Administrative Law Quiz PDF

[Week 1:] Topic 1: Introduction to Administrative Law: Organisation and Theory +-----------------------------------+-----------------------------------+ | Study Guide | - ✔️ |...

[Week 1:] Topic 1: Introduction to Administrative Law: Organisation and Theory +-----------------------------------+-----------------------------------+ | Study Guide | - ✔️ | +===================================+===================================+ | *Government Accountability:* | **Chapter 1:** | | 'Textbook' | | | | - What is Admin law: 2-7 ✔️ | | | | | | - Accountability: Pages 8-18 ✔️ | | | | | | - Reforms: p 20-21 ✔️ | | | | | | **Chapter 2:** | | | | | | - Who is the executive? 32-52 | | | ✔️ | | | | | | **Chapter 7:**  | | | | | | - Judicial review vs Merits | | | Review v Appeals: 226-229 ✔️ | | | | | | **Chapter 9: ** | | | | | | - Judicial review vs Merits | | | Review v Appeals: 288-293 ✔️ | +-----------------------------------+-----------------------------------+ | *Sources and Materials*: 'SM': | **Chapter 1** ✔️ | | Under TextBook Resources | | | | **Chapter 2:** Pages 24-34 ✔️ | | | | | | **Chapter 9:** Pages 230-241 ✔️ | +-----------------------------------+-----------------------------------+ | Cases | - ✔️ (In sources Materials) | +-----------------------------------+-----------------------------------+ | Legislation | ***Administrative Decisions | | | (Judicial Review) Act 1977 | | | (Cth)*** | | | | | | ***Administrative Appeals | | | Tribunal Act 1975 (Cth)*** | | | | | | ***Commonwealth of Australia | | | Constitution Act*** | | | | | | ***Judiciary Act 1903 (cth)*** | +-----------------------------------+-----------------------------------+ | Lecture and Slides | - ✔️ | +-----------------------------------+-----------------------------------+ | Seminar Questions & Answers  | ✔️  | +-----------------------------------+-----------------------------------+ | Exam Notes | ✔️ | +-----------------------------------+-----------------------------------+ **[Administrative Law:]** branch of law that regulates the executive government of Australia and keeps members of the executive branch accountable.  The course is divided into two large categories. Topics 2 -- 11 cover when and how we can ask a court to review a decision of the executive (what is called judicial review). Topics 12 and 13 cover how we can keep the executive's decisions accountable, without only relying on the courts. 1. *What is administrative law: 2-7 Chapter 1* - Regulation of the exercise of power by public authorities and the mechanisms that exist to remedy failures in the exercise of that power.  - Holding public authorities to account. - Exists to protect individual rights, to promote efficient and effective administration, to promote integrity in governmental decision making, to increase participation in government, and to promote accountability. - Accountability: overarching principle.  - Relationship w constitution: representative government (westminster) and separation of powers and federalism (US).  - Principles of constitutional law w/ administrative law: federal system. Admin law must exist at both levels. Must provide appropriate redress for affected individuals. 2nd: interpretation by the courts and constitutional conventions - defines the different composition and role of each branch of government. - Bodies: Ombudsman, Royal Commission, Freedom of information regimes, merits review and judicial review. Holds executive and their powers to account.  [Why do we need administrative law:] - *Unique powers of executive*: *Communist Party case:* 'history and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power.' - - - - - - *To keep the executive branch accountable:* - - - - - 2. *Who is the executive? 32-52 Chapter 2* - [The King and his executives] - head of Cth and state branch.  - - - - - [Ministers:] high level executive officers appointed to lead government departments. Responsible for deciding the policy direction of their department and implementing the broader policies of the government with their department. - - - - - - - - - - - - - [Ministerial Staff:] employ personal staff predominately policy and media advisers who sit outside the public service.  - Cth: Members of Parliament staff act are accountable directly to minister.  - [The Cabinet: ] - - - - - - - - - - - - - - - [The Executive Council:] - - - - - - [The departments and public service:] - - - - - - - - [Statutory Authorities:] - - - - - - - - - [Government Business Enterprises (GBEs)] - - - - - - [The commonwealth and state executives]: - - - - - - - - - [Private Bodies in the Public Sphere:] - - - - - - - - - - - [Public Law remedies for private bodies:] - - - - - - - - - - - - - - [Responding to outsourcing: 51] - When administrative law ought to apply in in the instances where private bodies private provide public services. - **ARC review:** the contracting out of government services should not result in a loss or diminution of government accountability or the ability of members of the public to seek redress where they have been affected by the actions of a contractor delivering a government service. 3. *Accountability as the underlying rationale* 8-18 Ch 1 +-----------------+-----------------+-----------------+-----------------+ | **Democratic | Electors to | ***Nationwide | | | justifications | hold | News*** Deane | | | of | representatives | and Toohey J: | | | accountability  | to account. | it provides for | | | ** | | the exercise of | | | | Do not elect | that ultimate | | | | executive arm - | power by 2 | | | | chosen by lower | electoral | | | | house of | processes. | | | | parliament | | | | | | | | | | - Ministers | | | | | must be | | | | | members of | | | | | the | | | | | parliament  | | | | | | | | | | - Ministers | | | | | answer | | | | | personally | | | | | to | | | | | parliament | | | | | for the | | | | | actions of | | | | | departments | | | | | | | | | | - Public | | | | | servants | | | | | and other | | | | | officers | | | | | responsible | | | | | to | | | | | ministers | | | | | | | | | | - Democratic | | | | | representat | | | | | ives | | | | | as | | | | | delegates | | | | | | | | | | - Democratic | | | | | representat | | | | | ives | | | | | as trustees | | | | | | | | | | - Deliberativ | | | | | e | | | | | democracy | | | | | involves | | | | | public | | | | | discourse | | | | | and has the | | | | | potential | | | | | to produce | | | | | better | | | | | informed, | | | | | more | | | | | rational | | | | | and more | | | | | legitimate | | | | | decisions | | | | | | | | | | - To be | | | | | informed | | | | | and | | | | | involved in | | | | | parliamenta | | | | | ry | | | | | and | | | | | government | | | | | decision | | | | | making | | | +=================+=================+=================+=================+ | **Rule of | - Supremacy | ***Church of | | | law ** | of law over | Scientology:*** | | | | discretiona | government is | | | | ry | prevented from | | | | power to | exceeding the | | | | promote | powers and | | | | certainty | functions | | | | and | assigned to the | | | | predictabil | executive by | | | | ity | law and the | | | | in | interests of | | | | government | the individual | | | | action | are protected | | | | | accordingly. | | | | - Legal | | | | | restraints | ***Communist | | | | must apply | Party case:*** | | | | to citizen | forms an | | | | and | assumption on | | | | government | which the | | | | alike | constitution | | | | | rests. | | | | - Protects | | | | | individuals | | | | | against the | | | | | government  | | | | | | | | | | - Must be | | | | | prospective | | | | | , | | | | | clear, | | | | | public and | | | | | consistent  | | | | | | | | | | - Must be | | | | | consistent | | | | | with | | | | | individual | | | | | rights and | | | | | liberties | | | | | | | | | | - | | | +-----------------+-----------------+-----------------+-----------------+ | **Separation of | - First 3 | ***Boilermakers | | | powers ** | chapters of | doctrine*** | | | | AC modelled | | | | | after US | ***Kable | | | | Constitutio | principle*** | | | | n | | | | | | | | | | - Independent | | | | | judiciary | | | | | to review | | | | | executive | | | | | decisions | | | +-----------------+-----------------+-----------------+-----------------+ | **Individual | - Protection | | | | rights ** | of | | | | | individual | | | | | autonomy  | | | | | | | | | | - Protect the | | | | | citizen | | | | | against the | | | | | abuse | | | | | | | | | | - Government | | | | | power must | | | | | not be | | | | | exercised | | | | | in a way | | | | | that unduly | | | | | infringes | | | | | on the | | | | | rights and | | | | | liberties | | | | | of | | | | | individuals | | | | | within the | | | | | community. | | | +-----------------+-----------------+-----------------+-----------------+ **[Accountability for what:]** - Accountable to Parliament for what they do so far as regards efficiency and policy, and Parlaiment is the only judge, they are responsible to a court of justice for the lawfulness of what they do and of that the court is the only judge - Fairness  - Fair hearing - Individual v Government  - Rationality - consistency  - Integrity - exercise of government power does not depart from the purpose for which is it was entrusted to government, either by the people directly or by parliament **[How to achieve:]** 1. - General rule: every executive function whether superior or subordinate should be the appointed duty of some given individual. Responsibility is null when nobody knows who is responsible - Disclosure regimes - Appearance of witnesses  - Giving evidence  2. - - **Statutory interpretation:** - Take into account 4 principles. ** Modern accountability: Some challenges** - **[Outsourcing ]** - **[Privatisation]** - **[Emergence of wicked problems:]** these are difficult problems requiring cross-institutional corporation to achieve their solution. 'An issue highly resistant to resolution.' go beyond the capacity of any one organisation to understand and respond to and there is often a disagreement about the causes of the problems and the best way to tackle them. - Example: COVID-19. Government took swift and drastic action to prevent large scale loss of life. Significant measures implemented by regulations or other delegated legislation thus avoiding the publicity and deliberation associated with primary legislation and often not subject to parliamentary disallowance. - Requires cooperation between organisations - often between departments within one government, across governments and between government and private organisations. - Outsourcing and privatisation raise questions about the extent to which functions previously exercised by the government ought to remain accountable through administration law when they are performed by private enterprise. *4. Introduction to Judicial Review* The basic principle is that judicial review of administrative action is confined to errors of law and does not extent to errors of fact.  - [Judicial Review vs Merits Review Vs Appeals ] [288-293 Ch 9] - Review: refers specifically to judicial review not merits - Appeal: available if specifically granted by statute - no CL right to appeal. ***Builders Licensing Board.*** - Requires leave to HCA, may be of rehearing or an appeal de novo in which the court will engage with the merits of the previous decision, regardless of error. - May be on question of law. Involves a court to consider whether the decision under review is affected by legal error. Appeal from administrative decision is the courts original not appellate jurisdiction: ***Tasty Chicks.*** ***Judicial Review: Review of Legality*** - To succeed: an applicant for review will need to convince a court that the decision has been made otherwise than in accordance with law. - Judicial review is not a review of a decision on its merits, but a review of the legality of the decision and decision making process: ***Plaintiff M64/2015.*** - Defined in terms to extent of power and legality of exercise not in terms of the protection of individual interests: ***A-G (NSW).*** - Overlap between Merits and Legality. - [2 central aspects:] 1. 2. **Statutory construction:** - Executive powers include powers conferred by statute  - Prerogative powers: accorded to the crown by the CL (***Barton v Cth)*** and courts determine their scope. ***R v Toohey.*** Include to declare war and peace, conduct foreign relations, coin currency, enter treaties, grant mercy and prevent the entry of non-citizens into the country. Non statutory - Non-statutory: share w private persons: enter into k, spend money, gather information and to hold or dispense property. When does not involve public power may be more appropriate to commence tort proceedings rather than judicial review remedies.  - Purpose is gleaned from the language of the relevant provision and the scope and object of the whole statute: ***Project Blue Sky.*** - Object clause alone will not always identify relevant purposes - the whole statute and context of provision must be considered.  - Starting point: will be the statute conferring the power. - Statute is the primary source of law. Reference to decided cases or other secondary material must not be permitted to distract attention from the language of the applicable statute or statutes: ***Shi v Migration.*** **Sources of judicial review jurisdiction: ** - Determine whether theirs is a state, territory or commonwealth power - Establish what courts have jurisdiction  - Establish whether the law relating to the court\'s power to undertake judicial review is based upon statute or the CL. [226-229 Chapter 7] - Merits review: often possible for an individual to conduct their own merits review application without legal assistance  - Relate to fact finding or the exercise of evaluative judgements or discretions in relation to facts, rather than the content of legal principles.  - Creature of statute  - Merits review involves the reconsideration of the substance of a decision, usually by another decision maker within the executive.  - Makes a fresh decision based on merits of the case - Repetition of the original decision making process by a different decision maker. - A person aggrieved by a decision of Cth official or tribina; will generally feel the decision was wrong on the facts or merits of the matter. P 228. - Statute: look at the statute to determine whether merits review is available and if so what body will determine the review - Exception: sometimes open to a person affected by a decision to make an informal request that the decision maker reconsider their decision: ***Minister for Immigration.*** ***Nature of review: re-hearings and hearings de-novo*** - Can be broad or narrow  - De Novo: immutable characteristics or inflexible boundaries. ***ABT17 v Minister*** - A question of statutory intent to be determined by reference to the jurisdiction, powers, composition and functions of the body from whose decision the review lies, as well as the powers and functions of the body in which the power of review is reposed.  *5. Modern Reform: 20-21* The 'Kerr reforms' are the most important reforms to Australian administrative law to date. They encompass the introduction of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'), the establishment of a generalist merits review tribunal and the office of the ombudsman, and freedom of information legislation.  ***Lecture:*** Essentially: holding the executive accountable for their decisions that affect everyday life of citizens.  ***Some administrative law mechanisms:*** - The ombudsman - Freedom of information legislation - Appellate tribunals - Judicial review: main part of course. **[Judicial Review: 4 aspects:]** 1. ***The procedural nature of review:*** Concern with procedure reflected in grounds of review. Not substance.  Not looking at the decision whether it was good or bad - looking at the procedure in which it was made.  Concerned with [Errors of Law.] [Aspects:] **The remedies available under judicial review:** - The approach adopted by the courts: send back to the original administrator to get the decision to be remade in accordance with the correct procedure. However, there are limitations. - A significant limitation of the courts approach - the original decision maker may come to the same conclusion under the same procedure. Can be the same substantive decision.  - Tension between the concerns of the applicants and concerns of the courts: a person happy with the substantive decision will never challenge the procedural faults. **The distinction between review and appeal:** - Same Hierarchy - appellate bodies are below the courts in the same hierarchy.  - ***Appeal: appellate bodies.*** (VCAT, AAT). Appellate bodies look at the merits. The result thats been reached - have the power to remake decisions. Members of the executive - no issues to the separation of powers.  Not happy with appellate decision - then they can seek judicial review reached by the appellate court.  - ***Review: Courts. *** - - **Administrative decision makers must:** - Give a hearing to someone whose affected  - Mustn\'t take into account irrelevant considerations - Mustn\'t act for an improper purpose - Act within scope of powers. **Judicial review is important because:** - Separation of powers  - Parliamentary sovereignty  - Courts expertise -  2. ***The requirement that the court have jurisdiction: a decision of public power*** *The sorts of decisions subject to review:* - [Decisions made pursuant to statute: ] - - - - - - [Decisions made pursuant to the Crown Prerogative:] - - - [Decisions made pursuant to non- statutory regulatory power:] - Public power -- a suitable limitation? - Privatisation and contracting out  - - - Non-justiciability - - 3. ***The requirement that the applicant have standing for review *** An attractive requirement? There needs to be a connection. The rule of law *Alternative models of accountability:* - Appeal: standing requirement for appeal is same as judicial review. - Approach the Department:  - Approach the Minister -- Ministerial responsibility: minister will be more concerned if it is of concern to the electorate - The ombudsman  - The press? [Counter-arguments:] - Floodgates - Improved standard of litigation: personal interest in the matter. - Deterrence of busybodies 4. ***The different judicial review regimes  *** **[​​Commonwealth]** Section 75(v) of the Constitution (and section 39B of the Judiciary Act) The Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "AD(JR) Act). **[State]** - **[Victorian Administrative Law Act ]** [Week 2:] Topic 2: Jurisdiction and Justiciability  +-----------------------------------+-----------------------------------+ | Study Guide | ✔️ | +===================================+===================================+ | *Government Accountability:* | **Chapter 9: Jurisdiction** | | 'Textbook' | | | | - 293-320 ✔️ | | | | | | **Chapter 10: Justiciability ** | | | | | | - 341-349✔️ | +-----------------------------------+-----------------------------------+ | *Sources and Materials*: 'SM': | **Chapter 9:** Pages 241-258 ✔️ | | Under TextBook Resources | | | | **Chapter 10**: Pages 282-288 ✔️ | +-----------------------------------+-----------------------------------+ | Cases | **Constitutional judicial | | | review** | | | | | | 1.2.1. At the High Court: Section | | | 75(v) and 75(iii) and other | | | Federal Courts (9B of the | | | Judiciary Act 1903 (Cth) | | | | | | *Re McBain*; ex parte | | | Australian Catholic Bishops | | | Conference | | | | | | \(2002) 209 CLR 372 | | | | | | *Plaintiff M61/2010E v | | | Commonwealth* (2010) 243 CLR 319 | | | | | | (the 'Offshore Processing Case') | | | | | | *R v Panel on Takeovers and | | | Mergers; Ex Parte Datafin Pl*c | | | | | | \[1987\] 1 QB 815. | | | | | | *Ainsworth v Criminal Justice | | | Commission* (1992) 175 CLR 564 | | | | | | *Western Australian Field and | | | Game Association v Minister of* | | | | | | *State for Conservation* (1992) 8 | | | WAR 64. | | | | | | *Fencott v Muller* (1983) 152 | | | CLR 570 | | | | | | **AD(JR) Act 1977 Cth: What is a | | | decision to which the act | | | applies?** | | | | | | *Australian Broadcasting | | | Tribunal v Bond* (1990) 170 CLR | | | 321 | | | | | | *Roche Products Pty Ltd v | | | National Drugs and Poisons* | | | | | | *Schedule Committee* (2007) 163 | | | FCR 451 | | | | | | * Griffith University v Tang* | | | (2005) 221 CLR 99 | | | | | | **Justiciability: ** | | | | | | *R v Toohey; Ex parte Northern | | | Land Council (1981) 151* | | | | | | *CLR 170 -* Traditional Approach | | | | | | **The Modern Approach: Subject | | | Matter** | | | | | | * Minister for Arts, Heritage | | | and Environment v Peko-* | | | | | | *Wallsend Ltd (1987) 15 FCR 274* | | | | | | * Aye v Minister for Immigration | | | and Citizenship (2010) 187* | | | | | | *FCR 449* | | | | | | - ✔️ | +-----------------------------------+-----------------------------------+ | Legislation | ***9B Judiciary Act 1903 (cth)*** | | | | | | ***AD(JR) Act 1977 (cth)*** | | | | | | - ✔️ | +-----------------------------------+-----------------------------------+ | Lecture and Slides | ✔️ | +-----------------------------------+-----------------------------------+ | Seminar Questions & Answers  | | +-----------------------------------+-----------------------------------+ | Exam Notes | | +-----------------------------------+-----------------------------------+ 1. **[Jurisdiction]** 3 different sources for the right to ask for judicial review:\ 1) Common Law  2\) The Constitution  3\) Statute **Textbook: Pages 293-320** - Need to determine if a state, territory or commonwealth matters. - Then determine whether the court, statute or the CL (or Constitution) have jurisdiction  - At federal level: a decision must be made whether to commence a judicial review action under statute or under jurisdiction conferred by the Constitution, Judiciary act or both.  **1.1 *Common law judicial review*** - State and territory courts can undertake judicial decisions of inferior courts, administrative tribunals and other decision makers  - Applying the CL that has been developed regarding judicial review grounds and remedies  - Superior v Inferior courts  - Determining whether a court will be subject to judicial review  - Supreme court to HCA - *Kirk v Industrial:* the court was designated by s 152 Industrial Relations Act as a 'superior court' and yet it was amenable to the supervisory of the Supreme court because it was a court which had limited defined jurisdiction. [Historical origins:] - Back to the english courts  - Recognised in constitution  - Procedures of the prerogative writs that were the origins of judicial review  - In mediaeval times judges had powers under judicial and administrative areas of law - Establishing jurisdictional error is a prerequisite to obtaining the CL prerogative writs of mandamus and prohibition - Courts often make orders in the nature of the prerogative writs. - One of the 2 main bases for obtaining the CL prerogative writ of certiorari (the other being error of law on the face of the record) **1.2. *Constitutional judicial review*** - S 71 Establishes the HCA as the federal supreme court  - S 73 confers a general appellate jurisdiction  - S 75 original jurisdiction  - Constitution Entrenches judicial review in Australia. **1.2.1. At the High Court: ** **Section 75(v)**: jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Cth. Cannot be removed by statute. Court can hear any application which challenges a decision of an officer of the Cth on the grounds of jurisdictional error.  - Correct jurisdictional error  - Provides for the injunctive relief that may be available in some circumstances even without establishing jurisdictional error. - [Against officer: ] - - - - - - - - *NOT AGAINST: HIGH COURT JUDGES: Re Camody.* - Must be a matter for determination: there is a real legal controversy between the parties capable of being decided by a court in the exercise of judicial power. *Fencott v Miller.* - Can grant remedy of certiorari where appropriate: *Re Refugee Ala.* **Section 75(iii):** jurisdiction in all matters which the Cth, or a person being sued or being sued on behalf of the Cth is a party). Broader and less technical  - Includes actions in contract or tort *(Cth v Mewett)* **Section 76:** empowers the Cth Parliament to confer additional jurisdiction on the HCA in specified classes of cases. **In the Federal Court:** **39B of the Judiciary Act 1903 (Cth):**  confers jurisdiction on Federal court in the same terms as the HCA s 75(v) jurisdiction. Replicates s 75(v) constitution. - Main difference: can exclude or make exceptions to federal court jurisdiction under s 9B however cannot under s 75(v) constitution - Mainly in migration Act cases: conferred jurisdiction in lower federal courts (Family court of australia division 2) so that applicant for judicial review who is unsuccessful can appeal to the federal court. - Concurrent jurisdiction with HCA against officers of Cth - An action must be a matter and must seek remedies against an officer of the Cth. - Expanded by s 39B(1A). - **Can apply CL of judicial review like state and territory courts** - **Rules of standing and justiciability and the grounds of review is drawn from the body of CL on judicial review.** - **Has jurisdiction in related to a limited class of migration decisions under the Migration Act 1958 (Cth) and a broader judicial review jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth).** **Under migration act:** - Own provisions conferring judicial review on FCFCOA and Federal court - S 476(1) Migration Act: FCFCOA has same original jurisdiction as s 75(c) HCA  - Exception: primary decisions - could be subject to merits review under pt 5, pt 7 or pt 7AA of the migration act. As well as decisions involving cancellation of visas on character grounds. - S 476A: judicial review jurisdiction on federal court. Limited to decisions relating to visa cancelling on character grounds which are not subject to merits review and character relate decisions of the AAT exercising merits review jurisdiction under s 500 Migration Act. - S 476A(1): excludes any jurisdiction that the federal court would otherwise have by virtue of the grant of jurisdiction in s 39B of the Judiciary act. - Merits review to be exhausted first - then applies to FCFCOA instead of federal court. *Re McBain; ex parte Australian Catholic Bishops Conference (2002)* 209 CLR 372 *Plaintiff M61/2010E v Commonwealth* (2010) 243 CLR 319 (the 'Offshore Processing Case') - Asylum seekers had undergone an independant merits review after an initial assessment by DOI and had found plaintiffs not genuine refugees to whom aus had protecton obligations - Undertaken by independent contractor  - No express statutory basis but was undertaken for the purpose of the Minister considering whether to exercise his powers under the Migration Act  - No direct legal effect only a recommendation made to minister  - Not officers of Cth - Jurisdiction of the HCA to grant a remedy:  - - - *Re Refugee Rewview Tribunal Ex parte*, Gaudron and Gummow JJ: S 75(v) may not add to the jurisdiction conferred by s 75(iii). Would mean that entrenches the HCA power or jurisdiction to grant particular judicial review remedies. - *R v Panel on Takeovers and Mergers;* Ex Parte Datafin Plc \[1987\] 1 QB 815. - *Ainsworth v Criminal Justice Commission* (1992) 175 CLR 564 - *Western Australian Field and Game Association v Minister of State for Conservation* (1992) 8 WAR 64. - *Fencott v Muller* (1983) 152 CLR 570 **1.3. *Statutory judicial review*** Three types of actions to which the ADJR applies:  \(1) Decisions \(2) Conduct for the purpose of making a decision and  \(3) Failure to make a decision. -  ss 3, 5, 6, 7 and Schedule 1 of the AD(JR) Act 1977 (Cth) - Act grants the federal court or FCFCOA statutory judicial review jurisdiction.  - Jurisdiction can be involved under both this act or S 39B of the Judiciary act. *Commonwealths Administrative Decisions (Judicial Review) Act 1977* (Cth): (AD(JR) ACT).  - Relevant to the states aswell as Cth - Codified existing CL grounds and simplified judicial review procedures and remedies.  - Operates concurrently alongside CL review  - Federal level: may turn to judicial review under s 39B of the JA instead of or additional to the AD(JR) act; or  to the HCA s 75(v). - Decisions by GG are not decisions to which the act applies. Reflected CL at the time act was made but not recent times. - Can be curtailed: parliamentary supremacy means that what parliament gives, parliament take. Includes a long list of exclusions: Sch 1 of the Act. E.g. s 3(da) and (db) of Sch 1 - decisions by Migration Act as private clause decisions or purported private clause decisions are decisions to which the act does not apply. [1.3.1 What is a 'decision to which the Act applies'?] ***S 3 AD(JR) Act: \"decision to which this Act applies\"*** means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this [definition](http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1977396/s9b.html#definition)): \(a)   under an enactment referred to in [[paragraph]](http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1977396/s13a.html#paragraph)   (a), (b), (c), (d) or (e) of the [[definition]](http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1977396/s9b.html#definition) of ***enactment*** ; or   (b)   by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in [[paragraph]](http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1977396/s13a.html#paragraph)   (ca), (cb) or (f) of the [[definition]](http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1977396/s9b.html#definition) of ***enactment*** ; other than:   (c)   a decision by the Governor - General; or   (d)   a decision included in any of the classes of decisions set out in Schedule   1. - Decisions made by GG excluded under Sch 1.  - Not all decisions to which this act applies are reviewable under the act: regulations made under s 19 of the act may declare classes of decision that are not subject to judicial review under the act. **S 5(1) AD(JR): grants a right of judicial review in respect of decisions** \(1)   A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division   2) for an order of [[review]](http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1977396/s9.html#review) in respect of the decision on any one or more of the following grounds:  **[S 6(1): applies to conduct for the purpose of making a decision]** **[S 7(1): applies to failure to make a decision where a person has a duty to do so.]** **[To determine whether the federal court or FCFCOA gas jurisdiction, need to consider: ]** 1. *What actions fall under the definition of 'Decisions' for the purposes of the act* *'Making a decision": defined in s 3(2) of the AD(JR) Act* \(2) In this Act, a reference to the making of a decision includes a reference to:  (a) making, suspending, revoking or refusing to make an order, award or determination;  (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;  (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;  (d) imposing a condition or restriction;  (e) making a declaration, demand or requirement;  (f) retaining, or refusing to deliver up, an article; or  (g) doing or refusing to do any other act or thing;  and a reference to a failure to make a decision shall be construed accordingly. *Australian Broadcasting Tribunal v Bond* (1990) 170 CLR 321:  - ABT was considering whether to revoke or suspend broadcast licences held by companies that were effectively controlled by Alan Bond through shareholdings.  - S 88(2) Broadcasting act Cth 1942  - ABT had not decided yet whether to revoke any license  - Made and published findings that Mr Bond and the cpm,anoes were not fit and proper persons to hold licenses.  - Conduct by Bond: inappropriate payments to Premier of QLD for settling defamation proceedings and also allegations that he threatened to use television station staff to gather information about a competitor.  - Issue: whether the findings and rulings were 'decisions' for the purposes of the act. - **Mason CJ:** Will generally but not always entail a decision that is final, operative and determinative of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, might accurately be described as a decision under an enactment. **Another essential quality of a reviewable decision is that is be a substantive determination.** - **Important to confine judicial review to final decisions to avoid fragmentation of the processes of administrative decision making. ** - To determine whether final: extends concept of decision. S 3(3).  *Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.* - Needs to be substantive determination. - If decisions were to embrace procedural determinations, then there would be little scope for review of 'conduct', a concept which appears to be essentially procedural in character.  - Conduct of hearing in refusing an adjournment that is subject of review.  - **held:** the findings that the licensees were not fit and proper persons to hold licences were held to be intermediate determinations made on the way to an ultimate decisions. - Viewable decisions for the purpose of the AD(JR) Act. finding that was not a fit and proper person was an essential step in reasoning process and a substantive determination, but not one expressly required under the statute and so not separately reviewable as a decision.  - Not reviewable as 'conduct'.  *Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee* (2007) 163 FCR 451 *Griffith University v Tang* (2005) 221 CLR 99 ***1.3.4 What is 'conduct'?*** *S 6(1) AD(JR): * *(1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the conduct on any one or more of the following grounds:* *S 3(5) provides: * *(5) A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation.* *Australian Broadcasting Tribunal v Bond* (1990) 170 CLR 321 - **Mason CJ:** 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.  - Conduct points to action, rather than a decision made, for the purpose of making a reviewable decision.  - Conduct looks to the way in which the proceedings have been conducted, the conduct of proceedings, rather than decisions made alone the way with a view to the making of a final determination.  - Conduct is procedural and not substantive in nature.  ***Decisions v Conduct: Mason CJ*** - A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision.  - Procedural in nature - Conduct: the process of decision making was flawed - Decision: the complaint is that the actual decision was erroneous. [Examples of reviewable conduct:] - Rejection of a tender for k: *Berkeley * - The issue of notice of intention to exercise statutory powers: *Tesla*  - The making of a direction to provide evidence in support of an application by a specified date*: Somnomed.* The conduct must be part of the procedure undertaken for the purpose of making, or leading up to making, a reviewable decision: *ABT v Bond.* *Miller v Goldfields land and Sea council: conduct must relate to a decision that would be reviewable under s 5.* - Goldfields was a representative body for purposes of NTA - Functions included the provision of facilitation and assistance in relation to NT claims  - S 203BB(2) - Solicitors for Mr Miller wrote to Goldfields to apply for funding assistance in relation to claim - Had a conflict of interest and letter stated Mr Millers application to be determined by independent body  - CEO for Goldfields informed Mr Miller that he did not believe there was a conflict of interest and intended to determine application himself.  - Mr Miller commenced action under AD (JR) Act. - Failed: there had been no reviewable decision because he had not applied for the claim yet and therefore Goldfields had not taken any action that was required or authorised by the enactment. - **White J:** there must be a proper connection between the impugned conduct and a decision under the enactment. Lack of connection  when the occasion for a single discharge of statutory function has not yet arisen and may never arise.  **Thus:** - If reviewable decision has been made - no point in separately seeking a review of conduct that led up to decision, the judicial review applicants should normally confine their application to the challenging the decision on one or more grounds in s 5 *(Minister for Immigration).* ***1.3.3 What is a 'failure to decide'?*** **S 7 AD(JR): ** *(1) Where:* \* (a) a person has a **duty** to make a decision to which this Act applies;* \* (b) **there is no law that prescribes a period** within which the person is required to make that decision; and* \* (c) the person has **failed to make that decision;*** *a person who is aggrieved by the failure of the first‑mentioned person to make the decision may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the failure to make the decision on the ground that there has been **unreasonable delay in making the decision.*** \* (2) Where:* \* (a) a person has a duty to make a decision to which this Act applies;* \* (b) **a law prescribes a period within** which the person is required to make that decision; and* \* (c) the person failed to make that decision before the expiration of that period;* *a person who is aggrieved by the failure of the first‑mentioned person to make the decision within that period may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the failure to make the decision within that period on the ground that the first‑mentioned person has a duty to make the decision notwithstanding the expiration of that period.* **Duty:** - Crucial element - If a statute confers a discretionary power on a decision maker, the decision maker will be under a duty to determine any application that is made for the power to be exercised: *Murphoyres.* *WH Soul Pattinson & Co v Secretary:* - Issue as to whether the secretary of the department of health was under a duty to decide whether to cancel an approval that had been granted to a group of pharmacists to dispense pharmaceutical benefits once satisfied that the pharmacists were no longer carrying on a business at the premises  - Owners of shopping centre where located redeveloped the premises increasing the size of shop and rental - The pharaicsts wanted to keep shop at existing size and when landlords refused pharmacy closed.  - WH Soul Pattinson wished to relocate their pharmacy business to the premises  - WH soul pattinson applied to Federal Court under s 7 AD(JR) on the ground the secretary had failed to make a decision a bout whether to council Mr Browns Approval.  - S 98(3) National Health Act 1953 - No time period for making decision - Under a duty to accord pharmacists who held the approval procedural fairness and allow them to be heard - Had to take time to consider the matter  - Unreasonable delay *Carter v Minister for Aboriginal Affairs:* - No duty to decide  - Minister had the discretion to decide to do nothing, did not make a decision for AD(JR) purposes and had no duty to decide for the purposes of s 7 of the AD(JR) act ***What decisions are subject to review:*** To decide whether the Federal Court or FCFCOA has statutory Review Jurisition: is this a decision to which the AD(JR) act applies?  1. ***What actions fall within the definition of decision under the act*** ***S 3 AD(JR) Act: \"decision to which this Act applies\"*** means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this [definition](http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1977396/s9b.html#definition)): \(a)   under an enactment referred to in [[paragraph]](http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1977396/s13a.html#paragraph)   (a), (b), (c), (d) or (e) of the [[definition]](http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1977396/s9b.html#definition) of ***enactment*** ; or   (b)   by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in [[paragraph]](http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1977396/s13a.html#paragraph)   (ca), (cb) or (f) of the [[definition]](http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1977396/s9b.html#definition) of ***enactment*** ; other than:   (c)   a decision by the Governor - General; or   (d)   a decision included in any of the classes of decisions set out in Schedule   1. - Governors and GG in QLD, ACT and TAS no longer immune 2. ***Decision of an administrative character:*** - Excludes legislative or judicial nature  - Precludes AD(JR) from most decision sin court - Executive: promulgating subordinate legislation, which provides the technical detailed for the broad framework established by parliament.  - Regulations - Distinction w delegated legislation: the executive is creating or formulating new rules of law that have general application. When the executive makes administrative decisions, general rules are applied to particular cases.  *Roche Products v National Drugs:* - Therapeutic Goods Act establishes the National Drugs and Poisons Schedule committee with functions that included the maintenance and amendment of the poisons standard.  - Committee decided drug for excessive body weight could be supplied by a healthcare professional without a prescription and could be advertised directly to consumers  - After complaints about advertising the committee reconsidered that decision and reclassified the drug so no longer advertised to consumers - Sought review (Roche) of the committees decision under both the AD(JR) and s 39J Judicary act.  - **Legislative in character:** inclusion of substance in a particular schedule of poisons standard determine the future lawfulness of conduct in relation to substance, any decision made would apply to the substance in general, public consultation was important in the decision making process, the poisons standard was an important element of a national system of regulation of goods and the decision included a broad public health policy considerations, no merits review for committees decision and decisions required to be published in the Gazette and with specific exceptions could not be carid or controlled by executive. - Not reviewable under the AD(JR) act  3. **Decisions made under an enactment** - S 3 definition  - Cth acts and instruments made under those acts  - Decisions made under state generally fall outside scope but may be included by listing in sch 3  - AD(JR) act is concerned with decisions which being authorised or required by an enactment, are given force or effect by the enactment or by principle of law to the enactment: *Tesla.* *Griffith University: * - Decision to exclude a student was not a decision under enactment and was not reviewable under the QLD equivalent of act  - Did not follow that any administrative decision made in the exercise of those powers was a decision made under that enactment - Derived from relationship between university and student - Look at: - Does the decisions derive from the enactment the capacity to affect legal rights and obligations? - Are the legal rights and obligations affected by virtue of statute? - If from k or other private source - not made under an enactment  - A statutory grant of a bare capacity to contract does not suffice to endow subsequent contracts with the character of having been made under that enactment. 4. **Decisions excluded under Sch 1:** - - - - - General principles to exclusions: Page 318 ***Choosing a judicial review jurisdiction: Which court? Which avenue?*** **3 ways for federal sphere:**\ 1. HCA under s 75(v) Constitution 2\. The federal courts jurisdiction under s 39B judiciary act Cth 3\. Jurisdiction of the Federal and FCFCOA under AD(JR) Act Process: 1. Identify the decision the applicant wishes to challenge, who made (or purported to make) the decision and the source of power.  2. Cth level: AD(JR) more straightforward and less technical. Grants Jurisdiction to Fed and FCFCOA. Ak:  - Is there a decision, conduct or failure when there was a duty to do so under ss 5, 6 or 7? - Is there a decision to which the act applies, a decision of administrative character made under enactment?  - Is this a decision made by the GG? - Is the decision excluded by sch 1? - If review is available under the act, an applicant who elects to commence proceedings in the federal court may also invoke the court\'s s 39B jurisdiction. Common for applicants in the fed court to seek review under both AD(JR) and s 39B Jurisiction. 3. If unavailable for AD(JR): the applicant must choose between review in Fed Court under s 39B or HCA under s 75(v).  - - **Concept of jurisdictional error:** - A person challenging executive action in judicial review proceedings must argue that a reviewable error has been made: grounds of review are bases for arguing that an error has been made and court should grantr relief:  - The ground for CL judicial review: an error of law that has resulted in the decision maker going beyond the limits of their power or decision making authority.  **2.0. Justiciability** Textbook: pages 341--49 of Chapter Ten Not every administrative action is amenable to judicial review, notwithstanding that it may be infected by legal error. Administrative action is amenable to judicial review if it is justiciable. - There are some decisions which the courts will decline to review, or to review on particular grounds (non-justicable)  - Some matters involve complex issues of politics, economics and international relations - Some matters are simply not amenable to the judicial process - Or require expertise the courts do not have  - Such as prerogative power to go to war against another country: even this power must have enforceable limits. E.g. if prime minister claiming to exercise the power to declare war purported to cancel visa, the courts would declare this is not an exercise of power to declare war. - A matter will not be held to be non-justiciable merely because it is politically sensitive or has political consequences: *Bennet v Cth.* - Based on particular circumstances and nature of power being exercised.  - **2.1 The Traditional Approach** **2.1.1 Source of the Power** - Open to review of the exercise of statutory powers rather than non - ***Council of Civil Service v Minister:*** opened up prerogative powers to judicial review, leaving justicablity to be determined by reference to the subject matter of the decision in question. Held: the relevant factor is not the source of power but the subject matter of the decision. - - Resons for judicial review: affects the right of the citizen, there may be a duty to exercise the discretion one way or another, the discretion may be precisely limited in scope, it may be conferred for a specific or ascertainable purpose, and it will be exercisable by reference to criteria or considerations express or implied.  **2.1.2 Status of the Decision Maker** *R v Toohey; Ex parte Northern Land Council* (1981) 151 CLR 170 - An exercise of statutory power (planning law) conferred on the administrator of the NT, which was exercised on the advice of executive council was held to be justiciable  - Held could review the exercise of statutory power regardless of status of decision maker:  - "The courts will, at the instance of a litigant, examine the exercise of powers so granted (ie granted by statute) determining whether their exercise is within the scope of parliaments grant of power"\\ - High level decisions by Cabinet and Governors have been held to be justiciable if the nature of the decision is such that procedural fairness ought be accorded:  - The GG acting on advice of ministers was required to accord procedural fairness when deciding whether the renew an approval to insure for workers compensation liability in Victoria.  **2.2 The Modern Approach: Subject Matter** - Usually prerogative inappropriate for review  Not appropriate to review: - Initiating prosecutions: *Maxwell v The Queen* - Exercise of the prerogative to enter a nolle prosequi: *Maxwell v the Queen* - Equivalent powers in statute: *DPP Act 1983 Cth S 4* - Independence and impartiality of the court would be comprised: Maxwell v the Queen - Decision by GG to grant a fiat to a realtor action: *R v Toohey* - Decisions to investigate or take part in steps in criminal proceedings to which a government or official is a party: *Barton v The Queen* - Removal of minister in Office: Steward v Ronalds - Appointment to judicial office: Waters v Acting - Appointment to Kings counsel: Above Prerogative: - Even if exercise of prerogative itself non-justicable: the processes leading up to a decision concerning exercise of prerogative of mercy may be reviewed, particularly where processes are regulated by statute: Eastman v A-G * Minister for Arts, Heritage and Environment v Peko- Wallsend Ltd* (1987) 15 FCR 274: - Full court held that Cabinets decision to seek the inclusion of stage 2 of Kakadu National park on World heritage non-justiciable  - Peko held mining leases in area - Bowen CJ: polycentric nature of decision, complexity of policy considerations of multiplicity of interests that had to be considered - Best left to political arena - Beyond review of court: complex policy questions relating to the environment, the rights of aboriginals, mining, impact of Australia\'s economic position of allowing and private interests.  - Wilcox J: Cabinet decision did not itself affect the rights, obligations, or expectations of a person and whilst decision did disadvantage Peko-Wallsend, did not have a sufficiently direct effect. - *Aye v Minister for Immigration and Citizenship* (2010) 187 FCR 449 - Minister of foreign affairs: imposed financial sanctions on senior members of the Burmese military dictatorship and later extended to their adult children - Zin Mon - in Aus on student visa, father was a member - Minister decided that Ayes presence was contrary to Aus foreign policy interests and cancelled study visa - Aye argued ought to have opportunity to be heard, as estranged from parents so thought all considerations need to be given to particular circumstances - Federal court held: non-justiciable because it involved foreign policy and Aye was looking to present arguments about scope of policy - Lander J: dissent - decision had no policy implications so was justicable Steward v Ronalds: Even if lives and reputations affected courts will not review decisions with subject matter that is non-justiciable - Advice given by premier to NSW Lieutant Governor on the appointment of members of Executive Council and ministers  - Steward was a former minister and Executive council and was investigated for misconduct  - Acting on advice of premier - LG withdrew Mr Stewards commission as a minister  - Mr Steward argued should have been accorded procedural fairness and a right to be heard - Held: non-justiciable. "Would assert an entitlement to scrutinise the substance of that advice and the process leading to its formation. These are quintessentially political questions. This is not  a function of the courts, it is a function of the Parliament and through it the people of NSW." ***Justiciability and statutory judicial review:*** - The CL relating to justiciability does NOT apply to the AD(JR) act. - Rather, the council considers that specific decisions should be assessed for exclusion from the AD(JR) act on a case by case basis: Administrative Review Council *Lecture:* *2 main avenues for Cth Judicial Review:* 1. S 75(V) AC & S 39B Judiciary Act 2. Administrative Decisions (Judicial Review) Act. The tests that have to be satisfied in order for the court to hear an application for judicial review differentiate.  ***Section 75(V) AC & S 39B Judiciary Act:*** *s 75 In all matters\...* *(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth the High Court shall have original jurisdiction* HCA has no inherent jurisdiction. its jurisdiction comes from the Constitution. It has original jurisdiction. Only want to hear matters with important legal issues. - SEE ALSO S 44 JUDICIARY ACT: permits HCA to remit matters back to the Federal Court. - AND S 39B: when matters are remitted to Federal Court. Gives federal court jurisdiction. This means HCA can either hear the matter if it is of significant importance or remit it to the Federal Court.  ***Jurisdictional Requirements: *** 1. **Matter:** a "matter" is "[a controversy about rights, duties or liabilities which will, by the application of judicial power, be quelled":] *Re McBain; Ex parte Australian Catholic Bishops Conference; Fencott v Muller Officer of the Commonwealth Plaintiff M61/2010E v Commonwealth.* - HCA cant under s 75(v) answer hypothetical questions. Such as whether a minister had the power to make a decision.  2. **Officer of the Cth:** *Plaintiff M61/2010 v Cth.* Cth Government Minister will be an officer of Cth. Employee of a cth gov department. Head or employee of a Cth gov agency. Little authority.  - - - - - 3. **An available remedy:** mandamus and prohibition. (prerogative writs, constitutional writs).  - - - - - ***Limitation on Prohibition and Certiorari: public power. *** - In order for prohibition and certiorari to operate, it is necessary that the decision that is sought to be challenged be made pursuant to the exercise of public power. *R v Panel on Takeovers and Mergers; Ex Parte Datafin Plc* \[1987\] 1 QB 815:  - Administered stock exchange in london and was able to exclude a party from stock exchange - Power was de facto: no statute empowering the panel and it didn\'t enter into contracts with members of stock exchange.  - Datafin sought judicial review on being excluded from the stock exchange on the basis there was no proper hearing.  - Question: had the panel exercised public power? - Held: it did exercise public power. **A body, in carrying out a particular function, exercises public power if, in the absence of a private body carrying out the function, the government would invariably carry out the function (Datafin.) THIS TEST IS ONLY APPLIED WHEN NO STATUTE APPLICABLE. ** - **CRITICISED: does not provide criteria whether gov would invariably carry out a function** ***Limitation on certiorari: quashes legal effect or consequences. *** Certiorari operates only to quash the legal effects or the legal consequences of the decision under review (See eg *Ainsworth v Criminal Justice Commission).* - A body established under statute - criminal justice commission - Prepared a report for the Qld parliament about possible introduction of poker machines  - Report was critical of the ainsworth companies - recommended that those companies not be allowed to participate in gambling machine industry  - Ainsworth applied for certiorari to have the report quashed.  - Application unsuccessful because held the report itself didn\'t have any legal effect or consequences.  - Harmful to reputation - result would not have necessarily followed. The gov may have allowed the company to participate in the poker industry notwithstanding the report. ***Limitation on Mandamus: public duty*** An order for mandamus will lie only in respect of a public duty to exercise a discretion (See eg *Western Australian Field and Game Association v Minister of State for Conservation).* - Western Australia Wildlife conservation act of 1950 - the minister was empowered to declare for the purposes of hunting an open season for any fauna - Minster did not consider one way or the other to declare an open season - Applicant WA game and field - sought an order for mandamus that the minister make a decision for the open season. - Failed: pursuant to terms of legislation, the minister was not under any duty. Said it was up to the minister as to whether he wanted to consider the issue. Broad purpose of act - conservation of wildlife.  - Example purpose act: purpose of the act is to hunting.  - The court, in granting an order for mandamus, will never order that the decision-maker comes to a particular decision -- it will merely order that the decision-maker ***[exercises his discretion.]*** - Overstepping boundary  - Breach of SOP  - Push for a decision because: if decision reached can argue decision reached is wrong. **[Limited use of these remedies in regards to judicial review. Not subject to above limitations. ]** - - ***S 75(iii): *** *In all matters\...(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party... the High Court shall have original jurisdiction.* - Uncertain role - More broad - Plaintiff M61: real doubt as to whether employees. Wizard people being sued on behalf of the cth.  - Operates as a fallback mechanism. - If review under s 75(v) isnt available - this provision may be relied on. ***The AD(JR) Act:*** - Simpler and more accessible under AD(JR) ***Jurisdictional Requirements:*** 1. There needs to be a **decision:** Review may only be sought in respect of a decision (s 5); conduct in relation to a decision (s 6); and the failure to make a decision (s 7). - 1. **Decision:** **Section 3 Interpretation** \(2) In this Act, a reference to the making of a decision includes a reference to :  1. making, suspending, revoking or refusing to make an order, award or determination; 1. giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; 1. issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; 1. imposing a condition or restriction 1. making a declaration, demand or requirement 1. retaining, or refusing to deliver up, an article; 1. doing or refusing to do any other act or thing. \(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision - Stepping stone provisions: ancillary decisions. Deciding on little issues to determine one big answer *Decision (Australian Broadcasting Tribunal v Bond):* a reviewable decision, for the purposes of the AD(JR) Act, will be a decision for which provision is made under the relevant statute - Premier of Qld: claimed to be liable by Channel 9. Company that owned channel 9 was subsequently bought by the Bond group of companies controlled by Alan bond.  - Out of court settlement between company that owned channel 9 and premier of Qld. - Labour part in opposition claim settlement was a bribe to premier from bond and his companies to buy favourable treatment from bond companies from the Qld government  - ABT investigated mater  - Had to decide under legislation whether to revoke licence  - Decided should be revoked. In making of decision, had to decide stepping stone. Eg deciding settlement offer had been excessive. Alan bond not a fit and proper purpose. Bond personally held influence over company that had license.  - Sought judicial review of each findings - HCA questions arose: whether these and other decisions were decisions for the purposes of the AD(JR) Act ***(Australian Broadcasting Tribunal v Bond per Mason CJ) ;*** A decision for **which provision is made under a statute** will generally, but not always, be a decision that is final and operative of the issue falling for consideration.  - Statute makes provision for making of the decision. - Making of penultimate decision as provided in the legislation  - Key determinate: did the statute provide for the particular decision to be made? *A conclusion that is merely reached as a step along the way in the course of reasoning leading to an ultimate decision will not ordinarily be a reviewable decision in itself unless the statute provided for the making of a finding on that particular point.* - Held: these determinations (fit and proper person (company)) was a decision for the purpose of the AD(JR) act. - However: decisions that bond himself was not a fit and proper person and he held considerable influence over the company were NOT reviewable decisions. And settlement is excessive. Act did not provide for the making of these decisions.  - It didn\'t follow that breaches of the grounds of review committed in making those decisions would be immune from review. Because: court suggested that any errors of law, any breaches of the grounds of judicial review that are made in these stepping stone decisions which are not provided for in the legislation, will nonetheless flow into or roost within the decision that could be reviewed. Tainting the decision.  ***Breaches of the Grounds of Review in Non- Reviewable "Stepping-Stone" Decisions: slide 15*** Breaches of the grounds of review that occur in respect of non-reviewable 'stepping- stone' decisions flow into the reviewable decision to which the 'stepping-stone' decision leads (and so are treated as if they were made with respect to the reviewable decision)  \*The decision is unreviewable because the making of the decision is not provided for in the relevant legislation. †The decision is reviewable because provision for the making of the decision is contained within the relevant legislation. - **Conduct:** conduct in relation to a decision is activity, of a procedural nature, taken in relation to a reviewable decision (Australian Broadcasting Tribunal v Bond per Mason CJ). Such as interviewing witnesses or taking evidence. Needs to be procedural.  **Limitations of decisions:** **Schedule 1** -- lists decisions to which this act does not apply **Section 3** -- decisions of the Governor General are not subject to review. ***(b) Of an administrative character*** [Legislative v Administrative:] Legislative acts are concerned with the creation or formulation of new rules of law having general application while administrative acts were concerned with the application of those general rules to particular cases: ***Commonwealth v Grunseit*** *Roche Products v National Drugs:* - Had power to determine which drugs could be listed on the Poisons standard - If it was - could be advertised directly to consumers  - The Australian medical committee complained about the drug - and essentially was removed and could not longer be advertised. - Roche sought JR - question was decision to remove drug was of administrative character and not legislative. - Concluded: legislative. - The decision under s 52D(2) was legislative (not administrative) because (inter alia): ***(c) under an enactment *** Enactment -- includes an Act, and also, amongst other things, an instrument (including rules, regulations or by-laws) made under an Act (s 3). *Griffith University v Tang:* - Established a body corporate under the act - Has same power as a legal person (s 6) - Was the decision to exclude made under an enactment? - 2 conditions need to be satisfied: **A decision will have been made under an enactment if:** - the decision was expressly or impliedly required or authorised by the enactment (similar to *Bond* Analysis) **[and ]** - the decision itself confers, alters or otherwise affects legal rights or obligations (Griffith University v Tang). - - - - Held: the decision to exclude didn\'t impact on any legal rights or obligations. Pleaded consensual relationship between her and university and didn\'t argue there was a contract. If had argued: could have held that the decision was not made under an enactment. Contracts are private.  ***Which regime do we choose?*** - AD(JR) will be default act - May rely on s 75(v) if: legislative in character or in Sch 1 of AD(JR) and if the decision was made by GG.  - Also: if the act contained a privative clause. Provisions in legislation which purport to remove the courts ability to grant JR. can defeat AD(JR). Will not be effective in removing s 75(v) jurisdiction: constitution is a legal instrument. If conflict - piece of legislation will be struck out. S 109 prevails.  **Non-Justiciability:** Non-justiciability -- in the court's view the matter is not appropriate for adjudication by a court of law. - It is no longer the case that a decision will be non-justiciable because of the high status of the decision-maker, or because the decision is made pursuant to the exercise of prerogative power (*R v Toohey; ex parte Northern Land Council)*. **Remaining bases of non-justiciability:** The subject-matter of the power being exercised, where this is highly political *(Minister for the Arts, Heritage and the Environment v Peko Wallsend*).  - Fed cabinet nominated National park for inclusion of heritage list.  - If made - gov would have statutory power to stop mining activities in the park - Peko had mining rights - sought judicial review - on basis that it hadnt been given a hearing before decision made - Held- nonjusticiable. Politics. Had significant implications of policy matters and allocation of resources. - Does Not get involved in the substance and merits of the decision. **Bowen CJ -** "*the whole subject-matter of the decision involved complex policy questions relating to the environment, the rights of Aborigines, mining and the impact on Australia's economic position of allowing or not allowing mining as well, as matters affecting private interests such as those of the respondents to this appeal. It appears to me that the subject-matter of the decision\...placed the decision beyond review by the courts"*. *Aye v Minister for Immigration and Citizenship.* - Applicant was studying in aus on student visa - Daughter of member of dictatorship - Gov imposed sanctions on members and family members - On policy visa was cancelled - Sought judicial review on several grounds: extended to children was wrong. Bad on merits. Argued that cancelling visa Minister had failed to take into account consideration - nothing adverse against the applicant personally.  - Not for court to assess gov policy. Different arguments if policy has not been applied properly. - Non justiciability will only arise if, in applying a particular ground of review, the court has to pass judgment on the merits of the decision; -  If it has to do this, then the decision will be non-justiciable at least as far as that ground of review is concerned. [Week 3: ] Topic 3:  Standing +-----------------------------------+-----------------------------------+ | Study Guide | ✔️ | +===================================+===================================+ | *Government Accountability:* | Textbook: pages 349--67 of | | 'Textbook' | **Chapter 10** ✔️ | +-----------------------------------+-----------------------------------+ | *Sources and Materials*: 'SM': | S&M book: pages 288--97 of | | Under TextBook Resources | **Chapter 10** ✔️ | +-----------------------------------+-----------------------------------+ | Cases | **3.1 The Attorney General** | | | | | | *Re McBain;* ex parte | | | Australian Catholic Bishops | | | Conference (2002) 209 CLR 372 | | | | | | **3.2 Special Interest Test** | | | | | | *Australian Conservation | | | Foundation v Commonwealth (1980) | | | 146 CLR* 493 | | | | | | **3.4 Indirect Interests** | | | | | | *Onus v Alcoa of Australia Ltd* | | | (1981) 149 CLR 27 | | | | | | *Ogle v Strickland* (1987) 13 | | | FCR 306 | | | | | | *Bateman's Bay Local Aboriginal | | | Land Council v Aboriginal | | | Community Benefit Fund Pty Ltd* | | | (1998) 194 CLR 247 | | | | | | *Argos Pty Ltd v Corbell* | | | (2014) 254 CLR 394 | | | | | | **3.5 Public Interest Groups** | | | | | | *North Coast Environmental | | | Council v Minister for Resources | | | (1994) 127 ALR 617* | | | | | | *Animals' Angels e.V. v | | | Secretary, Department of | | | Agriculture (2014) 228 FCR 35* | | | | | | *Right to Life Assoc (NSW) v | | | Sec, Commonwealth Department of | | | Human Services and Health* (1995) | | | 128 ALR 258 | | | | | | ✔️ | +-----------------------------------+-----------------------------------+ | Legislation | **3.3 Persons Aggrieved Test** | | | | | | ss 3(4), 5, 6 and 7 ADJR Act✔️ | +-----------------------------------+-----------------------------------+ | Lecture and Slides | ✔️ | +-----------------------------------+-----------------------------------+ | Seminar Questions & Answers  | ✔️ | +-----------------------------------+-----------------------------------+ | Exam Notes | | +-----------------------------------+-----------------------------------+ Not everyone can seek judicial review. The rules of standing determine who can and who cannot.  Textbook:  Standing to commence: - The right to be heard - Can be an individual, corporation or organisation affected by decision that initiates and controls the conduct of proceedings. - Can anyone challenge these decisions of general application? - Can someone else be allowed to challenge wrongful executive action? When there is a mixture of individual interests and matters of public policy involved. **3.1 The Attorney General: P 350** - AG can represent public in cases that affect the interests of the public and commence action sin their own name. - Isaacs J in Union Label case: the AG may protect public interest if whole community and public right infringed.  - Rare - Public interest: Aus Rail way unions v Vic: a state has a right to come into this court and defend its own personal legal territory and also any legal territory that it thinks will conduce to its welfare. - May seek a declaration that a law enacted by another government is invalid: Work choices case. - Have the capacity to grant individuals leave to commence realtor actions. May lend their standing to a person - the realtor - who wishes to challenge a decision who may not have standing. The AGs consent to a realtor action is called a 'fiat'. - * Re McBain; ex parte Australian Catholic Bishops Conference* (2002) 209 CLR 372: a grant for fiat was granted. - McBain was a gynaecologist and obtained a declaration from the federal court that enabled him to offer IVF treatment to single women - on basis provisions of the Infertility treatment act that excluded single women were inconsistent with the sex discrimination act and therefore inoperative as a result of s 109. - Parties: Victorian minister for health, the infertility treatment authority and Ms Meldrum who had sought treatment from Dr McBain.  - The Aus Bishops Conference was amicus courier - unable to appeal decision. - The Cth AG granted Bishops conference a fiat, which enabled it to bring the case before the HCA in a relator action. - The Cth AG sought to intervene because he and the realtor disagreed on some points.  - HCA held that AG was unable to intervene because was already a party.  - Although it was brought on the relation of private interests, it was regarded as the AGs own action. - Bishops conference did not succeed - provisions were inconsistent. **3.2 Special Interest Test: 352** - Private individuals with an interest greater than general public  - Must have a special interest in the decision beyond the interests of general public.  - - *Australian Conservation Foundation v Commonwealth* (1980) 146 CLR 493 - The ACF sought injunctive relief and declarations - Test was special interest test - Gibbs J: does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his actions succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief alone to standing is not sufficient.  - Cited in relation to standing for CL prerogative writs, statutory judicial review and merits.  - Not one test - necessary to look at standing tests for CL prerogative writs and equitable remedies have evolved. - Special interest: having a special interest in the subject matter of the action. Special damage cannot be limited to actual pecuniary loss, and the words peculiar to himself do not mean that the plaintiff and no one else must have suffered damage. Gibbs J Broad concept. - ACF failed to establish.  - Case concerned a proposal by a company to establish and operate a tourist resort in central QLD. - Company prepared environmental impact statement and made it public - ACF lodged a submission commenting on the environmental impact statement - When project granted approval - ACF commenced proceedings in HCA to challenge approvals on the ground that the procedures prescribed by legislation had not been followed.  - ACF sought declarations and injunctions  - Held: ACF lacked standing - merely emotional or intellectual and no greater of that than the general public,  Standing tests for prerogative writs: - Special interest test: where plaintiff seeks equitable remedies of injunctions or declaration  - The prerogative writ (and constitutional writ) of mandamus is also associated with special interest. May be asked: if none of the persons peculiar affected by the failure to perform that duty seek to have it performed, why should a stranger be entitled to compel that result? Re McBain. - Certiorari and prohibition: associated with the person aggrieved test. Batemans bay: possible that even strangers may be able to seek certiorari or prohibition. - Usually means someone whose interests not affected. Courts have discretion to refuse to entertain an action by a person who is not aggrieved by decision. **3.3 Persons Aggrieved Test** ss 3(4), 5, 6 and 7 ADJR Act Section 5: 5  Applications for review of decisions  (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds: Section 3(4) provides an inclusive definition of person aggrieved:  \(4) In this Act:  (a) a reference to a person aggrieved by a decision includes a reference: ** (i) to a person whose interests are adversely affected by the decision; or**  (ii) in the case of a decision by way of the making of a report or recommendation---**to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and**  (b) a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure. - If person wishes to be joined as a party in proceedings commenced by another: test under the AD(JR) act is whether they are a person interested in the relevant decision, conduct or failure to make decision: S 12(1) - Close to the special interest test - Ogle v Strickland: if applicants could establish they had a special interest then they would qualify as a person aggrieved for the purpose of the AD(JR) act. - Aus Institute of Marine: the broad measure of locus standi for legal and equitable remedies in public law - would be strange if the ADJR act provided some narrow criterion. It is ambulatory in its operation and draws within its scope a diverse and extensive collection of decision making processes, truely an enclosed class.  - Useful to draw on case law involving both tests. **Standing cases since ACF: ** Standing only becomes an issue when others beyond those who are obviously directly affected seek to commence or be joined in administrative law proceedings.  **3.4 Indirect Interests: 357** - Need not be legal or financial interest. *Onus v Alcoa of Australia Ltd* (1981) 149 CLR 27 - Involved aboriginal elders seeking to protect cultural relics.  - Aloca planned to build an aluminium shelter on land that it owned at Portland in Vic.  - The site contained relics from the settlement of the Gournditch-jmara aboriginal people. - Lorra