ADMINISTRATIVE

LAW NOTES
Nicholas Saady 2016

Contents
INTRODUCTION .....................................................................................................................7
WHAT IS ADMIN LAW?......................................................................................................7
ROLE OF ADMIN LAW ....................................................................................................7
PURPOSE OF ADMIN LAW .............................................................................................7
FORMS OF ACCOUNTABILITY ............................................................................................8
REVIEWING CONSTITUTIONAL LAW .................................................................................9
STRUCTURE OF EXECUTIVE GOVERNMENT .................... Error! Bookmark not defined.
ACCOUNTABILITY ISSUES ................................................ Error! Bookmark not defined.
CONTENT OF ADMINISTRATIVE LAW ............................. Error! Bookmark not defined.
MERITS REVIEW ...................................................................................................................10
WHAT IS MERITS REVIEW?..............................................................................................10
REHEARINGS AND DE NOVO ...........................................................................................10
PRINCIPLES UNDERLYING MR DECISIONS ......................................................................11
COMPARING MERITS AND JUDICIAL REVIEW ................................................................12
BENEFITS OF MERITS REVIEW .....................................................................................12
DETRIMENTS OF MERITS REVIEW ...............................................................................12
SOURCES OF MR ..............................................................................................................13
AVENUES OF MR: INTERNAL REVIEW .............................................................................13
AVENUES OF MR: EXTERNAL REVIEW ............................................................................13
TRIBUNALS .......................................................................................................................17
NSW ICAC .............................................................................................................................18
BACKGROUND .................................................................................................................18
INDEPENDENCE ...............................................................................................................18
BODIES/LAWS OVERSEEING ICAC ...................................................................................18
FUNCTIONS ...................................................................... Error! Bookmark not defined.
JURISDICTION .................................................................. Error! Bookmark not defined.
CORRUPT CONDUCT ........................................................ Error! Bookmark not defined.
POWERS ........................................................................... Error! Bookmark not defined.
PROCEDURE ..................................................................... Error! Bookmark not defined.
CASES ............................................................................... Error! Bookmark not defined.
ADMINISTRATIVE APPEALS TRIBUNAL ............................... Error! Bookmark not defined.
BACKGROUND ................................................................. Error! Bookmark not defined.

Nicholas Saady 2016 1

 JURISDICTION .................................................................. Error! Bookmark not defined.
NATURE OF MR BY AAT................................................... Error! Bookmark not defined.
POWERS OF AAT .............................................................. Error! Bookmark not defined.
COSTS ............................................................................... Error! Bookmark not defined.
AAT PROCEDURE ............................................................. Error! Bookmark not defined.
(1) APPLICATION .............................................................. Error! Bookmark not defined.
(2) PRELIMINARY HEARING ............................................. Error! Bookmark not defined.
(3) EVIDENCE.................................................................... Error! Bookmark not defined.
(4) CONFERENCES AND ADR ........................................... Error! Bookmark not defined.
(5) HEARING ..................................................................... Error! Bookmark not defined.
(6) APPEAL ....................................................................... Error! Bookmark not defined.
CASES ON AAT PROCEDURE ............................................ Error! Bookmark not defined.
INTRO TO JUDICIAL REVIEW ...............................................................................................19
WHAT IS JUDICIAL REVIEW? ...........................................................................................19
STAGES OF JUDICIAL REVIEW..........................................................................................19
DIFFERENCES BETWEEN JR/MR ......................................................................................20
GROUNDS OF JUDICIAL REVIEW .....................................................................................20
JR JURISDICTION ..................................................................................................................21
HIGH COURT ....................................................................................................................22
FEDERAL COURT ..............................................................................................................24
NSW SUPREME COURT....................................................................................................25
NSW SUPREME COURT ACT PROVISIONS.......................................................................25
JURISDICTION UNDER ADJR ACT.........................................................................................26
ESTABLISHING JURISDICTION .........................................................................................26
1) DECISION MADE ..........................................................................................................26
2) OF ADMINISTRATIVE CHARACTER ..............................................................................27
3) MADE UNDER AN ENACTMENT ..................................................................................27
IMPEDIMENTS TO JURISDICTION........................................................................................28
JUSTICIABILITY FOR JR ......................................................... Error! Bookmark not defined.
STANDING UNDER CL .......................................................... Error! Bookmark not defined.
INTERVENERS................................................................... Error! Bookmark not defined.
ATTORNEY GENERALS ..................................................... Error! Bookmark not defined.
AMICUS CURIAE............................................................... Error! Bookmark not defined.
STANDING CASES............................................................. Error! Bookmark not defined.
STANDING UNDER ADJR ACT .............................................. Error! Bookmark not defined.
1) DECISION ..................................................................... Error! Bookmark not defined.
2) CONDUCT ..................................................................... Error! Bookmark not defined.
3) FAILURE TO MAKE A DECISION ................................... Error! Bookmark not defined.
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 ADJR LEGISLATIVE PROVISIONS ...................................... Error! Bookmark not defined.
ADJR SCHEDULE 1 ............................................................ Error! Bookmark not defined.
ADJR RELEVANT CASES .................................................... Error! Bookmark not defined.
GROUNDS OF JUDICIAL REVIEW ......................................... Error! Bookmark not defined.
(1) PROCEDURAL GROUNDS ........................................... Error! Bookmark not defined.
(2) REASONING GROUNDS .............................................. Error! Bookmark not defined.
(3) DECISIONAL GROUNDS .............................................. Error! Bookmark not defined.
GROUNDS: (1) PROCEDURAL GROUNDS ............................ Error! Bookmark not defined.
ADJR PROCEDURAL FAIRNESS......................................... Error! Bookmark not defined.
COMMON LAW PROCEDURAL FAIRNESS ....................... Error! Bookmark not defined.
HEARING RULE (CL) ......................................................... Error! Bookmark not defined.
BIAS RULE (CL) ................................................................. Error! Bookmark not defined.
OUTCOMES OF PROVING BREACH OF PF ....................... Error! Bookmark not defined.
PROCEDURAL ERROR....................................................... Error! Bookmark not defined.
CASES ON BIAS AND HEARING RULES ............................ Error! Bookmark not defined.
GROUNDS: (2) REASONING GROUNDS ............................... Error! Bookmark not defined.
FAILURE TO ACCOUNT RELEVANT CONSIDERATIONS .... Error! Bookmark not defined.
TAKING INTO ACCOUNT IRRELEVANT CONSIDERATIONS ............ Error! Bookmark not
defined.
ADJR CONSIDERATION GROUNDS .................................. Error! Bookmark not defined.
CONSIDERATION GROUNDS CASES ................................ Error! Bookmark not defined.
UNAUTHORISED OR IMPROPER PURPOSE ..................... Error! Bookmark not defined.
UNAUTHORISED OR IMPROPER PURPOSE CASES .......... Error! Bookmark not defined.
FRAUD .............................................................................. Error! Bookmark not defined.
ABUSE OF POWER ........................................................... Error! Bookmark not defined.
BAD FAITH........................................................................ Error! Bookmark not defined.
UNAUTHORISED DELEGATION ........................................ Error! Bookmark not defined.
ACTING UNDER DICTATION ............................................ Error! Bookmark not defined.
INFLEXIBLE APPLICATION OF POLICY .............................. Error! Bookmark not defined.
INFLEXIBLE APPLICATION OF POLICY CASES................... Error! Bookmark not defined.
NO EVIDENCE ................................................................... Error! Bookmark not defined.
UNCERTAINTY .................................................................. Error! Bookmark not defined.
UNREASONABLENESS ...................................................... Error! Bookmark not defined.
IRRATIONALITY OR SERIOUS ILLOGICALITY .................... Error! Bookmark not defined.
GROUNDS: (3) DECISIONAL GROUNDS ............................... Error! Bookmark not defined.
ERROR OF LAW ................................................................ Error! Bookmark not defined.
JURISDICTIONAL FACT ..................................................... Error! Bookmark not defined.
JURISDICTIONAL ERROR .................................................. Error! Bookmark not defined.
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 CASES ON DECISIONAL GROUNDS OF REVIEW .............. Error! Bookmark not defined.
LAW AND FACT DISTINCTION ......................................... Error! Bookmark not defined.
LEGALITY .......................................................................... Error! Bookmark not defined.
LEGALITY AND STATUTORY INTERPRETATION ............... Error! Bookmark not defined.
JUDICIAL REVIEW REMEDIES............................................... Error! Bookmark not defined.
OVERVIEW OF REMEDIES ................................................ Error! Bookmark not defined.
OVERVIEW OF REMEDIES ................................................ Error! Bookmark not defined.
CONSEQUENCES OF BREACH .......................................... Error! Bookmark not defined.
NATURE OF REMEDIES .................................................... Error! Bookmark not defined.
CL PREROGRATIVE WRITS ................................................... Error! Bookmark not defined.
CERTIORIARI .................................................................... Error! Bookmark not defined.
PROHIBITION ................................................................... Error! Bookmark not defined.
MANDAMUS .................................................................... Error! Bookmark not defined.
HABEAS CORPUS ............................................................. Error! Bookmark not defined.
EQUITABLE REMEDIES ......................................................... Error! Bookmark not defined.
INJUNCTION ..................................................................... Error! Bookmark not defined.
DECLARATIONS ................................................................ Error! Bookmark not defined.
ADJR REMEDIES ................................................................... Error! Bookmark not defined.
SECTION 16 ADJR ............................................................. Error! Bookmark not defined.
COMPARING CL AND ADJR REMEDIES............................ Error! Bookmark not defined.
MULTIPLICITY OF REMEDIES ........................................... Error! Bookmark not defined.
COURT’S DISCRETION TO REFUSE RELIEF ....................... Error! Bookmark not defined.
CASES ON REMEDIES ....................................................... Error! Bookmark not defined.
RESTRICTING JUDICIAL REVIEW .......................................... Error! Bookmark not defined.
PRIVATIVE CLAUSES ........................................................ Error! Bookmark not defined.
HISTORICAL JUDICIAL POSITION ..................................... Error! Bookmark not defined.
CURRENT JUDICIAL POSITION ......................................... Error! Bookmark not defined.
OTHER CASES ................................................................... Error! Bookmark not defined.
OVERVIEW OF JUDICIAL REVIEW PROCESS ........................ Error! Bookmark not defined.
OMBUDSMAN/COMPLAINT HANDLING............................. Error! Bookmark not defined.
BACKGROUND ................................................................. Error! Bookmark not defined.
INDEPENDENCE ............................................................... Error! Bookmark not defined.
APPOINTMENT ................................................................ Error! Bookmark not defined.
ROLE: MAJOR FUNCTIONS .............................................. Error! Bookmark not defined.
ROLE: ADDITIONAL SPECIALTIES ..................................... Error! Bookmark not defined.
JURISDICTION .................................................................. Error! Bookmark not defined.
PROCEDURE ..................................................................... Error! Bookmark not defined.
POWERS ........................................................................... Error! Bookmark not defined.
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 REPORTS/FINDINGS ........................................................ Error! Bookmark not defined.
REVIEWING AN OMBUDSMAN DECISION ...................... Error! Bookmark not defined.
BENEFITS OF NON-DETERMINATIVE POWERS ............... Error! Bookmark not defined.
BENEFITS OF DETERMINATIVE POWERS......................... Error! Bookmark not defined.
NSW OMBUDSMAN ........................................................ Error! Bookmark not defined.
POWERS OF NSW OMBUDSMAN.................................... Error! Bookmark not defined.
CASES ............................................................................... Error! Bookmark not defined.
‘MATTER OF ADMINISTRATION’ ................................. Error! Bookmark not defined.
REPORTS AND FINDINGS ................................................. Error! Bookmark not defined.
FREEDOM OF INFORMATION .............................................. Error! Bookmark not defined.
ARCHIVES ACTS................................................................ Error! Bookmark not defined.
FOI SCHEME ..................................................................... Error! Bookmark not defined.
APPLICATION PROCESS ................................................... Error! Bookmark not defined.
DOCUMENTS.................................................................... Error! Bookmark not defined.
PUBLIC INTEREST ............................................................. Error! Bookmark not defined.
REVIEWING AN APPLICATION ......................................... Error! Bookmark not defined.
GIPA ACT 2009 (NSW) ..................................................... Error! Bookmark not defined.
CASES ............................................................................... Error! Bookmark not defined.
HISTORICAL CASES........................................................... Error! Bookmark not defined.
PRIVACY ............................................................................... Error! Bookmark not defined.
TORT OF PRIVACY ............................................................ Error! Bookmark not defined.
STATUTE ........................................................................... Error! Bookmark not defined.
CTH PRIVACY ACT ............................................................ Error! Bookmark not defined.
INFORMATION ................................................................. Error! Bookmark not defined.
AUSTRALIAN PRIVACY PRINCIPLES ................................. Error! Bookmark not defined.
PRIVACY CASES ................................................................ Error! Bookmark not defined.
PRIVACY COMMISSIONER ............................................... Error! Bookmark not defined.
NSW PRIVACY LAWS ....................................................... Error! Bookmark not defined.
DELEGATED LEGISLATION ................................................... Error! Bookmark not defined.
NOTE: likely to be essay component of the final exam ... Error! Bookmark not defined.
LEGISLATION .................................................................... Error! Bookmark not defined.
BACKGROUND TO DL....................................................... Error! Bookmark not defined.
DEFINITION OF LEGISLATIVE INSTRUMENTS/DEL LEG ... Error! Bookmark not defined.
POWERS THAT SHOULD NEVER BE DELEGATED ............. Error! Bookmark not defined.
HIERARCHY OF LAW ........................................................ Error! Bookmark not defined.
CHALLENGING DELEGATED LEGISLATION ....................... Error! Bookmark not defined.
IMPLEMENTATION OF DL ................................................ Error! Bookmark not defined.
DL WITHIN SCOPE OF PARENT ACT ................................. Error! Bookmark not defined.
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 CASES ON SCOPE AND PROPORTIONALITY .................... Error! Bookmark not defined.
GENERAL INFO ON LEGISLATION .................................... Error! Bookmark not defined.
PRINCIPLE OF LEGALITY ................................................... Error! Bookmark not defined.
STATUTORY INTERPRETATION – Complement not Supplement . Error! Bookmark not
defined.
STATUTORY INTERPRETATION – Regulate/Prohibit Distinction . Error! Bookmark not
defined.
STATUTORY INTERPRETATION – Means/End Distinction ............ Error! Bookmark not
defined.

Nicholas Saady 2016 6

 INTRODUCTION

WHAT IS ADMIN LAW?

• Administrative law is a branch of public law regulating GOV and administrative processes
o Dealing with:
§ Actual operations of GOV and administrative processes and impact on citizens
§ Decisions that affect citizens’ rights/interests/legitimate expectations
§ Carrying out public works/management and provision of public services

• Body of law that regulates the exercise of power and making of decisions by:
o executive arm of government (anything non-legislative or non-judicial à therefore
includes cabinet, public service, local governments)
o administrative arm of government
o non-government bodies

ROLE OF ADMIN LAW
(1) Concerned with the validity of decisions and actions of executive under valid laws
(2) Separation of powers – allows judiciary to review:
a. Validity of laws (Constitutional Law).
b. Decisions and actions of exec (Admin Law).

PURPOSE OF ADMIN LAW

(a) Admin Law is a balance between:
a. Accessible and effective justice for aggrieved individuals;
b. Openness and accountability of GOV;
c. Quality and consistency of GOV decision;
(b) And:
a. Administrative and fiscal efficiency;
b. Cost and complexity in dispute resolution;
c. ‘Collective’ public interest vs individual interest.

ADMINISTRATIVE JUSTICE
• “When Parliament enacts a law which empowers an official to make decisions affecting
individuals, what are the minimum criteria by which those decisions and the processes by
which they are made, can be regarded as just and in accordance with the purpose for
which they are conferred?’ (French CJ, ‘Public Office and Public Trust”)

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FORMS OF ACCOUNTABILITY
• Accountability = the need for the executive government and administrative bodies
to comply with the law and, in particular, to observe relevant limitations on the
exercise of their powers (Corporation of the City of Enfield v Development
Assessment Commission per Gaudron J)
o Admin law is only one method of accountability
o Designed to uphold the rule of law and individual rights

POLITICAL ACCOUNTABILITY
• Ministers are responsible for ensuring the Executive carries out GOV policies
• In turn, each minister is answerable to the parliament and is accountable ultimately to the
electorate for actions taken within the executive à centres on answerability
• Electoral accountability
• Parliamentary accountability – principle of ‘responsible government’

FINANCIAL ACCOUNTABILITY
(a) Implemented through constitutional and statutory controls on finance to verify
the official use of money drawn from the public account

ADMIN LAW ACCOUNTABILITY

(b) Implemented through courts/tribunals (legal acc.) oversight bodies/Ombuds. (bureaucratic)
(c) Broad purpose = safeguard the rights and interests of people and corporations in
their dealings with GOV agencies, which occurs in 3 ways:
(1) Review of decision-making: Admin law confers a right to challenge a GOV
decision where a person feels aggrieved. To do this, you can apply to a court for
JR, appeal to an admin tribunal, complain to an Ombudsman or agency.
(2) Protection of information agencies: This occurs through legislation - FOI
leg (confers a right of public access to govt docs), privacy leg, admin
review leg, whistleblower protection leg.
(3) Public accountability of govt processes: Achieved through anti-corruption
agencies, human rights commissions and specialist govt inquiries.
(d) 3 principles that underpin the admin law system:
(1) Admin justice: individuals’ rights and interests should be properly safeguarded
(2) Executive accountability: Aim of ensuring those who exercise exec powers can
be called on to explain and justify the way they have gone about a task.
(3) Good administration: Admin decision-making should confirm to universally
accepted standards, inc rationality, fairness, consistency and transparency.

ETHICAL RESPONSIBILITY & INTEGRITY

• Formally implemented through codes of conduct, integrity branches, Auditor-General, ethics
advisory services policies on conflicts on interest/law (eg Public Service Act 1999 Cth)

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REVIEWING CONSTITUTIONAL LAW
• Constitutional law is the companion subject to Admin law

PUBLIC LAW
• Where the state is more heavily involved
• Constitutional law is a heavily governmental subject
• Whereas Private Law are areas where the government is not involved as much
o EG: Torts, Corporate Law, Contracts etc

STATUTORY INTERPRETATION
• Literal approach
o Take the words of the legislation as they are
• Purposive approach
o Look at parliament’s intention and the purpose of the legislation/section
• Contextual approach
o Read legislation in its context – account all relevant circumstances
• Extrinsic materials
o Help read legislation

RULE OF LAW
• Rule of law occurs where:
o The power exercised by government over citizens is constrained by clear
rules of law
o Those laws are applied and enforced by a judiciary that is independent to
government
o The same rules constrain the government as the citizens
o Executive action is constrained by statute and judicial oversight
o When a court engages in judicial review, it is assessing whether the
administrator acted properly within the power conferred (usually by statute)

SEPARATION OF POWERS
• Underlying principles:
o Those who exercise power should be subject to checks and balances
o Each institution should specialize in the task for which it is best suited
• Judicial
o Vested in the High Court of Australia
• Legislative
o Vested in Federal Parliament, Queen, Senate, House of Reps
• Executive
o Vested in the Queen and exercisable by GG as Queen’s representative,
o Includes sitting members of Parliament (including Ministers)
o Admin law refers to broader concept of the executive including
government departments: public service (Public Service Act 1999 Cth)
o Public Service includes agencies set up to conduct oversight of other agencies
o Statutory corporations and other government owned business
o Tribunals and other oversight agencies
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 MERITS REVIEW

WHAT IS MERITS REVIEW?

• DEFINITION = reconsideration of an original decision based on MERIT not just lawfulness
o A person or body other than the primary DM reconsiders the facts, law and policy
aspects of the original decision, and determines the correct decision
o May still bring up lawfulness although this isn’t the focus
o Creature of statute – often occurs in a Tribunal rather than Court (for judicial)

• OBJECTIVE = ensure admin decisions are correct and/or preferable (Drake No 2)
• Correct = correct an error of fact or law
• DM can quash and remake the decision where there is such an error
• Preferable = making a more preferable decision – best according to the facts
• Even if original D was correct (IE. no mistakes of fact/law), DM can
still quash and remake if another option is preferable

RATIONALES
• Helps independently correct mistakes and injustices in decisions
• Cheaper, faster, less-technical and easier than JR
• Different avenue than Court as discusses facts not just law and more remedies
• Frees up Court time and resources

REHEARINGS AND DE NOVO

• Can take two forms:
• Hearing de novo = clean slate and takes on role of DM (Pochi; Shi v MARA)
• No need to consider/review the original decision
• Can always admit new evidence
• Rehearing = analysis of original decision
• Must consider/review the original decision but only on basis of
material before original DM (Allesch v Maunz; Lacey v AG (Qld))
• Involves search for errors in original decision rather than creating a
completely new decision making process (Coal and Allied v AIRC)
• Error need not be legal – may be factual or discretionary
(Mio Art v Brisbane City Council)
• Sometime unable to admit new evidence – depends on legislative
provisions (Shi v MARA)
• Forms are significant because they help define what a MR DM can and cannot do

NOTE: regardless of statute, each person has an inherent right to make an informal request that
the DM reconsider their decision



Nicholas Saady 2016 10
 NSW THOROUGHBRED RACING BOARD v WATERHOUSE (2003)
NSWSC
FACTS
◦ Robbie Waterhouse gave his friend good odds on a horse
◦ Original DM saw this as breach of racing laws – 9-month suspension
◦ Appealed to Racing Appeals Tribunal
◦ Saw it as a breach as well but increased penalty
◦ Waterhouse went to NSWSC on basis that Tribunal misunderstood its role – only
had power to rehear and not conduct hearing de novo
HELD
• Agreed with Waterhouse
• Tribunal only allowed to conduct rehearing according to RAT Act
• BUT if it held the original DM erred then they could have conducted
hearing de novo and stipulated different penalty
• RAT had not found any errors, so was not entitled to alter the original D.
• Generally, only in a hearing de novo could they replace a perfectly correct
decision with a preferable one
ANALYSIS
• Shows process of appealing from MR to JR
• Notice how it starts as Merits Review in a Tribunal (“Original DM was too
harsh based on the merits of what I did!”) but then it further got appealed
as Judicial Review in a Court (“Tribunal went beyond its legal bounds!”)
• Blurred line between rehearing and hearing de-novo (sometimes allowed)
• Legislation can define a MR body’s powers any way it wishes, so
sometimes the hearing is a hybrid of the two
• Blurred line between public and private
• Non government bodies (eg. Racing, Country Clubs, Commercial Industries)
often have Tribunals to settle disputes.
• They can be a hybrid of private and public.
• EG: original DMs in Racing are private (stewards) but the appeals bodies
are set up by statute (Racing Appeals Tribunal Act 1983 (NSW))

PRINCIPLES UNDERLYING MR DECISIONS

• DM must act within the ambit of their statutory authority
• If legislation gives a designated person the discretionary power to decide something, no
one else may require that person to make the decision in a particular way.
• Must account all relevant considerations and not be guided by irrelevant considerations
o Terms of the legislation are critical in determining what is relevant.
o Must use decision-making power reasonably in good faith
o Must administer natural justice/procedural fairness in making the decision
§ Although actual procedure varies with the circumstances of the case
§ Generally, the minimum requirements of NJ/PF are satisfied if DM is not
biased and gives the person affected an opportunity to make their case and
comment on adverse material

Nicholas Saady 2016 11


COMPARING MERITS AND JUDICIAL REVIEW
• MR is generally invoked than JR for a number of reasons
• Generally better for client to pursue MR before JR if it is available
o JR is by and large confined to the material that was before the DM, with
limited exceptions
§ Therefore, JR applications last typically half a day to two days
whereas some AAT hearings run for weeks.
o All relevant questions of fact are open before AAT whereas the scope of JR
of findings of fact is very limited.
o Client can still seek judicial review of the decision of the Tribunal if dissatisfied (s 44 AAT
Act)
o If client succeeds in AAT they are more likely to get the decision they want
§ DM can set aside the original decision and subsistute it with a new one
§ By contrast, with JR the usual order is for remittal of the matter to
the DM to be dealt with according to law
§ DM likely to reach the same conclusion again.

DIFFERENCES WITH JR
• FOCUS - MR looks at merits (all circumstances). JR just at legality
• PLACE - MR can happen at a range of institutions. JR only in courts
• FORMALITY - MR less formal (no legal rep). JR more formal
• REMEDIES - MR can completely remake D. JR, at most, can send D back to be remade

BENEFITS OF MERITS REVIEW

(a) Addresses substance of an individual claim in a comprehensive and open manner
(b) Improves the quality of administrative decision-making, ensuring all Ds are C/P
(c) More accessible option for the review of many grievances.
- Cheap, informal, quick – although before the Tribunal there may be
extensive evidence, depending on the class of the matter
- More responsive to needs of individuals
- Adopts simple and informal procedures – JR is complex and has been
developed over many years/too much CL
- No need for legal representation
(d) May reduce the demand for judicial intervention and pressure on courts

DETRIMENTS OF MERITS REVIEW

(e) Structured external review may be inconsistent with Westminster theory, and
replace processes of political and parliamentary accountability.
(f) External interference in decisions affecting government expenditure by a body free of
financial constraints may be incompatible with notions of ‘official fiscal responsibility’
(g) Merits review may overemphasise the rights and interests of individuals at the
expense of the broader community
(h) Unnecessary procedural formality and legalism
Nicholas Saady 2016 12


SOURCES OF MR
• Statute can confer power for MR to take place by:
• Internal Review
• External Review (by a Tribunal)
• Specialist tribunal or other external review body, whose functions and powers
will be extensively prescribed in the same legislation
• Court – statute can provide right to appeal a decision to courts

AVENUES OF MR: INTERNAL REVIEW

• Two forms:
• Informal = go back to the original DM for review
• EG: go back to DM’s boss and get them to change decision
• Formal = statutory in-house mechanism to deal with review/complaints
• EG: Centrelink – legislation requires that a contested decision must be
reviewed by an Internal Authorised Review Officer (“ARO”) before
further review by Social Securities Appeal Tribunal (“SSAT”)
• EG: complaints divisions of corporations

AVENUES OF MR: EXTERNAL REVIEW

STATE COURTS
• Do not have to adhere to SoP principle (Kable) so may review on merits
• Specialist state courts are established
• MR rarely occurs in genuine state courts such as NSWSC – will only occur in
these specialist courts
• EG: NSW Land and Environment Court
• LEC does MR and JR on development approvals, neighbour disputes on
shared fences and other issues

TRIBUNALS
• Specialist
• Very few remain after 2015 legislative amendments
• EG: Refugee Review Tribunal (RRT), Migration Review Tribunal (MRT), Social
Security Appeals Tribunal
• Generalist
• Administrative Appeals Tribunal (AAT) (Cth)
• Has Refugee, Tax, Social Security and Migration divisions
• NSW Civil and Administrative Tribunal (NCAT) (NSW)
• BUT recent blurring between specialist and generalist with ‘super’ tribunals
• Super Ts exercise both MR and civil jurisdiction – usually high volume, low
dollar value matters such as tenancies/building disputes
• Also have primary decision making power – no GOV agency deals with the
matter beforehand
Nicholas Saady 2016 13
 • 2015 = RRT, MRT and others merged with AAT
• 2014 = 23 existing NSW specialist tribunals merged to become NCAT
• Comparison with courts
• Executive not judicial branch
• Less formal
• Inquisitorial not adversarial
• Can review both facts and law
• Can remake GOV Decisions, not just refer them back to original DM


INTEGRITY BRANCH/INVESTIGATORY BODIES
• NOTE: debatable that this forms part of external MR
• Much broader focus than challenging a specific government decision
• EG: Royal Commissions and ICAC Hearings – deal with general
corruption and accountability more broadly rather than hearing
singular, specific government decisions in line with the focus of MR
• Different forms
• Parliament
• Auditors-General
• Ombudsman
• Royal Commissions
• Standing Investigative Commissions
• Judicial Inquiries

Parliament
• Responsible government = Ministers are answerable to Parliament
• Question time
• Opposition scrutinises the government
• Parliament may request Ministers to present documents
• EG: Egan v Willis (1998) – NSW Upper House ordered Treasurer Egan to
produce docs on a goldmine’s environmental impacts. He refused. HCA
held NSW Parliament had this power and Egan was in contempt of
Parliament.
• EG: Egan v Willis (1999) – again refused to produce docs (on
contaminated water). Claimed docs were between him and a lawyer so
are immune via “legal professional privilege”. HCA held Egan had to
produce documents, but Parliament should show caution when
requesting such privileged documents


Parliamentary Committees
• Set up by either House to investigate government decisions/actions
• Enable parliament to look into these in more detail than Question Time etc allows
• Primarily made in Senate (because Lower House controlled by GOV)
• Power to compel witnesses and order production of documents
• Unclear whether this extends to Ministers and their advisers
• Two types
• Standing Committees = permanent
• Select Committees = ad hoc
• NOTE: Joint Committee means members drawn from both Houses
Nicholas Saady 2016 14
 • Strengths
• Unearth information that few other bodies could obtain.
• Get a lot of media attention to make things public and transparent.
• Effectiveness often depends on the area
• EG: estimates Committees on budgetary spending are often very rigorous
• Weaknesses
• Power to compel witnesses/evidence is ‘by convention’ and therefore weak
• Politically, an Opposition may be unwilling to ‘go hard’, knowing that one day
they will be GOV and would prefer not set a ‘go hard’ precedent

• EG: Children Overboard Committee – shows inefficiencies of PCs
• 2001 Howard Government announced asylum seekers threw children
overboard, but this was actually due to poor condition of the boat. Policies
made on the back of this incident.
• Questions asked about when/how the GOV knew this was untrue. Stated they
were advised untruthfulness after others and after decision was made.
• Committee had a difficult time investigating – shows the inefficiencies of
committees because:
• Ministers refused to appear and refused to allow advisers to appear
• Committee had power to compel them but refused to avoid legal
challenges in Court
• Also problems accessing Defence Department docs
• Asylum seeker witnesses not allowed to give evidence, as they had been
transported to offshore detention

Auditors General
• Conducts financial audits of GOV bodies under Auditor-General Act 1997 (Cth)
• Independent officer appointed
• Audit investigations conducted in private
• BUT Final Reports are tabled in Parliament

Royal Commissions
• Ad hoc government inquiry established under:
• Governor-General (Royal Commissions Act 1902 (Cth))
• Governor (Royal Commissions Act 1923 (NSW))
• Jurisdiction of a RC is determined by its Terms of Reference
• Find facts + make recommendations on an issue of public concern
• Have coercive information-gathering powers
• EG: Power to summon witness to give evidence or produce documents
and criminal offence when such a witness refuses
• Not always MR of government
• Some review GOV (eg. Aboriginal Deaths in Custody, NSW Police corruption)
• Others unrelated to GOV (eg. HIH Insurance collapse)
• Some combine the two (eg. Child Abuse)

Standing Investigative Commissions
• Anti-corruption bodies where incidents of corruption can be investigated
• No Commonwealth, only in States
• Independent Commission Against Corruption (ICAC) = public sector corruption
• EG: Greiner v ICAC; Obeid investigations
Nicholas Saady 2016 15
 • NSW Police Integrity Commission – for police misconduct
• EG: Shaw v PIC = revving car, minor accident, hospital took mandatory blood

test, blood missing. No clear decision as to whether misconduct

Nicholas Saady 2016 16

TRIBUNALS

WHAT IS A TRIBUNAL?
• Person or body who, in arriving at the decision in question, is or are by law
required, whether by express direction or not, to act in a judicial manner to the
extent of observing one or more of the rules of natural justice
o Often difficult to distinguish a tribunal from a court
o Functions involve the finding of facts, the ascertainment of the law, and
the application of the law to the facts
• NOTE: AKA panel, board, commission – nothing turns on the name itself – powers
are solely from statute

CHARACTERISTICS OF TRIBUNALS
• Not set up under CHIII judicial power – form part of the executive as statutory bodies
• Independence from the government department – they are external, opportunity
to put forward new facts etc
• Distance from courts - they are focused on access to justice
• Mix of inquisitorial and adversarial opportunity to be heard without being
confined to legality of the argument
o Bushell v Repatriation Commission (1992) HCA Brennan J: ‘Proceedings before AAT
may appear to be adversarial when the Commission chooses to defend its decision
or to test a claimant’s case but in substance the review is inquisitorial.’
o Epeabaka v MIMA (1997) FCA: ‘proceeding before the RRT is not adversarial for the
reason that there is no party opposing an applicant... One consequence of a
proceeding not being adversarial is that an applicant does not carry any burden

DECISIONS
• Make decisions on merit – can substitute original decisions if not correct/preferable
• BUT no power to enforce decisions like Courts – still have legal effect (Brandy v HREOC)
o IE. cannot impose sanctions for contempt of courts etc.

LEGAL REPRESENTATION
• May be allowed if the Tribunal gives leave – dependent on relevant legislation
o Can add value to tribunal proceedings
o An element of natural justice (Li Shi Ping v Minister for Immigration)

CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2013 (NSW)
• Assented to 4 March 2013 - commenced on assent
• Sec 3 - The object of this Act is to establish an independent Civil and
Administrative Tribunal of NSW to replace various existing tribunals.
• Go to website to see whether you have jurisdiction as opposed to JR
• NSW Parliament recognised 23 existing tribunals that will form NCAT
o (a) The Administrative and Equal Opportunity Division,
o (b) The Consumer and Commercial Division,
o (c) The Occupational and Regulatory Division,
o (d) The Guardianship Division,
o (e) The Victims Support Division
Nicholas Saady 2016 17
 NSW ICAC
BACKGROUND
• Investigates and helps minimize corruption in NSW GOV
o Essentially a Royal Commission that never closes
• Cannot enforce the law itself
o BUT can alert police and others that a criminal offence has been committed
• Created after corruption scandals in 1980s, particularly after Wran NSW GOV
o Illegal casinos were rife, corruption in racing/property, police corruption and
crime, judiciary influenced by organized crime and NSWRL Scandal where Wran
directed a Magistrate to acquit NSWRL President Kevin Humphreys
o Set up by Greiner who was Liberal Premier at the time, supported by Labor
opposition
§ ICAC Act 1988 (NSW)

INDEPENDENCE
• Not accountable to a Minister like most other publicly-funded organisations
o Also not accountable to any politicians/parties/GOV
• ICAC Commissioner’s term is for 5 years (non-renewable)
o Appointed by

BODIES/LAWS OVERSEEING ICAC

• Inspector of ICAC
o Oversees ICAC’s use of powers
o Investigates complaints made against ICAC
• NSW Parliament (via Parliamentary Joint Committee on ICAC)
o monitor and review ICAC investigations + reports
• External scrutiny of covert powers
o NSW Ombudsman (inspects ICAC records on phone intercepts etc)
o NSW AG (ICAC reports use of listening devices to AG)
o Monitor and review ICAC investigations + report
• Courts
o JR available at NSWSC (inherent jurisdiction and ss 36B, 100B NSWSC Act)
• NSW Treasury
o Funding and expenditure
o monitor and review ICAC investigations + reports
• Privacy laws
o *Some* privacy laws still apply to ICAC

Nicholas Saady 2016 18

 INTRO TO JUDICIAL REVIEW
NOTE: JR review is available against executive DMs AND decision of inferior courts

WHAT IS JUDICIAL REVIEW?

• Reviewing the legality of administrative decisions (Peko Wallsend; ABT v Bond)
o Concerned with the lawfulness of decisions made by the executive, not whether
their decisions are wise and fair (ie legality/merits distinction)
• Always centres on power conferred by statute (Shi v MARA) – stat interpretation is vital
• Usually takes place in the Federal Court, and sometimes in High Court
• Grounded in the principle of the rule of law and SoP
o Executive should operate within their statutory power and be held accountable by
the judiciary for their decisions

STAGES OF JUDICIAL REVIEW

1. Court must have jurisdiction to conduct JR
2. Court must accept issues are justiciable
3. Applicant must have standing
4. Court must have power to grant a remedy
5. There must be a ground of review
6. Legislature must not have validly excluded Court’s review jurisdiction (ie. privative clauses)

• First four are threshold issues about ability to hear the review
• 5th is where the case is argued and won – why the decision was improper
• 6th is an enactment of Parliamentary authority

Nicholas Saady 2016 19

DIFFERENCES BETWEEN JR/MR
• Who is reviewing the decision
o Tribunal (executive) - reviews the decision exercising executive power (MR)
§ This is why a decision can be remade
o Court (judiciary) - reviews the decision exercising judicial power (JR)
§ This only means they have legal oversight and cannot remake
• Process
o MR
§ Apply law to facts
§ Determination of facts
§ Standing in shoes of original decision-maker
§ Decision is remade
o JR
§ Determine whether the decision was lawful
- Did the decision-maker act outside of power?
- Were procedures not followed?
- Was the decision so irrational as to be a failure to exercise lawful
functions?
§ Decision can be quashed and remitted to original DM

GROUNDS OF JUDICIAL REVIEW

• Grounds are errors of law – although some exceptions:
o Error of jurisdictional fact
o Unreasonableness

THREE BROAD CLASSIFICATIONS:
(1) Error of Power
• excess of power – simple ultra vires - may simply be an excess or power where the
decision maker or the tribunal has exceeded the power that it has.
• misuse of power – extended ultra vires – not just an excess of power but where ultra
vires has been extended to cover a misuse of power, where a person may have acted
strictly and legally within their power but they have misused that power in some way
• failure to exercise power – they have a duty to act and they failed to do/exercise their power

(2) Procedural Error – what procedure should have occurred in making the decision or
taking the action and did they occur or not
} natural justice – a.k.a. procedural fairness - by far the biggest of the grounds that
we will be looking at and the widest in scope. About what procedures should have
been given to the person and is derived from common law.
} failure to observe statutory procedure – where a statute says for example that in
making this decision this is the procedure or you must follow these steps, and the
decision maker has not done so. So there is a procedural flaw in the action they
have taken or the decision made.

(3) Error of Process
} errors of law in making decisions – in the decision-making process, they have
somehow vitiated the decision and made the decision outside of law.

Nicholas Saady 2016 20

 JR JURISDICTION

• Court can only undertake judicial review if it has jurisdiction to do so
• In JR, jurisdiction relates to the:
o Scope of a DM’s power to decide AND
o Scope and authority of a court to interfere with those decisions
• Begin with common law jurisdiction then move to ADJR
• NOTE: in an exam, always attempt to argue every single possible basis of jurisdiction
o EG: arguing CL and ADJR grounds of JR in FC – statutory schemes coexist with CL

COMMON LAW JURISDICTION
• NOTE: CL jurisdiction is not really CL – does not describe new Judge made law regarding
jurisdiction but judicial interpretation of the extent of jurisdiction conferred by CON or
statutory provisions
• Constitution
o S 75(v) (in conjunction with s 39 JA) = enables HCA to conduct judicial review
• Federal Court
o S 39B JA
• NSW Supreme Court
o Original/inherent jurisdiction as Courts of Superior Record (s 23 SCA (NSW))

ADJR JURISDICTION
• Contained in ADJR Act
• More straightforward and less technical than constitutional avenues of review
• Involves a series of questions:
o Is there a decision/conduct/failure to make a decision warranting JR under ss 5/6/7?
o Is there a decision to which the ADJR applies? (Admin character and under enactment)
o Is the decision excluded under Schedule 1 or as a GG decision?

Nicholas Saady 2016 21

HIGH COURT

CONSTITUTIONAL ORIGINAL (COMMON LAW) JURISDICTION

• In all matters in which a writ of Mandamus or prohibition or an injunction is sought
against an officer of the Cth (s 75(v))
o Critically important section for HCA to review admin decisions (Whybrow; Tramways)
• In all matters in which Cth, or person suing/being sued on behalf of Cth is a party (s 75(iii))
o HCA can imply its jurisdiction to conduct JR of a decision from any constitutional
section – source of its power of JR (Re Durham Holdings)
o Includes government owned corporations as part of Cth (Project Blue Sky)
o Easier to prove than s 75(v) as no need to prove jurisdictional error [no writs]

CONSEQUENCES OF THESE SECITONS
• Confer judicial review jurisdiction on HCA as part of its original jurisdiction
• 75(v) gives HCA power to issue injunctions + writs mandamus/prohibition (remedies)
• Give inherent constitutional power of JR to HCA – only amended by referendum
o IE. Parliament cannot deprive HCA of its constitutional power to conduct JR under these
sections (Gleeson in Plaintiff S157)
o Therefore “constitutional writs” (Ex Parte Aala)




THREE KEY ELEMENTS FOR HCA TO HAVE ORIGINAL JURISDICTION UNDER S 75(V)
(1) MATTER
• Must involve a real issue or conflict to be resolved (Re McBain)
o Must be an immediate right/duty/liability to be ruled upon by Court
o More than just a legal proceeding
o Related to standing and its test of legitimate interest – more than a hypothetical
question and a person needs more than theoretical interest in the outcome

(2) WRITS/REMEDY
• Applicant must be able to plead for issuance of a specific writ [SEE REMEDIES BELOW]
o IE. accessing review through application for a remedy (eg. Mandamus)
o Writ = form of pleading asking a court for a specific remedy
• NOTE: this also limits access to HCA jurisdiction

(3) OFFICER OF THE COMMONWEALTH
• Extends to all of the executive, including:
o Cth Ministers (Minister for Immigration v Jia)
o Delegates of Cth Ministers (Carter v Minister for Aboriginal Affairs)
o Members of FCA (Re Cth Court of Conciliation and Arbitration)
o Members of Tribunals (Ex Parte Aala)
o NOT HCA judges (Re Carmody)
• Does not extend to government owned corporations (NEAT v AWB)
o BUT can use s 75(iii) as in Project Blue Sky

Nicholas Saady 2016 22


Section 75: Original Jurisdiction in all matters:
(i) arising under any treaty;
(ii) affecting consuls or other representatives of other countries;
(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Cth, is a party;
(iv) between States, or between residents of different States, or between a State and a resident of
another State;
(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Cth;


JUDICIARY ACT JURISDICTION
• NOTE: often used first as it is simpler to bring a JR application than under CON
• Enlarges HCA jurisdiction to include any matter under CON or involving its interpretation (s 30)
• HCA may grant all such remedies whatsoever to allow a course of action to be completely
and finally determined (s 32)
o Interpreted to include writs of M/P/C, declarations and injunctions
• HCA has specific power to grant the writ of habeas corpus and make orders in the nature
of prohibition, mandamus and qua waranto (s 33)
• HCA has exclusive jurisdiction to grant mandamus and prohibition (ss 38/39)

NOTE: HCA also has appellate jurisdiction – can hear appeals from state Supreme Courts (on JR
of state government acts/decisions) and FCA (on JR of federal government)

Project Blue Sky v Australian Broadcasting Authority (ABA) 1988 HCA
Issue Is a program standard made by ABA invalid? – appellants (NZ film companies) argue
invalid as it gives preference to AUS TV programs contrary to Australia's obligations under
ANZ Closer Economic Relations Trade Agreement.

Legislation Broadcasting Services Act 1992 – power to make standards and functions to be performed
consistently with AUS international obligations.
Australian Content Standard – AUS programs must be at least 55% of programming
broadcast between 6am and midnight

Judgment HCA said there’s been a breach of the content standard. Does this make it a breach?
--- said not invalid even though there was a breach.
--- invalidity and jurisdiction are interchangeable; other judges have said that the reasoning
here is basically the same as the reasoning that occurs for jurisdictional type conditions.
--- reasoning judges went through to determine whether standard breach meant that
content standard was valid replicates reasoning for jurisdictional errors
--- if legislative provision is an essential preliminary then suggests the result will be
invalidity – it’s the first factor they look into.
An act done in breach of a condition regulating the exercise of a statutory power is not
necessarily invalid. Whether it is depends on whether there can be a discerned a legislative
purpose to invalidate any act that fails to comply with the condition. “Legislative purpose”
is often a “contestable judgment” :
• Essential preliminaries – breach results in invalidity (* relevant to jurisdictional
error points)
• Procedural conditions – breach may not result in invalidity
International conventions may be clear, some are vague. Often their provisions are vague
and goals rather than rules to be obeyed.
While s160 may impose a legal obligation, to breach it is not invalid. Determining whether
an act that requires reasons to be given is a matter of construction

Nicholas Saady 2016 23

FEDERAL COURT
• Set up by Federal Court Act 1976 (Cth) – creature of statute
o Jurisdiction therefore limited to powers conferred by Parliament (s 19 FCA)
• Two sources of its JR jurisdiction: ADJR Act and Judiciary Act
o ALWAYS attempt to establish jurisdiction/standing under both

JUDICIARY ACT (COMMON LAW) JURISDICTION
• Original jurisdiction to hear any matter in which a writ of mandamus/prohibition or an
injunction is sought against an officer/s of Cth (s 39B(1) JA)
o Lessens HCA’s load
• Original jurisdiction also extends to any matter (s 39B(1A)):
o (a) in which the Commonwealth is seeking an injunction or a declaration; or
o (b) arising under the Constitution or involving its interpretation; or
o (c) arising under any laws made by Parliament [including delegated legislation]
§ Other than a matter in respect of which a criminal prosecution is instituted
or any other criminal matter
- Otherwise would usurp criminal process
• Effects of s 39(1A)
o Plugs gaps under the ADJR regarding non-statutory executive powers
o Can review legality of delegated legislation!! (1A(c) not reviewable under ADJR)
§ Therefore only the FC, not HCA, can review delegated legislation
o Does not matter whether the ADM is ‘an officer of the Cth’ (contrasts s 75(v))

FEDERAL COURT ACT JURISDICTION
• Jurisdiction = FCA has associated jurisdiction in matters where FCA jurisdiction is
invoked – this is confined to federal claims (s 32 FCA Act)
o Accrued jurisdiction = power of superior courts to settle the controversy before
it by dealing with all the issues that ‘arise out of common transactions and facts’
or ‘a common substratum of facts’ (Philip Morris v Adam P Brown)
• Relief = FCA can make binding declarations of right, all remedies to which any of the parties
may be entitled to, anything the court thinks appropriate (ss 21-23 FCA Act)

ADJR JURISDICTION (STATUTORY JURISDICTION)
• SEE BELOW

• HCA can also remit matters to the FC to be heard (s 44(1))
• NOTE: often combine section 39B and ADJR applications for JR (O31.01 FC Rules 2011 (Cth))
• NOTE: these provisions give FCA same jurisdiction as HCA
• NOTE: Federal Circuit Court has same ADJR jurisdiction as FCA except for its JA jurisdiction

Nicholas Saady 2016 24

NSW SUPREME COURT
• CL inherent jurisdiction = superior courts of record (Kirk)
o Therefore unnecessary for it to be conferred with statutory review powers
§ Although some states have equivalent to ADJR Act – codify powers

• Closest thing is general jurisdiction = Court ‘shall have jurisdiction which may be
necessary for administration of justice’ (s 23 SC Act (NSW); Wingfoot v Kocak)

• Also jurisdiction in proceedings in lieu of writs (s 69 SC Act)
o Where Court had jurisdiction to grant any relief/remedy or do any other thing by way
of writ of prohibition, mandamus, certiorari or of any other description (s 69(1)(a)) it
shall continue to have that jurisdiction (69(1)(c))
§ NOTE: brings in certiorari which is not in CON

NSW SUPREME COURT ACT PROVISIONS

69 Proceedings in lieu of writs
(1) Where formerly:
(a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of
prohibition, mandamus, certiorari or of any other description, or
then, after the commencement of this Act:
(c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but
(d) shall not issue any such writ, and
(e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the
rules, and
(f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act
and the rules

(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of
certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings
if that determination has been made on the basis of an error of law that appears on the face of the record
of the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court
or tribunal for its ultimate determination.

(5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which
the provision is, according to common law principles and disregarding those subsections, effective to
prevent the Court from exercising its powers to quash or otherwise review a decision

Nicholas Saady 2016 25

 JURISDICTION UNDER ADJR ACT

ESTABLISHING JURISDICTION
• FC (s 8(1)) and FCC (s 8(2) ADJR) have ADJR jurisdiction but only where there is standing
o ONLY applies to FC/FCC, not HCA or NSWSC
• Three elements:
o Decision made
o Of an administrative character
o Made under an enactment

NOTE: if decision in question falls under exemptions or jurisdiction cannot be proved under
ADJR, may still find jurisdiction under s 75(v)/s 39B

1) DECISION MADE
• Decision made to which the ADJR Act applies, as it was made (s 3(1)):
o (a) under an enactment referred to in paragraph (a), (b), (c) or (d) [listed
below] of the definition of enactment
o (b) by a Cth authority or officer of Cth under an enactment referred to in
paragraph (ca) or (cb) of the definition of enactment
• EXCEPTIONS
o (c) a decision by Governor-General
o (d) a decision included in any of the classes of decisions in Sch 1
§ Includes decisions made in areas like tax assessment, criminal
process, migration, security and defence
§ See below for schedule

• Must be a ‘final and operative’ decision determining the issue OR a ‘substantive
determination’ (ABT v Bond; Edelsten)
o Cannot be an interim decision – must end the controversy
o BUT if statute expressly provides for an interim decision then this decision is
also a ‘decision under an enactment’ and can be reviewed (ABT v Bond)
§ Such a decision is only reviewable if it’s a condition precedent to the making
of a reviewable decision (Edelsten – review recommending revocation)

Nicholas Saady 2016 26

2) OF ADMINISTRATIVE CHARACTER
• Not defined in the ADJR Act
• Definition by exclusion: ‘of administrative character’ excludes decision of
‘legislative’ or ‘judicial’ character (Tooheys; Aerolinas Argentinas; Griffiths v Tang)
o Legislative = creation of a general rule of conduct without reference to a
particular case
o Administrative = application of general rule to a particular case
• Factors tending to show an instrument is legislative in character:
o Creates new rules of general application
o Has binding legal effect
o Has to be publicly notified in gazette
o Made after wide consultation
o Incorporates or has regard to wide policy considerations
o Can’t be varied or amended by executive
o Can be reviewed by parliament
• NOTE: no clear precedent as to what is A or L – highly fact based
o In exam, just justify whatever way you argue – apply the above factors

3) MADE UNDER AN ENACTMENT

• Enactment is (s 3(1)):
o (a) Act other than Cth Places Act or NT Self Gov Act
o (b) Ordinance of a territory other than ACT or NT
o (c) Instrument such as rules/regs/by-laws made under Act/Ordinance
o (d) any other NT law declared to be an enactment under this Act
• To be made under an enactment (Griffiths v Tang):
o Decision must be expressly or impliedly required/authorised by the enactment; AND
o Decision which is derived from this enactment must itself confer, alter or
otherwise affect legal rights or obligations
• Under an enactment = power of the decision maker to make the decision must be
derived from statute
o Not just create the decision making body

Nicholas Saady 2016 27

 IMPEDIMENTS TO JURISDICTION

• Limits on JR jurisdiction to ensure Courts do not usurp role of Executive

THRESHOLD ISSUES
• Are there any impediments to invoking federal judicial review jurisdiction?
1. Merits/legality distinction (a separation of powers question)
2. Justiciability (can the courts exercise JR)
3. Standing
4. Remedies

MERITS/LEGALITY: SOP
• As JR is conferred under s 75(v), JR can only be about the lawfulness of executive
decisions and actions
o This excludes questions and grounds based on merit (Green v Daniels)
§ IE. legality/merits distinction
• “Law of judicial review cannot conflict with recognition of the legal effectiveness of the
due exercise of power by other branches of government” (AG (NSW) v Quin per Brennan)

QUESTIONS YOU SHOULD ASK:
• What jurisdiction dealing with? (Cth/State)
• Are there any impediments to invoking judicial review? [IE. is the matter non justiciable?]
o Is it a clear question of merit or fact, suitable for review by AAT or other
tribunal with review authority?
o Is it a matter?
o Finally: is there an issue of standing? (next class)
o Most of these questions can be answered on a case by case basis, looking
to the statute under which the decision was made, and the nature, scope
and type of decision
• Then decide which avenue best or possible to use in the circumstances:
o HC original jurisdiction? Judiciary Act?
o Dual capacity FC, so can you invoke ADJR jurisdiction? (next time)

Nicholas Saady 2016 28