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LAWS2115: ADMINISTRATIVE LAW

FINAL EXAM NOTES Remedies Angus J OBrien

LAWS2115 Administrative Law Semester 1, 2008

End of Semester Exam Notes Angus J OBrien

INTRODUCTION TO THE ADJR AND JR ACTS.............................................................6


1. The ADJR Act...........................................................................................................................................................6 (a) Application of the AJDR Act................................................................................................................................6 (b) Substance of the ADJR Act..................................................................................................................................6 2. The JR Act.................................................................................................................................................................7 (a) Application of the JR Act.....................................................................................................................................7 (b) Substance of the JR Act........................................................................................................................................7 3. Differences between the ADJR Act and JR Act.....................................................................................................8

OVERVIEW OF ELEMENTS FOR STATUTORY REVIEW..............................................9 DECISION AND CONDUCT............................................................................................10


1. Legislative Guidance on the Defn. of Decision...................................................................................................10 2. Judicial Guidance....................................................................................................................................................10 (a) Is the decision final and determinative?.............................................................................................................10 (b) Is the decision a substantive determination?......................................................................................................11 (c) Is Mason CJs test still good authority?..............................................................................................................12 3. Evaluating Bond......................................................................................................................................................12 4. Conclusion................................................................................................................................................................13

FAILURES TO DECIDE..................................................................................................15
1. s22(1)........................................................................................................................................................................15 2. s22(2)........................................................................................................................................................................15

ADMINISTRATIVE CHARACTER..................................................................................16
1. General Principles of Interpretation.....................................................................................................................16 2. The 'Tests'................................................................................................................................................................17 (a) Distinguishing legislative and administrative acts..............................................................................................17 (b) Distinguishing judicial and administrative acts..................................................................................................18

UNDER AN ENACTMENT..............................................................................................21
1. Is the decision made, proposed to be made, or required to be made?.............................................................21 2. If yes, is that so under an enactment?................................................................................................................21 (a) Is there an enactment?......................................................................................................................................21 (b) If yes, is it under an enactment?.......................................................................................................................22

LAWS2115 Administrative Law Semester 1, 2008

End of Semester Exam Notes Angus J OBrien

NON-STATUTORY SCHEMES OR PROGRAMS..........................................................26


1. Is the decision of an administrative character?....................................................................................................26 2. Is the decision made, or proposed to be made, by, or by an officer or employee of the State or a State authority or local government authority?................................................................................................................26 (a) Made or proposed to be made.............................................................................................................................26 (b) By....................................................................................................................................................................26 3. Is the decision under a non-statutory scheme or program?................................................................................26 (a) Is there a decision under a scheme or program?..............................................................................................26 (b) If yes, is the scheme or program non-statutory?.................................................................................................28 4. Public funds?...........................................................................................................................................................28

NON-JUSTICIABILITY....................................................................................................29
1. General Principles...................................................................................................................................................29 2. Cabinet Decisions....................................................................................................................................................29 3. Decisions of GG and Governor..............................................................................................................................29

AGGRIEVED...................................................................................................................30
1. Standing for Equitable Remedies..........................................................................................................................30 (a) If the right infringed is private........................................................................................................................30 (b) If the right infringed is public.........................................................................................................................30 2. The Statutory Tests for Standing..........................................................................................................................34 (a) Sufficient interest................................................................................................................................................34 (b) Negatively affected.............................................................................................................................................35 3. Affection of Intangible Interests............................................................................................................................35 (a) Participation in decision-makers hearing..........................................................................................................36 (b) Capacity to represent public interest..................................................................................................................36 4. Conclusion................................................................................................................................................................37

PROCEDURAL POINTS.................................................................................................38
1. Joinder of third parties...........................................................................................................................................38 (a) Joinder.................................................................................................................................................................38 (b) Amicus Curiae....................................................................................................................................................38 (c) Intervention.........................................................................................................................................................38 2. Time limits for applications under Pt 3................................................................................................................38 (a) If written notice was provided........................................................................................................................39 (b) If written notice was not provided..................................................................................................................39 3. Exclusion from review............................................................................................................................................39 (a) Matters expressly excluded in the Acts..............................................................................................................39 (b) Ouster/privative clauses......................................................................................................................................39 (c) Non-justiciability................................................................................................................................................41

LAWS2115 Administrative Law Semester 1, 2008

End of Semester Exam Notes Angus J OBrien

4. Powers of court hearing JR Act applications.......................................................................................................41 (a) Interlocutory orders.............................................................................................................................................41 (b) Orders that can be made following successful review.......................................................................................42 (c) Appeals...............................................................................................................................................................44 5. Costs orders under JR Act.....................................................................................................................................44

THE RIGHT TO REASONS.............................................................................................45


1. Is there a right to reasons?.....................................................................................................................................45 (a) Does Pt 4 apply?.................................................................................................................................................45 (b) Is the person entitled to make an application under s20?...................................................................................46 (c) Is the request for reasons made within time?......................................................................................................46 (d) Do any exceptions to the right to reasons apply?...............................................................................................46 2. If yes, has there been an adequate response to the request?...............................................................................47 (a) If the decision-maker give notice refusing reasons........................................................................................47 (b) If the decision-maker gives reasons................................................................................................................48 3. Use of reasons in subsequent proceedings............................................................................................................48 4. Costs.........................................................................................................................................................................49 5. Other ways of finding out about decisions............................................................................................................49 (a) FOI......................................................................................................................................................................49 (b) Discovery............................................................................................................................................................49

THE PREROGATIVE WRITS..........................................................................................51


1. Prohibition...............................................................................................................................................................52 (a) Is the decision-maker subject to the writ?..........................................................................................................52 (b) Is the decision-maker's role continuing?............................................................................................................54 (c) Is the writ available for the alleged ground of review?......................................................................................55 (d) Does P have standing?........................................................................................................................................55 2. Certiorari.................................................................................................................................................................55 (a) Is the decision-maker subject to the writ?..........................................................................................................55 (b) Has the decision-makers role ceased?...............................................................................................................55 (c) Is the writ available for the alleged ground of review?......................................................................................56 3. Mandamus...............................................................................................................................................................57 (a) Is there a public duty?.........................................................................................................................................57 (b) Is there express or constructive refusal to perform that duty?............................................................................57 (c) Is the decision-maker subject to the writ?..........................................................................................................57 (d) Does P have standing?........................................................................................................................................57 (e) Are other remedies available?.............................................................................................................................58 4. Procedural points common to the writs................................................................................................................58 (a) Stays....................................................................................................................................................................58 (b) Time....................................................................................................................................................................58 (c) Early disposal......................................................................................................................................................58

DECLARATIONS AND INJUNCTIONS..........................................................................59 4

LAWS2115 Administrative Law Semester 1, 2008

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1. Declarations.............................................................................................................................................................59 Is a declaration available?........................................................................................................................................59 2. Injunctions...............................................................................................................................................................62 (a) Are the prerequisites applicable to all injunctions satisfied?..............................................................................62 (b) Are the pre-requisites specific to the type of injunction satisfied?.....................................................................64

LAWS2115 Administrative Law Semester 1, 2008

End of Semester Exam Notes Angus J OBrien

INTRODUCTION TO THE ADJR AND JR ACTS


Two relevant acts: 1. Administrative Decisions (Judicial Review) Act 1977 (Cth); and 2. Judicial Review Act 1991 (Qld). 1. The ADJR Act In the early 1970s, a number of reports were published which advocated reform of the procedures for judicial review and the codification of the grounds of review: see Kerr Committee Report; Ellicott Committee Report. These reports highlighted that the common law remedies were plagued by technical difficulties and recommended reform of judicial reviews procedures and codification of its grounds. The AJDR Act was the result of this call to reform. It was passed in 1977 and commenced operation in 1980. (a) Application of the AJDR Act In accordance with constitutional principles (see ss76(ii), 77 and 122 Constitution; Evans v Friemann), the ADJR Act applies to the exercise of certain Cth Government powers; it does not apply to exercises of power under State legislation: s3 ADJR Act (defn of enactment) read with s38(1) AIA. The FC generally does the reviewing under the ADJR Act: see ss3, 8. The FMC has also been given power to hear certain ADJR Act applications: see s8. The Family Court also has a very limited jurisdiction: see s18A. State courts do not have the power to review exercises of Cth government power: see s9 ADJR Act. Most cases of judicial review in the federal sphere involve applications under the ADJR Act. However, s39B is almost always pleaded cumulatively and in the alternative to a claim under the ADJR Act: Aronson et al (2004); Creyke and McMillan (2004). Also, there are cases where the ADJR Act review is not available (due to technical limitations regarding the scope of the Act), but where prerogative writs or declarations are. If there is doubt over the applicability of the ADJR Act, it is advisable to plead the traditional remedies in the alternative. This is permitted by O 54A R 3(2) FCR. (b) Substance of the ADJR Act The ADJR Act introduced certain changes to the law, but largely continued the existing framework. Aronson recently considered whether the ADJR Acts technical limitations meant it should be repealed. He concluded it should not, but recommended significant changes: see (2004) Public Law Review. (i) Points of continuity 6

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The grounds of review are codified and are thus largely unchanged. There are two exceptions to this the error of law and no evidence grounds are broader than their common law equivalents: see MIMA v Rajamanikkam. Note that Kirby J complained in Ex parte Applicant S20/2002 that the ADJR Acts codification to some extent retarded the development of the common law. Note also that the AJDR Act was not intended to extend the courts power to merits review: see second reading speech of Hon RJ Ellicott QC on the ADJR Bill 1977. The other point of continuity is that the common law and equitable remedies continue to operate: see s10 ADJR Act. The FC has statutory jurisdiction to review exercises of Cth government power using these remedies: s39B JA (reflecting s75(v) Constitution); s32(1) FCA. This is also part of its accrued jurisdiction: Campbell (1998). Note that the traditional remedies were also only available against officers of the Cth: Vietnam Veterans Association of Aus (NSW Branch) v Cohen. However, s39B(1A) appears to change this by giving the FC jurisdiction over "matters arising under any laws made by the [federal] Parliament": Transport Workers Union v Lee. In any event, a Cth Tribunal is an officer of the Cth: SAAP v MIMIA. (ii) Points of change The ADJR Act made two substantive changes to the law that existed prior to its enactment: 1. It simplified the procedures for seeking judicial review by providing for an application procedure, rather than the 2-step process involved with the prerogative writs; and 2. It provided a right to reasons in respect of certain government decisions: s13 ADJR Act. 2. The JR Act The JR Act arose as a result of similar concerns with the traditional administrative law remedies. The Fitzgerald Royal Commission (1989) described judicial review procedures as extremely cumbersome and recommended the establishment of the Electoral and Administrative Review Commission (EARC) and that EARC be directed to examine the establishment of simpler procedures for obtaining judicial review of administrative decisions. EARCs report, published in 1990, recommended Qld follow the Federal Governments lead and this recommendation was generally endorsed by the Queensland Parliamentary Committee for Electoral and Administrative Review. The JR Act was passed in 1991 and came into force midway through 1992. (a) Application of the JR Act In the same way that the ADJR Act is confined to Cth decisions, the JR Act is confined to exercises of Qld State government power: see ss3,4 read with s14E AIA 1954 (Qld). The Supreme Court does the reviewing under the JR Act: ss3, 19. (b) Substance of the JR Act 7

LAWS2115 Administrative Law Semester 1, 2008

End of Semester Exam Notes Angus J OBrien

Parts 3 and 4 of the Act contain the same fundamental features of the Federal Act: 1. Simplified procedures for seeking judicial review; 2. Codification of the traditional grounds of review (Part 3); and a. Like the ADJR Act, the JR Act only authorises review on grounds of legality: Hoffman v Qld Local Govt Superannuation Board. 3. Provided a right to reasons in respect of certain government decisions (Part 4). Qld courts applying the JR Act can obtain guidance from decisions interpreting the ADJR Act: s16(1) JR Act; see also EARC Report. Note that Schedule 3, incorporated by s16(2), is a comparative table of equivalent Federal sections. One major difference between the ADJR Act and the JR Act is the relationship between common law/equitable remedies and statutory remedies. The JR Act contains two types of review: 1. An application for statutory order of review under Part 3; and 2. An application for review under Part 5. a. Part 5 attempts to draw the traditional remedies in as part of the Act. The coordination of remedies is therefore more effective in Qld. b. An applicant can seek review under Part 3 or, in the alternative, an order in the nature certiorari or declaration or any other remedy found in Part 5. c. The two types of applications can be combined together: r568. 3. Differences between the ADJR Act and JR Act Certain significant differences appear to occur for two reasons: 1. There were changes in administrative law between 1977 and 1991. In particular, decisions of the Governor-General are not reviewable under the ADJR Act, but decisions of the Governor are reviewable under Part 3 JR Act; 2. EARC sought to avoid perceived problems with the ADJR Act or the law generally. For example: a. s4(b) JR Act seeks to avoid the technicalities which have emerged in relation to the ADJR Act's requirement that the decision be made "under an enactment" by allowing review of decisions made "under non-statutory schemes or programs"; and b. ss49, 50 make certain provisions in relation to court costs.

LAWS2115 Administrative Law Semester 1, 2008

End of Semester Exam Notes Angus J OBrien

OVERVIEW OF ELEMENTS FOR STATUTORY REVIEW


A person may apply for a statutory order of review under Pt 3 in three circumstances: 1. Where the person is aggrieved by a decision to which the Act applies: s20(1) JR Act; s5(1) ADJR Act; and 2. Where the person is aggrieved by actual or proposed conduct of a person which conduct is for the purpose of making a decision to which the Act applies (whether by the person engaging in the conduct or by another person): s21(1) JR Act; s6(1) ADJR Act. 3. Where the person is aggrieved by the failure of a person to make a decision to which the Act applies which that person had a duty to make: s22(1) JR Act; s7(1) ADJR Act. Per s4(a) JR Act; s3 ADJR Act, a decision to which this Act applies is: 1. A decision; 2. Of an administrative character; 3. Made, proposed to be made, or required to be made, under an enactment (whether not in the exercise of a discretion). Note s4(b) JR Act in relation to decisions made under a non-statutory scheme or program. These elements cannot be construed in isolation. Each informs the meaning and content of the others: Neat Domestic Trading v AWB per Kirby J; Griffith University v Tang per Gummow, Callinan and Heydon JJ.

LAWS2115 Administrative Law Semester 1, 2008

End of Semester Exam Notes Angus J OBrien

DECISION AND CONDUCT


1. Legislative Guidance on the Defn. of Decision Per s5 JR Act; s3(2) ADJR Act, a decision includes: 1. making orders, awards or determinations; 2. giving certificates, directions, consents or permissions; 3. issuing licences, authorities or instruments; 4. imposing conditions or restrictions; 5. making declarations, demands of requirements; or 6. retaining or refusing to deliver up an article. Note also s6 JR Act; s3(3) ADJR Act below. 2. Judicial Guidance In ABT v Bond, Mason CJ, (with whom Brennan and Deane JJ agreed), took a narrower view than the FC had in Lamb v Moss, holding that a reviewable "decision" is a determination for which provision is made by or under statute. On the other hand, 'conduct' points to action taken for the purpose of making a reviewable decision. Two elements for decision: 1. The decision is final and determinative of the issues falling for consideration; and 2. It must be a substantive, as distinct from procedural, determination. (a) Is the decision final and determinative? The word decision is not limited to a final decision disposing of the controversy between the parties: Bond per Mason CJ. However, an intermediate conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision is not ordinarily a reviewable decision, unless the statute provides for the making of a finding or ruling on that point: Bond per Mason CJ. NOTE that the Acts expressly provide that if provision is made by an enactment for the making of a report or recommendation before a decision is made, the making of the report or recommendation is itself taken, for the purposes of this Act, to be the making of a decision: s6 JR Act; s3(3) ADJR Act. The ADJR Act provision has been narrowly construed. The enactment must specifically make the report or recommendation a condition precedent to the making of the subsequent decision: Ross v Costigan; Edelsten v HIC. Although the Qld provision is differently worded, this is not directed at overcoming the restrictive interpretation. Nonetheless, Qld cases have considered a more liberal interpretation: Resort Mgmt Services v Noosa Shire Council; St George v Wyvill. Courts applying this approach have had difficulty in applying it consistently. In Harris v Bryce, a decision by the Sex Discrimination Cmr to investigate sex discrimination was held not to be 10

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final or operative. However, in Re Excel Finance Corp a determination by ASIC to authorize a receiver to make an application for a public examination was held to be a 'decision'. These cases are possibly reconcilable on the basis that Bryce concerned a decision to investigate, whereas Excel Finance concerned a decision to allow an investigation to proceed. Nonetheless, Excel Finance is hard to reconcile with Bond and did not consider it in any detail. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach; but the applicant must wait: Bond per Mason CJ. Schokker v Commissioner of Taxation (1998) 51 ALD 654: Facts: related to the refusal to refer the complaint about alleged breaches of privacy to the DPP. The decision to prosecute was a decision of the DPP. Held: was a sufficiently final decision, because it settled a final determination of the complaint, and was not a mere step along the way (b) Is the decision a substantive determination? Mason CJ explains this element further only by juxtaposing it with conduct. Conduct: 'Conduct' points to action taken for the purpose of making a reviewable decision. It looks to the way in which the proceedings have been conducted, rather than decisions made as part of the decision-making process along the way to the making of a final determination. It is procedural, not substantive, in character: Bond per Mason CJ. Examples: Admission/non-admission of evidence: Bond per Mason CJ; Courtney v Peters; and Failure to adjourn: Bond per Mason CJ. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge: Bond per Mason CJ. Under this approach, factual findings will often lack the element of finality required to be decisions. However, since they are substantive, and not procedural, factual findings wont qualify as conduct either: Cane & McDonald (2008). In Harris v Bryce, a determination by the Sex Discrimination Commissioner to investigate sex discrimination was also held not to be substantive. NOTE that, per s8, a reference in the JR Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of anything preparatory to the making of the decision, including (a) the taking of evidence; or (b) the holding of an inquiry or investigation.

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The conduct need not be that of the decision-maker: s21(1). Whether conduct of a non-decision maker could be reviewable will turn on the nexus between the conduct and the decision: Gunaleela v MIEA. No equivalent federal provision.
Salerno v National Crime Authority (1997) 144 ALR 709: Facts related to a decision to authorise a warrant to raid + search premises Held: Was a reviewable decision. Even though it related to investigation, the effect of the search warrants was to interfere with the private property and privacy of the person. Was therefore a substantive determination, and not procedural. Was a serious infringement of a persons right to quiet enjoyment of property Note Salerno lost in the end because the decision was not made under an enactment

(c) Is Mason CJs test still good authority? Bond was applied in the ADJR Act context in Harris v Bryce (above). It has also been applied in a JR Act context: State Bank of NSW v CSD; Summerson v CSD; Redland Shire Council v Bushcliff. Note, however, that in Redland Shire Council v Bushcliff, Thomas J noted that there was difficulty in directly transposing the Bond criteria to decisions of a body that performs 'nonadjudicative functions'. The joint judgment of Gummow, Callinan and Heydon JJ in GU v Tang, whilst not expressly disapproving of Mason CJ's approach, has given rise to doubts as to whether it commands majority support on the HC today, for two reasons: 1. The "substantive" requirement is absent in the joint judgment, which is particularly conspicuous given the judgment quotes Toohey and Gaudron JJ in Bond, who rejected the 'substantive' requirement. However, the joint judgment does use the relevant passage from Mason CJ's judgment to illustrate another point. 2. More significantly, the joint judgment suggests that there can be a 'decision' in cases where an enactment necessarily implies the making of the decision. This would undermine Mason CJ's 'substantive' requirement since the ABT's decision that Bond was not a fit and proper person was clearly impliedly authorised by the Act. However, the FC has held that the joint judgment in Tang did not intend to depart from Bond: Guss v Cmr of Taxation; Jilani v Wilhelm. This appears correct. 3. Evaluating Bond Bond set out to reduce abuse of the ADJR system by those with enough financial backing to make repeated ADJR challenges to the administrative process before it had come to a final decision. Whilst the grand design was to force litigants to await the administrators final decision before going to court, the decision left three significant avenues around this still open: 1. Firstly, it allowed intermediate decisions to be treated as decisions in their own right, provided they were substantive in nature, and provided the relevant Act gave sufficient indication of treating them separately. 2. Second, the seemingly unavoidable problem, of seeking ADJR review before making of the final decision, where the subject of challenge could be characterized as conduct. 3. Third, the decision offered no restriction to challenges under s39B of the Judiciary Act .

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However, in its defence, the decision in Bond did assist in focusing the minds of practioners and judges on the need to identify exactly what was being challenged. 4. Conclusion The FC has a general discretion to dismiss proceedings where the review application is premature and the interests of justice require it. This is also true in Qld: see s14 JR Act. This general discretion extends to the traditional remedies. The Bond approach is therefore interesting as its focus on fragmentation of government decision-making suggests whether the exercise of this discretion is enough. In particular, note that a broad interpretation of 'decision' would expand the obligation to give reasons, applications relating to which are not subject to the general discretion. Given that the traditional remedies, in particular declarations and the prerogative writ of prohibition, are not constrained by this technical approach (but are subject to the general discretion), it is understandable that commentators have asked whether it was worth all the trouble.
ABT v Bond Facts: The case concerned an enquiry by the Australian Broadcasting Tribunal into whether or not to suspend or impose conditions on the radio and television licences held by companies which were effectively controlled by Alan Bond. At the heart of the Tribunal's enquiry were two major allegations. o First, that Mr Bond caused a defamation action brought by the then Premier of Queensland against one of Mr Bond's companies to be settled by paying a sum of $400,000 to the Premier, when the company's likely liability would have been in the order of only $50 000 i.e. the additional amount was paid in the expectation that Bond's companies would be able to continue to do business successfully in Qld. It was also alleged that Mr Bond tried to conceal this arrangement from the Tribunal; o Secondly, that Mr Bond had personally threatened an executive of the AMP Society that if the Society did not stop acting contrary to the interests of Mr Bond in relation to the makeup of the Board of Directors of Bell Resources Ltd, then Mr Bond would direct his TV reporters to gather damaging material on the AMP Society and broadcast it. The ABT was tasked with determining whether, under the Broadcasting Act 1942, to cancel or impose conditions on the corporate licences held by Bond companies. The statute required the ABT, in making that determination, to consider whether the companies were "fit and proper persons" to hold the licences. The ABT made the following series of determinations: o Mr Bond controlled the corporate licensees; o Mr Bond was not a fit and proper person; and o The corporate licensees where therefore not fit and proper.

Held: Appeal upheld. Reasoning of Mason CJ (with whom Brennan and Deane JJ agreed): The meaning of 'decision' must be determined by reference to the text, scope and purpose of the statute itself.

Before the ABT made the final decision on whether to cancel/impose conditions on the licences, Bond and the companies sought judicial review of the Tribunal's determinations under the ADJR Act. Bond and the companies were successful in the FC and Full FC. The ABT appealed to the HC.

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No narrow view should be taken of the word 'decision'. In particular, the word decision is not limited to a final decision disposing of controversy between the parties.. However, certain considerations point to the word having a relatively limited field of operation. The relevant policy considerations are competing. On the one hand, the purposes of the AD(JR) Act are
to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of "decision" is extended, there is a greater risk that the efficient administration of government will be impaired. To interpret "decision" in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.

Set out the law. On the facts, undoubtedly, the Tribunal's determination that the respective licensees were no longer fit and proper persons to hold their licences was a decision of an administrative character made under an enactment. The issue is whether the Tribunal's other determinations, particularly that Mr Bond was not a fit and proper person, was a "decision". The Tribunal's determination that Mr Bond was not a fit and proper person to hold a licence was a conclusion reached as a step along the way in the course of reasoning leading to the decision as to the suitability of the companies to hold their licences. Thus, review of that determination was not available under the ADJR Act. The fact that it was an essential step does not make it reviewable. The decision that the companies were not fit and proper 'people' was also a step in the course of reasoning leading to a decision whether or not to revoke the licenses. However, it was reviewable under the ADJR Act because the Broadcasting Act specifically provided for this decision. As to the meaning of conduct, once it is accepted that "decision" connotes a determination for
which provision is made by or under a statute, one that generally is substantive, final and operative, the place of "conduct" in the statutory scheme of things becomes reasonably clear.

Examples of conduct decision to admit/non-admit certain evidence, failure to grant an adjournment /continuation of proceedings in a way contrary to natural justice. On the facts, the decision by the ABT that Bond was not a fit and proper person to hold the licences in question was not 'conduct' as it was substantive, not procedural. It was a determination, not 'action taken'. Reasoning of Toohey and Gaudron JJ: Rejected the "substantive" requirement.

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FAILURES TO DECIDE
s22 JR Act; s7(1)-(2) ADJR Act establish two types of review of failures to decide. Note that in relation to both s22(1) and s22(2), there must be a duty, not a mere statutory power: Brownsville Nominees v Cmr Taxation. 1. s22(1) Per s22(1), an aggrieved person may apply for a statutory order of review on the ground that there has been an unreasonable delay in making a decision if 1. A person has a duty to make a decision to which this Act applies; and 2. There is no law that fixes a period within which the person is required to make the decision; and 3. The person has failed to make the decision; An unreasonable delay is defined objectively as one which no reasonable person acting in good faith would, in the circumstances, have approved of the delay in making the decision. The delay must not be capricious or irrational: Thornton v Repatriation Commission; CISC v de Lacy. 2. s22(2) Per s22(2) an aggrieved person may apply for a statutory order for review on the ground that the person has a duty to make the decision despite the end of the period if 1. A person has a duty to make a decision to which this Act applies; 2. A law fixes a period within which the person is required to make the decision; and 3. The person failed to make the decision before the end of the period.

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ADMINISTRATIVE CHARACTER
The requirement that the decision must be of an administrative character maintains the trichotomy between legislative, executive and judicial and is therefore reflective of the separation of powers: Resort Mgmt Services v Noosa Shire Council; Evans v Friemann; MIC v Tooheys Ltd; QML v Blewett per Gummow J. Legislative and judicial decisions are not reviewable under the JR Act or ADJR Act. 1. General Principles of Interpretation Since the Acts are remedial statutes, the phrase should not be given a narrow or technical construction: Evans v Friemann; Resort Mgmt Services v Noosa Shire Council. Per Evans v Friemann, two factors compel a broad construction: 1. It is the decision which must be of an administrative character, not the subject matter of the decision; and 2. Administration is a process, not an isolated act. Particular decisions need to be characterised in the context of any such process. It is the character of the decision which is important, not the character of the decision maker. Since the approach is functional, not institutional, which branch of government the decisionmaker comes from is not determinative: Glenister v Dillon. However, the nature of the decision maker is not completely irrelevant. For example, a decision of a judge of a superior court will usually be judicial: Hamblin v Duffy. The phrase 'administrative character' cannot be construed in isolation from other sections of the JR Act and ADJR Act. In particular, s5 JR Act; s3(2) ADJR Act are relevant in interpreting the phrase: Evans v Friemann. Consequently, decisions granting or revoking licences or making or revoking orders can be characterized as 'administrative'. Thus, decisions of an 'administrative character' include quasi-judicial decisions e.g. tribunal decisions.
Evans v Friemann Facts: The applicant was a legal practitioner seeking admission as a patent attorney. He sat the three exams required to gain admission. He was notified in writing by the Board of Examiners that he had passed one and failed two. The admission requirements were contained in the Patents Act 1952 and the Board of Examiners was established by the Patent Attorneys Regulations passed under that Act. He immediately wrote to the Secretary of the Board requesting reasons under the ADJR Act. The request was declined and he applied to the FC for an order of review. The respondents filed a notice of objection to competency of the court on the basis that their action did not amount to a 'decision' of an 'administrative character' made 'under an enactment'. Held (Fox ACJ): The role of the Board of Examiners is one of carrying out a purpose of the Patents Act by ensuring that there are specially qualified people to deal with applications that arise under it. The process of arranging for, and promulgating the results of, examinations are, on any view, distinctly administrative, as are some aspects of conducting them. Note: if a strict, analytical approach were taken and only the subject matter of a decision was considered, then the decision to fail someone might be characterised as educational.

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2. The 'Tests' It is difficult, if not impossible, to define simply 'legislative', 'judicial' or 'administrative': Hamblin v Duffy; Evans v Friemann; RG Capital Radio v ABA. However, it is possible to identify certain indicia. Per Lockhart J in Hamblin v Duffy: 1. Legislative acts usually involve the formulation of new rules of law having general application; 2. Judicial acts generally entail determinations of questions of law and fact in relation to disputes susceptible of determination by reference to established rules or principles; and 3. A decision of an administrative character includes at least the application of a general policy or rule to particular cases, the making of individual decisions. (a) Distinguishing legislative and administrative acts Whereas legislation determines the content of the law as a rule of conduct or a declaration as to power, right or duty, executive authority applies the law in particular cases: MIC v Tooheys; Cth v Grunseit per Latham CJ; QML v Blewett per Gummow J; RG Capital Radio v ABA. If a decision has actually changed the law it will be legislative; its not necessary that it formulates a rule of general application: VVAA v Cohen; QML v Blewett. NOTE that Allars criticises this 'transmission belt theory' as being overly simplistic, in particular because it reflects a supposed distinction between administration and the creation of government policy.
In QML v Blewett, the Minister's decision to adopt a new schedule of medical fees (which appeared at the end of a Commonwealth statute) had the effect of changing the law and was thus held to be legislative. NOTE: Gummow J suggested that had the Minister, instead of endorsing a new schedule to the Act, decided not to change the schedule, then that decision would have been administrative.

Per RG Capital Radio v ABA, factors relevant to distinguishing legislative decisions from administrative decisions are: 1. Generality legislative decisions generally determine the content of general, usually prospective, application, whereas administrative decisions apply rules of that kind to particular cases; a. Note, however, that individual norms which apply only to the action of a single person on a single occasion may still be classed as laws: RG Capital Radio v ABA; QML v Blewett per Gummow J. 2. Parliamentary control where a decision is subject to parliamentary control, that will generally indicate that it is legislative; a. For example, with by-laws and regulations there is a process of disallowance. 3. Publication a requirement of publication of a decision suggests the decision is of a legislative character; 4. Public consultation in certain circumstances, a need for wide public consultation may indicate that there is a natural justice concern and hence suggest the decision is administrative. However, if anything, a wide public consultation may indicate the general nature of the decision, suggesting it is legislative; 17

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5. Policy considerations if the decision involves complex policy decisions, that will indicate it is of a legislative character; 6. Executive variation or control the absence of a provision for executive variation or control is an indicator the decision is legislative: see also Aerolineas Argentinas v Federal Airports Corporation per Beazley J; 7. Absence of merits review the absence of merits review will indicate the decision is of a legislative character. 8. Effect if a decision has a binding legal effect, in that certain statutory provisions are enlivened once the decision is made, that will indicate the decision is of a legislative character. NOTE: these rules work vice-versa. A decision to pass subordinate legislation is legislative, not administrative. Similarly, a decision to pass a by-law is generally legislative. Note, however, that the fact that something is called a 'by-law' is not determinative. Something described as a 'by-law' may in truth be the application of a law to a particular set of circumstances and in no way change the law: MIC v Tooheys.
In MIC v Tooheys, the relevant Minister had the power to allow duty free entry of goods into Australia if general criteria were satisfied. Decisions to allow duty free entry of particular goods were referred to as 'by-laws'. Notwithstanding the use of this term, the nature of the decision was held to be administrative.

Steps preparatory to a change in the law will often be administrative: Resort Mgmt Services v Noosa Shire Council (decision to amend a town plan did not change the law, but had the potential to change the law). The purpose of the decision will also often indicate whether the decision is legislative or administrative. For example, where the decision is to discharge a commercial function, that will often indicate that it is administrative: Aerolineas Argentinas v Federal Airports Corporation (decision to impose a charge to cover security expenses administrative). Note that the Qld SC appears to have created a distinction, in the case of prisons, between decisions of an administrative character and 'managerial' decisions about prisons: see Bartz v Chief Executive, Dept Corrective Services. This distinction is problematic: Gilbert and Lane; Lane and Young. (b) Distinguishing judicial and administrative acts With respect to judicial power, the classic feature of judicial power is the capacity to conclusively determine facts and law in a dispute between two interests, or to decide that there has been a breach of the criminal law and to impose a criminal penalty (e.g. fine, deprivation of liberty note, therefore, a revocation of a licence is administrative, but a fine penalising someone for continuing to operate without a licence is judicial). Officials of courts, such as registrars, may sometimes make decisions of an administrative character (see table below). Note, however, that procedural decisions in criminal proceedings may not be reviewed under the federal act: s9A ADJR Act.
RG Capital Radio v ABA Facts:

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RG Capital Radio (the applicant) held licences to operate two existing commercial radio services in Gosford. The ABA (the respondent) determined to make a plan for broadcasting services in the Gosford area pursuant to s26(1) Broadcasting Services Act 1992 (Cth), which required the ABA to "prepare in writing licence area plans". The plan included making available an additional broadcasting licence. The applicant sought review of the determination under the ADJR Act. The ABA contested that there was a decision of an administrative character. Held (Wilcox, Branson and Lindgren JJ): The court must make a judgment on the issue which takes into account all of the relevant considerations. No one consideration is decisive of the issue. On the factors outlined above, the above suggest the decision to make the plan was legislative: o The licence area plan lays down general parameters within which takes place the decision-making process (the allocation of licences), for which the Act provides. o The requirement that the plan be published. o The requirement of wide public consultation (emphasises the general nature of the licence area plan). o The breadth of the considerations the ABA was required to take into account in making a licence area plan. o The absence of a provision for executive variation or control. o The plan was not subject to merits review. o The plan has a binding legal effective in that it constitutes the background against which applications for, and allocations of, licences are enabled to take place. The fact that the ABA, by notice in writing, had power to vary the plan is neutral. The fact that there is no provision for disallowance by parliament and thus no parliamentary control indicates the decision is administrative. On balance, the decision is legislative.

Examples Legislative decisions


Making and review of statements of factors relevant to future determinations of veterans medical claims: Vietnam Veterans Affairs Association v Cohen. Decision to amend schedule to Health Insurance Act: QML v Blewett. Decision establishing plan which stipulated number and characteristics of broadcasting services for a certain area: SAT FM v ABA (affirmed in RG Capital Radio). Decision under legislation providing for gazettal of principles upon which future decisions would be made: Melbourne Pathology v Minister for Human Services and Health.

Judicial decisions

Federal and Supreme Court rule making powers are incidental to the exercise of judicial power and are therefore judicial: Evans v Friemann. Decision of Registrar of High Court to refer matter under Rules of Court to a judge: Letts v Cth. Decision of Supreme Court not to grant stay of committal proceedings: Emanuele v Cahill. 19

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Decision by State Crown Law Officer in criminal trial to exercise right of reply: Bellino v Clair.

Administrative decisions

Decision of a Registrar of the High Court to strike practitioners name from Register of Practitioners: Little v Registrar of High Court. Decision of Registrar of Federal Court to dispute Bill of Costs under Family Law Regulation: Legal Aid Commission of Western Australia v Edwards. Decision to issue warrants under Quarantine Act: Ferris v Commonwealth Director of Quarantine. Decision of a Magistrate to issue a search warrant under the Crimes Act: Harts Australia v Commissioner, Australian Federal Police (but note s 9A provides a person who is subject to prosecution or appeal of prosecution may not bring application under ADJRA). Decision of CJC not to recommend police disciplinary action: Walker v CJC. Decision of Magistrate during committal hearing re criminal charges: Lamb v Moss. Decision of Magistrate to order supply of fingerprints: Grollo v Bates. Decision to arrest under Migration Act: Grech v Featherstone. Decision of DCT to institute proceedings for recovery of tax: Terule Pty Ltd v DCT. Decision by deputy district registrar of Federal Court to allow question to be asked in examination under the Bankruptcy Act: Clark v Wood. Decision by ASC to authorize another to publicly examine Director of company: Re Excel Finance Corporation. AAT decision refusing to set aside summons to produce documents: Pancontinental Mining Ltd v Burns. Decision of Magistrate under Marriage Act re permission to marry under 18 years: K v Cullen. Decision of AG or Minister to plead limitation statute: Dickson v AG. Decision of Royal Commission as to whether it had jurisdiction: Queensland v Wyvill. Decision to amend strategic plan: HA Bachrach v Minister for Housing. Decision to start process of amendment of town plan: Resort Management Services Ltd v Noosa Shire Council. Decision to fail someone in Patent Attorney Exam: Evans v Friemann.

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UNDER AN ENACTMENT
Two elements: 1. Made, proposed to be made, or required to be made; and 2. Under an enactment. 1. Is the decision made, proposed to be made, or required to be made? Proposed to be made' speaks not of a decision that must be made, one way or the other, but of a decision that has been put forward to the decision-maker and adopted by him as one that he proposes to make. The participle proposed leaves open the question by whom it is proposed. However the context of the legislation suggests that the proposal must be of the decision maker, rather than of, for example, a public servant who has recommended that decision: Vic. Broadcasting Network (1983) v Minister for Transport and Communications. 2. If yes, is that so under an enactment? Two requirements: 1. There is an enactment; and 2. The decision is under that enactment. (a) Is there an enactment? An enactment is an Act or statutory instrument, and includes a part of an Act or statutory instrument: s3 JR Act. Per s7(3) SIA 1992 (Qld); s36 AIA (Qld) a 'statutory instrument' includes: 1. A regulation 2. An order in council; 3. A rule; 4. A local law; 5. A by-law; 6. An ordinance; 7. A subordinate local law; 8. A statute; 9. A proclamation; 10. A notification of a public nature; 11. A standard of a public nature; 12. A guideline of a public nature; and 13. Another instrument of a public nature by which the entity making the instrument unilaterally affects a right or liability of another entity. An 'instrument' is defined broadly in s6 JR Act as any document. However, not every document brought into existence by a statutory authority is a statutory instrument. The true distinction is between the making of a document in the exercise of an administrative power that unilaterally affects the rights of another person (which is reviewable), and making a document in the exercise 21

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of a power to enter into a contract where the rights of the other party depend upon what he chooses to agree to (which is not reviewable): Blizzard v O'Sullivan (Thomas J); Cane & McDonald (2008). (b) If yes, is it under an enactment? Under means 'in pursuance of' or 'under the authority of' a statute: Evans v Friemann per Fox ACJ; Glasson v Parkes Rural Distributions (authority from certificate derives from State act). It does not suffice that a decision could ultimately be traced back to an Act or was ultimately the source of the power to make the decision. The early cases referred to the Act being the immediate or proximate source of the power: ANU v Burns; Post Office Agents Association v APC per Davies J. However, in GU v Tang the joint judgment and Kirby J criticised notions of immediate and proximate relationships as deflecting attention from the interpretation of the Act, and descriptive of the outcome rather than prescriptive of the way the outcome is to be reached. Per Gummow, Callinan and Heydon JJ in Tang, a decision will be made under an enactment if two criteria are satisfied: 1. The decision must be required or authorised by the enactment; and 2. The decision must itself confer, alter or otherwise affect legal rights or obligations. (i) Is the decision required or authorised by the enactment? This requirement changed the old position that a decision may still be under an enactment despite its not being authorised by the enactment: see Blurton v Minister for Aboriginal Affairs; Innou v Fowell. The decision may be expressly required or authorised: Tang joint judgment. Alternatively, the power to make the decision may be discerned as a matter of implication: MIEA v Mayer. NOTE: this element is broader than Mason CJs requirement in Bond that the decision be one for which provision is made by or under statute. (ii) Does the decision itself alter rights/obligations? This does not require the relevant decision to affect or alter existing rights or obligations. It will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise: Tang joint judgment. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice: Tang joint judgment. NOTE: in Guss v Cmr Taxation, Edmonds J held the obligation must be that of the person aggrieved and not the decision-maker. This is plainly wrong. 22

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NOTE: Gummow, Callinan and Heydon JJ attempted to justify their restriction of statutory review to decisions affecting right or obligations (and not mere interests) in part by reference to the concept of a matter under the Constitution. This may have implications for the availability of statutory review for breaches of natural justice (where legitimate expectations are affected). Cane & McDonald (2008) criticise the finding that Mrs Tang enjoyed no legal rights, and GU no obligations, under the legislation on the basis that, on this view, there is no body of legal principles by which the relationship between the parties would be regulated or structured. This is quite different to the denial of judicial review of decisions based on private contractual powers, which are at least regulated by contract law. There is no general law governing voluntary relationships. The only applicable legal principle is that which is not forbidden is not allowed. (iii) Specific circumstances decisions to exercise rights under/enter contracts (i) Decisions to exercise rights under contracts: Even where the decision-maker is a public body, where a decision is an exercise of powers derived from a contract, that decision will not be made under an enactment: ANU v Burns; Blizzard v OSullivan (Act provided terms of employment would be governed by contract). Where the decision-maker has the particular power both under contract and under an Act, the answer to the question lies in the true characterisation of the decision itself, that is, whether the decision was truly made under the Act or under the contract. This depends on the language and meaning of the relevant contract and statute: ANU v Burns. A decision may be made under both a contract and an enactment e.g. where the contract simply re-states the relevant provisions of the Act: ANU v Burns.
ANU v Burns Facts: The applicant was a professor at the ANU, the ANU having entered into a contract of employment with him pursuant to s23 Australian National University Act. The Council of the ANU resolved to terminate his employment after declining academic performance and an extended period of sick leave, which power was also conferred by s23. Burns made a request for reasons under the ADJR Act. The ANU replied that he was not entitled to make a request. Burns commenced proceedings for an order that the ANU provide him with reasons for the decision. Held (Bowen CJ, Lockhart and Sheppard JJ): The decision to terminate Burns' employment was not made under an enactment. In one sense, every decision of the Council may be said to be made under the University Act in the sense of in pursuance of or under its authority. However, notwithstanding that s23 was the source of the Council's power to appoint and dismiss the respondent, the decision to dismiss him was not made under the Act.

The answer to the question lies in the true characterization of the decision itself. It was not a decision to dismiss the respondent simpliciter. It was a decision to dismiss him on a particular ground namely, that he had become permanently incapacitated from performing the duties of his office. This was one of the grounds expressly provided for in condition 2(b)(ii) of the conditions of appointment which formed part of the respondent's contract of engagement. The University Act prescribes no essential procedural requirements to be observed before a professor is dismissed and lays down no incidents of a professor's

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employment. In our opinion the rights and duties of the parties to the contract of engagement were derived under the contract and not under the University Act.

(ii) Decisions to enter into contracts: A decision to enter into or exercise rights under a contract will not be made under an enactment where they are exercises of an inherent or prerogative governmental power: Hawker Pacific v Freeland (no statutory power to contract, just conditions precedent set out to award of contract); Concord Data Solutions v D-G (Education). Initially, it sufficed that legislation granted the decision-maker the power to enter into contracts, with the early cases distinguishing Burns on the grounds that it involved an exercise of rights under a contract rather than a decision to enter a contract: see ACT Health Authority v Berkeley Cleaning Group; James Richardson v Federal Airports Corp. However, the approach in Berkeley Cleaning was rejected in General Newspapers v Telstra where it was held that the ADJR Act was concerned with decisions which, being authorised or required by the enactment, are given force or effect by the enactment. This was subject to 2 possible exceptions. It may be may be proper to bring a proceeding under the ADJR Act where: 1. The contract may have been entered into for an ulterior purpose; and 2. The validity of the act is challenged by reference to the statute under the general aegis of which the act or thing is done. a. If the challenge to validity is made by reference to a federal enactment, then the challenge may be appropriate, even in relation to a contract, because the statute affects the force and effect of that which was done. The approach in General Newspapers was applied in CEA Technologies v Civil Aviation Authority (Act simply set out functions, didnt authorise or require particular decisions made) and cited without apparent disapproval by Thomas J in KC Park Safe v Cairns City Council. Its correctness was affirmed by the joint judgment in Tang, who held that the legislative capacity to contract will not, without more, be sufficient to empower a government body to unilaterally affect the rights of liabilities of any other party.
General Newspapers v Telstra Facts: General Newspapers sought judicial review under the ADJR Act of a decision by Telecom/Telstra not to award it a contract to print the White and Yellow Pages phone directories. The facts of the case are complicated by the fact that they straddle the dissolution Telecom and the creation of the new entity Telstra. General Newspapers had approached Telecom to see if it could be considered in future for the Yellow and White Pages printing contracts. It was told by a Telecom employee that they would be placed on a tender list. There does not appear to have been any specific statutory provision dealing with the tendering process. The statutory change from Telecom then occurred and Telstra was incorporated under the ACTs Corporations Law. After this change, Telstra decided not to go through a tender process after all, and decided to award the printing contract to the companies that were currently doing its printing work. The old Act which governed Telecom, did have a provision like those considered in Berkeley i.e. a provision that stated that Telecom had the power to enter into contracts.

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The new Act, which allowed for the incorporation of Telstra under the Corporations Law, had no such provision. It did, however, have a provision in section 238, which indirectly dealt with the production of telephone directories. General Newspapers did not rely on this provision, but instead relied upon s161 of the Corporations Law, the general company provision which says that companies have all the powers of a natural person.

Held: Claim unanimously rejected. Reasoning of Davies and Einfeld JJ:


The ADJR Act is concerned with decisions which, being authorised or required by an enactment, are given force or effect by the enactment or by a principle of law applicable to the enactment.

Berkeley Cleaning and James Richardson should not be followed. ANU v Burns is preferable. However, they identify (2??) exceptions: It is unnecessary to consider the exceptional case where
it may be proper to bring a proceeding under the ADJR Act because an act or thing, such as a contract, may have been entered into for an ulterior purpose, such as private gain, and the validity of the act is challenged by reference to the statute under the general aegis of which the act or thing is done. If the challenge to validity is made by reference to a federal enactment, then the challenge may be appropriate, even in relation to a contract, because the statute affects the force and effect of that which was done. In the present case, the decisions relied upon involved the entry of contracts and the conduct challenged was conduct leading to the making of the contracts. No statute made specific provision for such contracts, merely conferring upon Telecom all the powers of a natural person including the power to enter into a contract. That was a mere conferral of capacity to act. The contracts were not relevantly authorised or required by and were not made under an enactment. The validity of the contracts and of the acts done was governed entirely by the law of contract, not by the statutes. Thus, the ADJR Act had no application to the conduct or to the alleged decisions.

(iii) How do these cases fit into the Tang framework? Tang favoured the decision in General Newspapers and disapproved Berkeley Cleaning. However, it is unclear how these cases fit into the two elements laid down in the joint judgment. If they were to fit anywhere, it would be into the first limb. However, this does not appear to be the case since on the facts in General Newspapers the first limb would have been satisfied. It is therefore difficult to understand the joint judgments approval of General Newspapers. (iv)Decisions by non-government entities under statutory schemes of regulation: Decisions by private companies will not be under an enactment where the authority to make them derives from their mere incorporation; there must be some other statutory source of their power. Further, where a private companys exercises its powers unrestrained by statute, administrative law obligations could not sensibly be accommodated with its commercial interests: Neat Domestic Trading v AWB (s57(3B) Wheat Marketing Act gave statutory significance to consent decision, but was not the source of its power).

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NON-STATUTORY SCHEMES OR PROGRAMS


As foreshadowed above, s4(b) JR Act, which does not have a federal equivalent, provides an alternative to s4(a), providing that 'a decision to which this act applies' means, 1. a decision of an administrative character; 2. made, or proposed to be made, by, or by an officer or employee of, the State or a State authority or local government authority; 3. under a non-statutory scheme or program involving funds that are provided or obtained (in whole or part) a. out of amounts appropriated by Parliament; or b. from a tax, charge, fee or levy authorised by or under an enactment. 1. Is the decision of an administrative character? See above. 2. Is the decision made, or proposed to be made, by, or by an officer or employee of the State or a State authority or local government authority? (a) Made or proposed to be made See above. (b) By The decision may be made or proposed to be made by: 1. The State; 2. An officer or employee of the State; 3. A State authority; or a. 'State authority' means an authority or body (whether or not incorporated) that is established by or under an enactment, but does not include a local government authority: s3. 4. A local government authority. 3. Is the decision under a non-statutory scheme or program? (a) Is there a decision under a scheme or program? While the JR Act is remedial, s4(b) should not be construed too broadly lest there be fragmentation of the processes of administrative decision-making: Bituminous Products per Holmes J (decision under roads implementation plan re oil waste). In Bituminous Products, Holmes J identified two considerations: 1. Whether there were specific, as opposed to general, statutory appropriations; and 2. Whether the arrangements exhibited coherence or were systematic in their operation.

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The phrase covers both single projects and repetitive/ongoing projects since, although program suggests a repetitive or ongoing project, scheme is apt to apply to single projects: Anghel v Minister for Transport (No. 1) per Derrington J (decision to construct extra railway line through South-east Brisbane to the Port of Brisbane). Per EARC report, two examples of where s4(b) would apply are: 1. A decision which adversely affected a citizen, made under a scheme operated by a municipal or shire council funded by rate collections, but having no statutory basis; and a. For example, if the Brisbane City Council established a 'green tick' program for environmentally friendly products, funded by public monies, and it decided to revoke a company's right to bear the tick on its products. 2. A decision ...of a primary producer body established under statute which operated a scheme that had no particular statutory basis but was funded by compulsory exactions from producers pursuant to statutory authority. Note also that the reasoning of General Newspapers v Telstra/ANU v Burns and Tang may restrict review. It is not clear whether under a non-statutory scheme or program gives rise to the same issues as under an enactment. It may well do, but AC thinks this would be contrary to Parliaments intention. Exercises of rights under contracts: Gilbert and Lane favour a narrow interpretation such that the expression relates only to decisions which unilaterally affect rights or expectations. This conclusion is supported by Thomas J in Blizzard v O'Sullivan (termination of policemans employment), who rejected the argument that a contract could be a statutory instrument and held that it is implicit in s7 Statutory Instruments Act that an instrument is something having effect through a unilateral exercise of power (however, the decision did not refer specifically to s4(b)). It is also consistent with the result in Wide Bay Helicopter Rescue Service v Minister for Emergency Services. Decisions to enter contracts: It is unlikely that s4(b) provides assistance to applicants seeking review of government contracting decisions. EARC rejected a potential third limb to s4, which would have allowed review of a decision of an administrative character otherwise operating in law to determine a question affecting the rights, interests or legitimate expectations of any person on the basis that it would allow review of: Decisions on the outcome of government tendering process; Decisions to enter into contract; Decisions made pursuant to rights of State of Queensland to manage and control its property; Welfare type decisions, eg adoptions, placement with foster parents, etc; Decisions made by prison administrators; and Decisions made by police under common law powers.

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This is consistent with the decision of Thomas J in Concord Data Solutions v D-G Education. Note also, however, Clause 13 of Schedule 2 of JR Act which excludes the right to reasons for tendering decisions this suggests that Part 4 (and therefore Part 3) of the Act would otherwise be applicable. Alternatively Clause 13 may have been inserted out of an abundance of caution. This does not, however, explain why, if such a cautious approach was being taken, the draftsperson did not include a similar exclusion from review in Schedule 1 of the JR Act. (b) If yes, is the scheme or program non-statutory? In Bituminous Products, Holmes J considered that although the decision was not under an enactment (because, applying Tang, the applicant had no existing right or obligation), it could not be described as non-statutory; this would have been absurd. 4. Public funds? The funding qualification relates to the scheme or program; it is not necessary that the particular decision involves public funds: Bituminous Products. In Wide Bay Helicopter Rescue Service v Minister for Emergency Services, Williams J held otherwise but this is plainly wrong in light of the examples given by EARC of decisions caught by s4(b).

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NON-JUSTICIABILITY
Although the ADJR Act might otherwise apply to certain decisions, these decisions may nonetheless be non-reviewable if they are non-justiciable. NOTE: non-justiciability does not apply to reasons, but the public interest exception is analogous. 1. General Principles Justiciability refers to the aptness of a decision for judicial determination: Cane & McDonald (2008). The non-justiciability of certain decisions is justified by reference to two general and related themes: 1. The comparative and institutional capacities of judges and courts; a. It is often argued that courts are ill-equipped to involve themselves in polycentric problems that is, disputes characterised by numerous, complex, interrelated issues, often involving issues of policy. b. See, for example, Minister for Arts, Heritage and Environment v PekoWallsend (nomination of Kakadu for inclusion on World Heritage List); SA v OShea (Cabinet decision re release of prisoner). 2. The relative political responsibility of judges and courts. a. Here it is argued that political responsibility for certain decisions should rest with the executive, not the judiciary. b. For example, in CCSU, the judges concluded that judges should fear to tread into areas raising questions of national security, an area where those upon whom responsibility rests, and not the courts of justice, must have the last word. 2. Cabinet Decisions One member of the HC has suggested that a Cabinet decision which breaches the rules of natural justice may be open to review at common law: see SA v OShea per Mason CJ. In the context of the JR Act, it seems that Cabinet decisions are reviewable as long as the requirements in s4(a) or 4(b) are satisfied: see s32(2)(a). Gilbert and Lane reconcile this with the principles of non-justiciability by considering that review of Cabinet decisions is limited to those that are tantamount to decisions on a particular case that affects the rights and interests of individual persons. Polycentric disputes should remain non-justiciable: see also Allars. 3. Decisions of GG and Governor Prior to the enactment of the ADJR Act, the view prevailed that decisions of the GG were nonjusticiable. Thus, s3 ADJR Act expressly excludes these decisions from its scope. However, the common law has subsequently developed to allow administrative review of certain decisions of the GG: R v Toohey ex parte Northern Land Council; FAI v Winneke. Consequently, s4(a) JR Act also allows review under Part 3 of Governors decisions. Part 4 also applies to the decisions of the Governor in Council. Note that it is the relevant Minister who is the respondent: s53 JR Act. 29

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AGGRIEVED
A person aggrieved includes one whose interests are adversely affected: s7 JR Act; s3(4) ADJR Act. The expression is not to be encased in technical rules: Australian Institute of Marine and Power Engineers v Secretary, Dept of Transport per Gummow J. Although the HC has recently warned against reliance on cases dealing with standing for equitable remedies (Allan v Transurban City Link), this has been the traditional starting point for standing under the Acts: see, for example, Right to Life Association; ACF v Minister for Resources; Re Boe and the CJC; Friends of Castle Hill Assoc. Standing may be determined at an interlocutory hearing, though if the case is arguable it will usually be determined at trial. Considerations of costs and convenience favour an early determination of the issue: ACF v Cth per Mason J; Central Qld Speleological Society v Central Qld Cement. 1. Standing for Equitable Remedies The rules of standing seek to balance the conflicting considerations of enforcing the rule of law by providing open access to courts and on the other hand preventing busybodies and cranks from putting others, with whom they have no relationship, to considerable cost: Onus v Alcoa per Gibbs CJ. To determine standing for the equitable remedies, it is necessary to determine whether the right allegedly infringed is public or private. Public right a right conferred on the public at large. They often arise out of legislation requiring public bodies to conduct or administer activities in a particular way. Private right a benefit conferred on an individual or group in society (even if via statute) may be classified as private. (a) If the right infringed is private The applicant will have standing. Private rights may include proprietary/financial rights/interests: ACF v Cth per Mason J. They may also include statutory rights: see ACF v Cth per Gibbs J.
In ACF v Cth, Gibbs J left open the question of whether s10 of the Act, which required the Minister to promptly inform any person who has made written submissions of the decision, created a correlative right to receive a prompt reply the point had not been pushed by Counsel.

(b) If the right infringed is public Generally, the AG is the appropriate plaintiff. The AG may: 1. commence proceedings on his/her own motion (ex officio proceedings); or 2. give an individual his/her fiat.

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However, the AG is not bound to do either of these things and decisions of the AG in this regard are not reviewable: Gouriet v Union of Post Office Workers; Barton v R. In Batemans Bay, Gaudron, Gummow and Kirby JJ contrasted the role of the AG in the UK and in Australia; whereas the AG in the UK has some degree of independence, he does not in Australia. They concluded that it may be somewhat visionary for citizens to expect the AGs fiat in relation to decisions over which a ministerial colleague has oversight. In Qld, the AG is required to report to Parliament if he refuses to grant his fiat or does not respond to a request within 60 days: s10 AG Act 1999. Per Boyce v Paddington Borough Council, there are two exceptions to the rule that private citizens generally lack standing to vindicate public rights: 1. Where the interference is such that some private right of P is at the same time interfered with; and 2. Where P suffers special damage peculiar to herself. (i) Concurrent interference with private right The public and private rights may be vindicated in the same action. Example given in Boyce where an obstruction is so placed in a highway that an owner of premises private right to access from and to his premises is interfered with. (ii) Special damage This exception has been modified to focus on special interests rather than the criterion drawn from the law of nuisance of special damage: ACF v Cth per Gibbs J. Onus v Alcoa; Wentworth v Woollahra Municipal Council. P has no standing to bring an action to prevent violation of a public right if he has no interest in the subject matter of the action beyond that of any other member of the public: Gouriet v Union of Postal Workers; ACF v Cth per Gibbs J; Onus v Alcoa per Gibbs CJ. In assessing whether a person has an interest beyond that of any other member of the public, there is no ready rule of thumb. Rather, there is a curial assessment of the importance of the concern which P has with particular subject-matter and of the closeness of Ps relationship to that subject-matter: Onus v Alcoa per Stephen J. The question what is a sufficient interest will vary according to the nature of the subject matter of the litigation: Onus v Alcoa per Gibbs CJ; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs. A mere intellectual or emotional concern does not suffice: ACF v Cth per Gibbs and Mason JJ. A person is not interested unless he/she is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, or to suffer some disadvantage other than a sense of grievance or a debt for costs, if his/her action fails: ACF v Cth per Gibbs J. Of course, a special interest is sufficient if it is accompanied by an emotional or intellectual concern: Onus v Alcoa per Gibbs CJ.

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In Batemans Bay, the joint judgment of Gaudron, Gummow and Kirby JJ emphasised the equitable nature of these remedies and favoured a more liberal standing test according to which the special interest criterion is enabling rather than restrictive. It appears that their Honours preferred to simply ask whether the proceedings should be dismissed because the right or interest of the plaintiff was insufficient to support a justiciable controversy or should be stayed as otherwise oppressive, vexatious or an abuse of process. In Truth About Motorways v MIIM, Gleeson CJ and Callinan J appeared to lean towards McHugh Js view in Batemans Bay, which defended the special interest criterion. The special interest criterion was also applied by North J in Victorian Council for Civil Liberties v MIMA. In Batemans Bay, Hayne J did not express a view.
Onus v Alcoa Facts: This case involved applications for declaratory and injunctive relief. The applicants were 2 members of the Gournditch-Jmara aboriginal people. They sought declarations and injunctions against a company (ie Alcoa) to secure the enforcement of the Victorian Archaeological and Aboriginal Relics Preservation Act. The Act, amongst other things, made it a criminal offence to damage a relic pertaining to past occupation of land by aboriginal people. The proceedings were commenced against Alcoa, which had entered into an agreement with the Victorian government for the construction of an aluminium smelter in the Portland area. Crown land was transferred to Alcoa for this purpose and an Act of Parliament was passed in respect of the development. The Portland area was the traditional home of the Gournditch-Jmara people, and members of the group still lived in the Portland area. Relics on the land in question included, amongst other things, stone tools and debris resulting from the manufacture of stone artefacts [including the sites of former aboriginal workshops (to use the language of the Chief Justice)]. There was evidence that the relics had been used by the Gournditch-Jmara people for teaching their children about their culture and camps had been organized in the area for at least 10 years prior to the litigation. NOTE: the JR Act could never apply to this type of case because the JR Act (and the ADJR Act) generally requires government decisions or actions. Here the applicants were attacking a companys proposed conduct. The case is still important to understanding the JR Act/ADJR Act because it sets out the approach to standing for declarations and injunctions that has influenced the interpretation of the statutory term aggrieved. Held: The aboriginal plaintiffs were held not to have standing both at trial and on appeal. Their appeal to the HC was unanimously allowed they had standing. Reasoning of Gibbs CJ (with whom Mason and Stephen JJ agreed on this point): On the facts: the appellants have an interest in the subject matter of the present action which
is greater than that of other members of the public and indeed greater than that of other persons of aboriginal descent who are not members of the Gournditch-jmara people. The appellants, and other members of the Gournditch-jmara people, would be more particularly affected than other members of the Australian community by the destruction of the relics. o They are the custodians of the relics according to the laws and customs of those people.

o o

The relics are of cultural and spiritual importance to them. They have used the relics to teach their children the culture of their people.

He then rejected the argument that there concern was merely intellectual or emotional: The
present is not a case in which a plaintiff sues in an attempt to give effect to his beliefs or opinions on a matter which does not affect him personally except in so far as he holds beliefs or opinions about it. The appellants claim not only that their relics have a cultural and spiritual significance, but that they are custodians of them according to the laws and customs of their people, and that

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the actually use them. The position of a small community of aboriginal people of a particular group living in a particular area which that group has traditionally occupied, and which claims an interest in relics of their ancestors found in that area, is very different indeed from that of a diverse group of white Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian.

He then rejected the argument that it was in fact Alcoa who owned the land and thus the appellants could gain no advantage from success in the action: With all respect this argument, although
plausible, is unconvincing. If the relics are preserved, the appellants will at least have a possible opportunity to have access to them. If the relics are portable, no difficulty will arise in that respect. Even if it is right to conclude that it is the relics in and on the ground that have their special value for the appellants, it cannot be assumed that if the relics are not destroyed the appellants will be denied access to them.

Reasoning of Stephen J:
The present appellants are members of a small community of Aboriginal people very long associated with the Portland area; the endangered relics are relics of their ancestors occupation of that area and possess for their community great cultural and spiritual significance. While Europeans may have cultural difficulty in fully comprehending that significance, the importance of the relics to the appellants and their intimate relationship to the relics readily finds curial acceptance. It is to be distinguished, I think, and will be perceived by courts as different in degree, both in terms of weight and, in particular, in terms of proximity from that concern which a body of conservationists, however sincere, feels for the environment and its protection.

Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Facts: The applicants (a company and its owners) were seeking an injunction in the NSW Supreme Court restraining a statutory body from setting up a business in competition with the company on the grounds that such conduct was ultra vires. NOTE: the relief sought was therefore equitable, not statutory under the ADJR Act. The judge at first instance acknowledged that it was highly probable that the statutory authoritys conduct would have a severe detrimental financial effect on the applicant company. Despite this the judge found that there was no standing as the financial effect on the applicant was not sufficiently direct for the applicants to have standing. NOTE: this was an unusual finding it seems clear that the applicants had standing, and this was the finding in the CoA. Nonetheless, the respondents appealed to the HC. Held: Unanimously, the applicants had standing. Reasoning of Gaudron, Gummow and Kirby JJ: Started by emphasising that in Boyce, and the present litigation, insufficient attention was given to the basis on which equity intervenes in public law matters. Equity provided remedies in administrative law in light of the inadequacy of common law remedies to vindicate the public interest in the maintenance of due administration. There is a public interest in the restraint of apprehended misapplication of public funds obtained by statutory bodies. Effect may be given to this interest by injunction. Therefore, the grounds on which equity will intervene should not be unduly restrained: The
evolution of the Boyce doctrine has resulted in an unsatisfactory weighting of the scales in favour of defendant public bodies.

A further consideration is that the offices of the AG are very different in the UK compared to Australia. In the UK the AG is almost invariably leading counsel who, although sitting in the House of Commons, has limited administrative responsibilities. In contrast, the Australia AG is a member of cabinet. Consequently, At the present day, it may be "somewhat visionary" for citizens
in this country to suppose that they may rely upon the grant of the Attorney-General's fiat for protection against ultra vires action of statutory bodies for the administration of which a ministerial colleague is responsible.

The special interest test is not to be taken as the starting point for determining standing. o The first question is why equity would intervene, the answer being the public interest in the observance by statutory authorities of the limitations upon the activities which the legislature has imposed.

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o The next question is whether the opportunity for vindication of the public interest in
equity is to be denied for want of a competent plaintiff. Reasons of history and the exigencies of present times indicate that the special interest criterion is to be construed as an enabling, not a restrictive, procedural stipulation.

How this enabling criterion might be applied is apparent from the earlier statement that: In a
case where the plaintiff has not sought or has been refused the Attorney-General's fiat, it may well be appropriate to dispose of any question of standing to seek injunctive or other equitable relief by asking whether the proceedings should be dismissed because the right or interest of the plaintiff was insufficient to support a justiciable controversy, or should be stayed as otherwise oppressive, vexatious or an abuse of process.

They note that this would not be a unique situation for example, the writ of prohibition under s75(v) was available to strangers. Reasoning of McHugh J: Defended the traditional approach to standing. Reasoning of Hayne J: Left the question of the expansion of standing rules to another day.

2. The Statutory Tests for Standing The statutory tests for standing have been drawn largely from the tests for the traditional remedies. Per Broadbridge v Stammers (post office employee had to move), there must be: 1. A sufficient interest; 2. That is negatively affected. (a) Sufficient interest An applicant will be aggrieved if his/her legal or proprietary rights or financial interests are infringed or going to be infringed. For example, an applicant affected in business may be aggrieved. The effect on the business need not be direct: Tooheys v Minister for Business and Consumer Affairs (decision by Minister causing co. importing Tooheys goods to pay import duty increased expense to Tooheys). Note that where the members of an incorporated association have an interest, this will generally suffice for the association itself to have the interest: Shop Distributive (union had standing where individual members had interest). But contrast ACF v Cth where the corporate veil argument was invoked by Gibbs J. However, it is not necessary to show an effect on a legal right: United States Tobacco Co; Broadbridge v Stammers. The applicant must simply establish that he is not an intermeddler or busybody in that he will suffer as a consequence of the decision beyond that of an ordinary member of the public: Right to Life Association per Lockhart J; Tooheys v Minister for Business and Consumer Affairs; Ricegrowers Co-operative Mills v Bannerman (i.e. same as for equitable remedies). The scope and purpose of the Act under which the decision is made will be relevant in determining who has standing to challenge decisions under that Act: Alphapharm v SmithKline Beecham (commercial interests not relevant to object of Act [not ADJR Act] to ensure safe drugs imported); Right to Life Association (NSW) (applied in ADJR Act context). In Bateman's Bay, the joint judgment cited Alphapharm approvingly, though suggested it was limited to the

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particular statutory context, there being a special but limited provision for judicial review in the same legislation under which the decision was made. It has been held that statute or subordinate legislation may single out persons as having a special interest: Sinclair v Mining Warden; Day v Pinglen. However, a different approach has been taken and it has been held that provisions providing an entitlement to object will not in themselves confer standing there must be something indicating in the Act that the objector had some further entitlement: Friends of Castle Hill Assoc. v Qld Heritage Council. See further below on affection of intangible interests. (b) Negatively affected At a certain point, the effect of decisions on a person becomes too remote to satisfy the test of a grievance: Re McHattan per Brennan J (ripples radiating outward); United States Tobacco Co; Australian Foremen Stevedores Association v Crone; Rayjon Properties (decision not to require a competitor to prepare environmental impact statement). 3. Affection of Intangible Interests Applying the rule that mere intellectual or emotional concerns will not suffice to give an applicant standing becomes most controversial where intangible interests are affected, which usually arises in cases concerning the environment, historical heritage or culture. Two recent decisions of the FC, and one of the SC, although not explicitly contrary to ACF v Cth and Onus v Alcoa, have taken a slightly more liberal approach to the question of standing: see ACF v Minister for Resources (FC Davies J); NCEC v Minister for Resources (FC Sackville J); NQCC v Exec. Dir. Qld Parks and Wildlife Service (SC Chesterman J). Davies and Sackville JJ have attempted to reconcile their decisions with the older authorities on the basis of changes in community standards. The first evidence of a liberalisation had been seen in Ogle v Strickland (1987), where the FC held priests had standing to bring review of decision to import film which was purportedly blasphemous. This was relied on by Sackville J in NCEC v Minister for Resources. NOTE: Ogle was criticised by Gummow J in Right to Life Assn (NSW) as allowing the applicants standing essentially to seek the reimposition of an inroad on freedom of speech. Although the FC decisions received the support of Chesterman J, the restrictive approach has also been reapplied by the SC: Friends of Castle Hill; Right to Life Assn (NSW). Allars (1991) Federal Law Review identifies two justifications used by the FC in these cases for liberalisation: 1. Standing should be recognised where the applicant has participated in the decisionmaker's hearing, thus generating an interest for the applicant in proper conduct of the hearing; and 35

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2. Public issues such as conservation should be entrusted to applicants who are capable of representing the public interest. (a) Participation in decision-makers hearing This point is further illustrated by United States Tobacco Co, where the government decisionmaker had authorized a consumer organization to take part in a conference, which was a prerequisite to declaring smokeless tobacco products unsafe. The decision goes further than the finding in Sinclair that statute may single out a person for a special interest: Friends of Castle Hill. Recall that in ACF v Cth, Gibbs J expressly held that this factor did not give the ACF standing. Recall also Friends of Castle Hill. (b) Capacity to represent public interest In ACF v Minister for Resources and North Coast Environment Council v Minister for Resources, the following factors led the FC to find the applicants had standing: 1. The activities of the bodies were directly related to the subject-matter of the government decision in question; 2. The environmental organisations were 'peak' bodies. a. In these cases this term was used to mean they were umbrella bodies. b. It may also reflect the need for a level of community support for the organisation. c. It may also mean the organisation is 'serious and responsible': NQCC v Qld Parks and Wildlife Service per Chesterman J. 3. The bodies had Cth and State government recognition. Note that in North Coast Environment Council v Minister for Resources, Sackville J acknowledged the Council did not have as strong a claim to standing as the ACF in ACF v Minister for Resources, because: 1. The ACF received greater Cth funding; a. But note: an unjustified premium should not be put on financial support. 2. The ACF was pre-eminent nationally, whereas the Council was regional, of only 82 members; a. But note: this was not considered a disqualifying factor. Indeed, a regional organisation may well demonstrate a closer concern with a particular issue than a national organisation with a diverse range of interests. 3. The Council employs no staff, whereas the ACF does; 4. Government recognition of the Council didn't extend specifically to the practice of wood chipping. NOTE: In Right to Life Association, Gummow J casts doubt on this second justification in stating: The use by the Parliament of the term aggrieved is significant in (that) ... it suggests that the question of standing is not answered simply by identification of a person who is an effective and faithful representative of the public interest in due administration of the law concerned. My thoughts the requirement that there be a person aggrieved focuses on the effect on the individual. Theres no basis in the statute for Allars second justification. 36

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4. Conclusion It appeared for many years that any liberalization in respect of the standing for declarations or injunctions would flow on to standing under the Acts: see Australian Institute of Marine and Power Engineers v Sec., Dept of Transport per Gummow J; Sharples v OShea per Atkinson J.. However, in Batemans Bay, the joint judgment did emphasise the equitable nature of the remedies they were concerned with. The Full FC distinguished the case on this ground in Transurban City Link v Allan, which was seemingly supported on appeal when Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said: It is necessary to answer the questions posed in respect of s119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as standing. Standing is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies. In Boe v CJC, de Jersey J considered the test under the JR Act may be slightly broader than the common law test (but nonetheless considered that needed an interest beyond that of other members of the public). NOTE: this was before Batemans Bay, so seems unlikely that this would be the view if anything statutory standing would be narrower. AC thinks the legislative drafting history suggests the standing tests should be the same. My thoughts it would be more accurate to say that the legislative drafting history suggests the statutory standing test is the same as the equitable standing test at the time the legislation was drafted. Consequently, the change in equitable standing test post-drafting need not be accompanied by a change in the statutory test statutory standing need not be ambulatory. However, the post-Batemans decision by Chesterman J in NQCC v Qld Parks and Wildlife Service does read very similarly to Batemans. Note that the ALRC published a report in 1996 advocating reform of the ADJR Act in a way that would effectively implement the Batemans Bay test. This was formally rejected by the Government.

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PROCEDURAL POINTS
1. Joinder of third parties Must distinguish: 1. Joinder; 2. Amicus curiae; and 3. Intervention. (a) Joinder Where there is a pre-existing review proceeding, an interested third party may apply to be joined to the proceeding: s28 JR Act; s12 ADJR Act. In assessing whether a party is interested, a similar approach should be taken to assessing whether a person is aggrieved: United States Tobacco Co. The power to join a person under s28 is discretionary: United States Tobacco Co. Per Fordham v Evans, relevant considerations for the courts are: 1. The applicants interest in the decision; 2. Whether joining the applicant would give the court the benefit of submissions/evidence that would not be presented by other parties; 3. Whether the existing parties object to the joinder; 4. Whether any other party is seeking to be joined/may seek to be joined. Note that s28 does not empower the court to order someone to be joined without their consent. The court also probably does not have an inherent power to join without consent: Kelly v Coates. However, where there is a person who is not a party to proceedings under the JR Act who will be done an injustice if an order is made under the JR Act in their absence, the court may on discretionary grounds refuse to make an order under the Act and direct that the third party be given notice of the review proceedings: Telecasters North Qld v ABT per Pincus J. Joined parties have all the rights/liability of original parties to the proceeding: United States Tobacco Co. (b) Amicus Curiae Courts have the power to allow persons to appear as amicus curiae, who assist the court on some important or difficult question in order that justice be done. Amicus curiae are not parties to the proceeding and their role is usually strictly defined. (c) Intervention The AG has the power to intervene in JR Act proceedings: s51 JR Act.

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Time limits depend on whether the decision-maker gave the affected party written notice of the decision. (a) If written notice was provided The applications must be made with 28 days after the provision of written notice of the decision (s26(2)), unless the court allows further time: s26(1)(b). The prima facie rule is that further time will not be allowed: Lucic v Nolan per Fitzgerald J; Kuku Djungan Aboriginal Corp per Moynihan J. Applicants must give an adequate explanation for their delay: Hoffman; Hakim. Prejudice to the decision-maker, the public interest and the merits of the substantial application are also relevant considerations: Hoffman per Thomas J. (b) If written notice was not provided The application must be made within a reasonable time after the decision was made: s26(3). If the court considers the time was not reasonable, it has a discretion to refuse to hear the application: s26(3)-(4). 3. Exclusion from review Decisions may be excluded from review due to: 1. Express exclusion by the Acts; 2. Ouster clauses; or 3. Non-justiciability. (a) Matters expressly excluded in the Acts The ADJR Act excludes certain matters by regulation (ss19, 19A) and also by Sch 1. s9A ADJR Act also excludes administrative decisions made by lower courts in criminal proceedings. s18(2) JR Act removes from review Acts and decisions mentioned in Parts 1 and 2 of Sch 1. s18A also excludes certain decisions of government-owned corporations in Sch 6. (b) Ouster/privative clauses Two issues: 1. Date of clause; and 2. Alleged ground of review. (i) Does the clause post-date the JR Act? Ouster clauses which pre-date the JR Act are not effective to prevent review: s18(1) JR Act. However, this provision does not disable post JR Act clauses: SE Drainage Board v Savings Bank of SA.

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Consequently, whether post JR Act ouster clauses preclude review under the Act depends on the wording of the particular clause. (ii) Can the clause exclude the alleged review ground? Ouster clauses will generally be construed narrowly. They will not be interpreted to exclude mal fides exercises of power that do not relate to the subject matter of the legislation, and incapable of reasonable reference to the power given to the body: Hickman per Dixon J. Ouster clauses are not effective to exclude judicial review where there has been jurisdictional error: Plaintiff S157/2002. NOTE: this case concerned the operation of ouster clauses in light of s75(v) Constitution. In the earlier case of Darling Casino v NSW Casino Control Authority, Gaudron and Gummow JJ noted that ouster clauses may be more effective in a state context provided the wording of the clause is sufficiently wide. Is there a jurisdictional error? The English courts have abolished the distinction between jurisdictional error (which applied to inferior courts) and ultra vires (which developed to apply to administrative decisions): see Anisminic v FCC. In contrast, whilst the HC adopted some of the reasoning in Anisminic, it has held that the concept of jurisdictional error should be defined more narrowly in the case of inferior courts than in the case of administrative decision-makers: Craig v SA. (A) If the decision-maker is administrative In the case of administrative decision-makers, jurisdictional error is synonymous with ultra vires and thus encompasses consideration grounds of review such as irrelevant/relevant consideration, improper purpose and Wednesbury unreasonableness: Craig v SA; MIMA v Yusuf. A failure to accord natural justice may also be a jurisdictional error: Plaintiff S157/2002. A breach of a statutory procedure will be if mandatory: Project Blue Sky. (B) If the decision-maker is judicial In contrast, per Craig v SA, there may be a jurisdictional error by inferior judicial bodies where: 1. The court lacked jurisdiction at the outset (e.g. where jurisdiction is limited to civil but purports to hear criminal matter); 2. The court exceeds its power (e.g. granting relief it does not have power to); 3. It makes an error of jurisdictional fact. a. A jurisdictional fact is one whose existence is critical to the court making a valid decision; b. Whether a question of fact is jurisdictional is a question of statutory interpretation: Enfield v Development Assessment Commission. 4. The court disregards or fails to take into account a matter expressly required by statute as a precondition to jurisdiction; 5. The inferior courts misconstrues the enabling statute and thereby misconceives the nature of the function it is performing. 40

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Tribunals which act quasi-judicially may be subject to review only on the narrower ground. A tribunal may be quasi-judicial where its jurisdiction encompasses the authority to decide questions of law or it is plugged into the ordinary hierarchical judicial structure: Craig v SA; Coal and Allied Operations v AIRC. (c) Non-justiciability See above. 4. Powers of court hearing JR Act applications Orders can be made: 1. At an interlocutory stage i.e. after the application for review but before the hearing; 2. At the final stage i.e. after the hearing; and 3. On appeal. (a) Interlocutory orders There are three relevant orders that can be made before a full hearing: 1. An order for a stay of decisions being reviewed; 2. An order for summary dismissal of proceedings for review; and 3. Dismissal due to availability of other remedies. (i) Stays (a) Decisions being reviewed under Pt 3 This is useful for an applicant where it is beneficial to them to continue as if the decision had not been made until it has been reviewed e.g. stay of decision to cancel licence so that can continue to operate. Either of its own motion or on application by the person seeking review, the court may suspend the operation of the decision where an application for review has been made under s20: s29(2). NOTE: the link to s20 means that when conduct is reviewed, a regular interlocutory injunction must be sought under s244(7) or s246 Supreme Court Act 1995. Traditionally the test of whether a decision will be suspended under s29 has been similar to that for the grant of an interlocutory injunction i.e. 1. That there is a serious Q to be tried; and 2. The balance of convenience favours the making of the interlocutory order. Note: since s29, unlike the ADJR Act equivalent, does not empower the court to attach conditions to the injunction, the requirement that there be an undertaking as to damages may not apply: Re Murphy per White J. Certain FC decisions have suggested that all that needs to be established is that it is just to stay the decision. Nonetheless, the weight of authority favours a similar test as for interlocutory injunctions. In any event, there is arguably no difference since the balance of convenience limb 41

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is designed to do justice: A v Hayden (No. 1) per Dawson J; Re Aboriginal Development Commission and Ralkon Agricultural Co. (b) Decisions being reviewed under Pt 5 If review is sought under Pt 5, the appropriate mechanism for a stay is s47(4), which is functionally equivalent to s29. (ii) Summary dismissal Per s48, the court has discretion to stay or dismiss judicial review applications at any stage if: 1. The claim is inappropriate; 2. There is no reasonable basis for the claim for judicial review; 3. The claim is frivolous or vexatious; or 4. The claim is an abuse of process. An order under s48 should be made at the earliest appropriate time: s48(2)(b). (iii) Dismissal for availability of non-JR Act remedies Rights of review under the JR Act are in addition to any other rights of review held by an applicant: s10. However: The court may put an end to other forms of review where review is sought under the JR Act: s11. The court may dismiss a JR Act application where there are other forms of review available: s12; Stubberville v Webster. The court must dismiss a review application under the JR Act where there is an alternative remedy available under a different law before a different body and dismissal is in the interests of justice: s13. Having regard to the balance of convenience, the court must dismiss an application under the JR Act where, per s14: o The proceeding would interfere with proceedings which are currently being heard; o Those proceedings are reviewable; and o It is in the interests of justice. Orders under ss11-14 may be made of the courts own motion or on application: s15(2). The court should be concerned that the order is made at the earliest appropriate time: s15(1)(b). (b) Orders that can be made following successful review These powers are set out in s30, which mirrors ss20-22. All powers in s30 are discretionary, and may not be exercised due to delay, misconduct or where the ground of review is trivial etc. (i) Successful review of a decision 42

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Per s30(1), on a successful application for review of conduct, the court may make: 1. An order quashing or setting aside the decision, or a part of the decision, with effect from the day of the making of the order another day specified by the court; or 2. 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 determines; a. This includes the setting of time limits for the further consideration and for preparatory steps in the further consideration; b. It also includes a direction that the decision-maker be constituted differently: Northern NSW FM v ABT. 3. An order declaring the rights of the parties in relation to any matter to which the decision relates; 4. An order directing any of the parties to do, or to refrain from doing, anything that the court considers necessary to do justice between the parties. (ii) Successful review of conduct Per s30(2), here, the court may make either or both of the following orders: (a) an order declaring the rights of the parties in relation to any matter to which the conduct relates; (b) an order directing any of the parties to do, or to refrain from doing, anything that the court considers necessary to do justice between the parties. (iii) Successful review of failure to decide Per s30(3) here, the court may make all or any of the following orders (a) an order directing the making of the decision; (b) an order declaring the rights of the parties in relation to the making of the decision; (c) an order directing any of the parties to do, or to refrain from doing, anything that the court considers necessary to do justice between the parties. Note on power to declare and direct: This power will generally not be used to force the original decision-maker to make a particular decision as this would undermine the legality/merits decision. However, this has occurred: MIEA v Conyngham; MIEA v Guo. Damages: NOTE that breaches of administrative law do not give rise to liability in damages. Damages will only be available where there is another cause of action e.g. tort, contract, restitution. 43

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(c) Appeals Appeals from decisions on review are governed by the general rules: see s254 SCA 1995; ss24-25 FCAA. 5. Costs orders under JR Act Per s49(1) JR Act, a party to a review application may apply to the court for an order that: 1. Another party to the review application indemnify the relevant applicant in relation to the costs properly incurred in the review application by the relevant applicant, on a party and party basis, from the time the costs application was made; or 2. That a party to the review application is to bear only that partys own costs of the proceeding, regardless of the outcome of the proceeding. This is a significant change to the law relating to costs. It allows for allocation of costs to be made before a decision on review is made. It also changes the rule that costs follow the event. Per s49(2) in considering the costs application, the court is to have regard to (a) the financial resources of (i) the relevant applicant; or (ii) any person associated with the relevant applicant who has an interest in the outcome of the proceeding; and (b) whether the proceeding involves an issue that affects, or may affect, the public interest, in addition to any personal right or interest of the relevant applicant; and (c) whether the partys claim/involvement in the litigation has a reasonable basis.

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THE RIGHT TO REASONS


At common law, there was no general requirement for the administrative decision-maker to give reasons for his/her decision: Public Services Board v Osmond. Such unaccountable power undermines the integrity and legitimacy of the polity that permits it; if the reasons for a decision are hidden in silence, the chances of a brooding sense of injustice exists: Kirby J ABR (1994). The ADJR Act and JR Act aim to remedy the inadequacy of the common law by providing a statutory right to reasons. The right is meant to allow persons to see how a decision was made and assess whether and how to challenge the decision: Burns v ANU per Ellicott J; MIEA v Taveli per Davies J. Indeed, an applicant for review will have a harder time establishing its case if it does not have reasons for the decision: RP Data v BCC. Reasons should therefore generally be sought before an application for review is prepared. However, the right to reasons is not dependent on showing that a decision could be successfully reviewed under the Act. It applies to decisions that have been made lawfully. Indeed, one advantage of the right to reasons may be that it will reduce the number of review applications. The right to reasons also affects decision-makers by causing decision-makers to identify for themselves the reasons for their decisions, leading to better decision making: see Taveli per French J. 1. Is there a right to reasons? Since the right to reasons is remedial, it should not be construed grudgingly or with a penchant for technicality: AIMP Engineers v Sec., Dept of Transport per Gummow J. However, there is a need to balance the needs of those affected by decisions and the necessity that administration can be carried on effectively without undue intervention by the courts: Ansett Transport Industries (Operations) v Sec., Dept of Aviation per Lockhart J (note the similarity to Mason CJ in Bond). Per s32 JR Act, a person has a right to reasons where: 1. There is a decision to which Part 4 applies; and 2. The person is entitled to make an application to the SC under s20 JR Act in relation to that decision. (a) Does Pt 4 apply? Per s31, a decision to which Pt 4 applies is a decision to which this Act applies, but does not include: 1. A decision that includes, or is accompanied by a statement, giving the reasons for the decision; or 2. A decision included in a class of decisions set out in schedule 2. Consequently, per s4, it must be proven that there is: 1. A decision; 45

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2. Of an administrative character; 3. Made, proposed to be made or required to be made under an enactment or non-statutory scheme or program. The courts will construe the exclusions of right to reasons in Sch 2 narrowly: Deane v CSD; Hocken v Pointing. The Sch 2 headings are: 1. Administration of criminal justice; 2. Civil proceedings; 3. Misconduct etc.; 4. Intelligence functions of the CMC; 5. Certain decisions under the CMC Act; 6. Particular decisions under the Weapons Act; 7. Certain decisions under the Prostitution Act; 8. Recovery proceedings; 9. Personnel management; 10. Appointment decisions; 11. Police Service decisions; 12. Industrial matters; 13. Local government budgets; 14. Local government rates; 15. Tendering and awarding of contracts; 16. Competitive commercial activities of certain state authorities; 17. Assessments and calculation of tax; 18. Collection of tax. Note that the ADJR Act also excludes certain decisions by regulations (in addition to by Schedule). The ADJR Act also excludes decisions for which reasons are available under s28 AAT Act. (b) Is the person entitled to make an application under s20? A person is entitled to make an application under s20 even after they have, in fact, made that application: United Airlines v Sec., Dept of Transport. Further, a person has been entitled to reasons despite the fact that the decision in question had ceased to operate as obtaining reasons still had some utility for the applicant: NCEC v Minister for Resources per Sackville J. s20 refers to a person aggrieved. Consequently, this is a requirement of applicants seeking reasons. (c) Is the request for reasons made within time? If the requester has been given a written record of the decision, the request for reasons must be within 28 days of the receipt of that record: s33(4)(a). If the request has not been given a written record of the decision which has been made, the request must be made within a reasonable time after the making of the decision: s33(4)(b). (d) Do any exceptions to the right to reasons apply? 46

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There are two exceptions to the right to reasons: 1. Where the provision of reasons would disclose confidential information that relates to personal or business affairs of someone other than the applicant: s35. a. Note that s35(2)(c) specifically excludes government competitive commercial activities, which is defined in s3. b. This works in conjunction with cl 14 in Sch 2. 2. Where the disclosure of the information would be contrary to the public interest and has been so certified by the AG in writing: s36. If one of these exceptions applies, the decision-maker must blank out the information to which the decision applies: s37(1)(a). If this would make the statement false or misleading, the decision-maker is not required to give the statement at all: s37(1)(b). In either case, the decision-maker must give written notice of this to the requester: s37(2). If the information is just blanked out, the notice must be given at the time the statement is given. If the statement is not provided at all, the notice must be given as soon as practicable and, in any event, within 28 days after receiving the request: s37(4). If one of the exceptions applies, per s37(5), the court may nonetheless: (a) make an order for the discovery of documents; or (b) require the giving of evidence or the production of documents to the court. 2. If yes, has there been an adequate response to the request? The statement must be provided as soon as practicable after the request is received, and in any event within 28 days: s33(1). However, per s33(2), if the decision maker is of the opinion that the requester was not entitled to make the request, the decision maker may, within 28 days after receiving the request (a) give to the requester written notice of the decision makers opinion; or (b) apply to the Court under s39 for an order declaring that the requester was not entitled to make the request. If the decision-maker intends to refuse to give reasons because of delay in applying for reasons, the decision-maker must give the applicant notice of refusal within 14 days of receiving the request for reasons: s33(5). (a) If the decision-maker give notice refusing reasons Per s33(3), if the decision maker gives a notice under s33(2) or applies to the court under s39, the decision maker is not required to comply with the request unless (a) the court, on an application by the requester under s38, orders the decision maker to give the statement; or 47

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(b) the decision maker has applied to the court under s39 for an order declaring that the requester was not entitled to make the request and the court refuses the application. NOTE: s38 is broader than the ADJR Act equivalent. It can be used where there is simply no response to the request for reasons. Under the ADJR Act, such an applicant would have to seek mandamus or an order under s7 ADJR Act. If the basis of the decision-makers refusal is non-compliance with s33(4)(b) (i.e. not within reasonable time), the requester may apply to the court for a declaration that their timing was in fact reasonable: s33(6). (b) If the decision-maker gives reasons S32 gives a person satisfying its requirements a right to a written statement. This statement must contain reasons for the decision: s34. Per s3 and Ansett Transport Industries (Operations) v Wrath, reasons includes: 1. Findings on material questions of fact; 2. A reference to the evidence or other material on which the findings were based; and a. Note: the material need only be referred to/listed, not produced. b. Decision-makers must not simply list all documents that were before them. Some attempt must be made to identify the evidence upon which decision was specifically based: ARM Constructions Pty Ltd v DCT. 3. The reasons for the decision. a. This includes: i. The decision-makers understanding of the relevant law; and ii. The reasoning process which led to its conclusions on the facts. The appropriate length of the statement will depend upon considerations such as the nature and importance of the decision, its complexity and the time available to formulate the statement. Often those factors may suggest a brief statement of one or two pages only. The decision-maker certainly does not have to refer to the law in the same way that a barrister would advise her or his client: Ansett Transport Industries (Operations) v Wrath. The courts have been concerned not to be overly strict on decision-makers e.g. in Ansett Transport Industries (Operations) v Wrath, Lockhart J acknowledged that in certain cases it may be difficult, if not impossible, for a decision-maker to assign varying degrees of weight to particular matters considered by decision-maker to be relevant to decision. If the court considers that the statement does not contain adequate particulars of the reasons for the decision, the court may order the decision maker to give to the requester, within a specified period, an additional statement containing further and better particulars in relation to specified matters: s40. 3. Use of reasons in subsequent proceedings 48

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Where the court does not consider that the statement reflects the actual reasons of the decisionmaker when the decision was made, the court is not bound to accept the reasons as accurate and the statement may not be admissible: Taveli. Taveli also raises issues regarding the cross-examination of the decision-maker. Davies J suggested it was better if the issues were dealt with on the papers. In contrast, French and Hill JJ suggested cross-examination of the decision-maker may be critical where the statement of reasons undermines the alleged grounds of review. If a statement of reasons does not include a certain factor, the court may still infer (depending on evidence) that the factor was or was not considered by the decision-maker: ARM. If a statement of reasons contains something which undermines the legality of the decision, the courts readily place weight on such evidence following normal evidence rules regarding admissions against interest: MIEA v Arslan. Reasons can only ever be evidence of views of the decision-maker; they cannot be evidence of actual facts: MIEA v Arslan. 4. Costs Per s50, where an application is made for reasons, the court: (a) may order that the respondent pay the costs of the applicant if the applicant is successful (in whole or part) in obtaining the relief sought; and (b) may only order that the applicant pay the costs of the respondent (i) if the applicant is wholly unsuccessful in obtaining the relief sought; and (ii) if the application (A) does not disclose a reasonable basis; or (B) is frivolous or vexatious; or (C) is an abuse of the process of the court. There is no federal equivalent: Faulkner v Conwell. Note that the provision doesnt apply to applications by the decision-maker under s39. Note also there is no filing fee for applications for reasons: s57. 5. Other ways of finding out about decisions (a) FOI Whereas the Freedom of Information legislation allows successful applicants to look at the documents in possession of a decision-maker (raw evidence), the right to reasons does not. These two procedures are thus complementary. (b) Discovery 49

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Whereas discovery gives parties access to the actual documents (raw evidence), the right to reasons does not. Further, the power to allow discovery of documents is discretionary (and in fact the court may take into account the presence or absence of rights under Pt 4): ASC v Somerville; FCT v Nestle Australia. The right to reasons (if available) does not depend on exercise of any discretion. The right to reasons also has the following advantages: 1. Right to reasons available before any substantive proceedings have been commenced; 2. Right to reasons under JR Act (not ADJR Act) supported by special costs rule s50 JR Act.

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THE PREROGATIVE WRITS


A prerogative writ is a document issued in the name of and with the authority of the Crown which is directed to a public official exercising government power in relation to something the official has or hasn't done with respect to that government power. There are 5 writs: 1. Certiorari quashes a decision once made (roughly equivalent to s20 JR Act quashing). It is available only once a decision has been made (though not necessarily in the ABT v Bond sense); 2. Prohibition halts the decision-making process in its tracks or prevents a decision from being implemented (roughly equivalent to s21 JR Act re conduct). 3. Mandamus directs/commands the performance of a public duty (roughly equivalent to s22 JR Act failure to decide); 4. Habeas corpus allows an individual to challenge the validity of their detention; and 5. Quo warranto is available against a person who acts in an office in which he/she is not entitled to act. s42 JR Act abolishes these and renames them 'prerogative injuncitions'. All of these writs are: 1. Only available against public bodies; and 2. Traditionally associated with cases of: a. jurisdictional error; b. breach of rules of natural justice; and c. fraud; and 3. Discretionary i.e. can be refused despite valid grounds supporting them: R v Cth Court of Conciliation and Arbitration; Aala; Ex parte Solinas. a. Discretionary factors include fraud, concealment, lack of frankness, delay and futility: Ex parte Ipec-Air Pty Ltd (futility). b. However, in cases where there is a clear absence of jurisdiction on the part of an inferior tribunal a superior court is unlikely to refuse a prerogative writ: Yirrell v Yirrell. The writs are the traditional remedies in administrative law proceedings. Today, they are relevant in 4 senses: 1. Constitutional writs a. The HC has original jurisdiction in all matters which the writ of mandamus or prohibition or an injunction are sought against an office of the Cth: s75(v). b. Although s75(v) does not refer to the writ of certiorari, the HC has held that it has the power to issue certiorari under s75: Ex parte Twigg (part of reason was that prohibition was also applied for); Bodruddaza v MIMIA; Re Student Assistance Review Tribunal. c. Certiorari can also be issued under ss75(iii) and 76(i): Plaintiff S157/2002 v Cth; Ex Parte Aala. d. The writs available via s75(v) should be referred to as 'constitutional writs' rather than prerogative writs: Ex parte Aala. 2. Federal Court a. The FC has the jurisdiction of the HC in respect of prohibition, mandamus, declarations and injunctions: s39B Judiciary Act; s10 ADJR Act. 51

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b. Applications for the prerogative writs are not commonly sought in the federal sphere. 3. No statutory review a. The prerogative writs remain vitally important in States where statutory remedies have not been introduced. b. The prerogative writs are also important where ADJR Act or JR Act are not available e.g. where decision not under an enactment, not of an administrative character. 4. Orders in the nature of the writs a. The SC is no longer able to issue the writs of mandamus, prohibition and certiorari: s41(1) JR Act. b. However, the SC still has jurisdiction to grant any relief or remedy in the nature of and to the same effect as the prerogative writs: s41(2); s43(1). Consequently, where a prerogative writ would have been available at common law, the equivalent prerogative order is available under Pt 5 JR Act. c. The prerogative writs were thus maintained in order to provide a safety net and ensure there was no reduction in the scope of review through the enactment of the JR Act: Thomas J (1998) Public Law Review. 1. Prohibition 4 requirements: 1. The decision-maker must be subject to the writ; 2. The decision-makers role must be continuing; 3. The writ must be available for the ground of review; 4. P has standing. (a) Is the decision-maker subject to the writ? Necessary to distinguish between: 1. Courts; and 2. Other decision-makers. (i) Courts The writ is available against inferior courts and quasi-judicial bodies (such as tribunals). To determine whether a court is inferior or superior, it is necessary to look at the substance of the legislation creating the court rather than the mere words used in that legislation. A court declared to be a superior court will in fact be an inferior court where the jurisdiction of the decision-maker is found exclusively in the terms of an empowering statute of limited scope. However, a court will be a superior court where the jurisdiction of the body rests on basic constitutional doctrine. The HC and State Supreme Courts are not subject to the writs: Re McBain per Kirby J. However, all other courts are, including: 1. The Qld DC (but note the JR Act excludes this by Sch 1): R v Loewenthal; 2. The Industrial Court of Qld: AG (Qld) v Wilkinson; 52

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3. The Family Court: R v Watson; Ex parte Armstrong; and 4. The Federal Court: R v Federal Court; Ex parte WA National Football League. (ii) Other decision-makers Per Atkin LJ in R v Electricity Cmrs; Kioa v West, traditionally, the writ was available against: 1. A body of persons having legal authority; 2. To determine questions affecting the rights of subjects; 3. And having the duty to act judicially. In recent times, the availability of the writ has expanded dramatically through a broad interpretation of the elements in Atkin LJs tests. (a) Legal authority? The Atkin formula has been extended to control the conduct of bodies set up by the executive arm of government (ie without legislation) and not just to bodies set up by the legislature: Ex parte Lain. Non-governmental bodies would not normally have legal authority for the purposes of the Atkin formula: Ex parte Burton. However, where Parliament by statute has recognized a body and endorsed its functions, in particular its disciplinary functions, the body may be subject to prohibition and certiorari: Ex parte Robinson.
R v Criminal Injuries Compensation Board; Ex parte Lain Facts: The board was not created by a statute but was instead created by an exercise of Crown prerogative power. The board was created by the government of the day to assess the amount of compensation that would be paid to the victims of crime. Once the amount was assessed the board would make a payment from money set aside by Parliament. The system involved voluntary or ex gratia payments of money. In this particular case the applicant for compensation was the spouse of a police officer who had been shot by a criminal and thus blinded in one eye. Not long after this the police officer committed suicide. The officer's spouse sought compensation for herself and their 3 children. The board finally decided that she was not entitled to compensation under the ex gratia system as she was receiving assistance from other sources. Held: The English Divisional Court held that certiorari was potentially available in relation to a decision of the board despite the fact that the board did not derive its authority from a statute. The legal authority for the decision came from Crown prerogative, nonetheless certiorari was available. Having decided that certiorari was potentially available the court however refused relief on the basis that the applicant had not established a ground of review.

(b) Duty to act judicially This duty need not be expressly present. It can be deduced or implied from the nature of the power given to the body: Ridge v Baldwin per Lord Reid. 53

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(c) Affecting the rights of subjects The writ may be available even though the decision has no effect until confirmed by Parliament or the GG: R v Electricity Cmrs. Preliminary or recommendatory decisions may be subject to the writ where the preliminary decision must at least be taken into account by the 'higher' decision-maker and cannot be ignored: Ex parte ACTU Solo Enterprises. For prohibition to be available, the effect on rights necessary appears to be the same as the effect required for natural justice obligations to apply. Note that the requirements for certiorari in this context appear to be stricter than those for prohibition: see Ainsworth v CJC. In the case of certiorari, there must be a discernible or apparent legal effect upon rights: Hot Holdings v Creasy. Cane and MacDonald (2008) offer a possible justification for this difference in the following terms: "If this conclusion can be justified, it must be on the basis that although it makes no logical sense to quash a decision which has no legal effect, it does make sense to prohibit the making of a decision even if it would have no discernible legal effect." Note specifics regarding the following decisions: 1. Exercises of delegated legislative power the creation of subordinate legislation by delegates is not subject to the writs: R v Wright; Ex parte Waterside Workers Federation of Australia. a. But note that the HC has never declined to issue writs under s75(v) with respect to exercises of legislative power when constitutional issues arise. 2. Committal proceedings - although the opposite view was taken in Ex parte Cousens re Blackett, in Sankey v Whitlam Mason J suggested in obiter that the decision of a Magistrate to commit an accused for trial would be subject to prohibition, which was approved in R v Schwarten; Ex parte Wildschut. a. It still appears that such committal decisions won't be subject to certiorari.
In R v Collins; Ex parte ACTU Solo Enterprises, Stephen J held that the conclusions of a Royal Commission were not subject to the writ. Although the Royal Commission's conclusions would inform the government, its conclusions did not determine or affect the applicant's rights. Nor was the Commission's report a condition precedent to some other decision which would affect rights or have some other legal consequence. In Hot Holdings v Creasy, a 3:2 majority held that a preliminary decision of a West Australian Mining Warden was subject to certiorari where the making of the decision had to be taken into account by an ultimate decision-maker whose decision would clearly affect the applicant's rights. For certiorari to issue you had to identify a discernible or apparent legal effect upon rights. As the ultimate decision-maker was bound to consider the warden's decision, certiorari was available. This was so even though the decision-maker was not bound to follow the warden's recommendation.

(b) Is the decision-maker's role continuing? For the writ to be available, the decision-maker must not have completely performed its function (be functus officio). The HC has been defined the situations where a decision-maker is not functus officio broadly: Ex parte Broken Hill Proprietary Co (all that remained was the 54

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enforcement of the decision even though the Tribunal itself was not responsible for enforcement). (c) Is the writ available for the alleged ground of review? The writ is available where there has been a jurisdictional error: Plaintiff S157/2002. Recall Craig v SA on what amounts to jurisdictional error. There is also authority that prohibition is available where fraud has been committed by one of the parties before the decision-maker: Anisminic per Lord Reid. (d) Does P have standing? The position at common law must be distinguished from the position in Qld. (i) If the application is at common law The writ was available to an applicant who was 'a person aggrieved': Ex parte Liverpool Taxi Fleet Operators Assoc.; Ex parte Peachey Property Corp. However, a person aggrieved did not have to be a party to the decision complained of. Further, the courts could, in their discretion, confer standing on a 'stranger' i.e. a member of the public who seems no more affected by the decision than anyone else: Ex parte Blackburn. (ii) If the application is under Pt 5 JR Act A person seeking an order in the nature of a prerogative writ must show that their interests would be/has been 'adversely affected' by the conduct/decision: s44. The same tests as discussed in relation to s7 JR Act therefore apply. Note also that if the joint judgment in Bateman's Bay becomes law 'strangers' may have standing to seek declarations and injunctions in the SC's inherent jurisdiction and this may impact upon the interpretation of s44. 2. Certiorari 4 requirements: 1. The decision-maker is subject to the writ; 2. The decision-makers role has ceased; 3. The writ is available for the ground of review; 4. P has standing. (a) Is the decision-maker subject to the writ? Same as for prohibition. (b) Has the decision-makers role ceased? 55

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Since certiorari quashes a decision made, the decision-makers role must have come to an end. (c) Is the writ available for the alleged ground of review? As for prohibition, the writ is available where there has been a jurisdictional error and a denial of natural justice. Certiorari is also generally available to correct non-jurisdictional errors of law, but only where the error of law is apparent on the face of the record of the decision: Anisminic per Lord Reid. Non-jurisdictional error on the face of the record: (a) Error of law The error must be of law, not fact. Note that in R v Tennant; Ex parte Woods, Wanstall J considered that the error of law must also be fundamental to the decision. (b) The record The definition of 'record' is critically important; the more the reviewing court can look at, the more likely it will be to find an error of law. Consequently, the broader the definition of 'record', the greater the potential for certiorari to substitute for appeal, the usual mechanism for the correction of non-jurisdictional errors of law. In the absence of statutory expansion, the 'record' is a narrow concept. Per Craig v SA, it includes: 1. The document initiating the proceedings; 2. The pleadings; and 3. The actual order or ruling. That is, the reasons, transcript of proceedings and evidence before the decision-maker do not form part of the record. However, the reasons (or parts thereof) may become part of the record where those reasons must be incorporated into the order for the order to make sense e.g. where the order involves an undertaking by one party, the terms of which are set out in the reasons. Prefacing the order for "for these reasons" or "accordingly" does not suffice: Craig v SA. This approach applies to both courts and tribunals: Craig v SA. NOTE however that for two reasons, Craig will have no impact on judicial review of tribunal's decisions: 1. s20(2)(f) JR Act and s5(1)(f) ADJR Act make error of law a ground of review and expressly provide such error need not appear on the record; 2. Arguably, all errors of law made by tribunals are jurisdictional: Aronson (2004) Public Law Review. Note finally that Craig will have its biggest impact only in those rare cases where there are no appeal rights. In Kriticos, Kirby P made a plea for the HC to reconsider the issue or for 56

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Parliament to correct the situation. The second course has been taken in NSW: see s69 Supreme Court Act 1970 (NSW). (d) Standing same as for prohibition 3. Mandamus For the writ of mandamus to be available, there must be: 1. A public duty; 2. An express or constructive refusal to perform a public duty; 3. By a decision-maker subject to the writ; 4. Standing; and 5. No other satisfactory remedy. NOTE: The Supreme Court Act 1995 empowers the SC to issue statutory mandamus, which stands alongside Pt 5 JR Act. It has its own standing requirements; s172 speaks of a person being 'potentially interested'. This may be useful where JR Act review has been excluded (as may the common law writ of mandamus). (a) Is there a public duty? The duty does not need to be judicial or quasi-judicial: Ex parte Blackburn (available against police force to ensure enforcement of criminal law). It does not suffice that the decision-maker has a mere power/discretion. There must also be a duty to consider whether to exercise the discretion. (b) Is there express or constructive refusal to perform that duty? Mandamus is obviously available where there is an express refusal to perform such a duty. It has also been issued where there has been a constructive refusal. That is, where a decisionmaker, in purporting to exercise a duty, has acted in excess of her jurisdiction, and the decision is treated as void, the courts have issued mandamus on the basis that a void purported exercise of duty is essentially a constructive refusal to exercise the duty. This is akin to seeking certiorari and mandamus together. (c) Is the decision-maker subject to the writ? Mandamus is not available against superior courts. It is generally available against public servants. However, mandamus may not be available where the public servant owes his duty to the Crown alone (and not the public): R v Lords Cmrs of the Treasury. (d) Does P have standing? As for prohibition and certiorari, the test is under s44. 57

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Note that at common law the rule for mandamus is stricter than for prohibition and certiorari. There must exist a specific legal right possessed by the applicant correlative to the duty he or she seeks to enforce: Ex parte Freeman; Ex parte Ellis. (e) Are other remedies available? Mandamus is a discretionary remedy and is usually described as one of 'last resort'. It will therefore not generally be available where there is another remedy of equally satisfactory character. 4. Procedural points common to the writs (a) Stays The court may stay proceedings of the original decision-maker while review is carried out: s47(4) JR Act; r25.05 HC Rules 2004 (constitutional writs). (b) Time Applications for prerogative orders, declarations and injunctions must be brought as soon as possible, but in any event within 3mths of the relevant conduct or such longer period as the SC allows: s46 JR Act. (c) Early disposal Recall that ss12-14, 48-49 apply to applications for review under Pt 5.

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DECLARATIONS AND INJUNCTIONS


1. Declarations A declaration is a statement of the legal position of the parties to a dispute by a superior court. Applications for declarations are usually accompanied by an application for an injunction. However, they may be made where no other relief is sought: Dyson v AG: s43(2)(b) JR Act. Declarations are a discretionary remedy. The court may consider both inconvenience to the government and convenience to the citizen: Dyson v AG (sought declaration that Qs asked on form were illegal). Under ss43, 47 JR Act the SC may make declarations having regard to the availability of orders in the nature of the prerogative writs. It may also make declarations in its inherent jurisdiction under rr262, 585 UCPR; s128 SCA 1991, which is preserved by s10(1) JR Act. The FCs jurisdiction to make declarations services from s31 JA and s21 FCAA. One of the most important features of declarations is that they can be made to interpret legislation or declare rights before anything (allegedly) illegal occurs. This gives it an edge over all other administrative law remedies. Aronson et. al (2004) describe this as the original jurisdiction. It is distinguishable from the supervisory jurisdiction, which is where a declaration is used as a standard judicial review remedy i.e. once a government decision is made the court declares whether or not a ground of review applies. Is a declaration available? 5 issues: 1. Ground of review; 2. Legal controversy; 3. Standing; 4. Time limits; and 5. Availability of other remedies. NOTE: Stays may be granted under Pt 5 or under the SCs inherent jurisdiction. (i) Is a declaration available for the alleged ground of review? (a) Illegality, jurisdictional error and natural justice Declarations may be granted for any of the grounds of review: see Sutherland Shire Council v Leyendekkers per Street J; Ainsworth v CJC; Forster v Jododex Australia. Further, they may be sought against non-government bodies where the SCs inherent or the FCs statutory jurisdiction is relied on (i.e. where dont need to satisfy administrative character element): e.g. Onus v Alcoa; Central Qld Speleological Society. (b) Non-jurisdictional error 59

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It has been held that a declaration cannot be awarded that a decision is unlawful because affected by a non-jurisdictional error: Punton (No. 2); Healey v Minister for Health. The reason goes that such a decision is not void; it needs to be deprived of legal effect, and a declaration, which cannot create or alter legal rights and obligations, cannot do this: Cane & McDonald (2008). However, note: 1. Cane & McDonald consider that Project Blue Sky seems to establish that a declaration can be awarded in relation to a decision affected by breach of a statutory provision the effect of which is not to render the decision invalid but only unlawful. It would seem to follow that a declaration could be awarded in relation to a decision affected by breach of a non-statutory administrative law norm, even if the breach did not make the decision void; 2. The existence of two outstanding orders was accepted in Ex parte Datafin. This would erode the basis of Sellers LJs decision that there was no such power. The importance of the distinction is that if a declaration is available in non-jurisdictional error cases, the restrictions in Craig (limiting the availability of certiorari) might be avoided by seeking a declaration; the scope of the record is not relevant to the availability of declarations. Note also, however, that this will not be an issue if review of the decision in question is possible under Part 3 of the Acts. The availability of a declaration will probably only be significant when review is sought of court decisions (where there are no appeal rights).
Punton v Ministry of Pensions and National Insurance (No. 2) Facts: The case involved a claim for unemployment benefits by two workers in a shipyard. The two employees had not worked for a period owing to a strike resulting from a demarcation dispute between two unions. The two employees were members of a third union not involved in the dispute. The National Insurance Commissioner, whose statutory function was to assess eligibility for unemployment benefits under the National Insurance Act, decided that, in accordance with the terms of the Act, the two employees did not qualify for the benefits. The two employees did not use the opportunity to challenge the decision by the writ of certiorari. English law required that such a challenge be mounted within 6 months. Instead, the employees commenced proceedings for a declaration that there had been a nonjurisdictional error of law. They were unsuccessful at first instance. Held (Sellers LJ): Appeal dismissed. Whilst the Courts power to make a declaration was a valuable one which should not be fettered, the Court did not have the power to make a declaration in this case. As a condition precedent to the payment of unemployment benefits under the Act, the Commissioner needed to make a decision as to an employees eligibility. The decision of the Commissioner could not be quashed by the Court of Appeal (as there had been no jurisdictional error) and there did not appear to be any power to replace the decision so as to allow the employees to receive the benefit. This would in effect mean that if the Court did make a declaration against the Commissioner's decision, there would be two outstanding orders, one of the Commissioner and the other of the Court, and the Court's order would have no effect on the payment of the benefits claimed. On this basis, there was no power to make a declaration in this case.

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End of Semester Exam Notes Angus J OBrien

(ii) Is the declaration to settle a legal controversy? Although the power to make declarations should not be fettered, it is confined by the considerations which mark out the boundaries of judicial power. Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The declaration must have foreseeable consequences for the parties: Ainsworth v CJC; Australian Boot Trade Employees Federation v Cth; Gardner v Dairy Industry Authority of NSW. In particular, the person seeking the declaration must be able to secure a proper contradictor, someone presently existing who has a true interest to oppose the declaration sought: Forster v Jodotex; Russian Commercial and Industrial Bank v British Bank of Foreign Trade.
Australian Boot Trade Employees Federation v Cth Facts: A union commenced proceedings for, amongst other things, a declaration that a section of a Commonwealth industrial statute was beyond the power of the Commonwealth parliament to enact and was therefore invalid. Held: 3 (Webb, Kitto and Taylor JJ) / 2 a declaration should not be granted as the question was hypothetical Reasoning of Webb J: No prosecution was threatened and none appeared likely under the particular section of the Act. Critically, the union made it clear that it had not contravened nor did it contemplate contravening the section in the future. It was therefore clear that there was no likelihood that the section would be used against the union. Taylor J: The mere possibility or risk of future interference with a plaintiffs rights was not an appropriate basis for the exercise of the jurisdiction to make a declaratory decree. The discretion to make such a decree clearly ought not to be exercised where the rights of the parties are not involved and where accordingly, the question is of academic interest only. Gardner v Dairy Industry Authority of NSW Facts: The applicants in this case were essentially seeking a declaration in respect of past Government conduct with a view to placing political pressure on the Government in the hope of extracting a better deal in the future. Held: Mason J (with Jacobs and Murphy JJ agreeing), observed that: it is one thing to say that declaratory relief will be granted against the Executive or a Statutory Authority in relation to existing rights and transactions. It is quite another thing to say that it should be granted in respect of past transactions under legislation which has been repealed or amended when the Courts declaration will produce no foreseeable consequence for the parties.

(iii) Does P have standing? For declarations sought under Pt 5, standing is as provided for in s44 (adversely affected). In the SCs inherent jurisdiction or the FCs statutory jurisdiction, the standing principles for declarations and injunctions (Onus v Alcoa; ACF v Cth; Batemans Bay) are directly applicable. 61

LAWS2115 Administrative Law Semester 1, 2008

End of Semester Exam Notes Angus J OBrien

(iv) Is the application within time? For applications under Pt 5, the rule is as in s46 JR Act (above). Declarations sought via the general jurisdiction are not subject to time limits, but delay is a discretionary factor. (v) Does the availability of other remedies preclude the making of a declaration? As a discretionary remedy, the presence of absence of another remedy may influence the Court in exercising its discretion to make a declaration. There are few circumstances where there would be a more appropriate alternative to a declaration. In particular, it has been held that the prerogative writs are generally not more appropriate remedies than declarations: Forster v Jododex per Gibbs J; Barnard v National Dock Labour Board. However, where the court is exercising what Aronson et al. describe as its original jurisdiction to make declarations, if a statute creates a right and also creates a remedy before a tribunal, the court will not intervene via declaration but will leave the parties concerned to follow the statutory procedure: Barraclough v Brown. 2. Injunctions An injunction is a court order enforceable by imprisonment for contempt of Court, requiring a party to civil proceedings to do something or, more commonly, to refrain from doing something. The SC has power to issue injunctions under ss43, 47 JR Act where review is sought under Pt 5. The SC also has an inherent jurisdiction to grant injunctions in administrative law proceedings: s246 SCA 1995; Carruthers v Connolly. The FC has power to issue injunctions under s39B JA. Generally, there are three relevant forms of injunction: 1. Interim these are granted ex parte in situations of extreme urgency with a view to maintaining the status quo until the other party can be brought before the court for an interlocutory hearing; and 2. Interlocutory these are used to maintain the status quo until the final hearing; and 3. Final these are granted after the final hearing. (a) Are the prerequisites applicable to all injunctions satisfied? (i) Standing Again, standing is per s44 JR Act or, in the inherent jurisdiction, the ACF v Cth, Onus v Alcoa and Batemans Bay directly apply. (ii) Time limits 62

LAWS2115 Administrative Law Semester 1, 2008

End of Semester Exam Notes Angus J OBrien

Time limits s46 JR Act under Pt 5, otherwise delay may be discretionary factor. (iii) Discretionary Injunctions are equitable remedies. A plaintiff must come to the Court with clean hands and equitable defences such as delay or acquiescence may be available to the defendant. (iv) Early dismissal Finally as with all other JR Act remedies, an application for an injunction under Part 5 of the JR Act will be subject to the Courts powers under sections 11, 12, 13, 14, 48 and 49. (v) Alleged ground of review In an administrative law context, injunctions are available: 1. To prevent public authorities exercising administrative functions ultra vires: AG v Manchester Corp; 2. To prevent enforcement of: a. invalid legislation (including subordinate): Australian Alliance Assurance Co v AG (Qld); or b. council resolutions: Howes v Gosford SC; or c. a planning consent: Steeples v Derbyshire County Council. 3. Correct jurisdictional error committed by judicial or quasi-judicial bodies or a breach of natural justice: Carruthers v Connolly. It has also been suggested that injunctions are available to cure non-jurisdictional errors of law: Abebe v Cth per Gaudron J; Project Bluesky; but contrast Plaintiff S157/2002 per Callinan J; 4. Against Parliament to restrain presentment of a bill for royal assent in breach of manner and form requirements: Trethowan v Peden; McDonald v Cain; Rediffusion (Hong Kong) v AG (Hong Kong). However, in Cormack v Cope, the HC divided evenly on the issue. Injunctions to enforce the law: There are certain circumstances where civil proceedings can be brought to enforce the law, including the criminal law. Special considerations apply to this circumstance: Batemans Bay joint judgment. The AG may invoke the assistance of the civil courts in enforcing the criminal law in exceptional circumstances, where an offence is frequently repeated in disregard of a usually inadequate penalty, or in cases of emergency: Gouriet v Union of Post Office Workers per Lord Wilberforce. Per Lord Wilberforce, the jurisdiction is one of great delicacy in two particular areas: 1. There was a problem with a civil court granting an injunction (breach of which could potentially lead to imprisonment) where parliament [had only] imposed a sanction (for example a fine of 1) without an increase in severity for repeated offences.

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2. There was the problem of a civil court without a jury and applying a civil standard of proof effectively convicting a citizen where parliament [had]...provided for trial of offence by indictment before a jury. The HC has adopted the view from Gouriet: Cth v John Fairfax per Mason J; AG v T; Ex rel Kerr per Gibbs CJ. (b) Are the pre-requisites specific to the type of injunction satisfied? (i) Interlocutory injunctions In Beecham Group v Bristol Laboratories, the HC adopted a two-stage test: 1. P has made out a prima facie case i.e. if the evidence remains as it is there is a probably that P would be successful at trial; and 2. The balance of convenience favours the granting of the injunction to P. However, in American Cyanimid v Ethicon, the HoL substituted the serious question to be tried test for the prima facie case test. Under this approach, P must simply establish that the claim is not frivolous or vexatious. This has been adopted in Australia: Murphy v Lush; Patrick Stevedores Operations v MUA (No. 2). Per Lord Diplock in American Cyanimid v Ethicon, there are three factors relevant to the balance of convenience: 1. The extent to which damages could compensate the parties for harm suffered by granting/not granting the injunction. a. In Tooheys v SA, Mason J added as a third element, that P must show he or she will suffer injury for which damages would not be an adequate compensation if no injunction were granted. b. However, this is not usually a distinct element and will usually go to the balance of convenience: Richardon v Forestry Commission per Mason CJ. 2. If this is comparable, the relative strengths of the parties cases; and 3. The effect of granting the injunction on third parties. Undertaking as to damages: In Qld, interlocutory injunctions must not be granted without an undertaking as to damages without good reason: r264. Although Derrington J considered that an undertaking to damages was necessary, it is likely that in administrative law litigation, there will be a good reason to dispense with the requirement: Central Qld Speleological Society Inc v Central Qld Cement per Thomas J; Mossop (1993-4) Aust. Bar Rev. Note the suggestion that since s29 JR Act, unlike the ADJR Act equivalent, does not empower the court to attach conditions to the injunction, the requirement that there be an undertaking as to damages may not apply: Re Murphy per White J.
Central Qld Speleological Society Inc v Central Qld Cement Facts: There was an attempt by the Speleological Society to restrain, by interlocutory injunction, a

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Held:

corporation (ie a non-governmental entity) from blasting of a particular cave within Mount Etna. The Society alleged that blasting would breach the Queensland Fauna Conservation Act. The Society was unsuccessful at first instance.

On appeal (by majority, Thomas J dissenting) the Full Court held that the Society did not have standing to appear before the Court. The Court however considered (by way of obiter) whether an interlocutory injunction would have been appropriate. Reasoning of Thomas J: Thomas J noted that on the pecuniary level, the likely damage to the cement company from the granting of an interlocutory injunction would be much greater than any damage suffered by the Society if the injunction was refused. His Honour observed that the Speleological Societys undertaking to pay damages was virtually worthless and that had the action been of a commercial nature, then such a factor would normally be decisive. Evidence was tendered that the interlocutory injunction would have caused losses to the cement company in the order of $41,800 per week. The Society could only effectively give an undertaking in the sum of $15,000. The Societys gross earnings from the sale of T-shirts and stickers over 5 years was $3,575 and $434.50 was earned from the operation of a camp site. However, given the fact that the case involved a wide range of issues and given the fact that matters of public interest could be taken into account in the balance of convenience, Thomas J considered that it was appropriate that an interlocutory injunction should be granted. Reasoning of Derrington J: Derrington J expressed sympathy for the society recognising the fact that in terms of preserving the status quo it would be impossible to restore the cave if an injunction were not granted and blasting occurred. However his Honour made it very clear that, in his view, in order to avoid abuse of the system of justice, an interlocutory injunction would only be granted if the Society provided security sufficient to meet the undertaking that ought to have been given in an amount determined by proper enquiry.

(ii) Final injunction For a permanent injunction to be granted, P must have established his/her cause of action. P must then also persuade the court that, as a matter of discretion, a permanent injunction should be granted.

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