whether it is legislative rather than administrative character:

a.) the creation or formulation of rules having general application rather than the
application of those general rules to particular circumstances
b.) the requirement of the publication in the gazette
c.) provision for wide public consultation
d.) in preparing a plan the authority must have regard to wide policy considerations
e.) the power of the authority, by notice in writing to “vary” a plan, is analogous to the
legislatures power to amend legislation
f.) once a plan is made, it is not subject to executive variation or control
g.) the decision to promulgate a plan is not reviewable by the AAT
h.) A plan has binding legal effect once prepared, in the sense that various statutory
provisions are only enlivened following its preparation.

“Under an enactment”

Constitution is not an enactment. Decisions made under the inherent executive power are
not reviewable under the ADJR act. Decisions made exercising prerogative power are not
made “under an enactment”.

ANU v Burns 1982 – held that the ANU council had not made a decision under an
enactment when it terminated the appointment of a professor. The rights and duties of
the parties to the contract of employment arose under the contract and not the Act.

Hamblin v Duffy – ADJR act was held to apply to a decision of the Promotions Appeals
Board – contract of employment in that case simply restated the relevant provisions of the
broadcasting and television act. The FC has generally denied ADJR Act coverage of the
contractual decisions of statutory bodies.

Neat Domestic trading (2003) - ADJR act did not apply because the AWB’s decisions were
neither authorised nor empowered by the Wheat Marketing Act.

Griffith University v Tang 2005 - decision of the university’s appeals committee was made
as part of the “consensual relationship” between the parties and thus was not a decision
under an enactment.

A decision or conduct engaged in for the purpose of making a decision

Australian Broadcasting Tribunal v Bona (1990) – court said the concept of “decision”
should not be extended so far as to impair the efficiency of government administration.
Court said a finding of fact would not ordinarily be susceptible to review. FC had not been
given a jurisdiction to review decisions on their merits – to review findings of fact. The
court held that “conduct” engaged in for the purpose of making a decision did not cover
the preliminary findings either. Conduct was essentially procedural, not substantive.

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Final limitation of ADJR act – is that actions must be brought within 28 days of the making of
the decision or the giving of the reasons.

Discretion in granting remedies

Remedies are rarely refuse on discretionary grounds. Authority to the effect that the writs of
prohibition and certiorari must be granted to an aggrieve party as of right when excess of
jurisdiction has been proved. A party aggrieved will be granted relied ex debito justitiae (R
v Justices of Surrey 1870)

Re Refugee Review Tribunal; Ex Parte Aala (2000) – it had a discretion to refuse prohibition.

Writs may be refused to a third party or stranger to the proceedings who will not be entitled to
a writ unless perhaps the error of law involved is classified as a patent pne – R v grimshaw; Ex
parte Aust Telephone & Phonogram Officers Association (1986)

Remedies available under the ADJR act are discretionary – Lamb v moss (1983)

Deception

Applicants may also be denied a writ if they have been guilty of deception in bringing their
proceedings

Inconvenience to others

A remedy may be refused if harm would be caused to someone who relied upon the lawful
decision – r v Muir; ex parte Joyce [1980]

Chief Constable of North Wales’s v Evans [1982] – reluctantly declined to issue mandamus to
force the Chief Constable to reinstate the applicant but issues a declaration that the dismissal
was unlawful.

Delay

An applicant who unduly delays proceedings, either before or after commencing them or who
shows bad faith/acquiescence in the decision may be denied relief – Hodgens v gunn; ex parte
Hodgens [1990]

Futility and mootness

A court will decline to grant a remedy if it would be futile, in that it would not help the
applicant or change his legal position. A court may refuse a remedy where the error had only
a trifling effect - Ansett Industries Ltd v minister for aviation.

FAI insurance v Winneke – a declaration may still be issued to clarify the legal issues between
the parties.

The existence of alternative remedies

Courts have sometimes refused jurisdiction where a right of review exists before a tribunal.

ADJR Act s 10(2) (b) (ii) – reject an application on the grounds that the applicant can seek
review other than under the ADJR act.

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Mandamus will not generally be granted where the applicant has a right of appeal against a
decision – McBeatty v Gorman [1975]

Waiver

Applicant who accepts an unlawful decision making process without objection may be
regarded as having waived his rights to a remedy – GJ Coles & co ltd v Retail Trade Industrial
tribunal (1987)

Committal Proceedings

ADJR Act applies to decisions made in committal proceedings (Lamb v Moss 1983) and
criminal justice decisions s 9A.

Chapter 17

A brief overview and exam advice

Admin Law has 4 components:

1. Steps by the courts themselves to extend and somewhat regularise their powers of
judicial review.
2. Legislation at both federal and state levels to simplify and sometimes extend the scope
of judicial review. E.g. ADJR act
3. Fed & state legislation to introduce non-judicial review, notably tribunals, ombudsmen
and freedom of information provisions.
4. The establishment of the Administrative Review Council to conduct research and make
recommendations.

Non judicial review

Possibility of review on the merits:

1. Request for a review by the original decision maker

2. Application for internal review
3. Approach to a member of parliament or minister
4. External review by specialist tribunal
5. Application to the AAT or its state equivalent

Significant changes introduced with the tribunals are:

1. The availability of review on the merits, not just the legality of decisions
2. A right to obtain reasons for decisions

S 43(1) of the AAT act 1975 - it may exercise the power and discretion of the original decision
maker.

Ombudsman

Concerned with remedying maladministration more generally. Not necessarily obliged to

pursue a complaint, even if it falls within their jurisdiction. Nor do complainants have any
right to a hearing or any control over how the investigation or adjudication on their case is
conducted.

Limitation – they have no determinative powers but can only make recommendations to the
agency concerned.
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Freedom of information

Seeking reasons for a decision or access to broader background documents.

Abolition of application fees, a recasting and narrowing of some of the exemptions that
governments can use to refuse access to documents, the abolition of “conclusive certificate”.

Delegated legislation

If you are challenging a decision made under a regulation, by-law or any other delegated
legislation, a two-step investigation is needed.

Is the delegated legislation within the power of the Parent Act?

Is the decision authorised by the delegated legislation?

Delegated or subordinate legislation is legislative decision making by non-parliamentary

officials to whom power is delegated by the empowering statute. Transfer of law making
power, as distinct from policy making powers or admin powers to make individual decisions
under an enactment.

Cardinal rules of statutory interpretation

1. Check the jurisdiction? State or commonwealth?

2. Carefully read all the relevant parts of the statute and any delegated legislation.
3. Read all the legislative materials critically. Do not simply assume that they cover the
ground they purport to.
4. Apply the literal, golden and purpose rules where appropriate.
5. Apply maxims, notably ejusdem generis and noscitur a sociis.
6. Under the Acts Interpretation Act s 15 AA preference should be given to a construction
that promotes the purpose or object of the Act.
7. Unser s 15AB (1) reference may be made to extrinsic materials, for e.g., ministers
second reading speeches.
8. Remember two presumptions :
a. Statutes are not intended to invade common law rights: first, the democratic rights
of individuals such as liberty and free speech, secondly property and contract rights.
b. Statutes are to be interpreted to minimise the discrepancy between domestic and
international law. Acts will be presumed not to violate international treaty
obligations.

Judicial Review

Courts will not review the exercise of certain prerogative powers, and may decide not to
intervene in sensitive political or national security decisions. Decisions made under the
“prerogative powers” such as appointment and dismissals of prime ministers, and decisions
relating to foreign policy, declaring war, signing treaties and such matters as the award of
royal honours. Courts are unlikely to intervene in the politically critical are of national
security.

Two types of review

1. Ultra vires
2. Procedural fairness

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Abuse of power

Simple ultra vires

Decision makers generally have no power unless it is clearly granted to them by statute.
Paull v Munday - strict and legalistic approach to statutory interpretation.

Procedural ultra vires

Project Blue Sky Inc v Australian Broadcasting Authority (1998) – procedural requirements
must be interpreted by inferring parliament’s intention as to the consequences of a failure to
abide by procedural prescriptions.

Broad or extended ultra vires

Improper purpose

Thompson v Randwick Municipal Council (1950) – it is not necessary that the ulterior purpose
should be the sole purpose. It was still an abuse of power if such a purpose were a
“substantial purpose”.

R v Toohey; ex parte Northern Land Council (1981) - review on the grounds of improper
purpose was open against the regulations made by the Administrator.

Irrelevant and relevant considerations

Positive obligation to take into account all relevant considerations and a negative command
not to take into account irrelevant matters.

Unreasonableness

Decision makers may not make decisions that are so unreasonable that no reasonable
decision maker acting according to law could have made – Wednesbury reasonableness.

Uncertainty

Ruled out uncertainty as a ground of invalidity – King Gee Clothing v Cth (1945)

No evidence

Errors of fact may, in effect, be reviewable if there was no evidence or arguably no cogent or
probative evidence to justify the making of a decision.

Inflexible application of policy

A decision maker cannot “shut his ears t an application”. A statutory decision maker may
lawfully adopt a policy as a guide to making particular decisions provided that the policy is not
applied inflexibly and a particular applicant is not denied the opportunity to argue that the
policy should not apply to this case.

Acting under dictation

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Must actually exercise that discretion according to the circumstances of the case and not be
bound by the direction of anyone else.

Sub-delegation

A discretionary power specifically given to a minister or departmental head must be exercised

by that person and cannot be delegated to subordinated, unless the Act or regulations
expressly say so.

Procedural Fairness

Decision makers must

(1) Provide applicant with a fair hearing (hearing rule)

(2) An unbiased hearing (bias rule)

Legitimate expectations of protection of various interests’ notably commercial interests,

individual liberty and reputation.

Kioa v Minister for immigration and Ethnic affairs (1985) - whether the underlying and
assumed right to procedural fairness had been met.

Official acts and undertakings – official undertakings may give rise to the right to procedural
fairness.

Dismissals from office – considerable authority that a person cannot be subject to disciplinary
action or removed from their employment or a club or society without a hearing.

Investigations and reputation – The rules of procedural fairness will apply generally to
investigations. Where a person’s reputation might be adversely affected by a report, the
maker of the report has to afford procedural fairness.

Preliminary decisions – procedural fairness is now more widely required.

Where appeals are provided for - show that important interests are at stake and therefore the
right to procedural fairness should be recognised in the initial decision.

Policy and rulemaking - not subject to hearing processes.

Secrecy, urgency and necessity – some powers that require urgent action. By their nature
exclude natural justice. Procedural fairness may also have to give way to the “protection of
the public interest in national security.”

The content of the hearing rule

The form of the hearing

Determined by reading the common law tradition of natural justice in the light of the relevant
legislation.

The right to make submissions

Right to make a written submission, particularly in high volume decision making involving
significant use of public resources.

The right to know the matters to be considered

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Person affected by a decision must be told of material prejudicial to their case and be given
an opportunity to respond.

Delay

Recognised undue delay as a denial of procedural fairness

Rights arising from administrative norms

Also affect the way a hearing must be conducted.

The right to legal representation

No absolute right to legal representation

The right to cross examine

Does not follow that a person affected necessarily has a right to cross examine witnesses

The bias rule

Bias rule:

1. No one should be a judge in his or her own cause

2. Justice must not only be done, but must be seen to be done – freedom from perceived
bias, sometimes called imputed, presumed, ostensible or apprehended bias.

Test for imputed bias is not purely subjective – therefore NOT determined by whether an
aggrieved party considers the decision maker to be biased. The standard is that of a
reasonable observer: would such a person perceive bias?

A reasonable apprehension of bias

Perceived bias – “two might’s” test:

It is enough to show that in all circumstances the parties or the public might entertain a
reasonable apprehension that the decision maker might not bring an impartial and
unprejudiced mind to the resolution of the question involved in it.

Investigators acting as adjudicators: the stollery principle

Stollery v Greyhound Racing Control Board (1972) – board chairman’s mere physical presence
during the board’s period of deliberations was sufficient to give rise to a reasonable
apprehension of bias.

The right to reasons

Public Service Board of NSW v Osmond (1986) – rejected the argument that procedural
fairness requires reasons, or at least said it was not required on the facts of the case.

Estoppel

Estoppel has almost invariably denied in Australian administrative law cases.

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Status of Unlawful decisions

Even after proving that an unlawful administrative decision has been made, it may be
necessary to establish that the irregularity can be classified as a jurisdictional error or an error
of law on the face of the record. Some remedies (the prerogative writs) require such errors or
because the legislation under which the admin decisions was made contains an ouster or
privative clause purporting to shield the decision from judicial review.

Jurisdictional error

Jurisdiction – fatal, they completely invalidate the decision made. They involve tribunals,
courts or officials assuming powers that are not allotted to them. Non jurisdictional errors are
not fatal, that is they stand with full legal force until overturned.

Error of law on the face of the record

Such an error may also not be protected by an ouster clause. There must be a: (1) legal error
(2) it must be on the record

Ouster (privative) clauses

Courts will only allow ouster clauses if the words of the legislation are clear, explicit and
comprehensive. Clauses will not be permitted to protect jurisdictional errors and errors of law
on the face of the record. Attempts to oust the jurisdiction of the HC and the States SC may
be unconstitutional.

Remedies

Damages

Applicants will have problems suing for damages unless they can prove:

- Malice
- Intention to cause them harm
- Or negligence on the part of the administrator
- Negligence requires foreseeable loss and mitigation of loss.

The prerogative writs

Three main admin law prerogative writs are:

-Prohibition – orders a decision maker to desist from undertaking an unlawful act

Certiorari lies to quash an irregular decision (restricted to jurisdictional errors and errors of law
on the face of the record).

Mandamus – to perform a public duty that is regarded as mandatory.

ADJR (judicial review) Act Cth

Decisions by the Governor General are not reviewable, nor are decisions listed in Schedule 1
of the Act. To be reviewable:

1) A decision or conduct engaged in for the purpose of making a decision;

2) It must be of and administrative character; and
3) It must be proposed to be made or required to be made “under an enactment” (s 3 of
the Act).

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Three major sets of issues have arisen:

1. Where to draw the line between admin and non-admin decisions?

2. What is meant by “under an enactment”?
3. What is a decision or conduct engaged in for the purpose of making a decision?

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