Administrative Law Exam Notes. Semester

Transcription

1 Administrative Law Exam Notes Semester

2 TABLE OF CONTENTS INTRODUCTION TO ADMINISTRATIVE LAW 3 MERITS REVIEW 6 JUDICIAL REVIEW ADJR ACT 9 JUDICIAL REVIEW COMMON LAW 13 GROUNDS OF REVIEW ULTRA VIRES 17 GROUNDS OF REVIEW PROCEDURAL FAIRNESS 27 2

3 Introduction Reasons for the court s concern with procedure: Respect for the Separation of Powers o Requires that parliament makes the laws, the executive apply the laws and the judiciary interpret the laws o If the court was to object to a decision that was made, the court would be coming close to applying the law to the facts of the case fulfilling the executive s role o Rather, the court generally limits themselves in conducting judicial review by simply looking at the way the decision was made Expertise o Administrative decision makers who deal with decisions daily would have an extent of expertise o The judges may lack the familiarly of the lawmaking that an administrator may have Doctrine of Parliamentary Sovereignty o If the court concerned itself with substantive decisions reached by administrative decision makers, rather than the procedure, it would be acting contrary to the Act that delegated power to the decision maker o There would be a tension between what the courts are doing and the decision of parliament as manifested in the legislation to give that job to a particular body or decision maker Remedies available in judicial review The courts will not remake the decision arrived at by the administrative decision maker, even if the court finds that there are a number of problems with the way in which the decision was reached. The court will send a decision back to the original decision maker to be remade, in accordance with the law, by way of correct procedure. A significant limitation of the courts approach: The decision maker might still come to the same substantive decision and this was done legally. The process will be done correctly on the second occasion by the administrator and come to the same decision. See Breen in High Court. That limitation in turn reveals a real tension between what will in fact be the concern of most applicants for judicial review and what the court will focus on. Inevitably, the applicant for JR will seek JR as they are unhappy with the substantive result that has been reached (they do not generally care about the procedure of the administrative decision maker). Distinction between appeal and review Appellate bodies (VCAT, AAT) hear appeals from the decisions of the administrators. The difference between review (carried out by courts) and appeal (carried out by appellate bodies) is that appellate bodies do change the merits of the decision that has been made. They look at the result and they decide whether the result was a good or bad result. If they decide it is a bad result, they have the power to remake the decision. There is no issue with separation of powers because the appellate bodies are not part of judiciary. However appellate bodies are part of the same hierarchy as the higher courts. Often people will seek an appeal from the appellate body initially and if they are not happy with that decision then they will seek a review from the courts. Many more cases are heard pursuant to appeals by administrative decision makers than reviews in the courts Jurisdiction The courts are normally only able to hear applications for JR of decisions made pursuant to the exercise of public power. There are broadly 3 types of decisions that are made pursuant to the exercise of public power: Decisions made pursuant to statute 3

4 o These are by far the most common kind of decision that is subject to review. (e.g. When Minister for Immigration refuses somebody a protection visa in Australia that is a decision pursuant to statute). Decisions made pursuant to the prerogative (or crown prerogative) o Prerogative power is common law power vested in the Crown that permits the undertakings of certain functions. (E.g. Australia Day honours are done pursuant to the prerogative). In Criminal cases, when a person has been pardoned, this is done pursuant to the prerogative. While the Crown supposedly exercises it these days it is exercised by the Government acting on behalf of the Crown. Decisions made pursuant to non-statutory regulatory power o Regulatory bodies without a statutory base exercise this power. (E.g. A newspaper body which regulates for all the newspapers while there is no parliamentary input, it can still be dealt with JR). Public Power a suitable limitation: 1. Privatisation and contracting out There are many bodies (utility bodies and prisons) that are subject to JR. However they are now private bodies therefore mechanisms such as JR probably do not apply to them anymore. Even though the bodies perform the exact same function as they did when they were public, but now they are private. 2. Non-justiciability In JR, the court is only subject to review decisions if the decisions are justiciable (as defined by the court). If decisions are highly political or involve complex matters of policy, then the courts will not subject those decisions to JR This decision has been highly criticized. Some commentators says that this is just a means of the courts avoiding hard and complex decisions. Standing The notion of standing requires that there be some kind of connection between the applicant and the decision that is being challenged. An attractive requirement? The rule of law We are supposed to be governed by the ideal of the rule of law. Inherent in the notion of the rule of law is that the government as well as all citizens must act legally and obey the law. But, if the standing requirement that applies to JR is very rigorous (i.e. only someone with a close connection to the decision can seek review of the decision), then in certain circumstances this may be very limited. EXAMPLE: Person A knows that a government department has given a license to an oil exploration company to do drilling on Australia s continental shell. That will start in 5 days. Assume also that Person A knows that the process by which the decision to grant the license was illegal. Neither Person A nor anyone else has any physical connection to the area that is going to be drilled. Under a narrow conception of standing, Person A could not seek JR. There is a real risk that the government could act illegally with impunity and the requirements of the rule of law would be floundered. This is weakened if there are mechanisms other than JR pursuant to which illegal decisions can be challenged quickly. Alternatives to JR: Inform the relevant minister (however, the minister must accept the version of events that the license was illegally granted). o The less relevant a matter is to the minister, the less likely it is that they will take action. Go to the press (and hope they pressure the government into taking action). Ombudsman o Inquiries made by ombudsmen take a while 4

5 Counter-arguments Floodgates If anyone could bring an application to review a decision of any personal connection, the courts would be overwhelmed by applications. Improved standard of litigation If the applicant has a close connection to the decision, that will lead to an improved standard of litigation, because the applicant will try harder. Deterrence of busybodies Reduces the chance of meddlers intervening. However, if there is an alleged breach of the law, what should it matter that the applicant has no personal connection to it? 5

6 Merits Review Merits review is concerned with the review of the merits of the administrative decision that has been made. Advantages to seeking an appeal: Appellant can have the substantive decision looked at considered de novo You get reasons from both the original decision (s.28(1) AAT Act) and the AAT (s.43 AAT Act) The Federal Court might refuse jurisdiction if you haven t gone to the AAT first (s.10(2)(b)(ii) ADJR Act) Seeking to challenge by way of appeal is cheaper than going to court, because of the diminished need for lawyers Appeals tend to be faster, and less formal than going to court Two forms of merits review tribunals: Internal o Legislation may provide an aggrieved party to appeal to an appeal body that operates within the relevant government department External o Legislation under which a decision is made may provide a person affected to appeal to an outside tribunal, such as the Commonwealth AAT 1. Jurisdiction under the AAT Act The AAT Act operates in conjunction with provisions in the legislation under which a decision is made at first instance, giving the AAT jurisdiction to hear an appeal of a decision. AAT will have jurisdiction to conduct merits review if: Section 25(1): an enactment (an Act) may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. Decision defined by s.3(2) AAT most likely that all decisions will fall within this definition Interpreted very broadly (Collector of Customs v Brian Lawlor Automotive) o Even decisions made in purported exercise of powers conferred by the enactment (even ultra vires decisions) If a decision maker fails to make a decision within the time prescribed by the Act, the failure to make a decision constitutes a decision for the purposes of review by the AAT (s.25(5) AAT) 61 Review of Decisions The Act provides for external merits review in s.61: An application may be made to the AAT for review of any decision of the Minister: a) granting, varying or transferring a space licence (s.18) or launch permit (s.26) b) refusing to grant, vary or transfer a space licence (s.18) or launch permit (s.26) Questionable whether this section applies to suspending (s.25) a space licence or suspending (s.34) a launch permit. Per delegation in s.104 and s.34ab(1)(c) AIA, appeal can be made against a decision of a delegate Section 23(3) AAT: When an enactment makes provision for the appeal of decisions made under the enactment to the AAT, the enactment shall specify: The person or persons to whose decisions the provision applies, and May be expressed to apply to all decisions of a person, or to a class of such decisions. 6