Administrative Law HD Notes 82

Introduction
& The Procedural Nature of Judicial Review

What is Administrative Law?

• Administrative Law renders the government accountable for the administrative

decisions it makes
• Some mechanisms that make government accountable include:

The Ombudsman Investigates bad administration

Freedom of Information Legislation Permits citizens to obtain governmental documents
Appellate Tribunals VCAT
Judicial Review Individuals/groups go to court to challenge the
legality of certain governmental decisions

Elements of Judicial Review to be Considered

1. The procedural nature of review

a. Remedies available under judicial review
b. The distinction between review and appeal
2. The requirement that the court have jurisdiction
3. The requirement that the applicant for review have standing
4. The different judicial review regimes

(1) The Procedural Nature of Judicial Review

• When a decision is subject to judicial review, the Courts will look at the procedure or the
way in which the decision was made, not the merits of the decision
o Promotes the Separation of Powers, as Courts cannot make laws
o Promotes Parliamentary Sovereignty, as Courts cannot act contrary to
Parliament’s intention or interfere with their sovereignty to make laws

(1.1) Remedies Available under Judicial Review

• The Courts won’t remake the decision arrived at by the administrative decision-maker
• They will send the decision back to them, to be remade in accordance with the law
o Limitations:
§ Decision-maker can still arrive at the same decision, with 40% of review
applications resulting in this
§ Tension between the concerns of the applicants (typically
substantive/merit issues) and the concerns of the Courts (procedural
issues)

(1.2) Distinction Between Review and Appeal

• Appellate Bodies: Hear appeals from the decisions of administrative decision-makers

(i.e. the merits of the decision), including VCAT (Vic) and the AAT (Cth)
o Have the power to remake the decision if it is a bad one
o These bodies are members of the Executive, thus no issue arises with Separation
of Powers
o Part of the same hierarchy: above the decision-maker, but below the Courts
o In reality, a person will appeal the decision first, and if this fails, they will then
seek judicial review of the decision made by the appellate body
• Remember, judicial review is only concerned with examining procedural issues
Jurisdiction

• A person wanting to challenge a Commonwealth administrative decision by way of

judicial review has two avenues:
1. The Administrative Decisions Judicial Review Act 1977 (Cth); or
2. s.75(v) of the Constitution & s.39B of the Judiciary Act 1903 (Cth)

(1) The Administrative Decisions Judicial Review Act 1977 (Cth)

• The ADJR Act is the default avenue

(1.1) Jurisdictional Elements

• Review under the ADJR Act may only be sought in respect of:
o a decision (s.5);
o conduct in relation to a decision (s.6); or
o the failure to make a decision (s.7)

• Note: If delegated decision, s.3(8) includes decisions made by a delegate

• Federal Court or Federal Circuit Court will have jurisdiction to hear applications for JR (s.8)

(1.1.1) ‘Decision’ under s.5

• Decision: a decision of an administrative character made, proposed to be made, or

required to be made under an enactment (s.3).

A decision includes (s.3(2)):

(a) Making, suspending, revoking or refusing to make an order, award
or determination
(b) Giving, suspending, revoking or refusing to give a certificate,
direction, approval, consent or permission
(c) Issuing, suspending, revoking or refusing to issue a licence,
authority or other instrument
(d) Imposing a condition or restriction
(e) Making a declaration, demand or requirement
(f) Retaining, or refusing to deliver up, an article
(g) Doing or refusing to do any other act or thing

• Must be final or operative (Mason J in Bond) and includes a:

(i) Final decision that is provided for in the statute; or
(ii) Intermediate decision made before the final decision that is provided for in
the statute
§ Includes legislative pre-requisite report or recommendation (s.3(3))
§ Does not include those not subject to statute (Bond)
o However, these can be incorporated into the judicial review of
a reviewable decision (Bond)

• Must be a substantive decision (Mason J in Bond)

o Decision that resolves a substantive issue (not procedural), thus has a final or
operative character

• Excludes (s.3):
o Decisions under Schedule 1
o Decisions by the Governor-General

Australian Broadcasting Tribunal v Bond

• Australian Broadcasting tribunal investigated matter involving owners of Channel 9
being acquired by a company controlled by Bond, the Premier of QLD at the time
o Alleged that there was a bribe between the two
• Under legislation, ABT had to decide whether to revoke the television licence of owners
of Channel 9
o ABT decided that the owner’s licence should be revoked
• In making the decision on that matter, the ABT made ancillary decisions
o Offer made by the owners to the Premier had been excessive
o Bond wasn't a fit and proper person to hold a television licence
o Bond personally held considerable influence over the owners that held the
licence
o Owners weren't a fit and proper person to hold the licence, and thus ultimately
it should be revoked
• Bond sought judicial review of each of these findings; court had to decide whether these
ancillary decisions were decisions for the purposes of the ADJR Act
Held:
• A reviewable decision, for the purposes of the ADJR Act, will be a decision for which
provision is made under the relevant statute
o Finding that owners were not a fit and proper person was a reviewable decision
o Although it wasn’t the final decision, its making was provided for under the
statute, thus reviewable
• The other ancillary decisions were not decisions because statute did not provide for
their making; merely ‘steps along the way’, thus ‘unreviewable decisions’
• However, breach in the grounds of review made in making these ancillary decisions can
be used in the judicial review of a reviewable decision
o i.e. Owners could seek judicial review for the finding that they were not a fit and
proper person/revocation of their licence (reviewable decisions), and incorporate
in their application, the breaches in the grounds of review for the ancillary
(unreviewable) decisions
o Unreviewable decisions can take roosting in the judicial review application of a
reviewable decision,

(A) ‘Of an Administrative Character’

• Administrative acts: Concern the application and adoption of rules of law having general
application, to particular cases (c.f. creating new rules of law) (Federal Airports)
• If it is not legislative or judicial, likely it is administrative (Tang)
• Indicia pointing to legislative character (Roche)
o There was an application of rules to particular cases
o There was Parliamentary control of the decision
o There was public notification of the making of the regulation
o There was public consultation
o There were broad policy considerations imposed

(B) ‘Under an Enactment’

• Enactment: Includes an Act or an instrument (rules, regulations or by-laws) made under

an Act (s.3(1))
o NOT contracts (private law)

• Two-Limbed Test (Tang): Decision made under an enactment if:

i. Decision was expressly or impliedly required or authorised by the enactment;
and
ii. Decision itself confers, alters or otherwise affects legal rights or obligations
§ Doesn’t have to be the legal rights of the applicant
§ Consensual relationships don’t impact on legal rights/obligations
(Tang)

Griffith University v Tang

• Griffith University Act:
• s.8: the Council of the University, is the University's governing body
• s.11: the Council may delegate most of its powers to Committees, e.g. the Research and
Post-Graduate Research Committee
• The RPG Committee found Ms Tang had fabricated research data, and thus Ms Tang
was excluded from the PhD program
Held:
• Was the decision to exclude her made under an enactment?
• Court established two conditions above
o RPG’s decision did not impact upon Tang’s legal rights or obligations; she had
none
o Tang argued that she had a consensual relationship with the University; court held
the decision brought that consensual relationship to an end but because it was
merely a consensual relationship, it didn’t impact on any legal rights or obligations
(1.1.2) Conduct Related to a Decision’ under s.6

• Conduct Related to a Decision: Activity of a procedural nature taken in relation to a
reviewable decision (Bond)
o Procedural nature means it is not substantive. This includes taking evidence or
holding an inquiry/investigation (s.3(5))
(1.1.3) ‘Failure to Decide’ under s.7
• Failure to Decide: Decision-maker has a duty to make a decision but:
o Failed to make that decision within the prescribed time; or
o Where there is no prescribed time, made with unreasonable delay.
(1.2) Conclusion

• Does the Federal Court or Federal Circuit Court have jurisdiction?

• However, applicant will need to rely on s.75(v) Constitution when:
o Decision they wish to challenge is excluded from s.3;
o Decision was made by the Governor-General (excluded from s.3); or
o Decision was made under an Act which contains a privative clause excluding
judicial review under ADJR Act (won’t be able to exclude Constitution however)

(2) s.75(v) of the Constitution & s.39B of the Judiciary Act 1903 (Cth)

(2.1) Jurisdiction

• s.75(v) Constitution: The High Court has original jurisdiction in all matters … in which a
writ of Mandamus or prohibition or an injunction is sought against an officer of the
Commonwealth
o In practice, High Court does not have time to hear these matters, thus:
o s.44 Judiciary Act: High Court can remit matters to the Federal Court
• s.39B Judiciary Act: The Federal Court has original jurisdiction in all matters … in which a
writ of Mandamus or prohibition or an injunction is sought against an officer of the
Commonwealth
(2.2) Jurisdictional Elements

(2.2.1) ‘In All Matters’

• Matter: a controversy about rights, duties or liabilities which will, by the application of
judicial power, be quelled (Re McBain)
o Must be an actual dispute about a legal issue, when the applicant believes the
decision-maker’s decision was illegal
o Cannot be hypothetical questions
§ E.g. Cth Government Minister wanted to find out if she had power under
statute to make a decision, this is hypothetical and no matter exists

(2.2.2) ‘Officer of the Commonwealth’

• Officer: Generally accepted as a Cth Government Minister or employee of a Cth

Department
o Includes officers appointed by the Crown, Ministers, public servants, statutory
office holders
o Little authority as to whether other entities (e.g. private companies) are officers

(2.2.3) ‘An Available Remedy’

• The following remedies each have their own jurisdictional requirements

• Most common combination is Certiorari (to quash) and Mandamus (to send back)

A. Prohibition

• Definition: Order prohibiting a person from taking a proposed course of action or making
a proposed decision

Requires: Public Power

• Decision being challenged must be made pursuant to the exercise of public power
• Public Power: Power exercised pursuant to statute
• Test if no statute (Datafin): In carrying out a particular function, a body exercises public
power if, in the absence of a private body carrying out the function, the government
would invariably carry out the function

Datafin
• Panel of Takeover and Mergers administered the London Stock Exchange and was
capable of excluding a party from it
• Power was de facto - no statute empowering the Panel and it didn’t enter into
contracts with members of the Stock Exchange
• Panel excluded Datafin, which sought judicial review of the decision (for not being
given a proper hearing before the decision)
Held:
• Court examined whether Panel exercised public power
• Held, Panel did exercise public power by using test above
• If a private body didn’t administer the Stock Exchange, the government would
necessarily step in and administer it
• Note: This test subject to criticism because deciding whether government would ‘step
in’ is merely speculative
o If the AFL (an important aspect of Australian culture) collapsed would the
government step in? Possibly yes, but possibly no.

B. Certiorari

• Definition: Order quashing a defective decision that has been made in breach
o E.g. You have made a decision illegally, so that decision is quashed

Requires: Public Power

• See above

Requires: Legal Effect or Legal Consequences

• Certiorari operates to quash the legal effects or the legal consequences of the decision
under review (Hot Holdings)
o Thus, if a decision affects someone significantly (e.g. damages their
reputation), if the decision doesn’t have a legal effect, certiorari can’t operate
• Broadly interpreted to include decisions that are a legal precondition to subsequent
decisions (Hot Holdings)

Hot Holdings v Creasy

• WA Mining Act gave Minister for Mines discretion to grant/refuse applications for
mining leases
• Prior to such decision, Minister would receive report from the 'Mining Warden'
containing a recommendation, including who had priority by virtue of timing of
application
• One particular mine had 8 applications in first 60 seconds
• Warden held a ballot to see who would have priority
• Hot Holdings (actually first) sought certiorari, to quash the decision of the Warden to
hold the ballot
Held:
• Court had to decide whether holding the ballot would have legal consequences
• If decision made by Minister, then undoubtedly would have legal effects, because
granting a licence gives them legal rights to the mine
• Warden’s decision (although occurred much earlier in the process) still had legal
consequences
o Warden's report would have been passed onto the Minister, who would have
used this to grant the licence
• Broad interpretation of 'legal consequences' to include decisions that are a legal

precondition to subsequent decisions

C. Mandamus

• Definition: Order requiring a decision-maker to exercise a discretion in accordance with

the law
o Sending the decision back to the decision-maker
• Court will never order that decision-maker comes to a particular decision – will merely
order that the decision-maker exercises its discretion

Requires: Public Duty to Exercise Discretion

• Order for mandamus lies only in respect of a public duty to exercise a discretion (WA
Field and Game Association)
• If discretion is merely permissive, i.e. decision-maker is not under a duty to exercise
discretion, but may if he wants to, mandamus won't apply

WA Field and Game Association v Minister of State for Conservation

• WA Wildlife Conservation Act empowered Minister to declare an open season in
respect to hunting any animals and to place such restrictions on the season
• Minister didn't consider whether he should declare an open season; he didn't think
about it one way or the other; outright said no open season
• Applicant sought an order of mandamus that the Minister make the decision one way
or the other with regard to whether there should be an open season
o Needed Minister to make decision so Applicant could challenge it through
judicial review
Held:
• Mandamus failed; as per the legislation, Minister wasn’t under any duty to consider
whether he should declare an open season
o Was up to the Minister whether or not he wanted to consider the issue
o No obligation on the Minister to consider whether he wanted to declare a
hunting season or not
• Partially because of the broad purpose of the Act, which was for conservation of
wildlife; thus Minister wouldn't even have to consider whether to declare an open

season, if he didn’t want to

D. Injunction

• Order that the respondent refrains from undertaking a particular act, or undertake a
particular act
o Courts reluctant to grant injunctions requiring individuals to positively do
things, but such an order is necessary if the decision-maker is to be required to
remake their decision

E. Declaration

• Order which has no coercive effect, but which merely declares the legal rights and
liabilities of the parties
o Thus no adverse consequences for someone who breaches a declaration
o Thus, applicants seeking judicial review are reluctant to just seek a declaration

Standing

• A person will possess standing to bring an application for judicial review if there is a
sufficiently close connection between the applicant and the decision they wish to
challenge

s.75(v) Constitution ADJR Act

• ‘Special Interest’ (Re McBain) • A person will have standing if she is
aggrieved by a decision (s.5)
• She will be aggrieved if, amongst
other things, her interests will be
adversely affected by the decision
(s.3)

• But, standing requirements for both s.75(v) Constitution and the ADJR Act are identical
(ACF 2)
• Australia has both a private and public interest model of standing, either which can be
used depending on the circumstances

(1) Private Interests Model of Standing

Applies to
Parties other than public interest
groups

• Applicant must be affected (compared to public at large) to a substantially greater degree

or in a significantly different manner by the decision (Brennan J in Onus v Alcoa)
o Assess importance of the concern to the applicant, and closeness between them
(Stephen J in Onus v Alcoa)
• Cultural and spiritual interests is sufficient (Gibbs J in Onus v Alcoa)
• Must be more than mere intellectual or emotional concern (ACF v Cth)

Onus v Alcoa (Cultural and Spiritual Interest = Standing)

• Victorian legislation made it illegal to damage/endanger Aboriginal relic
• Aboriginal tribe concerned their relics would be destroyed by Alcoa’s construction of
an aluminium smelter
• Sought injunction stopping construction of smelter
Held:
• Court of first instance held tribe only had mere emotional/intellectual concern, thus no
standing
• HCA disagreed, held it had a special interest and did have standing
• Brennan J: Applicant must be affected (compared to public at large) to a substantially
greater degree or in a significantly different manner by the decision
o Relics held special cultural and spiritual significance for the tribe’s laws and
customs and the custodians of the relics
o Tribe used the relics to teach children the culture of their people, thus had more
than an intellectual or emotional interest in the matter

ACF v Cth (Mere intellectual or emotional concern = No Standing)

• Proposed tourist development in QLD; under legislation required government
permission
• Government granted permission to developer; ACF challenged the decision
Held:
• Gibbs J: A mere intellectual or emotional concern insufficient to give someone a special
interest in that matter; thus no standing
• Buddy J: Standing available If applicant likely to gain some advantage (other than
satisfaction of righting a wrong were his action to succeed) or to suffer some
disadvantage (other than a sense of grievance, or a debt for costs were his action to
fail)
• Court held ACF merely had intellectual or emotional concern in preserving the
environment
o Decision didn’t affect to threaten to affect the interests of the ACF in any
material way
• Thus the ACF was denied standing

Onus v Alcoa ACF v Cth

• Aboriginal tribe traditionally occupied • ACF merely had a conviction about the
the area; the relics belonged to their decision (a diverse group of White
ancestors Australians associated by some opinion
on a matter of socially policy that might
equally concern other Australians)
• Impact of the development would have • Impact of the development wouldn’t
been greater on the tribe have destroyed the
applicant’s/environmental concern
• Environmental concerns were still
radical at the time which may have
swayed Court’s decision

(1.1) Must Applicant be Affected Directly?

• Even if applicant is not the most directly affected by decision, does not automatically
preclude them from standing (Argos)
• If applicant can show that it is likely that decision will affect his interests in a not
insignificant way, he will have standing (Argos)
o ‘Not insignificant’ is undefined, but certainly has to be more than trivial
• If applicant is organization, the interests of the bulk of its members must be affected in a
not insignificant way (Shop Distributive)

Argos v Corbell
• Minister, under statute, permitted the redevelopment of a shopping centre
• This would include a new Woolworths (there hadn’t been a big supermarket before)
• Applicants were IGA Operators (and its landlord) from nearby suburbs, who sought
judicial review
• Argued they would suffer 10% decline in profits as a result of the redevelopment
• Landlord argued that decline in IGA profits would result in the IGA going bust which
would cause landlord to suffer financial difficulty
Held:
• Applicants were not the personal people most directly affected but this didn't
automatically preclude them from having standing
o A decision which affects the interests of one person directly, may affect the
interests of others indirectly
o Across the pool of sundry interests, the ripples of affectation may widely extend
o Expansive approach should be adopted
• If applicant shows that it is likely that a decision will affect his interests in a not
insignificant way: standing available
• IGA Operators had standing because their financial interests were likely to be affected
to a not insignificant degree
o Not insignificant way left unclear but IGA Operators weren't affected
enormously, but it's still not trivial
• Landlord didn't have standing because couldn’t show that he would suffer financially
o Couldn’t show that he wouldn’t be able to find a new tenant or would have to
lease it out for cheaper if IGA went bust

Shop Distributive and Allied Employees Association v Minister for Industrial Affairs
• Minister decided to permit trading on Sundays; Union purported to seek judicial review
Held:
• Union could seek JR of the decision only if its members had a special interest in the
subject matter of the litigation
• Shop assistants of the Union did have a special interest different from and greater than
that of other members of the public
o Affected their terms and conditions in their contract in having to work on
Sundays

(2) Public Interests Model of Standing

Applies to
Public interest groups

Step 1 Step 2
Apply NCEC and Animals’ Angels Apply ‘narrow approach’ under
factors to determine whether or Right to Life which may either
not there is a prima facie right of confirm or disrupt any prima facie
the public interest organisation to right to standing under NCEC and
standing Animals’ Angels

• In certain circumstances an applicant for review may have standing even if its interests
are not affected by the decision in question
• First, necessary to consider the factors articulated in NCEC and Animal Angels
o Not all need to be satisfied
o On balance, do they point to the applicant having standing?

Step 1: NCEC and Animals’ Angels Factors

NCEC v Minister for Resources Animals’ Angels

• NCEC sought reasons under the ADJR • Animals rights’ group based in Germany
Act for the Minister's decision to grant a which had Australian representative,
woodchip export licence to accompany sought judicial review against
Saw Millers Exports Pty Ltd government decision regarding live
• NCEC held to have standing because: export voyage
• Did Animals’ Angels representative have
standing?
Factors: Factors:
(i) Peak organisation for environmental (i) AA’s Australian representative was
protection in the area (reinforced if involved in, and appeared before,
there established government various government committees that
contract) operated with regard to live animal
o Credibility, expertise exports
commitment, populous support o Governmental recognition;
o Does the body operate in the credibility, expertise and
same State as the decision commitment

(ii) Recognised by Commonwealth
(ii) AA engaged in research and lobbying
Government, through Government
in Australia, through its representative,
Funding, as a significant and
with regard to live animal exports
responsible environmental
organisation
o Lockhart J in Right to Life found (iii) AA had spent its own money in
this controversial – bodies most engaging in its research and lobbying
critical of government (most activities
likely to seek JR) won’t be well-
regarded by the government (iv) AA’s activities had alerted the
o This factor alone insufficient Department to many potential
breaches of the law concerning live
(iii) Recognised by NSW government New animal exports.
South Wales as a body that should
represent environmental concerns on (v) Such was AA’s involvement in Australia
advisory committees with regard to live animal exports, and
its recognition by the government that
(iv) Had conducted/co-ordinated projects it did not matter that it was based in
and conferences on matters of Germany and only had an Australian
environmental concern representative.
o Expertise and commitment

(v) Had made submissions on forestry
management issues to a body called
the Resource Assessment Commission.
o Expertise and commitment
o Although right to influence does
not necessarily translate to
standing (Right to Life)

Step 2: Narrow Approach under Right to Life

• Position under Right to Life is that a public interest group will have standing if its
substantive concerns in bringing the application for review coincide with the purposes or
the concerns of the legislation
o But overruled by Argos

STEP 1 Identify the objectives of the Act (refer to the purposes section of Act)
STEP 2 Identify the ‘substantive concerns’ of the public interest group
STEP 3 Determine relationship between the objectives of the Act and organisation and
make a conclusion as to whether Right to Life confirms or disrupts the prima facie
conclusion reached from the NCEC and Animals’ Angels factors
STEP 4 Conclude: Nevertheless, Right to Life has probably been overruled by Argos v
Corbell, and it follows that even if this analysis pushes against a prior prima facie
finding that there was standing, this won’t necessarily be a finding of standing
against the public interest organisation

Right to Life
• Right to Life is a public interest group that opposes abortion
• Application of the NSW Therapeutic Goods Act 1999 which held that the Secretary of
Human Services had given permission for the testing of a morning-after pill
• Right to Life sought judicial review of the decision to permit the trials to go ahead
Held:
• Court denied Right to Life standing
• s.4 of the Act said that the purpose was to provide for the establishment and
maintenance of a national system of controls relating to the quality, safety, efficacy and
timely available of therapeutic goods
• Unless an individual could show an interest relating to products' quality, safety, efficacy
or timely availability, they wouldn’t have a sufficient interest for seeking judicial review
• Right to Life had no such interest of the morning after pill, but rather they were bringing
the application because it had a moral objection to the granting of the morning after
pill
Argos
• You can’t limit standing based on the purposes and objects of an Act
• Recognised that they were useful and relevant, but they are not determinative
(3) Exception to Standing: The Attorney-General’s Fiat

• Cth Attorney-General is head leader of the Cth, and the State Attorney-Generals are the
head legal officers for the States to which they are appointed in

• Exception: Attorney-Generals have standing to seek judicial review of decisions that affect
what public rights (administrative decisions that don’t affect particular individuals)
o Can do so on his own motion or permit a person to bring the action on his behalf

• Yet in practice, this is rarely used since Attorney-General is usual a Cabinet Minister so he
wouldn’t want to challenge his own party’s legislation
Reasons for Decisions

In Favour of Providing Reasons Against Providing Reasons

• Facilitates the availability of judicial • Overly burdensome for administrative
review or appeal decision-makers
• Increases the likelihood of decisions • Leads to delay in the making of
being made correctly administrative decisions
• Increases confidence in the • Promotes lack of candour
administrative process • Facilitates the availability of review or
• Accords respect to person adversely appeal
affected

(1) ADJR Act

STEP 1 • If applicant entitled to challenge a decision under s.5, he can request the
person who made the decision to provide him with reasons for the decision
(s.13(1) ADJR Act)
o s.5: A person who is aggrieved by a decision may apply to Federal Court for
an order of review. Under s.3, a person is aggrieved if his interests are
adversely affected by the decision (standing), which is an administrative
kind made under an enactment (jurisdiction)
• Decision-maker has 28 days to prepare the statement of reasons (s.13(2) ADJR
Act)
STEP 2 • Statement of reasons must include findings on material questions of fact, and
evidence on which those findings were based (s.25D Acts Interpretation Act
1901)
o Need not include ‘personal/business affairs’ that was supplied in confidence
(s.13A(1) ADJR Act)
o Decision-maker can use boiler-plate clauses or templates (Wu Shan Liang)
o Court should not be ‘over-zealous’ and hold decision is flawed because of
‘loose language’ or ‘unhappy phrasing’; give decision-maker benefit of the
doubt (Wu Shan Liang)
STEP 3 • Schedule II ADJR Act lists decisions to which s.13 does not apply

(2) s.75(v) of the Constitution

STEP 1 • No general duty to provide reasons at common law (Osmond; confirmed by

HCA in Wingfoot)
• Australian courts recognised that the common law may require reasons to be
given in exceptional circumstances (e.g. migration, natural justice) (Gibbs CJ
in Osmond)
o Although not clear what these circumstances are

Osmond
• O appealed a decision made by PSB regarding his appointment to chairman of the
local lands’ board (they didn’t provide reasons)
Held (Gibbs CJ):
• Australian law was that administrative decision-makers are under no common law
duty to provide reasons for their decisions
• May be desirable for an obligation to provide reasons, but that was a matter for
Parliament, not the courts
• However, might be obligated in exceptional circumstances (Deane J)

(2.1) English Position

• English position is that there is no general duty to give reasons, however, English courts
are more prepared to find exceptions
o Reasons for non-parole periods (Ex Parte Doody)

Ex Parte Doody
• Doody received life sentences for murder; Secretary of State under Act to determine
non-parole period
• Doody sought reasons for the period it set
Held:
• Recognised that there was no general duty to give reasons but it may be implied in
certain circumstances:
• When it is fair: Minimum terms of incarceration without giving them reasons was
unfair
• Decision is subject to JR: Minimum terms are always subject to JR, but without
reasons, D would not be able to challenge it

I Grounds for Review: Narrow Ultra Vires – Absence of Power

• Narrow Ultra Vires: decision-maker has no power to begin with. Three ways:

(1) Administrative Action Beyond Scope

s.5(1)(d) ADJR Act A person may seek judicial review of a decision on the ground that
the decision was not authorised by the enactment in pursuance of
which it was purported to be made
s.6(1)(d) ADJR Act A person may seek judicial review of conduct in relation to a
decision on the ground that the decision was not authorised by the
enactment in pursuance of which it was purported to be made

STEP 1 Identify the relevant facts from the problem scenario

STEP 2 Identify the relevant section of the Act; explain how facts prima facie conflict
STEP 3 Discuss, if possible, how facts may be construed to reconcile with Act
STEP 4 Conclude whether decision was made beyond scope
• Has the decision-maker acted beyond the purpose of the Act and
extended, added to or varied the legislative intention

(1.1) The Making of Regulations

• Issue: Did the Act permit the making of a regulation?

o Regulations often required to supplement Acts, to discuss how the legislative
scheme will operate
o Provision in the Act usually grants the Executive (Department or Council with
necessary expertise) to make the regulations: an administrative act
o Issue is whether the Act permits the Executive to make these regulations, and if
so, is the Executive acting beyond the scope?

(1.2) Powers to Regulate or Prohibit

• Issue: Did the Act permit the making of a bye-law by a particular body?
o If Act requires decision-maker to be satisfied on certain conditions before making
decision, the satisfaction must be reasonable (otherwise ultra vires) (Foley)
o If Act allows decision-maker to prohibit certain activities, decision can be attached
with any conditions (Foley)

Foley v Padley
• s.11(1)(a) granted Adelaide City Council to make by-laws ‘regulating, controlling or
prohibiting any activity in the Mall…that is, in the opinion on the council, likely to affect
the use or enjoyment of the Mall’
• Council made By-law No 8: ‘No person shall give out or distribute anything in the
Mall…to any bystander or passer by without the permission of the Council’
• Applicant (Hare Krishna) sang, chanted and distributed literature in the Mall; arrested
• Challenged the validity of By-law No 8, in that it wasn’t permitted by the Act
Applicant Argued Ultra Vires on two grounds:
1. Where exercise of power in the Act is contingent on the opinion of a body, that a
particular state of affairs will exist, the opinion must be reasonable
o Argued that the state of affairs was not reasonable: it would prohibit a mother
giving lollies to her child
o It was not a by-law in the Council’s opinion, that would affect use/enjoyment
of Mall

2. Act gave Council power to make a by-law prohibiting activities in the Mall
o Council had made a by-law certainly prohibiting activities, but also giving
Council power to permit certain activities (…without permission of the Council)
o This was not the same as the Council making a by-law simply prohibiting
activities
Held (Gibbs CJ):
• Rejected Argument 1
o Words bystander or passer-by indicate that to breach the by-law, goods had to
be given to a stranger, which could affect use/enjoyment of the Mall (litter,
false imprisonment, impede pedestrian use)
o Words give out or distribute indicate to breach the by-law, goods had to be
given out gratuitously
o Thus, rejected that by-law prevented too wide of activities
• Rejected Argument 2
o Power to make a by-law to prohibit activities will enable making of by-law to be
subject to any condition
o Broad interpretation of ‘prohibit’

(2) Breach of Essential Procedural Condition

s.5(1)(b) ADJR Act A person may seek judicial review of a decision on the ground that
that procedures that were required by law to be observed in
connection with the making of the decision were not observed
s.6(1)(b) ADJR Act A person may seek judicial review of conduct in relation to a
decision on the ground that procedures that are required by law to
be observed in respect of the conduct have not been, are not being,
or are likely not to be, observed

• Test: If prima facie breach of essential procedural condition, must construe the Act to
ascertain whether Parliament intended that a failure to adhere to procedural condition
would have the result that the decision would be rendered illegal (PBS)

STEP 1 Identify procedure required to be followed in the Act

STEP 2 Identify facts suggesting that the procedure has not been followed
STEP 3 Interpret the impact of the language, subject matter and purpose of the Act, and
the consequences to the parties on legislative intention (PBS)
Factors to determine whether it was Parliament’s intention to render breaches invalid:
Mandatory Language If the language of the section (or surrounding sections) is
mandatory – e.g. the Minister shall cause/must – suggests that it
was Parliament’s intention that the decision would be illegal if
the procedure was not followed (PBS)
Whether procedure For example – the fact that registration of a permit on the
occurs before or after Register occurs after the decision is made doesn’t preclude it
decision from being an essential procedural condition, but it may weigh
against it
Relationship with If the procedure correlates with Act’s objects, there is a higher
objects of Act likelihood that the decision will be deemed to be an essential
procedural condition
Consequences of If the consequences of rendering a decision invalid for not
invalidity of the following the procedure are more severe, it will be less likely that
decision it will be found to be an essential procedural condition (PBS) –
e.g. any massive capital investment made in reliance on the
decision, or breaching of any criminal provisions
If the procedure is a For example – that communication of a decision in a way that is
written requirement clear and certain is achieved much more effectively by way of
written communication than by way of oral communication
Notice that a failure to This acts to undercut the strength of any procedure, thereby
adhere to procedure decreasing the likelihood of it being an essential procedural
does not affect the condition (in absence of clear language to an opposite effect).
validity of the decision
Location in the Act If the section containing the procedure falls within a Part which
is extremely important to the Act as a whole, increases the
likelihood of it being an essential procedural condition
(Redmore) – therefore, decision is more likely to be invalid
Whether procedure is If the procedures have a ‘rule-like’ quality in that they are easily
in ‘precise’ or ‘vague’ understood, and it is very clear what must be done in order to
terms comply with them, then higher likelihood to be an essential
procedural condition (cf requirement in PBS that ABA comply
with ‘Australia’s international obligations’)
Relationship with Whether the language of the Act seems to presuppose that the
validity of the decision power to grant a permit exists whether or not the procedure is
complied with. If there is certainly nothing in the Act which says,
in terms, that a decision to will only be valid if procedure
complied with, then there is a decreased likelihood that it will be
an essential procedural condition rendering the decision invalid
(PBS).

Project Blue Sky v Australian Broadcasting Authority
• s.122 Broadcasting Services Act required ABA to determine standards to be observed
by commercial television stations in relation to the Australian content of programs
• s.160(d) required ABA perform its functions in a manner consistent with Australia’s
international obligations
• ABA set a standard of how many hours Australian TV must be shown
• PBS (a NZ organisation) argued standard was contrary to Australia’s international
obligations under a free trade agreement with NZ
• Thus, procedures required by s.160(d) hadn't been adhered to; standard invalid
Held:
• Prima facie, decision in breach of procedure is not invalid; court has to ask whether
legislation’s purpose that an act done in breach should be invalid
• Here, not a purpose of legislation that decision in breach be invalid because:
a) Language of s.160(d) suggests that ABA has power to perform its functions
regardless of whether or not international obligations adhered to. Nothing
stating ‘to be valid, s.160(d) must be adhered to’
b) Nature of the other obligations in s.160 didn’t also have a rule-like quality, so
can’t be assumed that breach of any of these sections, including s.160(d),
would result in validity. Not Parliament’s intention.
c) Nature of international agreements is that they are aspirational and
expressed in vague language, thus difficult to construe them as rules to be
obeyed. Thus not Parliament’s intention to render breaches invalid
d) Sheer number of international agreements Australia is party to was 900. Thus
not Parliaments intention that functionaries like ABA would have in-depth
knowledge of Australia’s treaty obligations. Thus not Parliament’s intention.
e) Consequences of invalidity were that public inconvenience would follow if
breach was invalid. Many parties relied on ABA, e.g. allocation and renewal of
TV licences, thus if decisions not made in accordance with s.160(d) were
invalid, other decisions would also be invalid which would disrupt entire
industry. Thus not Parliament’s intention.

(3) Decision-Maker Not Empowered (Delegation)

s.5(1)(c) ADJR Act A person may seek judicial review of a decision on the ground that
the person who purported to make the decision did not have
jurisdiction to make the decision
s.6(1)(c) ADJR Act A person may seek judicial review of conduct in relation to a
decision on the ground that that the person who has engaged, is
engaging, or proposes to engage, in the conduct does not have
jurisdiction to make the proposed decision

Types of Delegation Grounds of Review (Choose Either)

Statutory Where there is an express or implied power to delegate decision-
Delegation making power under the relevant Act and this has been validly
delegated by the original decision-maker to delegate
Agency per Where there is no express or implied power to delegate power
Carltona decision-making under the relevant statute
Principle

(3.1) Statutory Delegation

1. Is there a valid delegation?

STEP 1 Identify relevant facts from problem
STEP 2 Identify section of the Act and any pre-requisites for a valid delegation
STEP 3 • Have these pre-requisites been complied with?
• Discuss how facts may be construed to reconcile with the pre-requisites
• Conclude as to whether delegation is valid?

2. Has the decision been made by the original decision-maker or delegate?
Decision-maker makes decision Delegate makes decision
• Where person delegates power, they • If validly delegated, the legal decision-
don’t deprive themselves of that power maker is the delegate (Re Reference)
– they retain it • If delegate signs in their own name – no
• Thus, original decision-maker may issue because legal decision-maker is
continue to validly make decisions with taken as delegate
delegated decision-making power and • However, if delegate signs in the
sign decisions in their own name original decision-maker’s name,
delegate may repudiate the delegation
of power to them (Re Reference)

3. Where delegate signs in original-decision maker’s name
STEP 1 Prima facie decision may not be validly made, as Re Reference indicates that the
signing in the original decision-maker’s name suggests repudiation of the power
by the delegate
STEP 2 • Apply s.34AB(1)(c) Acts Interpretation Act, which states that where power is
delegated on someone by statute, the legal decision-maker presumed to be
the person on whom the power was originally conferred
• This states that the legal-decision maker remains with the authority/principal
• Thus, saves the decision, immaterial that delegate signed original decision-
maker’s name
STEP 3 • However, s.34AB(1)(c) has been construed to apply in narrow circumstances,
to permit appeals of decisions to occur, where the appeal provision states
decisions made by the Minister may be appealed (by deeming the
authority/Minister to be the legal-decision maker, permits an appeal even if
power was delegated)
• Thus, decision may not be saved

4. Conclude
STEP 1 However, this is an unsettled matter – therefore maybe original decision-maker
can preserve legality of the decision by relying on s.34AB(1)(c), but this is unclear
as to whether it only applies to appeal

Re Reference
• Director General of Social Services named Mr D (authority)
• Delegated some powers under Social Services Act to member of his Department: Mr P
• Mr P sent a letter denying woman application for social security
• Signed with Mr D’s name
• Woman argued exercise by a delegate of their power was illegal, as Mr P was
repudiating the delegation
Mr P’s Arguments:
• He was exercising power that was delegated to him by Mr D
• He was acting as Mr D's alter ego, pursuant to the Carltona principle
o Thus, Mr D remains the legal decision-maker, thus nothing wrong with the signing
in Mr D's name
Held:
• Court rejected Mr P’s arguments
• Since there is a power of delegation contained in the legislation, then there was no
justification for departing from a literal reading of the statute by applying the Carltona
Principle
• Where there is an express power of delegation, there is no practical administrative
necessity

(3.2) Carltona (Alter-Ego) Principle

• Principle: Legal decision-maker is the person on whose behalf the power is exercised
(the authority/Minister)
o Apply test below:

Delegation Provision in the Act No Delegation Provision in the Act

• Carltona Principle won’t apply, because • Carltona Principle relevant, because
no need to interpret statute in a non- the court has accepted that in some
literal way with regard to that power, instances, a power includes an implied
required for the operation of the Carlton power to act through a delegate/agent
Principle (Re Reference) • This is because when an Act says that a
particular decision-maker power is
vested in a Minister, can’t mean he
must make the decision as he can’t
possibly attend to all of them
• Enough that the decision made under
the authority of Minister by an
appropriate official in his Department

• Test: Does practical administrative necessity dictate that power may be exercised by
someone in the governmental body, other than the person upon whom the power is
conferred (Lord Green in Carltona)?
o Also applies to head of a large government department or person to whom
power has already been delegated (O’Reilly)

• Factors of Practical Administrative Necessity:

Points towards Points Away

• Agent signed in their name on behalf of • Power that adversely affects the rights
decision-maker (Re Reference) of individuals should be personally
• Any dramatic increase in workload of performed by those whom legislation
original decision-maker that would conferred the power to (O’Reilly)
reduce administration into ‘chaos’ • If Act confers power to senior members,
o High threshold: thousands of then no intention ‘there should be a
war requisitions (Carltona) or wholesale delegation of powers to
millions of taxation comparatively minor officials’ (O’Reilly)
assessments (O’Reilly)
• Original decision-maker has a special
position of responsibility – complex
tasks

Carltona v Commissioner of Works
• During WW2, power to requisition private goods and premises vested in Minister
• This power was actually performed by Senior Official in Minister’s Department
• Carltona, whose food manufacturing factory was requisitioned, challenged decision
because Official made it, not the Minister
Held:
• Court rejected challenge
• Functions given to Ministers are so multifarious that no Minister could ever personally
attend to all of them
• Thus, a statute that says that a particular decision making power is vested in a
Minister, can't usually mean that the Minister personally has to make the decision
• Enough if decision made under the authority of the Minister by an official of an
appropriate level of authority in the Department
Policy: Interpreting vs Re-Writing Statute
• Lord Green in his decision believed that court here was merely interpreting the
statute, as court knows its not Parliament's intention that the Minister has to make all
the decisions, because it knows Parliamentarians are incredibly busy
• However, equally valid to argue that they are rewriting it, as Parliament would've
easily inserted a power of delegation, but they have clearly chosen not to

O’Reilly
• Commissioner had power to delegate to Deputy Commissioners to send notices out to
taxpayers
• Mr Holland, a senior employee, instead performed this power, without Deputy
Commissioner’s knowledge
• Taxpayer challenged decision because Mr H made it, not the Deputy Commissioner or
Commissioner
Held:
• Reinforced Carltona, there are millions of taxpayers and it would reduce the
administration of taxation laws into chaos if the power was only exercised by DC or C
o Parliament never intended such result;
• Recognised that the Act only allowed delegation to DC and no one else – points to
intention that there should not be wholesale delegation to minor officials
• Held that Mr H was authorised to exercise, on behalf of DC, the power to issue notice

II Grounds for Review: Broad Ultra Vires – Abuse of Power

• Abuse of Power: There is power/jurisdiction which has been exercised, but which has
been abused or exceeded
(1) Considerations

• Legislation will identify relevant and irrelevant considerations through:

o Express statutory provisions; and
o Subject matter, scope and purpose of the relevant Act (Peko)

(1.1) Relevant Considerations

s.5(1)(e) ADJR Act A person may seek judicial review of a decision on the ground that
the making of the decision was an improper exercise of the power
conferred by the enactment
s.5(2)(b) ADJR Act Includes failing to take a relevant consideration into account in the
exercise of a power
s.6(1)(e) ADJR Act A person may seek judicial review of conduct in relation to a
decision on the ground that the making of the proposed decision
would be an improper exercise of the power conferred by the
enactment
s.6(2)(b) ADJR Act Includes failing to take a relevant consideration into account in the
exercise of a power

• Test: A relevant consideration is a consideration that, according to the legislation, the

decision-maker must take into account. If the decision-maker, in making a decision, fails
to take into account a relevant consideration, the decision will be amenable to review.

STEP 1 Identify section of legislation potentially giving rise to the relevant consideration
and determine whether it is actually a ‘relevant consideration’
• Is there any express statutory provision?
o 'The decision-maker must take into account…'
• If none, then look to the subject matter, scope and purpose of the Act
(Peko)
o Nature of the power exercised
o Who is exercising the power
o Material and salient facts are relevant considerations (Gibbs CJ in
Peko)
STEP 2 If the consideration is a relevant consideration, identify facts which suggests that
the relevant consideration has not been taken into account
STEP 3 Consider whether a ‘proper, realistic, and genuine consideration’ of the relevant
consideration has been undertaken (Hindi)
• The Court does not require that in order to have taken a relevant
consideration into account, that the decision-maker must have attached
any particular weight to the consideration (Hindi) – outside realm of JR
• Stating ‘I have read’ and ‘I have considered’ does not necessarily show
‘genuine and proper consideration’ (Hindi)
• Decision-maker must consider the effect or likely effects of the relevant
consideration (Hindi)

Minister for Aboriginal Affairs v Peko-Wallsend
• Act allowed Aboriginals to make a claim to the Commissioner, who would determine
whether they were the traditional owners of the land, then report to Minister with
recommendations
• Report needed to include any detriment to people or communities, if land was
acceded to Aboriginals
• Peko-Wallsend (mining company) sought JR of a decision, where Minister had failed to
take into account two relevant considerations:
o Report stated detriment to be suffered by Peko if land acceded
o Peko also provided elaboration on this detriment
• Nothing in the Act expressly stating they were relevant considerations
Held:
• Court held both were relevant considerations; Minister obliged to taken them into
account
• Court looked at subject matter, scope and purpose of the relevant Act
o A grant could adversely affect interests of many people, by providing a means
(report) whereby such detriment could be drawn to Minister’s attention,
Parliament evinced concern that the Minister not overlook crucial
considerations
o Minister was the only person who could make the grant and consider detriment
• In obiter, mentioned that relevant considerations are those that if decision-maker
didn’t rely on it, on balance, a different substantive result would have followed
o Although this controversial as JR is about process, not substantive results; highly
speculative

(1.2) Irrelevant Considerations

s.5(2)(a) ADJR Act Includes making an irrelevant consideration into account in the
exercise of a power
enactment
s.6(2)(a) ADJR Act Includes making an irrelevant consideration into account in the
exercise of a power

• Test: An irrelevant consideration is a consideration that the decision-maker must not take
into account. If a decision-maker, in making a decision, takes into account an irrelevant
consideration, the decision will be amenable to review.

STEP 1 Identify the potential irrelevant considerations taken into account on the facts
STEP 2 Determine whether or not these are actually ‘irrelevant considerations’ that the
decision-maker was forbidden to take into account
• Is there any express statutory provision?
o 'The decision-maker must not take into account…'
• If none, then look to the subject matter, scope and purpose of the Act
(Peko)
o Look to social context (Roberts)
STEP 3 Note that court has stated that the irrelevant consideration must have had a
substantial effect for decision to be amenable to review (Klein)
• But then court will be reluctant to determine this, since this intrudes into
merits of the decision (Mason J in Peko)

Roberts v Hopgood
• Act allowed local council to pay its employees, salaries and wages it might think fit
(broad discretion)
• Council was socialist, and paid employees 4 pounds/week (well above minimum
wage), to be received for men and women (wanted equality)
• Nothing in the Act that forbid such principles
• District Auditor challenged decision
Held:
• Council had been guided by eccentric principles of socialistic philanthropy and
feminist ambition
• These were irrelevant considerations, because employer shouldn’t be taken such
matters into account in setting wages in 1925 England
• Court did note however, that when Act confers a broad discretion, the court should be
more relaxed in determining relevant and irrelevant considerations

(2) Improper Purpose

s.5(2)(c) ADJR Act Includes an exercise of a power for a purpose other than a purpose
for which the power is conferred
enactment
s.6(2)(c) ADJR Act Includes an exercise of a power for a purpose other than a purpose
for which the power is conferred

• Test: A decision will be made for an improper purpose if it is made for a purpose other
than the purpose for which the relevant power was conferred (Toohey). Such decisions
will be amenable to review.

• Legislation will identify the purpose for which statutory power is conferred by:
o Express statutory provisions; and
o Subject matter, scope and purpose of the relevant Act.

STEP 1 Identify the likely reason/purpose behind the decision being made on the facts
STEP 2 Identify the statutory purpose for which the power can be exercised
• Look to the objects section
STEP 3 Determine whether the purpose behind the decision coincide in any meaningful
way with those of the Act – such as to be an ‘improper purpose’
• If Act confers a broad power and the decision was in ‘the public interest to do
so’, so long as decision-maker believes this, it is not improper purpose
(Plaintiff M79)
• Even if activity is done for a purpose which does not directly coincide with
purpose for which power was conferred, it may still have been done for a
proper purpose if it facilitates achieving that purpose (Samrein)
STEP 4 If there are multiple purposes, where at least one is improper
• Sufficient for a decision to be impugned, if the improper purpose played a
substantial role in making the decision, i.e. were it not for the improper
purpose, the decision wouldn’t have been made (Randwick)
o Substantial dominant purpose
• Note that attempting to second guess whether the improper purpose played
a substantial role is almost intruding into the merits of the decision (Mason J
in Peko)

R v Toohey
• Act allowed land claims to be made over unalienated Crown land
• Aboriginals interested in making a land claim over Cox Peninsula (NT)
• Administrator of the NT then made regulations pursuant to NT Town Planning Act,
which incorporated the Cox Peninsula within Darwin (thereby, no longer unalienated
Crown land)
• Facts showed that administrator did so to defeat the Aboriginal land claim
Held:
• Court did not decide whether the Administrator was acting for an improper purpose
• But did believe that based on the NT Town Planning Act, the powers conferred was for
the purposes of town planning, not to defeat an Aboriginal land claim

Plaintiff M79
• Applicant was detained on Christmas Island
• s.195A Migration Act allowed Minister to grant visas if it was in public interest to do so
• Minister ‘gratuitously’ (without applicant applying) granted applicant Temporary Safe
Haven Visa, with the intention that the applicant could not apply for a Protection Visa
• Applicant argued that the purpose under the Act in relation to the power was to give
someone ‘safe haven’, not to prevent them from applying for another visa
Held:
• Court did not believe Minister was acting for an improper purpose
• Minister had the power to grant a TSH visa if it was ‘in the public interest to do so’
o Here, the minister was acting in the public interest, as he understood it. He
believed that limiting the Applicant’s stay in Australia was in the public interest.

Samrein
• Act allowed Board to compulsorily acquire land; Board did so over land owned by
Samrein
• Board wanted land to build a building, as a joint venture with GIO, to provide them
both with office space; ground floor to be used for retail
• Samrein argued that the purpose of the Act was to allow the Board to construct a
building solely for its own use
• But here, land was also used to provide office space to GIO and to create a retail
centre; therefore, improper purpose
Held:
• Court did not believe that the Board was acting for an improper purpose
o Board was intending to accommodate GIO so it could obtain money from GIO,
which in turn would assist the Board in servicing loans it had incurred to buy
the land, to accommodate more staff members
o Same was true for the retail area, in renting to various shops
• Thus, by providing office space to GIO and creating retail centre, these facilitated the
financing to provide office space for the Board’s staff, which was a proper purpose

(3) Bad Faith

s.5(2)(d) ADJR Act Includes an exercise of a discretionary power in bad faith
enactment
s.6(2)(d) ADJR Act Includes an exercise of a discretionary power in bad faith
• Test: A decision-maker will contravene the prohibition when they act for an improper
purpose and that purpose is either to:
o Benefit themselves; or
o Harm someone else or a third party

(4) Wednesbury Unreasonableness

s.5(2)(g) ADJR Act Includes an exercise of a power that is so unreasonable that no
reasonable person could have so exercised the power
enactment
s.6(2)(g) ADJR Act Includes an exercise of a power that is so unreasonable that no
reasonable person could have so exercised the power

• Test: A decision will be illegal if the decision is so unreasonable that no reasonable

decision-maker could have made it (Wednesbury)
o In practice, only granted if the substantive decision is ‘outrageous’, since it
involves looking to the decision’s substance (Lord Greene in Wednesbury)

STEP 1 Factors suggesting ‘unreasonableness’ (HCA in Li)

• Partial and unequal in their operation as between different classes
(discrimination)
• Decision is manifestly unjust
• Decision discloses bad faith
• Lacks an intelligible justification
• Decision involves such oppressive or gratuitous interference with the rights
of those subject to them as could find no justification in the minds of
reasonable men
• Comparison of the severity of any breach to consequences of invalidating
decision – i.e. where imposing a penalty to a breach is disproportionate in
the sense of being excessive
• Consideration of severity of any consequences of invalidating decision – e.g.
financial
• Social context (Wednesbury)

Wednesbury
• Act held that all shops and business had to be closed on Sundays, except if local
authorities granted cinemas a licence
• W granted licence to a cinema to open on Sundays, subject to the condition that
children under 15 years were not permitted in the cinema (wanted them to go to
Church)
• Cinema argued that this was so unreasonable that no reasonable local authority could
have made it
o Not all children were spiritual/religious
o Not all children had Sunday as their holy day
o Who was the government to say that children can't go
Held:
• Court held that it wasn’t unreasonable due to the social expectations at the time, in
1948

Li
• Li applied for a skilled-visa under the Migration Act; application denied by Minister’s
delegate because skills assessment based on false information
• Li sought review of this in the Migration Review Tribunal
• At same time, applied for new skills assessment; but eventually was adverse to her
again
• Li wanted to review this assessment, and asked the Tribunal to wait until this review
was finished
• Tribunal rejected this request; based on unreviewed skills assessment, upholds
Minister’s decision
• Li seeks JR of Tribunal’s decision to not hold off their decision
Held:
• Established list of when decisions may be unreasonable above
III Grounds for Review: Broad Ultra Vires – Fact-Finding Errors

• Fact-Finding Errors: Questions of facts can sometimes be questions of law:

(1) No Evidence

(1.1) Common Law

• Test: Applicant can make out no evidence ground of review if two conditions are met
(Australian Stevedoring Board):

First Condition Allegation of no evidence of an essential statutory requirement

must relate to a matter upon which the exercise of power depends
Second There must be absolutely no evidence in support of that matter
Condition o There will usually be at least poor/weak/illogical evidence
(Mason J in Bond)

• Because there is usually some evidence, albeit weak, this ground of review is very difficult
to make out

(1.2) ADJR Act

s.5(1)(h) ADJR Act A person may seek judicial review of a decision on the ground that
there was no evidence or other material to justify the making of the
decision
s.5(3) ADJR Act The ground specified in section 5(1)(h) will only be made out if one
of the limbs below are satisfied:
(a) the person who made the decision was required by law to
reach the decision only if a particular matter was established,
and there was no evidence or other material…from which he
could reasonably be satisfied that the matter was
established; or
(b) the person who made the decision based the decision on the
existence of a particular fact, and that fact did not exist
s.6(1)(h) and s.6(3) Same as above
ADJR Act

• Note that unclear if limb s.5(3)(a) or (b) has to be proven, then s.5(1)(h) has to be
proven
o But Gaudron & McHugh JJ in Rajamanikkam treated s.5(3)(a) or (b) as self-contained
grounds for review – if made out, s.5(1)(h) will be made out

(a) Section 5(3)(a) Ground

Use When If there is a factual precondition in the legislation – i.e. it must be a

jurisdictional fact (pre-requisite to the decision-maker being able to exercise
decision-making power)

• Following requirements must be made out:

First There must be a factual precondition for the exercise of the power in the
Requirement Act
• Not confined to express statutory requirements, can be implicit
Second There was no evidence from which the decision-maker could reasonably be
Requirement satisfied that the precondition was satisfied
• Note if the Act states that ‘decision-maker is satisfied…’, this is partly
subjective and permits greater latitude to them. Court may be more
reluctant to make this ground out since ‘reasonable minds could
reasonably differ’ unless obviously unreasonable (Mineralogy)

(b) Section 5(3)(b) Ground

Use When Where the matter you want to claim doesn’t exist isn’t referred to in the
legislation, rather, it is just a matter that the decision-maker has in fact taken
into account
o E.g. Where the Act confers a broad discretion onto decision-maker –
thus there are no factual preconditions

• Following requirements must be made out:

First Decision maker based the decision on the existence of a particular fact
Requirement o Can be a finding, assumption or prediction
Second The particular fact has to be critical to the making of the decision
Requirement (Rajamanikkan)
Third That fact (on which they based their decision) did not exist
Requirement o Must establish affirmatively that the fact did not exist
o Court is not limited to the evidence before the decision-maker

Minister for Immigration v Rajamanikkam
• R was Sri Lankan citizen and wanted to obtain a Protection Visa; rejected by Dept.
• Appealed to the Refugee Tribunal, who held that he did not have a ‘well founded fear
of persecution from Sri Lankan authorities’
• Tribunal formed view that R didn’t satisfy this based on 8 separate factors
• R sought JR of the Tribunal’s refusal, arguing no evidence ground of review for 2 out
of 8 factors – Tribunal was wrong in thinking these 2 matters existed (6 did have
evidence)
Held:
• S.5(3)(b) to be used restrictively as it refers to particular fact
• Particular fact means a fact without which the decision wouldn't/couldn't have been
reached
o Here, if the 2 ‘no evidence’ factors didn’t exist, could the decision still have been
made?
o Yes, there was 6 valid factors on which there was evidence to think R didn’t have
a real found persecution
• Thus, the 2 facts were not particular facts

(2) Jurisdictional Fact

• Can only be used: Under s.75(v) Constitution and not under the ADJR Act
o For ADJR Act, usually narrow ultra vires is used (acting outside of power)

• Test: A jurisdictional fact is a factual precondition that the Act makes clear, must exist
before the decision-maker can exercise their power. If a jurisdictional fact is not made
out/does not exist, the decision is invalid.

STEP 1 • Determine whether the factual reference relied upon was a jurisdictional fact.
• Whether a factual reference is a jurisdictional fact is a matter for the court to
determine (Timbarra)
• To do so, interpret the Act to ascertain whether Parliament intends that the
‘presence or absence of the fact will invalidate action under the Act’
(Timbarra)
• Look at:
1. How far removed the factual reference is from the exercise of decision-
making power
o If factual reference is very near to/in the course of the actual
decision-making power, it is less likely that Parliament intended the
factual reference to be a jurisdictional fact
§ Parliament has conferred the task of ascertaining whether the
fact exists on the decision-maker; thus not a jurisdictional fact
§ Fact to be adjudicated upon in the course of the inquiry

o If factual reference is preliminary/ancillary to the exercise of
decision-making power, more likely that Parliament intended the
factual reference to be a jurisdictional fact
§ It is legally antecedent/essential preliminary to the decision-
making process
§ Preliminary inquiry (can I?) rather than (should I?)
§ Can be expressed objectively or subjectively

2. The extent to which there may be disagreement about whether the

matter is made out
o If reasonable minds could reasonably disagree as to whether the the
facts are present in the case, then it is less likely that Parliament
intended the factual reference to be a jurisdictional fact
§ Parliament less likely to condition the exercise of power on
the existence of a particular matter where there could be a
deal of disagreement as to whether that matter exists
STEP 2 • Court may be prepared to find hidden jurisdictional facts in the Act by looking
at the subject matter, scope and language of the Act (Plaintiff M70/2011)
• Applies when Act does not state ‘Minister must consider:’
STEP 3 • If it is a jurisdictional fact – determine whether or not the fact actually exists.
If the jurisdictional fact does not exist, then decision can be impugned.
o Objective jurisdictional fact: Look to objective evidence adduced by the
parties
o Subjective jurisdictional fact: If the exercise of power is conditional on
the decision-maker, usually a Minister being satisfied of a certain state
of affairs – then the making of a decision can be impugned if the
Minister’s satisfaction was reached as a result of illogical or irrational
reasoning (SZMDS):
§ Illogical or irrational reasoning:
§ Only one conclusion was open on the evidence and the decision-maker
did not come to that conclusion
§ If the decision was ‘simply’ not open on the evidence
§ No logical connection between the evidence and the inferences
and conclusions drawn by the decision-maker
§ Won’t be illogical if:
Ø There is room for a logical/rational person to reach the same
decision on the material before the decision-maker, as the
decision-maker reached

Timbarra Protection Coalition v Ross Mining
• s.91 of the Act (decision-making power): Had to obtain permission from local council
if there was going to be mining in area, or if a mine that already existed was going to
be extended or modified
• Ross wanted to extend its goldmines; sought permission from council; permission
granted
• TPC challenged this decision on basis that a jurisdictional fact had to exist if the
permission was to be granted, and here, it didn’t exist:
o s.77(3)(d) of the Act (jurisdictional fact): An application to extend a mine shall,
if it is in respect of development on land that is likely to affect threatened
species, be accompanied by a species impact statement
• There was no impact statement accompanying Ross’ application
• TPC argued: Where there was no impact statement, then the Act made clear that
development could not have likely affected threatened species
o Development likely to affect threatened species was a jurisdictional fact that
needed to be made out in this case
Held:
• Jurisdictional fact in a general sense:
o Whether a factual reference in a statute is a jurisdictional fact is a matter for the
reviewing court to determine
o Achieved by interpreting the statute to ascertain whether the Parliament
intends that ‘the presence or absence of the fact will invalidate action under the
statute’
o Court must then determine whether the fact actually exists
• Factors:
• How far removed the factual reference is from the decision-making power
o If factual reference in actual decision-making power = not jurisdictional fact
o If factual reference preliminary to decision-making power = jurisdictional fact
o Here, s.77(3)(d) was preliminary/ancillary to s.91, thus more likely Parliament
intended the factual reference to be a jurisdictional fact
• Extent to which there may be disagreement about whether the matter is made out
o If reasonable minds could reasonably disagree as to whether the matter is made
out = not jurisdictional fact
o Here, this was a matter which reasonable minds could disagree, this weighed
against it being a jurisdictional fact
• Court held ‘development likely to affect threatened species’ was a jurisdictional fact
o If fact made out = decision invalid because no impact statement
o If fact not made out = decision valid because no need for impact statement
Plaintiff M70/2011 v Minister for Immigration

• P was an offshore entry person under Migration Act
• s.198A(2): offshore entry person could be taken from Australia to a country for which
a declaration was in force under s.198A(3)
• s.198A(3): Minister may declare in writing that a specified country:
(i) Provide asylum effective procedures for assessing their need for
protection
(ii) Provide protection pending determination of their refugee status
(iii) Provide protection to those who are given refugee status pending
their voluntary repatriation to country of origin or resettlement
elsewhere
(iv) Meets relevant human rights standards in providing protection
• Minister wanted to send P to Malaysia and argued all that was necessary for this was
that the Minister make the relevant declaration under s.198A(3)
o s.198A(3) does not state Minister must ‘consider’
• P argued (i)–(iv) were jurisdictional facts, thus declaration only valid if they all existed
Held:
• (i)–(iv) were jurisdictional facts
o Court looked to Parliament’s intent – provisions under Migration Act should
facilitate Australia’s compliance with International Refugee Convention
• Held that these jurisdictional facts did not exist in respect to Malaysia since it was not
party to the Convention
• Thus decision impugned
SZMDS
• Pakistani citizen sough protection visa in Australia because he was gay
• s.65 Migration Act: Minister must grant protection visa if satisfied that the applicant
entertained a well founded fear that he would be persecuted (jurisdictional fact)
• Decision-maker was not satisfied that applicant entertained a well founded fear
• Applicant sought JR of this decision: the jurisdictional fact was illogical and irrational
Held:
• Here, decision-maker’s satisfaction that applicant did not have well founded fear was
not illogical or irrational
o Applicant in the past had returned to Pakistan for a number of years
o Applicant hadn’t sought a protection visa in England where he was before he
came to Australia
• This lack of satisfaction could have been reached by a logical/rational person on the
material before the decision-maker
• JR not made out
IV Grounds for Review: Broad Ultra Vires – Failure to Exercise Discretion

• Failure to Exercise Discretion: Failing to consider all of the relevant facts and applicable
law and attempting to reach the best decision

(1) Inflexible Application of Policy

s.5(2)(f) ADJR Act Includes an exercise of a discretionary power in accordance with a
rule or policy without regard to the merits of the particular case
enactment
s.6(2)(f) ADJR Act Includes an exercise of a discretionary power in accordance with a
rule or policy without regard to the merits of the particular case

• Test: Decision-maker must make ‘real and genuine attempt’ to take into account
circumstances of the case without ‘shutting their ears to the merits of the application’
(British Oxygen)
o Firstly, ask if the policy is lawful/reasonable?
o Decision-maker entitled to consider policies but should not forfeit the exercise of
discretion so as to rigidly apply that policy
o Decision-maker must consider themselves to be at liberty to depart from a policy
(Rendell). Is there any reason to depart from the policy?

British Oxygen v Minister of Technology

• Industrial Development Act gave Minister wide discretion to grant businesses, capital
expenditure of new machinery to recoup effects of WW2
• Minister’s policy: Grant would not be given if machinery cost <25 pounds
• Applicant bought 4 million pounds’ worth of gas cylinders, but each only cost 20 pounds
• Minister denied grant because each cylinder was below 25 pounds
• Applicant argued Minister had inflexibly applied his policy in making decision
Held:
• Minister had not inflexibly applied his policy (so long as they listen to the merits)
• However, stated that although helpful for decision-makers to develop a policy, it ‘must
not shut its ears to the merits of the application’
o Must always be alert to the merits of the application or ‘listen’ to what applicant
has to say
o If merits point to the benefit being granted, then it should be granted and policy
displaced
• On facts Minister entitled to refuse grant; no reason for it to depart

Rendell
• Licence Board dealt with paroles in NSW
• R was serving life sentence for murder and applied for parole after 8 years
• Prisons Act require Board to recommend to Cabinet whether applicant should be
released; Cabinet would then decide separately whether to abide by Board’s
recommendation
• Cabinet Policy: It would not release someone imprisoned for murder until they served
at least 10 years
• Licence Board Policy: It wouldn’t recommend to Cabinet unless there was some
possibility that recommendation would be adopted by Cabinet
• Since R only served 8 years, Board did not recommend to Cabinet
• R argued that Board had inflexibly applied its policy
Held:
• Useful for decision-makers to adopt guidelines/policies
• But they must not abandon the discretion conferred on them by legislation by inflexibly
relying on guidelines which in turn are themselves 'inflexible' and which 'pay no regard
to the circumstances of the case'
o Regardless of whether Cabinet would have/would have not accepted it
o Parliament has conferred on it a discretion – it must therefore exercise it

(2) Acting Under Dictation

s.5(2)(e) ADJR Act Includes an exercise of a personal discretionary power at the
direction or behest of another person
enactment
s.6(2)(e) ADJR Act Includes an exercise of a personal discretionary power at the
direction or behest of another person

• Test: The exercise of discretion in question ‘must be a real exercise of discretion by the
decision-maker, not an acceptance by her of a direction by some other person to whom
the making of the decision has not been entrusted’ (Telstra Corporation v Kendall)

STEP 1 Consider whether decision-maker is acting under dictation, where they are acting
at the ‘behest’ of another person
o Bidding, command, injunction or direction of another (Kendall)
o Includes at the ‘behest’ of the Minister’s policy (Ipec Air)
STEP 2 Consider whether there is an exception for consideration of government policy
o Majority in Ipec Air adopted a ministerial responsibility approach in that
the Minister is responsible to Parliament, so their officers should follow
their directions
o Alternative approach is that the decision is vested in the decision-maker
and hence should be exercised by them (Mason J in Ansett; Kitto J in Ipec
Air)
§ Can take Minister's policy into account, but not blindly follow it
§ This is the current and accepted authority
STEP 3 If statute doesn’t state who can exercise the power, fact that decision was made
by reference to Minister’s government policy can be relied on by court in
construing legislation as intending that the decision-maker was the Minister
(CPCF)

Ipec Air
• Minister responsible for the Department of Civil Aviation
• There was a Director-General who ran Department on a day-to-day basis
• DG tasked with determining whether Ipec Air should receive a licence to (i) carry air
freight between Australian cities and to (ii) import airplanes for carrying the freight
• DG held off decision until heard Minister’s policy – DG was prima facie going to grant
licence
• Minister’s policy opposed granting of licence because government had two airline
policy
• DG rejected Ipec’s licence application
• Ipec sought JR; DG had blindly followed Minister’s policy
Held (Windeyer J):
• Ministerial responsibility approach: although DG had acted under dictation respect to
Minister’s policy, this was acceptable because Minister was responsible to Parliament
and the electorate, thus DG had duty to obey his lawful directions (Windeyer J)
o Not the current and accepted authority
Held (Kitto J):
• DG had acted under dictation with respect to Minister’s policy and this was
impermissible as the decision-making power had been conferred on him (Kitto J)
o This is the current and accepted authority

CPCF
• Maritime Powers Act: Maritime officers can detain people and take them in or out of
Aus’ migration zone.
• Nothing in section stated who would make this decision
• Cabinet instructed maritime officers to return a vessel carrying 157 passengers back
to India
• Passengers argued that:
o Maritime officers had acted under dictation of Cabinet and hadn’t exercised their
own discretion
• Thus, court had to determine in whom the decision-making power fell onto
Held:
• Decision-maker was the Minister, who would be informed by government policy
o Maritime officers weren’t the decision-maker
o It was not Parliament’s intent that they would know about relevant government
policies/arrangements/details that Australia had with other countries
o Could not be intended that maritime officers were decision maker
• Thus passenger’s challenge failed

V Procedural Fairness

s.5(1)(a) ADJR Act A person may seek judicial review of a decision on the ground that
that a breach of the rules of natural justice occurred in connection
with the making of the decision
s.6(1)(a) ADJR Act A person may seek judicial review of conduct in relation to a
decision on the ground that a breach of the rules of natural justice
has occurred, is occurring, or is likely to occur, in connection with
the conduct

• Legislation does not specify when a decision-maker will be obligated to act in accordance
with procedural fairness: we need to look to the common law below

(1) The Hearing Rule

• When does the hearing rule apply?

o There is a common law duty to act fairly…in the making of administrative decisions
which affect rights, interests and legitimate expectations…” (Mason J in Kioa)
• Elements:
I) Rights, interests and legitimate expectations
II) Limitations on the hearing rule
III) Exclusion and modification of the hearing rule
IV) Content of the hearing rule

Kioa v Minister for Immigration

• Deportation order made onto K (Tongan citizen)
• Made by delegate of the Minister, on reliance on a report made by an officer in the
Department
• Report stated: When applying for an extension on his visa, he moved address without
informing Dept. which shows he wasn’t genuine in seeking a legitimate extension, and
that K was involved with other Tongans who were circumventing Australia’s
immigration laws
• K sought JR: he wasn’t given a hearing to address the allegations

(1.1) Rights, Interests and Legitimate Expectations

(1.1.1) Rights

• Rights are legal rights

o Includes property rights (Cooper)

Cooper v Wandsworth
• Board of Work, per statute, decided to pull down C’s house
• C sued and was successful
Held:
• Before the Board knocked down C’s house, it should’ve heard C on why his house
shouldn’t have been demolished because the decision affected his property rights: a
legal right

(1.1.2) Interests

• Interests include one’s (Mason J in Kioa):

o Personal liberty
o Status (can be defined broadly)
o Preservation of livelihood
o Reputation (Annett)

• Brennan J in Kioa went further to state that administrative decisions that affects any
interest possessed by an individual; not limited to the list above

(1.1.3) Legitimate Expectation

• A legitimate expectation held by an applicant, that the government will act in a

particular way, that is given rise to by some government behaviour (Cole v Cunningham)
• But legitimate expectation is no longer relied upon in Australia; rejected (WZARH)
o Was introduced to expand reach of procedural fairness
o But now, ‘interests’ is defined expansively, so it’s no longer relevant

Cole v Cunningham
• Mr C (employed in Dept. of Immigration) engaged in inappropriate behaviour with
illegal immigrant
• When discovered, was told that behaviour would not be noted on record if he
resigned
• He resigned, but was still noted on his record
• He sough JR of decision
Held:
• Representations had been made to Mr C, thus he had a legitimate expectation that
behaviour wouldn’t be noted on record
• He should therefore be provided with opportunity to argue before the Dept. why it
shouldn’t be noted

(1.2) Limitations on the Hearing Rule

• The hearing rule does not apply to:

o Decisions affecting general social or political goals (Mason J in Kioa)
§ When the decision won’t affect the person as an individual, but as a
member or a class of a member of the public
§ E.g. Tax levels being raised
o Decisions affecting individuals which are heavily influenced by social or political
considerations (O’Shea)
§ Ministers are responsible to Parliament and the electorate, thus in a
unique position to gauge public reaction and accept political responsibility

SA v O’Shea
• O imprisoned indefinitely by statute for being sexual offender
• Statute allowed Cabinet to release O on parole, if Parole Board recommended this to
Cabinet
• Board did recommend O’s release to Cabinet
• Cabinet declined recommendation; didn’t give O a hearing
• O sought JR: he wasn’t given a hearing
Held:
• Hearing rule did not apply here
• Decision was operating on a political level and wasn’t required to made in accordance
with procedural fairness
o Ministers responsible to Parliament and the electorate, thus in a unique position
to gauge public reaction (for his release) and accept political responsibility
o O would not have been able to contribute to the decision of his release, since it
was based on public confidence/reaction – matters not personal to O
o Government must accept political responsibility for O’Shea’s release

(1.3) Exclusion and Modification of the Hearing Rule

• Hearing rule can be excluded or modified through clear statutory intent (express or
implied):

(1.3.1) Express Exclusion or Modification

• Strong manifestation of statutory intent in the words of the Act to exclusion or

modification (Mason J in Kioa; Saeed)

Saeed v Minister for Immigration and Citizenship

• s.51A Migration Act: the relevant subdivision taken to be an exhaustive statement of
the requirements of the natural justice hearing rule in relation to the matters it deals
with (mo0dification of the hearing rule)
o s.57(3): this provision only dealt with onshore visa applicants
o In other words, onshore applicants would not get a hearing
• Applicant was an offshore applicant and did not receive a hearing
Held:
• Although extrinsic materials suggested that the provisions intended to cover all visa
applicants (i.e. all visa applicants don’t get a hearing), court interpreted the sections
strictly
• s.57(3) stated that the modification only operated for onshore visa applicants
o Clearly and expressly applied only to onshore
o Thus the modification did not apply to offshore visa applicants
• Applicant entitled to a hearing

(1.3.2) Implied Exclusion or Modification

• Hearing rule can be impliedly excluded if the statute gives the person affected an
automatic right of appeal to independent merits review body (Miah)
• Matters to be taken into account to determine whether right of appeal excludes hearing
rule (McHugh J in Miah):

Nature of the If the appellate body is a court, more likely original decision-
Appellate Body maker won’t have to make the decision in accordance with
procedural fairness, because a court hearing the appeal will be
independent of the original decision-maker
• Includes AAT/VCAT
• Excludes an internal appellate body
Nature of the Decision The closer the decision is to finality, the more likely it is that the
requirements of procedural fairness would be required,
regardless of appeal rights

If the decision was only preliminary (e.g. decision to commence
an investigation), less likely that procedural fairness would be
required
Breadth of the Appeal If an appellate decision is de novo (from new) i.e. involves
hearing the whole matter again/afresh, more likely that
Parliament intended that the original decision didn't need to be
made in accordance with procedural fairness (cf. appeal is only
on limited grounds)
Formalities Required If the statute requires the decision to be attended by certain
for the Original formalities (e.g. giving of reasons for the decision, a notice
Decision requirement), then more likely that procedural fairness is
required at first instance
Whether Original If the original decision is made in public, then more likely that it
Decision was Public or is required to be made in accordance with procedural fairness,
Private regardless of appeal rights
• They have to have an opportunity to defend themselves

If the original decision is made in private, then less likely that it
is required to be made in accordance with procedural fairness
• Since in private (e.g. in an office), no one will hear the
reasons so not important to offer procedural fairness
Seriousness of the The more serious the substantive interest of the Plaintiff in
Subject-Matter question, the more likely that it is required to be made in
accordance with procedural fairness, regardless of appeal rights
• E.g. Visa application cf. adding another story to building
Urgent Decisions Court may hold that hearing rule be impliedly excluded by
statute where the decision is one that needs to be made
urgently (CPCF)
• E.g. Indian vessel being intercepted on Australian waters

(1.4) Hearing Rule Content

• Content: The court makes an assessment based on what is fair in all the circumstances
of the case (R v Cth Conciliation and Arbitration Commission)
o However, the more serious the consequences will be for a person if an adverse
decision is made against him, the more that the hearing rule will need to be
adhered to

Notification Someone who has been affected by the decision has to be

notified about any information that is adverse to their
position, that is credible, relevant and significant to the
decision to be made
• Simple matter: less amount of notice
• Complex matter: more amount of notice
Nature of the Hearing • Written submissions?
• Oral hearing?
How the Hearing Will • How will the oral hearing be conducted?
be Conducted • Legal representation?
• Translator?

(2) The Rule Against Bias

(2.1) identify the Category of Bias

• Identify the potential bias in the problem scenario

o Note these aren’t exhaustive and doesn’t automatically mean that bias will be
made out

1 The possession by the decision-maker of an interest (pecuniary or otherwise) and

whether direct or indirect, in the proceedings
2 Conduct either in the course of, or outside, the proceedings
3 An association, including some direct or indirect relationship or contact between the
decision-maker and a person or persons interested in, or otherwise involved in, the
proceedings
4 Extraneous information, including knowledge, possessed by the decision-maker, of
some prejudicial but inadmissible fact or circumstance.

(2.2) Apply Test

• Test: The rule against bias will be contravened if a fair-minded lay observer might
reasonably apprehend that the decision-maker might not bring an impartial mind to the
resolution of the question the decision-maker must decide (HCA in Ebner)

(2.3) Determine Relevance of the Character of the Decision-Maker

• Character of the decision-maker may be more likely or less likely give rise to a reasonable
apprehension of bias (MIMA)
o Fair-minded lay observer will hold different decision-makers to different standards
in determining whether their conduct can give rise to reasonable apprehension of
bias

Judges Held to a reasonably exacting standard with the result that a fair minded
lay observer will apprehend a bias in the case of the judge relatively readily
(Kelly)
Ministers Ministers aren't held to a high standard as to what they say regarding a
matter. They are politicians and expected to make statements about his
opinion (Gang)
People Unclear whether a reasonable apprehension of bias may lie with regard to a
Helping decision-maker as a result of there being a reasonable apprehension of bias
Decision- with regard to people who helped him to make the decision (Hot Holdings).
Maker o In this case, court just assumed that this could be the case
Bias is only established if the bias (of the assistant) was so central to the
outcome of the decision-maker’s decision as to determine factual basis (Hot
Holdings)

Minister for Immigration v Gang
• Migration Act gave Minister power to cancel visa if person was not of good character
• Applicant had been convicted of rape
• Before making decision, Minister went on radio and explained that those convicted of
criminal offences weren’t of ‘good character’
• Minister then cancelled visa
• Applicant sought JR: rule against bias
Held:
• No reasonable apprehension of bias
• Minister is a political official who has general accountability to the electorate and to
Parliament and accordingly, a fair minded lay observer would be slow to apprehend
bias in comment about a matter that the Minister had made to the electorate
• Ministers have to be able to talk about matters (such as crimes) and they can talk
about these generally

(2.4) Pecuniary Interests (Money)

• Current Australian Position: General test applies – a fair-minded lay observer might
reasonably apprehend that the decision-maker might not bring an impartial mind to the
resolution of the question the decision-maker must decide (Ebner confirmed by HCA in
Hot Holdings)
o Cf. English position where if decision-maker has any pecuniary interest (no matter
how small), automatically regarded as biased

Ebner
• Mr E was bankrupt; before he was, he transferred his property to his wife
• Official Trustee brought against Mrs E to recover property to pay back Mr E’s creditors
• ANZ (one of Mr E’s creditors) helped fund the Trustee’s court action
• Trial judge disclosed he was beneficiary under a family trust of 8000 ANZ shares
• Mrs E objected to judge hearing matter on basis of bias
Held (HCA):
• Having a financial interest in the outcome of the matter, however is small, didn't
automatically result in a reasonable apprehension of bias
• Here, there was no possibility of there being a reasonable apprehension of bias
• There was no realistic possibility that the outcome of litigation would affect the value
of the judge's shareholding in the Bank
o It would have been minimal
Hot Holdings v Creasy

• Minister awarded licence to HH
• HH’s competitors sought JR of the decision: rule against bias
• The two people involved in the making of the decision (Mr M and Mr T), had financial
interests in the decision to grant HH a licence
o A company (A), had entered into an agreement with HH, to buy a 80% interest in
the Exploration Licence in the event that HH was granted the licence
o Mr M owned 40,000 shares in A
o Mr T's son had at least at one stage, owned shares in A
Held:
• No fair minded lay observer might reasonably apprehend that the Minister might not
bring an impartial mind to the decision around the licence,
• Note, court assumed that a reasonable apprehension of bias could be found to lie
with regard to the Minister, if an apprehension of bias was found to lie with regard to
people who helped the Minister make his decision (though was not concluded)
o With regard to Mr A, no evidence of the value of his shareholding or what
impact on the value of his shareholding would be as a result of the granting of
the licence
o With regard to Mr T, nothing more was claimed than his son owning shares in A,
two months before the granting of the licence – not Mr T directly
(2.5) Has there been an Exclusion, Waiver and/or Necessity?
(2.5.1) Exclusion

• Because the rule against bias is not enshrined in the Constitution (unlike the hearing
rule), the rule against bias can be excluded or modified by legislation
o E.g. s.476 Migration Act: for an apprehension of bias to be successful, what has
to be demonstrated is actual bias (cf. reasonable apprehension)

(2.5.2) Waiver

• The rule against bias is waivable (Kelly):

o Express Waiver: Where bias disclosed to the parties, and the parties did not object
to the decision-maker hearing the matter, the parties have waived the right to the
bias rule

o Deemed Waiver: A party has to raise the issue of bias as soon as possible after
they become aware of the circumstances giving rise to the reasonable
apprehension. If they don't, they would have been deemed to waive their right to
complain.

(2.5.3) Necessity

• Doctrine of necessity acts as an exception to rule against bias either where there is (British
American Tobacco Case):
o Simply no decision-maker who can make the decision; or
o An allegation of bias can plausibly made against all the possible decision makers
(Willing)
Willing
• Applicant had many speeding fines; had to be called before a magistrate
• He argued that a reasonable apprehension of bias laid towards the magistrate
because he received parking privileges from the city of Adelaide
Held:
• All magistrates receive parking privileges and so if the apprehension was upheld, no
one would be able to hear the dispute
• Doctrine of necessity: although there may be reasonable apprehension of bias in this
case, it was permissible for the magistrate not to recuse themselves

(2.6) Relevance of Rights or Interests

• On one hand, the various cases say that procedural fairness (including rule against bias)
will only apply if the decision affects someone’s rights or interests
• On the other hand, all of the ‘rights and interests’ cases are ‘hearing rule’ cases and in
cases involving the bias rule, courts never go through the rights and interests approach
• Better view: Not necessary that applicant’s rights and interests are affected in order for
the bias rule to apply:
o Doesn’t make sense if a decision-maker could act in a way that would give rise to
a reasonable apprehension of bias if his decision didn’t affect anyone in a concrete
way (i.e. applicant’s ‘rights and interests’ affect is always a given)
o Just assume that the applicant’s rights and interests are affected
VI Jurisdictional Error

• When discussing the grounds of review for s.75(v) Constitution, insert the following
paragraph:

I adopt my analysis as above with regard to the grounds of review, however, the
success of the aforementioned grounds would be dependent on the Courts concluding
that the breach of any particular ground was sufficiently serious for it to be
characterized as jurisdictional (Kirk). The court will ascertain this by interpreting the
empowering legislation in light of the facts of the case.

Note that this used to be a separate category of grounds, but is currently used as a
measure of seriousness of the breach of the ground of review. This is necessary
because the prerogative writs are only available with regard to jurisdictional errors of
law.

Kirk v Industrial Relations Commission of NSW

• The HCA had to consider when an error of law would be jurisdictional
Held:
• The HCA radically abandoned the notion that there was a separate set of jurisdictional
error grounds
• Instead, describing an error of law as ‘jurisdictional’ is a measure of its seriousness
(where it is sufficiently serious that the decision should be set aside) upon the proper
construction of the empowering legislation
o This construction is a difficult task for judges
• Thus, any error of law (any breach of the grounds of review) has the potential to be a
jurisdictional error, since none of them deal with trivial matters
Remedies

(1) Remedies Under the ADJR Act

• s.16 ADJR Act: Where an application for review of a decision has been successful, the
court may, in its discretion, make one or more of the following:

s.16(a) Similar to Certiorari An order quashing or setting aside the decision, or a part
of the decision, with effect from the date of the order or
from such earlier or later date as the court specifies
s.16(b) Similar to Mandamus An order referring the matter to which the decision
relates to the person who made the decision for further
consideration, subject to such directions as the court
thinks fit
s.16(c) Similar to Declaration An order declaring the rights of the parties in respect of
any matter to which the decision relates
s.16(d) Similar to Injunction An order directing any of the parties to do, or to refrain
from doing, any act or thing the doing, or the refraining
from the doing, of which the court considers necessary
to do justice between the parties

• Note: s.16(2) ADJR Act houses the remedies for conduct in relation to decisions
(a) Declaration order
(b) Injunction

• Note: s.16(3) ADJR Act houses the remedies for failures to make a decision
(a) Order directing the making of the decision;
(b) Declaration order
(c) Injunction

(2) Remedies under the Common Law (s.75(v) Constitution)

• Refer to Jurisdiction Notes, for the jurisdictional requirements

Prohibition Order prohibiting a person from taking a proposed course of action

or making a proposed decision
Certiorari Order quashing a defective decision that has been made in breach
Mandamus Order requiring a decision-maker to exercise a discretion in
accordance with the law
Declaration Order that the respondent refrains from undertaking a particular
act, or undertake a particular act
Injunction Order which has no coercive effect, but which merely declares the
legal rights and liabilities of the parties

(3) Discretionary Grounds

• s.10(2)(b)(i) ADJR Act and the common law allows the court to preclude the issue of
relief of discretionary grounds:

Granting of a remedy would be of no Fairfield Primary School

practical benefit to the applicant • Applicants sought for the decision to be sent
back to the head teacher to be remade
• But this would not have any practical benefit
because should had ended and the two
students would never see each other again;
they went to different schools
If the court forms the view that the • Note that this is controversial as it involves
decision-maker would have come to speculation and the court has to look at the
the same conclusion even if it had not merits of the decision
made an error
If there are alternate avenues of • Parliament intended that people make use of
redress that the applicant could have this avenue of redress first, rather than JR
pursued, including especially appeal
to a body like the AAT

Privative Clauses

• Privative clauses are provisions in legislation that state that decisions made pursuant to
the legislation are not subject to judicial review. Courts are reluctant to give effect to
these (Hockey v Yelland)
• Types of privative clauses:

(1) Judicial Hostility Towards Privative Clauses Examples

(1.1) Finality Clauses

• Definition: These state that decisions are final/conclusive and precludes a right of appeal
• However, these do not prevent judicial review, as judicial review is distinct from appeal
(Gibbs CJ in Hockey v Yelland)

Hockey v Yelland
• Privative clause: Decisions made by the Medical Tribunal were ‘final and conclusive and
that claimant would have no right by way of appeal or otherwise’
Held (HCA):
• Although clause excluded statutory appeal; it did not oust judicial review
• Judicial review is distinct from appeal
• Court reflected its hostility and read down ‘otherwise’ to not include judicial review

(1.2) Determination Shall Not Be Questioned Clauses

• Definition: These state the determination of a decision-maker shall not be called in

question in any court of law

STEP 1 Majority in Anisminic stated two conflicting interpretations of determination:

1. A purported determination whether or not the determination was valid in
law
2. A determination that is valid in law
STEP 2 • Court accepted the second interpretation – privative clause would only
protect a decision that is valid in law (one not affected by jurisdictional
error/breach of ground of review)
• Preserves its jurisdiction to hear judicial review applications
STEP 3 • Recognise that the privative clause is therefore redundant: a decision that is
valid in law doesn’t need protection
• To ascertain whether a decision is valid in law, you need to go through judicial
review
STEP 4 • Note the criticism of this approach by Sir William Wade (English
commentator): the court is rebelling against Parliament’s clear intention that
judicial review be ousted

Anisminic v Foreign Compensation Commission
• Applicants could apply to Commission for compensation for Egyptians taking over their
companies
• Privative clause: Determination by the Commission…shall not be called in question in
any court of law
Held:
• Court interpreted ‘determination’ as having two meanings:
1. A purported determination whether or not the determination was valid in law
2. A determination that is valid in law
• Preferred that determination is one that is valid in law; privative clause would only
protect such determinations
• If a ground of review was contravened, this was not a determination valid in law; thus
wouldn’t be protected by the privative clause
• Court preserved its jurisdiction to hear judicial review applications for these breaches
of grounds of review
• Shows court’s hostility towards privative clauses; read down ‘determination’ narrowly
Policy:
• See policy notes for controversies of this decision

(2) Privative Clauses in Commonwealth Legislation

• Examples:
o A (privative clause) decision shall not be challenged, appealed against, reviewed,
quashed or called into question, or be subject to prohibition, mandamus,
certiorari, declaration or injunction in any court on any account whatsoever
(Hickman; Plaintiff S157)
• Prima facie, this conflicts with s.75(v) Constitution
• Apply the three step process in Plaintiff S157:

STEP 1 • Determine whether the privative clause is ‘in play’ to protect the decision
• The Court will ascertain whether the decision in question complies with the
Hickman provisos established by Dixon J in Hickman:
1. Decision is a bona fide (good faith) attempt to exercise the decision-
maker’s power
2. Decision relates to the subject-matter of the legislation
3. Decision is reasonably capable of reference to the power of the
decision-maker (i.e. does not go beyond power)
• If provisos made out: privative clause is ‘in play’ and proceed to STEP 2
• If provisos not made out: privative clause does not protect decision; it will be
subject to judicial review as usual
STEP 2 • Court will ascertain what kind of protection the privative clause purports to
give to the decision, by reconciling the two conflicting manifestations of
parliamentary intent:
1. That the decision-maker’s power be limited, as made clear by the
language of the statute; and
2. That the decision-maker’s power be effectively unlimited, as made
clear by the language of the privative clause
• Court did not give guidance on what protection will be given to the decision
after this process of reconciliation
STEP 3 • Court will ascertain what kind of decisions are protected by the privative
clause (regardless of the form that protection takes)
• Court arrived at its conclusion by relying on two principles of statutory
interpretation, that Parliament is:
1. Presumed not to pass legislation conflicting with the Constitution; and
2. Presumed not to intend to oust the Court’s jurisdiction (unless done so
expressly, or by necessary implication)
• By virtue of an Anisminic-style reasoning, and these two principles, Court
determined that a ‘privative clause decision’ meant a decision that was not
attended by a jurisdictional error (i.e. one that is valid in law)
• Thus, privative clause is likely to be reduced to effectively having no content
and won’t purport to limit the court’s jurisdiction of judicial review
o Thus, is consistent and does not conflict with s.75(v) Constitution
o s.75(v) only available to jurisdictional errors of law

Hickman
• Mid-WW2
• Legislation:
Local Reference Board has power to settle disputes likely to affect the amicable relations
of employers and employees in the coal mining industry
• Privative clause:
Decision of the Local Reference Board shall not be challenged, appealed against, quashed
or called into question, or be subject to prohibition, mandamus, or injunction in any court
on any account whatsoever
• Privative clause was important to win the war: didn’t want disruptions in coal industry
Held (Dixon J HCA):
• To ascertain protection privative clause purports to give to the decision, need to
reconcile two conflicting manifestations of Parliamentary intent:
1. That the decision-maker’s power be limited, as made clear by the language of the
statute
o Here, the Board can only settle disputes in coal mining industry
2. That the decision-maker’s power be effectively unlimited, as made clear by the
language of the privative clause
• Dixon J reconciled this by expanding slightly, the jurisdiction of the original decision-
maker, so that in some cases he would not make an error of law in the first place, thus
s.75(v) Constitution would not be engaged
• Thus some acts (which in the absence of the privative clause would have been illegal)
are now legal because they fall within expanded jurisdiction of original decision-maker
• Decision would fall within expanded jurisdiction if it:
1. Was a bona fide attempt to exercise its power
2. Related to the subject matter of the legislation
3. Was reasonably capable of reference to the power given to decision-maker

Plaintiff S157
• Privative clause:
A privative clause decision must not be challenged, appealed against, reviewed, quashed,
or called in question in any court; also a privative clause decision is not subject to
prohibition, mandamus, injunction, declaration or certiorari in any court on any account
• Decision made denying immigrant refugee status; sought JR under s.75(v) because no
hearing
• Argued that privative clause conflicted with s.75(v); invited court to reconsider Hickman
Held (HCA):
• Court diverged from Hickman
• STEP 1: The decision must satisfy the Hickman provisos
o If it doesn’t, then it will be subject to judicial review as usual
o If it does, it would receive protection offered by the privative clause, whatever it may
be
• STEP 2: Engage in process of reconciliation to ascertain what protection privative clause
purports to give decision
o Court did not give guidance as to what protection will be given
o Protection could include: expanding jurisdiction of decision-maker, court may be
respectful to decision-maker, might remove some grounds of review
• STEP 3: Determine what types of decisions are protected by the privative clause
o Determined this in line with two principles of interpretation
1. Presumed not to pass legislation conflicting with the Constitution; and
2. Presumed not to intend to oust the Court’s jurisdiction (unless done so
expressly, or by necessary implication)
o Additionally, followed Anisminic (although didn’t refer to it): only decisions not
attended by jurisdictional errors of law (legal/valid decisions) will be protected
by the privative clause (whatever that protection is)
• Since s.75(v) remedy only available to jurisdictional errors of law, the
protection of the privative clause offered to decisions that are NOT
jurisdictional errors of law did not conflict
• Since no conflict, applicant was unsuccessful
Policy:
• See policy notes for controversies of this decision

(3) Time Limit Clauses

• Definition: Clauses prescribing time limits beyond which there can be no judicial review
• Court usually finds them acceptable, but may order that time limits be expanded in certain
situations (Bodruzza)

(4) No Invalidity Clauses

• Definition: Provision in legislation stating that certain/all legal errors made under the Act
are not jurisdictional
• Court has been more ready to limit the court’s jurisdiction for no invalidity clauses
(Futuris)
o They effectively expand jurisdiction of original decision-maker so that decisions (in
absence of a no invalidity clause, would have been attended by jurisdictional
errors) would now be made within jurisdiction

Commissioner of Taxation v Futuris Corporation

• No invalidity clause:
The validity of an assessment is not affected by failure to comply with any provision of
the Act
Held (HCA):
• Court interpreted the clause literally and said that it had that affect
• Thus, errors made in the process of tax assessment made under the Act, don’t go to
jurisdiction and don’t attract the remedies under s.75(v)
• Clause effectively expanded jurisdiction of original decision-maker so that decisions (in
absence of a no invalidity clause, would have been attended by jurisdictional errors)
would now be made within jurisdiction
• Operates in a similar fashion to which privative clauses were treated in Hickman (just
without the Hickman provisos)
Merits Review

(1) Introduction

• Applicant may seek review of the decision by either an internal review body (if legislation
provides for it) or the Administrative Appeals Tribunal (AAT). This is ordinarily sought first
before judicial review, as merits review is cheaper, less formal and a new decision can be
substituted. By contrast, judicial review is often used as a last resort, and courts may not
issue a remedy if statutory appeals have not been exhausted.

(2) Jurisdiction

STEP 1 • The decision in question will be reviewable by the AAT if the legislation accords
the AAT the power to review the decision (s.25(1)(a) AAT Act)
• The decision has to be made in the exercise of powers conferred by the
legislation
o Make sure the section in the relevant legislation grants the right of
appeal to that specific decision
o The section may be expansive and apply to all decisions and applicants,
or might be limited and only apply to some decisions and applicants
(s.23(3) AAT Act).
o If a decision was illegally made, this will not hinder the AAT having
jurisdiction to review it. So long as the decision is a ‘purported exercise
of powers’ (Brian Lawlor Automotive)
STEP 2 • If the section granting jurisdiction in the legislation states that ‘only decisions
made by the Minister can be appealed’, but the decision was made by a
delegate
• This will not hinder the AAT having jurisdiction to hear an appeal of it
(s.34AB(1)(c) Acts Interpretation Act)
o Where power has been conferred onto a delegate, the legal decision
maker is presumed to be the person upon whom the power was
originally conferred (i.e. the Minister)

Brian Lawlor Automotive
• Brian’s warehouse licence was cancelled by the Collector of Customs
• Brian appealed the matter before the AAT; AAT held cancellation was invalid
• Collector sought judicial review of the ATT’s decision
• Argued that the Collector’s original decision cancelling the licence was illegal, thus was
not a decision made in the exercise of powers conferred by the Customs Act
Held:
• The AAT did have jurisdiction to hear and appeal the illegally made decision
• “Made in the exercise of powers conferred by that enactment” under s.25(1)(a) AAT
Act, means a decision made in the purported exercise of powers conferred by the
enactment
• This includes a decision that is illegally made – this won’t hinder AAT’s jurisdiction

(3) Standing

STEP 1 • An application for appeal to the AAT may be made by any party whose
interests are affected by the decision (s.27(1) AAT Act)
• Interests affected to be interpreted broadly (Re Control Investments), thus:
o If standing shown under the private interest model: standing under
AAT Act will be shown (apply ADJR/common law test)
o If standing shown under the public interest model: an organisation
or association of persons (whether incorporated or not) shall be
taken to have interests that are affected by a decision if the decision
relates to a matter included in the objects or purpose of the
organisation of association (s.27(2) AAT Act)
§ Must state both s.27(1)–(2)

(4) The Hearing: Review on Merits

STEP 1 De Novo Decision

• The AAT will make the decision de novo (from new), and has all the powers
and discretions of the original decision maker (s.43(1) AAT Act)
• It will consider the evidence before it and terms of the legislation in question,
to attempt to make the ‘correct or preferable decision’ that is legal and
doesn’t breach any of the grounds of review (Drake)
STEP 2 Evidence and Procedural Matters
• The AAT has a choice as to the procedure it adopts (s.33(1)(a) AAT Act)
o If parties are legally represented = adversarial in nature
o If parties not legally represented = inquisitorial in nature
• It is not bound by the rules of evidence (s.33(1)(c) AAT Act), but cannot make
decisions without any basis in evidence that has some rational probative force
(Re Pochi).
• No legal onus of proof on appellant to prove his case (McDonald)
• However, AAT will more likely arrive at the correct decision if it follows the
rules of evidence in a commonsense way (Re Pochi) and applies the civil
standard of proof (Epeabanka)
STEP 3 The Review
• Identify the section under which the original decision-maker made the
decision, and note any changes that the AAT may make to the original decision
in their new role as decision-maker
• Change in circumstances following original decision: If there are any changes
in circumstances that may have affected the original decision maker’s decision
had they known about those facts, then applicant can raise new evidence and
arguments to the AAT (Re Greenham)
• Role of Policy: The AAT should attach strong weight to the application of
government policy but it should still exercise an independent mind when
deciding the matter (Drake)

Drake
• President Brennan held that in making a fresh decision, it was helpful for the AAT to
apply the government policy (if there is one), as to how a particular section of legislation
should apply
• Government policies are preferred over the AAT’s own policy because:
o They are subject to political control and the electorate
o They have been developed by a large bureaucracy who have done research
o Would lead to consistency

(5) Conclusion and Remedy

STEP 1 • Conclude whether the AAT would make the decision in a different way
(changing the decision) or whether it would leave the decision in its original
form (approving the decision)
• Consider what is the ‘correct or preferable’ decision

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Introduction

& The Procedural Nature of Judicial Review

What is Administrative Law?

• Administrative Law renders the government accountable for the administrative

The Ombudsman Investigates bad administration

Elements of Judicial Review to be Considered

1. The procedural nature of review

(1) The Procedural Nature of Judicial Review

(1.1) Remedies Available under Judicial Review

(1.2) Distinction Between Review and Appeal

• Appellate Bodies: Hear appeals from the decisions of administrative decision-makers

• A person wanting to challenge a Commonwealth administrative decision by way of

(1) The Administrative Decisions Judicial Review Act 1977 (Cth)

• The ADJR Act is the default avenue

(1.1) Jurisdictional Elements

• Note: If delegated decision, s.3(8) includes decisions made by a delegate

(1.1.1) ‘Decision’ under s.5

• Decision: a decision of an administrative character made, proposed to be made, or

A decision includes (s.3(2)):

• Must be final or operative (Mason J in Bond) and includes a:

• Must be a substantive decision (Mason J in Bond)

Australian Broadcasting Tribunal v Bond

(A) ‘Of an Administrative Character’

(B) ‘Under an Enactment’

• Enactment: Includes an Act or an instrument (rules, regulations or by-laws) made under

• Two-Limbed Test (Tang): Decision made under an enactment if:

Griffith University v Tang

(1.1.2) Conduct Related to a Decision’ under s.6

• Does the Federal Court or Federal Circuit Court have jurisdiction?

(2.2) Jurisdictional Elements

(2.2.1) ‘In All Matters’

(2.2.2) ‘Officer of the Commonwealth’

• Officer: Generally accepted as a Cth Government Minister or employee of a Cth

(2.2.3) ‘An Available Remedy’

• The following remedies each have their own jurisdictional requirements

Requires: Public Power

Requires: Public Power

Requires: Legal Effect or Legal Consequences

Hot Holdings v Creasy

• Definition: Order requiring a decision-maker to exercise a discretion in accordance with

Requires: Public Duty to Exercise Discretion

WA Field and Game Association v Minister of State for Conservation

s.75(v) Constitution ADJR Act

(1) Private Interests Model of Standing

• Applicant must be affected (compared to public at large) to a substantially greater degree

Onus v Alcoa (Cultural and Spiritual Interest = Standing)

ACF v Cth (Mere intellectual or emotional concern = No Standing)

Onus v Alcoa ACF v Cth

(1.1) Must Applicant be Affected Directly?

Step 1: NCEC and Animals’ Angels Factors

NCEC v Minister for Resources Animals’ Angels

Step 2: Narrow Approach under Right to Life

(3) Exception to Standing: The Attorney-General’s Fiat

In Favour of Providing Reasons Against Providing Reasons

(1) ADJR Act

(2) s.75(v) of the Constitution

STEP 1 • No general duty to provide reasons at common law (Osmond; confirmed by

(2.1) English Position

(1) Administrative Action Beyond Scope

STEP 1 Identify the relevant facts from the problem scenario

(1.1) The Making of Regulations

• Issue: Did the Act permit the making of a regulation?

(1.2) Powers to Regulate or Prohibit