ADMINISTRATIVE LAW SUMMARY

Transcription

1 ADMINISTRATIVE LAW SUMMARY LAWSKOOL PTY LTD

2 ADMINISTRATIVE LAW CONTENTS The Framework of Administrative Law The scope and objectives of administrative law Accountability mechanisms Legalities/merits distinction Legalities/Judicial Review Merits Review and Tribunals Nature and Role of Tribunals Structure of Tribunals Tribunals in a system of government Nature and Scope of Merits Review The Administrative Appeals Tribunal (AAT) Jurisdiction Drake v Minister for Immigration and Ethnic Affairs: Contemporaneous Review: Commonwealth v Esber: The Ombudsman Ombudsman schemes: Human Rights Agencies The Australian Human Rights Commission The Australian Human Rights Commission is the main human rights agency in Australia. Its jurisdiction covers discrimination on the basis of: Brandy v Human Rights and Equal Opportunity Commission (1995) Discrimination Informal Merits Review Other methods of dispute resolution Other methods of controlling administrative action Rights to information Judicial Review in Australia Australian judicial review schemes and legislation The High Court The Federal Court The Federal Magistrates Court State Systems Re Wakim; Ex parte McNally Tetron International Pty. Ltd. v Luckman Remedies Available Certiorari and Prohibition Mandamus Injunction Declaration (b) An order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or refraining from doing, of which the court considers necessary to do justice to the parties Justiciability and Jurisdiction Justiciability and the Common Law Different powers and justiciability: C.C.S.U (House of Lords, UK) Minister for Arts, Heritage and Environment v Peko Wallsend Ltd: Jurisdiction under the ADJR Act Decision or conduct under the ADJR Act Director-General of Social Services v Chaney: Lamb v Moss: Australian Broadcasting Tribunal v Bond: Right to Life Association (NSW) v Secretary, Department of Human Services and Health Kelson v Forward Edelsten v Health Insurance Commission: lawskool.com.au Page 2

3 Peverill v Meir A decision of an Administrative Character s 3(1) ADJR Act Central Queensland Land Council Aboriginal Corporation v Attorney-General (Cth): Federal Airports Corporation v Aerolineas Argentinas (1997) Decision under an enactment Chittick v Ackland (1984) Australian National University v Burns General Newspapers Pty Ltd. v Telstra Corporation Judicial Review and the Criteria for Lawful Decision Making Legality/Merits Distinction Revisited Jurisdictional (Objective) Fact Doctrine Timbarra Protection Coalition Inc v Ross Mining NL Attorney-General (NT) v Hand, Minister for Aboriginal Affairs Minister for Immigration and Ethnic Affairs v Naumovska Corporation of the City of Enfield v Development Assessment Commission Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA Findings under particular grounds of review: State of Mind Phraseology Liversidge v Anderson Judicial Deference Chevron U.S.A Inc. v Natural Resources Defense Council: Baker v Canada ((Minister of Citizenship and Immigration) Corporation of the City of Enfield v Developing Assessment Commission Minister for Immigration and Multicultural Affairs v Jia and White Minister for Immigration and Ethnic Affairs v Wu Shan Liang Criteria for lawful decision making Narrow Ultra Vires; Unauthorised Decision Making Government legal authority statutory, executive and prerogative powers A and Others v Hayden (no 2) Congreve v Home Office Victorian Council for Civil Liberties Incorporated & Vardalis v Minister for Immigration and Multicultural Affairs Ruddock v Vardalis: Statutory Unauthorised Decision Making Church of Scientology Case (Church of Scientology Inc. v Woodward): Subordinate Legislation (Regulations) and Unauthorised Decision Making McEldowney v Forde: Shannahan v Scott Swan Hill v Bradbury Foley v Padley: State of South Australia v Tanner Decisions not made by authorised persons Distinction between delegates and agents: O Reilly vthe Commissioners of the State Bank of Victoria Department of Social Security v Alvaro Fazal Din v Minister for Immigration and Multicultural Affairs Words or expression importing a discretion or imposing an obligation Project Blue Sky v ABA Uncertainty As an implied statutory requirement Legislative Scope and Purpose Acting for unauthorised/improper purposes: Municipal Council of Sydney v Campbell R v Toohey; Ex parte Northern Land Council Multiple Purposes Samrein Pty Ltd. v Metropolitan Water Sewerage and Drainage Board: Considering Irrelevant Considerations Water Conversation and Irrigation Commission (NSW) v Browning Roberts v Hopwood Padfield v Minister for Agriculture, Fisheries and Food lawskool.com.au Page 3

4 4.3 Not Considering Relevant Considerations Minister for Aboriginal Affairs v Peko-Wallsend Tickner v Chapman (Hindmarsh Island Bridge Case) Hindi v Minister for Immigration and Ethnic Affairs Natural Justice When will natural justice apply? Legislative implication theory The Universal Implication Theory The multi-factorial approach to determining whether natural justice applies The nature of the interest affected The nature and role of legitimate expectations Haoucher v Minister for Immigration and Ethnic Affairs FAI Insurance v Winneke Minister for Immigration and Ethnic Affairs v Teoh Re. Minister for Immigration and Multicultural Affairs; Ex parte Lam Nature of the power being exercised Legislative and Factual Decisional Criteria Nature of the decision maker The effect or impact on the individual The legislative framework in which the decision is made Marine Hull & Liability Insurance Co Ltd v Hurford Twist v Council of Municipality of Randwick Circumstances implying that natural justice is not required General principles concerning the hearing rule Exclusion of the Natural Justice Hearing Rule The Bias Rule Minister for Immigration and Multicultural Affairs v Jia and White: Johnson v Johnson R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group Exceptions to the bias rule The probative evidence rule and the duty to inquire Executive policies, directions and representations The legal status of executive policies Ignoring or breaching a policy Nikac v Minister for Immigration, Local Government and Ethnic Affairs Ministerial Directions R v Anderson; Ex parte Ipec Air Ansett Transport Industries v Commonwealth Bread Manufacturers of NSW v Evans Statutory Directions Riddell v Secretary of the Department of Social Security Smoker v Pharmacy Restructuring Authority Administrative Tribunals and Government Policy Drake v Minister for Immigration and Ethnic Affairs (No. 1) Re. Drake and Minister for Immigration and Ethnic Affairs (No. 2) The Error of Fact/Error of Law Distinction The Distinction in the interpretation and application of error fact/error of law Applying legislation to the facts Fact Finding Rule Stating: Rule Application Azzopardi v Tasman UEB Industries Ltd Collector of Customs v Agfa-Gevaert Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd Hope v Bathurst City Council Error of Law/Fact Distinction under the ADJR Act Distinction at Common Law The No Evidence Rule lawskool.com.au Page 4

5 8. Unreasonableness Making a decision devoid of plausible justification Taveli v Minister for Immigration, Local Government and Ethnic Affairs Chan v Minister for Immigration and Ethnic Affairs Giving excessive or inadequate weight to a relevant consideration Making an erroneous factual finding on a point of some importance GTE (Australia) Pty Ltd. v Brown Failure to Seek Information Readily Available and Centrally Important Prasad v Minister for Immigration and Ethnic Affairs Videto v Minister for Immigration and Ethnic Affairs Failure to have proper regard to a departmental policy or representation Making a decision with unnecessarily harsh effect Wheeler v Leicester City Council (House of Lords): Edelsten v Wilcox: Inconsistent and discriminatory decisions Parramatta City Council v Pestell Consequences of Unlawful Decision Making The legality principle Wattmaster Alco Pty Ltd v Button The separation of powers principle Hoffmann-La Roche v Secretary of State for Trade and Industry Re. Kretchmer and Repatriation Commission (AAT) Minister for Immigration and Multicultural Affairs v Bhardwaj Project Blue Sky Inc. v Australian Broadcasting Authority Privative Clauses Types of privative clauses The Court s approach to privative clauses Anisminic s Case (1969): R v Hickman; Ex parte Fox and Clinton Plaintiff S157/2002 v Commonwealth (2003) Recent Developments Standing Australian Conservation Foundation v Commonwealth (1980) Onus v Alcoa North Coast Environmental Council v Minister for Resources Bateman s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund P/L (1998) HC Standing under ADJR Ogle v Strickland Standing before the AAT and other Tribunals lawskool.com.au Page 5

6 Cases (R v Hickman; Ex parte Fox and Clinton A and Others v Hayden (no 2)... 57, 58, 59 A v Hayden (No. 2) Abebe v The Commonwealth ACF v Forestry Commission 1988 FC AG v Great Eastern Railway Ainsworth v Criminal Justice Commission... 34, 99 Ainsworth v Criminal Justice Commission (1992) 175 CLR , 54 Andrews v Mitchell Anisminic s Case (1969): , 139 Anisminic s Case (Anisminic Doctrine) Annetts v McCann... 34, 91, 92 Ansett Transport Industries v Commonwealth... 35, 93, 115 ARM Constructions Pty Ltd. v Deputy Commissioner of Taxation Attorney- General (NT) v Hand Attorney- General (NT) v Hand, Minister for Aboriginal Affairs... 51, 53 Australian Broadcasting Tribunal v Bond Australian Broadcasting Tribunal v Bond Australian Conservation Foundation v Commonwealth (1980) Australian Conversation Foundation Inc. v Forestry Commission of Tasmania Australian National University v Burns Avel v AG (NSW) Azzopardi v Tasman UEB Industries , 121 Azzopardi v Tasman UEB Industries Ltd... 27, 122 Baker v Canada ((Minister of Citizenship and Immigration) Banks v Transport Regulation Board (Vic) (1968) 119 CLR Banks v Transport Regulations (Vic) (1968) 119 CLR Barton v Commonwealth Bateman s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund P/L (1998) HC Blackwood Hodge (Australia) Pty Ltd. v Collector of Customs (NSW) Botany Bay City Council v Minister of State for Transport and Regional Development Brandy v Human Rights and Equal Opportunity Commission Bread Manufacturers of New South Wales v Evans Bread Manufacturers of NSW v Evans British Oxygen Co. Ltd. v Minister of Technology , 113 Brownells Ltd. v Ironmongers Wages Board & the Drapers' Wages Board Burmah Oil Co Ltd v Lord Advocate Burns v ANU C.C.S.U v Minister for the Civil Service Cairns v Jenkins Calvin v Carr Carltona Ltd. v Commissioners of Works Central Queensland Land Council Aboriginal Corporation v Attorney- General (Cth) Chairperson, Australian Torres Strait Islander Commission v Commonwealth Ombudsman and Salisbury City Council v Biganovsky Chan v Minister for Immigration and Ethnic Affairs Chevron U.S.A Inc. v Natural Resources Defense Council Chittick v Ackland (1984) Church of Scientology Case (Church of Scientology Inc. v Woodward) Clenae Pty Ltd. v ANZ Banking Group Clough v Leahy Coal Allied Operations Pty Ltd v Australian Industrial Relations Commission Coco v R... 23, 60, 61 Collector of Customs (NSW) v Brian Lawlor Automative Pty Ltd Collector of Customs v Agfa- Gevaert Collector of Customs v Agfa- Gevaert Ltd lawskool.com.au Page 6

7 Collector of Customs v Pozzolanic Enterprises Pty Ltd Collector of Customs v Pressure Tankers Pty Ltd. and Pozzolanic Enterprises Pty Ltd , 123 Commissioner for ACT Revenue v Alphaone Commonwealth v Esber Commonwealth v Mewett Community and Public Sector Union v Woodward (1997) Congreve v Home Office... 58, 59 Cooper v Wandsworth Board of Works... 90, 132 Cooper v Wandsworth Board of Works (1863) 143 ER Corporation of the City of Enfield v Developing Assessment Commission Corporation of the City of Enfield v Development Assessment Commission Council of Civil Service Unions v Minister(CCSU) Courtney v Peters Craig v State of South Australia Craig v State of South Australia (1995) 131 ALR Deloitte Touche Tomatsu v Australian Securities Commission Department of Social Security v Alvaro Department of Social Security v Alvaro Director- General of Social Services v Chaney Drake v Minister for Immigration and Ethnic Affairs... 17, 20 Drake v Minister for Immigration and Ethnic Affairs (No. 1) Drake v Minister of Immigration and Ethnic Affairs... 14, 17 Duryappah v Fernando Ebner v Official Trustee Ebner v The Official Trustee in Bankruptcy Edelsten v Health Insurance Commission Edelsten v Wilcox Entick Errington v Minister for Health Ex parte Polemis FAI Insurance v Winneke... passim Fazal Din v Minister for Immigration and Multicultural Affairs... 70, 71 Federal Airports Corporation v Aerolineas Argentinas (1997) Federal Commissioner of Taxation v Futuris Fletcher s Application [1970] 2 All ER Foley v Padley... passim Forbes v NSW Trotting Club Forster v Jododex Australia Pty Ltd; Bass v Permanent Trustee Furnell v Whangarei High Schools Board Gaisford v Hunt General Newspapers Pty Ltd. v Telstra Corporation Gerah Imports Pty Ltd. v Minister for Industry, Technology and Commerce Green v Daniels... 49, 53, 94, 112 Griffith University v Tang GTE (Australia) Pty Ltd. v Brown GTE (Australia) v Brown Hamblin v Duffy Haoucher Minister for Immigration and Ethnic Affairs Haoucher v Minister for Immigration and Ethnic Affairs... 91, 92, 93, 94 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR Hindi v Minister for Immigration and Ethnic Affairs... 87, 88 Hockey v Yelland , 138 Hoffmann- La Roche & Co. v Secretary of State for Trade and Industry , 134 Hoffmann- La Roche v Secretary of State for Trade and Industry Hope v Bathurst City Council , 123 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR Hot Holdings v Creasy Howells v Nagrad Nominees Hurt v Rossall lawskool.com.au Page 7

8 In Re Judiciary and Navigation Acts (1921) 29 CLR Independent EM. Radio Pty Ltd. v Australian Broadcasting Tribunal... 84, 127 Inglis v Commonwealth Trading Bank of Australia Johnson v Johnson , 108, 109 Kelly v Watson... 73, 74 Kelson v Forward King Gee Clothing v Cth Kioh v West... passim Kioh v West (1985) 159 CLR , 55, 104 Kioh v West [1985] HCA , 133 Kirk v Industrial Court of New South Wales (2010) 239 CLR Koppen v Commissioner for Community Relations... 93, 99, 106, 107 Kuswardana v Minister for Immigration and Ethnic Affairs Lamb v Moss Laws v Australian Broadcasting Tribunal Liversidge v Anderson Livesey v NSW Bar Association Lombardo v Federal Commissioner of Taxation London and Clydesdale Estates Ltd. v Aberdeen District Council Lonrho v Secretary of State for Trade and Industry Lu v Minister for Immigration Macksville & District Hospital v Mayze Magno v Minister Marine Hull & Liability Insurance Co Ltd v Hurford Marine Hull & Liability Insurance Co v Hurford McEldowney v Forde McInnes v Onslow- Fane [1978] 1 WLR McRae v Attorney- General (NSW) Minister for Aboriginal Affairs v Peko-Wallsend... passim Minister for Aboriginal Affairs v Peko- Wallsend; South Australia v O Shea Minister for Arts, Heritage and Environment v Peko Wallsend Ltd Minister for Immigration and Ethnic Affairs v Eshetu Minister for Immigration and Ethnic Affairs v Naumovska Minister for Immigration and Ethnic Affairs v Pochi Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR Minister for Immigration and Ethnic Affairs v Teoh... 23, 93, 94, 95 Minister for Immigration and Ethnic Affairs v Wu Shan Liang... 55, 56 Minister for Immigration and Multicultural Affairs v Bhardwaj Minister for Immigration and Multicultural Affairs v Jia and White... 55, 56, 106, 108 Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh Montreal Street Railway co v Normandin Morton v Union Steamship Co. of New Zealand Municipal Council of Sydney v Campbell... 78, 79, 80 New South Wales v The Commonwealth (The Wheat Case) (1915) 20 CLR Nikac v Minister for Immigration, Local Government and Ethnic Affairs , 114 North Coast Environmental Council v Minister for Resources Northern Territory of Australia v Mengel Norvill v Chapman O Reilly v Commissioner of the State Bank of Victoria... 70, 71, 73, 74 O Reilly vthe Commissioners of the State Bank of Victoria O Sullivan v Farrer Ogle v Strickland Onus v Alcoa Our Town v ABT Padfield v Minister for Agriculture, Fisheries & Food [1968] AC Padfield v Minister for Agriculture, Fisheries and Food... 78, 85 Padfield v Minister of Agriculture Parramatta City Council v Pestell Patrick Stevedores v Maritime Union of Australia lawskool.com.au Page 8

9 Paull v Munday... 63, 64 Peko- Wallsend Peko- Wallsend; FAI Insurance v Winneke Peko- Wallsend Peninsula Anglican Boys School v Ryan Peverill v Meir Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA Plaintiff S v Minister for Immigration and Citizenship Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR , 139, 141 PlaintiffS157/2002 v Commonwealth (2003) PlaintiffS157/2002 v The Commonwealth , 138 Post Office Agents Association v Australian Postal Commission Prasad v Minister for Immigration and Ethnic Affairs , 129 Project Blue Sky Inc. v Australian Broadcasting Authority... 76, 79, 135, 141 Project Blue Sky v Australian Broadcasting Authority... 75, 81, 83 Public Service Board v Osmond... 84, 137, 138 R v Anderson; Ex parte Ipec- Air R v Australian Broadcasting Tribunal R v Australian Stevedoring Industry Board R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd R v BBC; Ex parte Lavelle [1983] 1 All ER R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group R v Connell; Ex parte Hetton Bellbird Colleries Ltd (1994) CLR R v Connell; Ex parte Hetton Bellbird Colleries Ltd R v Cook; Ex Parte Twigg R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB R v Deputy Industrial Injuries Commissioner; Ex parte Moore R v Electricity Commissioner; Ex parte London Electricity Joint Committee Co Ltd R v Federal Court of Australia; Ex parte Western Australia National Football League R v Hickman; Ex parte Fox and Clinton R v Ipec- Air; Ex parte Bott R v Kirby; Ex parte Boilmaker s Society of Australia (The Boilmaker s Case) (1956) 94 CLR R v Ludeke; Ex parte Queensland Electricity Commission R v Optical Board of Registration; Ex parte Qurban R v Port of London Authority R v Secretary of State for The Home Department; Ex parte Khan R v Sussex Justices; Ex parte McCarthy R v The Brecknock and Abergavenny Canal Company (1835) 111 ER R v Toohey; Ex parte Northern Land Council... 38, 53, 79, 80 R v Trebilco; Ex parte F. S. Falkiner & Sons Ltd R v Trebilco; Ex parte F.S. Falkiner & Sons Ltd R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR R vcoldham; Ex parte The Australian Workers Union R. v Dixon; Ex parte Prince and Oliver [1979] WAR Randall v Northcote Corporation Re Becker & Minister of Immigration and Ethnic Affairs (1997) 1 ALD Re Greenham and Minister for Capital Territory... 17, 20 Re MIMA; Ex parte Epeabaka Re Refugee Review Tribunal; Ex parte Aala Re Wakim; Ex parte McNally Re. Bloomfield and Sub Collector of Customs Re. Clarkson; Ex parte Australian Telegram and Phonogram Officers Association Re. Drake and Minister for Immigration and Ethnic Affairs (No. 2) Re. Goodson and Secretary, Department of Social Security Re. Kretchmer and Repatriation Commission Re. Kretchmer and Repatriation Commission (AAT) Re. McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR , 39 Re. McHatten and Collector of Customs Re. Minister for Immigration and Multicultural Affairs; Ex parte Lam lawskool.com.au Page 9

10 Re. Minister for Immigration and Multicultural Affairs; Ex parte Miah , 138 Re. Ombudsman of Ontario and Health Disciplines Board of Ontario (1979) 104 DLR (3d) Re. Reference under s 11 of the Ombudsman Act 1976; ex parte Director- General of Social Services... 69, 73 Re. Refugee Review Tribunal; Ex parte Aala Rendell v Release on Licence Board , 113 Rice Growers Co- operative Mills Ltd. v Bannerman Riddell v Secretary of the Department of Social Security Ridge v Baldwin... 36, 97, 104 Ridge v Baldwin [1964] AC Right to Life Association (NSW) v Secretary, Department of Human Services and Health Roberts v Hopwood... 82, 85 Roberts v Hopwood; Ex Parte Jia Ruangrong v Minister for Immigration and Ethnic Affairs Ruddock v Vardalis... 58, 60 SAAP v MIMIA Saeed v Minister for Immigration and Citizenship Salemi v Mckellar [No. 2]... 92, 94 Salemi v Mckellar [No.2] Samrein Pty Ltd. v Metropolitan Water Sewerage and Drainage Board Samrein v MWSDB... 36, 81 Sanders v Snell Sean Investments Pty Ltd. v MacKellar... 86, 88 Secretary, Department of Social Security v Alvaro Shannahan v Scott Smoker v Pharmacy Restructuring Authority State of South Australia v O Shea... passim State of South Australia v Tanner State of South Australia v Tanner, Foley v Padley Surinakova v Minister for Immigration, Local Government and Ethnic Affairs Swan Hill v Bradbury Tasker v Fullwood Taveli v Minister for Immigration, Local Government and Ethnic Affairs , 128 Television Capricornia v Australian Broadcasting Tribunal Television Corporation v Cth Telstra v Kendall Tetron International Pty Ltd. v Luckman (1985) 8 ALD Tetron International Pty. Ltd. v Luckman... 30, 32 Tickner v Chapman (Hindmarsh Island Bridge Case) Timbarra Protection Coalition Inc v Ross Mining NL Tobacco Institute of Australia Ltd. v Australian Federation of Consumer Organisations Inc Twist v Council of Municipality of Randwick Twist v Randwick Municipal Council Victorian Council for Civil Liberties Incorporated & Vardalis v Minister for Immigration and Multicultural Affairs Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR Videto v Minister for Immigration and Ethnic Affairs Vietnam Veterans Association of Australia (NSW Branch Inc.) v Cohen Water Conversation and Irrigation Commission (NSW) v Browning Waterford v Commonwealth Wattmaster Alco Pty Ltd. v Button Webb v R Wednesbury case... 49, 128 Wheeler v Leicester City Council (House of Lords) White v RMC Statutes Acts Interpretation Act 1901 (Cth) Administrative Appeals Tribunal Act 1975 (Cth)... 18, 19, 26, 146 lawskool.com.au Page 10

11 Administrative Decisions (Judicial Review) Act 1977 (Cth)... passim Competition and Consumer Act 2010 (Cth) Constitution... 28, 31, 58, 142 Federal Airports Corporation Act 1986 (Cth) Federal Court Act 1976 (Cth) Freedom of Information Act 1982 (Cth)... 13, 26, 77 Judiciary Act 1932 (Cth)... 29, 62 Jurisdiction of Courts (Cross- Vesting Act) Native Title Act 1993 (Cth) Ombudsman (Northern Territory) Act Ombudsman Act 1972 (SA) Ombudsman Act 1973 (Vic) Ombudsman Act 1974 (NSW) Ombudsman Act 1976 (Cth) Ombudsman Act 1978 (Tas) Ombudsman Act 1989 (ACT) Ombudsman Act 2001 (Qld) Parliamentary Commissioners Act 1971 (WA) R v Anderson; Ex parte Ipec Air Re Macquarie University; Ex parte Ong (1989) 17 NSWLR lawskool.com.au Page 11

12 The Framework of Administrative Law 1.1 The scope and objectives of administrative law It is a branch of public law. A set of rules or a body of law to regulate the exercise of power and the making of decisions by the executive (decision-making) branch of government, the administrative arm of government and non-government bodies. Administrative review is premised on separation of powers, responsible government, and parliamentary sovereignty. The main objectives of Administrative Law are: o To keep within limits, the public powers of the government through: Ultra vires doctrine Latin for beyond power. This means that a public body cannot act beyond the ambit of their authority or exercise powers they don t have. The Separation of Powers provides a system of checks and balances on the exercise of power by the various arms of government. In particular, it ensures the role of the judiciary in keeping the legislative and executive arms of government accountable (see Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73) 1. Rule of law this is the idea that all bodies, including the bodies that make and execute the law, are also subject to it. Judicial independence allows the courts to oversee decisions made by the executive and providing access to justice. Judicial/administrative review allows individuals to challenge unlawful decisions, thus promoting accountability and fairness. Judicial/administrative review encourages better, fairer and more efficient or more consistent decision making. 1.2 Accountability mechanisms 1 Groves M. & Lee H.P., Australian Administrative Law: Fundamentals, Principles and Doctrines, 1 st ed., Cambridge University Press, Melbourne, Australia, 2007 at 6. lawskool.com.au Page 12

13 Various accountability mechanisms exist, comprising of internal and external aspects. The main pillars of accountability are: Accountability to parliament e.g. parliamentary question time, tabled reports, parliamentary committees. Self-review internal review of departments undertaken by independent tribunals and the ombudsman. Judicial/Legalities Review undertaken by the courts through their inherent jurisdictions. Information access through the Freedom of Information Act 1982 (Cth) and also through rights of reason under the Administrative Decisions (Judicial Review) Act 1977 (Cth). 1.3 Legalities/merits distinction The role of the executive is to determine decisions on its merits by way of: o Finding the facts; o Determining the applicable policy; o Making discretionary judgements; o Applying the law to the facts. The role of the judiciary is to ensure that decisions made by the executive are lawful by: o Ensuring that the relevant legal criteria and procedures have been complied with that is, keeping decisions from being ultra-vires (beyond power). o Observing the separation of powers, which dictates that the judiciary cannot encroach on the functions of the executive. Thus, it cannot engage in merits review. o This distinction is often said to be vital to the legitimacy of judicial review Legalities/Judicial Review Undertaken by superior courts as part of their inherent common law supervisory jurisdiction. It is the enforcement of the rule of law over executive action. Judicial/legalities review is concerned not with the substance of the decision, but the decision making process (see Evans). In other words, it is concerned lawskool.com.au Page 13

14 with the lawfulness of a decision and this ordinarily involves issues of fairness and power (or jurisdiction). Courts are faced with limited criteria for review this is to ensure that categories are not so wide as to allow persons to bring actions unnecessarily. Broadly, these fall under the categories of illegality, irrationality and procedural impropriety (per Lord Diplock in C.C.S.U). The burden is on the applicant to prove a legal error. If the applicant is successful, the remedy usually provides that the decision be re-made. Courts do not grant damages for judicial review Merits Review and Tribunals Nature and Role of Tribunals Merits review arises out of statute, and is usually undertaken by Tribunals. However, some states in Australia give merits review powers to their courts. It is concerned with whether the decision is substantively correct (see Drake v Minister of Immigration and Ethnic Affairs). Merits review is generally de novo. That is; the decision made by the original decision-maker is considered new or afresh by the tribunal with reference to the law, and the facts and circumstances as they exist at the date of the hearing of the appeal. However, legislation can restrict this. Basically, the person or body charged with conducting merits review remakes the original decision, exercising the same powers as the original decision maker. o For example, where the parliament (exercising legislative powers) remakes a decision with regards to a law they wish to implement (reexercising legislative powers), this is merits review. o On the other hand, judicial review would occur where the courts (exercising judicial powers) scrutinise whether parliament had power to implement a certain law. The review tribunal may affirm, vary or set aside the decision under review but this is subject to any contrary enactment. Here, the review tribunal is exercising original appellate jurisdiction. lawskool.com.au Page 14

15 Broadly speaking, the role undertaken by most tribunals can be summarised as: 2 o Providing to each party appearing before them a reasonable opportunity of being heard; o Carefully weighing up the evidence put before them; o Interpreting and applying the law; o Exposing the reasoning processes to the parties; o Avoiding actual bias or appearance of bias. Tribunals are well structured to merits review due to: o Use of expert, non-legal members; o Flexible rules concerning jurisdiction, mode of operation, membership and procedure; o Being considered as less confrontational, cheaper, and more efficient than courts; o Greater avenues for appeals; o The ability of decision makers to change or re-make decisions. Structure of Tribunals Broadly speaking, 3 types of Tribunals exist in Australia. 1. Single tier review by specialist tribunal This model allows persons to seek review in a Tribunal confined with a particular area of government or dispute. Appeals to the court from these tribunals are only on questions of law. E.g. the Refugee Review Tribunal. 2. Single tier review by generalist tribunals The tribunal is given general jurisdiction and can hear all matters within that jurisdiction. E.g. the Commonwealth AAT. 3. Two -Tier Review tribunals Under this model, the first tier focuses on speed, efficiency and informality whereas the second tier deals with harder cases and focuses on the quality of the decision. Appeals to the second tier can often 2 Lawrence W Maher, The Australian Experiment in Merits Review Tribunals in O Mendelsohn & L W Maher (eds), Courts, Tribunals and New Approaches to Justice (La Trobe University Press, 1994). lawskool.com.au Page 15

16 extend beyond legal questions to merit reviews. 3 E.g. decisions from the Veterans Review Board are appealable to the AAT. These tribunals can be further divided into those which are: 4 o Policy oriented tribunals which formulate and apply government policy. E.g. The Australian Broadcasting Authority and the Australian Broadcasting Securities Commission. o Court substitute tribunals which primarily resolve disputes between two private citizens (e.g. CTTT in NSW), or between private citizens and the government. Tribunals in a system of government Constitutionally, tribunals belong to the executive arm of government. This is however, more blurred in practice: The legislature clearly intends that the Tribunal, though exercising administrative power, should be constituted upon a judicial model, separate from, and independent of, the executive 5 At the Commonwealth level, merits review is undertaken by tribunals and tribunals generally only undertake merits review. This is because Chapter III of the Constitution has been interpreted as meaning that only Chapter III courts can exercise judicial power 6. Of particular importance, is maintaining independence of the tribunals from the government. Three major themes arise in this analysis: o Membership In some Australian tribunals, members are offered security of tenure on par with judicial officers. More commonly, members are appointed for a fixed term. This ensures that members are not influenced in any way by the government. 7 o Management Tribunals should be housed separately from the agencies whose decisions they are reviewing. It is suggested by the 3 See Hayley Katzen and Roger Douglas, 1999, Butterworths Tutorial Series: Administrative Law, Butterworths Publishing. 4 Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, ARC report No 39 (1995). 5 Re Becker & Minister of Immigration and Ethnic Affairs (1997) 1 ALD 158 at 161 per Brennan J. 6 Known as the Boilermakers principle. See New South Wales v The Commonwealth (The Wheat Case) (1915) 20 CLR 54 and R v Kirby; Ex parte Boilmaker s Society of Australia (The Boilmaker s Case) (1956) 94 CLR See Report of the Joint Committee on Tenure of Appointees to Commonwealth Tribunals, 1989, Tenure of Appointees to Commonwealth Tribunals. Here, it was recommended that the nature of tenure in tribunals should a) Offer an adequate term in office; b) Removal before expiration of term should only be for a cause specified in the relevant legislation; c) Adequate procedures for removal should be ensured. lawskool.com.au Page 16

17 o ARC in its Better Decisions Report that it is not appropriate to set targets for performance of individual members. It is suggested that decisions should remain an unpredictable product of achieving the best decision in each individual case. 8 Government policy There is much debate as the degree of application of government policy in the making of decisions. However, in Victoria and NSW, there are statutory mechanisms requiring tribunals to decide cases in accordance with government policy. Nature and Scope of Merits Review Ultimately, powers of merit review are dependent on statute, but the following aspects are usually presumed: 1. De novo review: Tribunals stand in the shoes of the original decision maker having the same powers and discretions, and performing the same functions. 2. Decisions made by Tribunals are binding, unless they are challenged in the courts. 3. Tribunals determine the correct and preferable decision rather than reviewing the reasonableness of the previous decision. (Drake v Minister for Immigration and Ethnic Affairs) 4. Generally, the burden to prove that original decision makermade the wrong decision or made an unlawful decision is non-existent. Thus, tribunals can affirm, vary, quash or substitute decisions as they see fit. (Re Greenham and Minister for Capital Territory) 5. Thus, the grounds for merits review is simply that the original decision was wrong for which the remedy is a new decision. 6. A tribunal undertaking merits review has a duty to address all issues on which its jurisdiction or the proper exercise of the decision making power depends. (Kuswardana v Minister for Immigration and Ethnic Affairs) Generally, decisions which affect, or are likely to affect the interests of a person should be subject to merits review. Decisions which usually do not justify merits review include 9 : 8 See Administrative Review Council, 1995, Better Decisions: Review of Commonwealth Merits Review Tribunals, ARC Report no 39, p For a more comprehensive list, see Administrative Review Council, 1999, What Decisions Should be Subject to Merits Review. Available at Document lawskool.com.au Page 17

18 1. Legislation-like decisions with broad application not suitable as they do not affect individuals in the relevant manner, and are more likely to affect the community. 2. Decisions automatically flowing from circumstances covers cases where mandatory decisions are made under a statute. Often in such cases, there is no room for merits review. The powers of merits appeal is governed largely by statute, which will for the most part will also determine the form of appeal. The High Court in Coal Allied Operations Pty Ltd v Australian Industrial Relations Commission 10 formulated three standard categories of appeal: 1. Appellate tribunal may have the function of simply determining whether the correct decision was made according to the evidence and law at the time. In such instances, the tribunal cannot look at new evidence and is limited in its power to set the decision aside, or if appropriate, to substitute with a new decision. 2. If a tribunal can receive new evidence, appeal is usually by way of a rehearing taking into account the new evidence. 3. Where no new evidence is submitted and there is no change in the law, an appeal should only be heard if the tribunal considers that there has been an error made by the primary decision maker The Administrative Appeals Tribunal (AAT) The major Commonwealth merits review body established after the Kerr Committee report in The Tribunal was set up under the Administrative Appeals Tribunal Act 1975 Cth and commenced operation in In comparison to the federal courts, the issue of separation of powers is generally not a concern 11. Considered as a generalist tribunal, replacing many specialist tribunals that had been established earlier on an ad hoc basis. AAT is now able to hear cases from other tribunals on appeal under approx. 330 Commonwealth enactments. The AAT exercises solely merits review (s43 (1) AAT Act). 10 (2000) 203 CLR Barnes J. & Douglas R., Butterworths Questions and Answers: Administrative Law, 2 nd ed., Butterworths, Australia, 2007 at 8. lawskool.com.au Page 18

19 Jurisdiction Jurisdiction of the AAT is conferred by the statute under which initially authorised the decision under review. Note that the statute must specifically authorise AAT review. (see s 25 (1) AAT Act) Since power to review is statute based, review is limited to statutory powers, not prerogative powers as there is no statute conferring jurisdiction for such action. Jurisdiction is limited to reviewing a decision: o S 43 (1) of the AAT Act states: For the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: a) Affirming the decision under review; b) Varying the decision under review; or c) Setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. Determining what is a decision is often difficult. But generally: o Decision is defined under s3(3) AAT Act and includes making, suspending, revoking or refusing to make an order or determination. o The failure to make a decision within the time prescribed by the act is considered a decision. (s 25 [5] AAT Act) o The decision must be final and operative it does not include intermediate steps in the process of making the final decision. Some difficulties arise where a decision is not lawfully made and in that case, no true decision exists. To order the complete version of the Lawskool Administrative Law Summary please visit lawskool.com.au Page 19