10 th CONGRESS OF THE IASAJ SYDNEY, MARCH 2010 NATIONAL REPORT OF AUSTRALIA

Transcription

1 10 th CONGRESS OF THE IASAJ SYDNEY, MARCH 2010 NATIONAL REPORT OF AUSTRALIA REVIEW OF ADMINISTRATIVE DECISIONS OF GOVERNMENT BY ADMINISTRATIVE COURTS AND TRIBUNALS 12 February 2010 Introduction Australia is a federation of states. There are six state governments and a federal or Commonwealth government. The Commonwealth Government has ultimate authority over a number of territories on the mainland (e.g. the Australian Capital Territory) and in the waters surrounding Australia (e.g. Norfolk Island in the Pacific Ocean and Christmas Island in the Indian Ocean). The territories possess differing degrees of self government. The Commonwealth Government and the states and territories have different systems for review of administrative actions and decisions. This report is concerned only with the Commonwealth system. The systems in the states and territories are, however, similar to the Commonwealth system. Two types of review of administrative decisions are available for decisions of the Commonwealth Government, its officers, departments and agencies. The distinction reflects the rigid separation of powers which affects the

2 2 Commonwealth Government. That division separates the legislature, the executive and the judiciary. Administrative decisions are decisions of the executive government. In Australia they can be reviewed within the executive and by the judiciary. The judiciary or the courts can review decisions for error of law. Within the executive, decisions can be reviewed more broadly, including the correctness of any discretion exercised in the making of the decision. The principal court which reviews Commonwealth administrative decisions is the Federal Court of Australia. It hears challenges to administrative decisions for errors of law direct from the executive and it hears appeals from decisions of the Federal Magistrates Court of Australia. Three (and sometimes more) federal court judges sitting together hear appeals from first instance decisions of the Federal Court. The first avenue for review of administrative decisions in Australia is, therefore, to the Federal Court, where the ground for the challenge is that the decision-maker has made an error of law. A multi member bench of the Federal Court of Australia makes the final decision as to whether there has been any error of law, subject only to the possibility that the High Court of Australia might grant leave to hear the case. This is not usual. The High Court of Australia is the final court for all civil and criminal cases as well as administrative cases. It is also Australia s Constitutional Court. The High Court hears only a few cases involving review of administrative decisions (with the exception of immigration cases, which are, in Australia, in a special category). The second avenue of review of administrative decisions in Australia is quite unique. Common law countries have tended to establish tribunals which reconsider not only the lawfulness, but also the appropriateness, of administrative decisions. However, most of these tribunals have exercised jurisdiction in specialised areas such as taxation and social security. In

3 3 Australia, in 1975, a general tribunal, the Administrative Appeals Tribunal, was established, to exercise jurisdiction over a large range of administrative decisions. It hears applications direct from decision-makers and appeals from other tribunals (such as the Social Security Appeals Tribunal). In Australia, therefore, decisions of the Commonwealth Government might be amenable to judicial review in the Federal Court of Australia, for error of law, or in the Administrative Appeals Tribunal, for correctness or inappropriateness of the decision, as well as error of law. An appeal lies to the Federal Court if it is claimed that the Administrative Appeals Tribunal has itself made an error of law, but not otherwise. For administrative decisions subject to appeal, the Federal Court of Australia accordingly rules on the lawfulness of the decision and the Administrative Appeals Tribunal rules on the correctness or appropriateness of the decision. The Administrative Appeals Tribunal is not a court. It is part of the executive branch of government. Nevertheless, it is quite different from most of that branch. What distinguishes the Administrative Appeals Tribunal from government departments and agencies when they are making or reconsidering their own decisions is that it undertakes its work in the same manner as a court. Its president must be a judge. A number of its members are judges. Like the courts generally in common law countries, it conducts hearings in public at which both the applicant and the government are entitled to be represented. It is entirely separate from and independent of the rest of the government. Yet, in accordance with Australia s separation of powers, it is not a court - it is not part of the judiciary; it is an administrative body - it is part of the executive. This aspect of its operations has parallels with the system in France and much of continental Europe. It will accordingly be necessary, in the balance of this report, to deal with Commonwealth courts separately from administrative tribunals. Persons wishing to challenge administrative decisions will frequently be entitled to

4 4 choose whether to appeal to a court or a tribunal. The principles applying, at all levels, will differ, depending upon the choice. 1. Jurisdiction or competence 1.1 Identifying the categories of administrative decisions of the Commonwealth Government eligible for review immediately raises a distinction between federal courts and tribunals in Australia. The Federal Court of Australia is a statutory court established by the Federal Court of Australia Act 1976 (Cth). Like most common law courts, the Federal Court of Australia has a general jurisdiction to review Commonwealth administrative decisions. The power ultimately comes from the Australian Constitution. 1 The court is empowered to intervene when an administrative decision is unlawful. Whether or not a decision is unlawful is determined by the common law established by courts in the United Kingdom, Australia and other common law countries. In addition, the Parliament of Australia has passed legislation conferring additional powers on the Federal Court to review government decisions if they do not satisfy tests laid down in the legislation. 2 These tests are similar to the common law tests. Because this secondary power arises from legislation of the Parliament, it was possible for the Parliament to limit the circumstances in which the power could be exercised. The same is not true of the primary power. The Federal Court, therefore, has power to consider whether decisions of the Commonwealth Government are wrong in law under both a general power and a special statutory power. The Administrative Appeals Tribunal has no general power to review government decisions. It has power only where the Commonwealth Parliament has conferred the power by legislation. 3 1 The Australian Constitution s 71 and the Judiciary Act 1903 (Cth) s 39B. 2 Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 and 6. 3 Administrative Appeals Tribunal Act 1975 (Cth) s 25.

5 5 Where the Administrative Appeals Tribunal has power to review decisions it has all the powers of the administrative decision-maker to remake the decision. It must, of course, interpret and apply the law correctly and correct or avoid any error of law made in the original decision, but it is not otherwise limited in its consideration to questions of law. 1.2 The jurisdiction of the Federal Court is very wide and includes power to reconsider the lawfulness of nearly every Commonwealth Government administrative decision. The Australian Constitution very significantly limits the power of the Australian Parliament to qualify this power. 4 The Administrative Appeals Tribunal can only reconsider decisions which it is especially empowered by legislation to review, but its power extends to the merit or appropriateness of the decisions and not just their legal consequences. The only limitations on the power of the Federal court to review administrative decisions for error of law flow from practical considerations. Even decisions of the Governor-General of Australia, the de facto head of state, can be subject to judicial review. 5 The practical limitations relate to the procuring of information concerning the making of administrative decisions to enable an examination of whether there has been an error of law. The records of the decisions of the Australian cabinet are not, for example, available for inspection. 6 The power of the Administrative Appeals Tribunal arises only where there is legislation of the Commonwealth Parliament conferring it. The circumstances in which power is conferred broadly relate to situations in which administrative decisions affect the rights or obligations of individuals or corporations. There are more than 400 pieces of legislation which confer power on the Administrative Appeals Tribunal to review Commonwealth Government decisions. Its jurisdictions include taxation, social security, employment law, 4 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR Coutts v Commonwealth (1984) 157 CLR 91 at Freedom of Information Act 1982 (Cth) s 34.

6 6 corporations, banking and finance regulation, environmental protection, aviation and more special jurisdictions concerning war veterans entitlements and injury compensation of employees of the Commonwealth Government. 1.3 The Federal court, and ultimately the High Court, has the power to rule whether legislative attempts of the Parliament to limit the powers of the courts to review administrative decisions (ouster provisions) are valid. Legislation purporting to limit the power of the federal courts to review decisions relating to persons claiming refugee status was ruled to have a limited operation. 7 It was held that the courts could not be precluded from reconsidering the decision of Government officers and an administrative tribunal called the Refugee Review Tribunal if an error as to the jurisdiction had been made. The courts have given wide meaning to this concept. Accordingly, denial of procedural fairness or due process is jurisdictional error, as are most other errors of law. 2. Procedure 2.1 In line with Australia s common law heritage the emphasis in both the Federal Court of Australia and the Administrative Appeals Tribunal is on a hearing (public audience) in which evidence, both oral and written is received for consideration. The body adjudicating will only have regard to evidence which has been ruled admissible as part of the hearing. No regard will be had to other material on the file. In the Federal Court of Australia, evidence will only be received if it satisfies complex rules of evidence laid down in legislation. 8 Hearsay evidence, or evidence of an account of facts a witness was given by another person, is generally not admissible. 9 Evidence is not admitted unless it is ruled to be relevant. 10 Of course, if what was said between two people is relevant of itself, such as when they are making a contract, each witness will be able to say what the other person said. 7 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR Evidence Act 1995 (Cth). 9 Evidence Act 1995 (Cth) s Evidence Act 1995 (Cth) s 56.

7 7 Oral and written material will generally not be acted upon in the Administrative Appeals Tribunal unless it is admitted into evidence. However, the strict rules of evidence do not apply. Hearsay evidence can be admitted. The principal rule governing the admission of evidence in the Administrative Appeals Tribunal, apart from the requirement that it be relevant, is that its admission is not unfair. Surprise evidence of what a witness was told, which the other party has no reasonable prospect of verifying, will not be admitted where it might not be true. The first important procedural principle is accordingly that emphasis is placed on a single event called a hearing where all the evidence, both oral and written, is collected and rulings are made on what evidence will be acted upon. Secondly, emphasis is placed on oral evidence on the accounts of witnesses of what happened. This is just as true of what a taxpayer says about how his or her tax affairs were arranged as it is of an injured government employee as to how a motor accident occurred. Thirdly, the hearing is the place where the representatives of the parties seek to persuade the judge or tribunal of the merit of their case, whether legal or factual. Considerable emphasis has always been placed on contemporary written documents in Australian courts and tribunals. These include contracts, letters, s, notes of conversations and so on. In the past, less emphasis was placed on documents prepared for the proceedings. Nowadays, however, the chief evidence of witnesses is usually written. The lawyers submissions are also usually written. However, as with all common law countries, the right of the opponent to cross examine or ask challenging questions of witnesses, to test their evidence, is important. Cross examiners can ask witnesses leading questions or questions which suggest the answer and require a simple yes or no. 11 An example might be: You meant to mislead the Taxation Department, didn t you? Even though written submissions are now used in nearly all cases, the advocates still make oral submissions which can take hours or even days. 11 Evidence Act 1995 (Cth) s 42.

8 8 Common lawyers consider that the process which involves judges and tribunal members seeing witnesses explain the evidence leads to more accurate understandings and a greater ability to assess where the truth lies. The dialogue which takes place when oral submissions are given when advocates are frequently asked many questions is thought to expose the true issues more effectively. In recent years it has become accepted that oral proceedings are not as important as common lawyers once thought. The shrinking world and the opportunity to observe other systems and learn from them, have been very important in this. We have learned, for example, from the system in France and other parts of continental Europe, that the truth of what happened in a business transaction is usually best learned from the correspondence and documents rather than from what business people claim they said in conversations. After all, the correspondence will usually record what was said. It is to be hoped that the Australian system of procedure, by adopting the best of the procedures of other countries, will be improved. This is why congresses like this Congress are important in improving the way we serve our own people. The statutory rules which govern procedure in the Federal Court are found in the Federal Court of Australia Act 1976 (Cth) and the Evidence Act 1995 (Cth) and, for the Administrative Appeals Tribunal, in the Administrative Appeals Tribunal Act 1975 (Cth). However, much of the procedure of the Federal Court and the Administrative Appeals Tribunal is unwritten and draws on the traditional procedures of courts of common law which have their origins in the courts of England. Much has been written about the different procedural systems of the common law and the civil law systems having their origins in the Napoleonic Code.

9 9 Commentaries often describe the former as adversarial and the latter as inquisitorial. Although there is undoubted substance in these distinctions, they are also apt to mislead. Judges in common law countries have always played more than a neutral role of umpire and adjudicator. Judges have always attempted to direct the case towards the just outcome. They have drawn the attention of the parties to matters which seem important and which they consider should be addressed. On the other hand, civil law courts and tribunals do not enquire and determine matters without regard to the matters which the interested parties put before them. It is nevertheless true to say that greater emphasis is placed upon the parties determining the issues and the material to be relied upon in the common law system, and therefore in Australia, by contrast with the process of enquiry in the civil law system. The difference is closely associated with the nature of common law procedure described above. It certainly does not come from any general practice in civil law countries of tribunals enquiring into the correctness of administrative decisions without some complaint by an interested party first being made. It is the procedure of adjudication itself which leads to the difference. Common law systems lead to a court or tribunal adjudicating on material put forward by the parties in a hearing. Civil systems depend more on the collection of material for a file. The court or tribunal is involved in determining what material should be collected and how it should be collected. The emphasis on oral proceedings also increases the importance of the role of the parties. When an administrative review matter is before the Federal Court or the Administrative Appeals Tribunal one party will be a government party which will have access to all relevant government documents. In the Federal Court a process called discovery will generally ensure that all relevant documents are available for examination by the court. The process of discovery requires both parties to produce to the other and to the court all relevant documents they have. In the Administrative Appeals Tribunal the process is more direct. The government party must always produce all relevant documents to the Tribunal and the other party at the beginning of the proceedings. Where a

10 10 document favours the case of a party, that party will present it as evidence to the court or tribunal. Since the Administrative Appeals Tribunal is not a court, although it follows many of the procedures of courts, it is inevitably more flexible in its approach. A substantial reason for this is that the rules of evidence do not apply. The Tribunal will be more likely than the Federal court to intervene in determining what evidence is presented. There is no prosecutor in administrative review proceedings in Australia and no equivalent of the commissaire du gouvernement. However, the government party is expected to act fairly to be a model litigant and in the Administrative Appeals Tribunal the government party has an obligation to assist the Tribunal. 12 Proceedings in both the Federal Court and the Administrative Appeals Tribunal are accordingly both oral and written. Although in the past there may have been greater emphasis on oral evidence and submissions this is no longer so. The proceedings are commenced by the filing of a document. The nature of the case is elucidated by documents. Written evidence and submissions are exchanged. However, because the subject for adjudication is the evidence that is admitted in a hearing and not the whole of the material collected on a file, the role of an oral hearing becomes central. It is also true to say that oral evidence remains important, particularly the right of each party to cross-examine the other parties witnesses. Original cases in the Federal Court are almost always heard by a single judge. Appeals from the decision of a single judge are always heard by multiple judges of the Federal court. Judges give detailed reasons in accordance with the common law tradition. It is perhaps a characteristic of the common law system that the requirement for very detailed reasons, which 12 Administrative Appeals Tribunal Act 1975 (Cth) s 33(1AA).

11 11 ensures that careful consideration is given to each matter, partly substitutes for the advantage of a number of judges dealing with a matter. The position is different in the Administrative Appeals Tribunal. Most of the members of the Administrative Appeals Tribunal are lawyers. However, there are also medical practitioners, retired military personnel, accountants, persons with business, insurance, and aviation experience and others. Some of them also have legal qualifications. Because the Administrative Appeals Tribunal considers the whole decision afresh and substitutes its own decision it is appropriate for people with expertise in the subject matter to be involved. Accordingly, where a director of an insurance company has been disqualified from acting as a director it is appropriate for a business person to be part of the process of adjudication. Where an airline has lost its licence to operate, it is appropriate for a person with aviation experience to be involved. It is accordingly quite common for the Administrative Appeals Tribunal to be comprised of two or three members to hear an application. Typically a lawyer will preside, but there will also be one or two experts. In the review of a decision relating to compensation to a soldier, for example, there may be a panel hearing the case made up of a lawyer, a retired army brigadier and a medical practitioner. 2.2 A party directly affected by an administrative decision will always be entitled to bring proceedings in either the Federal Court or the Administrative Appeals Tribunal if jurisdiction otherwise exists. Problems arise when parties are not directly affected or where an applicant is no more affected than others. These circumstances arise with cases of community interest and cases involving the environment. A detailed discussion of these issues is outside the scope of this report. It is fair to say that the restrictions have become rather more relaxed in recent years than they were in the past. Where a party can show some special interest more than that of the general public there will generally be a sufficient interest to ground that person s standing to sue Australian Conservation Foundation v Commonwealth (1978) 146 CLR 493 and Onus v Alcoa of Australia Ltd (1981) 149 CLR 27.

12 12 In the Administrative Appeals Tribunal the legislation merely requires an applicant whose interests are affected by the decision 14. It has held that aborigines living nearby could challenge the grant of a license to grow pearls on part of the Great Barrier Reef 15. The Tribunal has held that individual fishermen could challenge the grant of licenses to other fishermen where there were a limited number of licenses, 16 it has held that a wildlife protection society can challenge a decision of the Minister for the Environment to issue permits to import Asian elephants into Australia 17 and it has held that individual winegrowers could challenge the boundaries of the Australian equivalent of an area of appellation controleé. 18 However, the present Australian Prime Minister, when a member of the opposition, failed in a challenge to development at Brisbane airport because he was in no different position to most of the residents of Brisbane Parties are entitled to legal representation in both the Federal Court and the Administrative Appeals Tribunal. However, they can and do, present their own cases with increasing frequency. In the Administrative Appeals Tribunal parties are also entitled to be represented or assisted by persons who are not legally qualified. This is technically permissible but unusual in the Federal Court. 2.4 The Federal Court of Australia has a sophisticated system of permitting claims and other documents to be submitted electronically. It is now used frequently. The system goes further and includes electronic handling of documents. 14 Administrative Appeals Tribunal Act 1975 (Cth) s Re Manbarra People and Great Barrier Reef Marine Park Authority (2004) 82 ALD 573; [2004] AATA 268 (15 March 2004). 16 Re Fischer v Australian Fisheries Management Authority 41 AAR 417; [2005] AATA 936 (27 September 2005).. 17 Re The International Fund for Animal Welfare (Australia) Pty Ltd & Ors and Minister for Environment and Heritage (2006) 93 ALD 625; (2006) 42 AAR 262; [2006] AATA 94 (6 February 2006). 18 King Valley Vignerons Inc v Geographical Indications Committee (2006) 93 ALD 422; [2006] AATA 885 (18 October 2006). 19 Brisbane Airport Corporation Ltd v Wright (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192; [2002] FCA 359 (28 March 2002).

13 13 The Administrative Appeals Tribunal has always permitted claims to be lodged informally. A letter will suffice, provided it states clearly enough what is the decision sought to be challenged. Even a note of a telephone call will suffice. A document sent by facsimile can also be used to commence proceedings. The Administrative Appeals Tribunal is presently finalising a system which will permit automatic filing and handling of documents. 2.5 There is legal aid in Australia at both the state and federal level. Some of the funding comes from the Commonwealth Government but is distributed by state legal aid bodies. There are strict means tests for legal aid and it is accordingly available only to poorer Australians. This excludes many persons with just claims who nevertheless can ill afford litigation which is expensive under the common law system. There is also a merit test in most areas as well as restrictions on the type of matter that will be funded. In the Administrative Appeals Tribunal arrangements are in place for legal aid lawyers to attend at the Tribunal to give legal advice to people who are unrepresented. This sometimes, but not often, leads to legal aid funded representation in the hearing itself. The Tribunal makes every effort, however, to assist the many applicants before it who do not have legal representation and cannot afford legal aid. These are mainly persons claiming social security. These claims only come to the Administrative Appeals Tribunal after the matter has been considered at least three times. The claim is first considered in the government agency handling social security. It is reconsidered in that agency by a superior officer if the claimant is not satisfied. If the claimant is still not satisfied an appeal can be taken to a first tier tribunal called the Social Security Appeals Tribunal. It is only if that appeal is unsuccessful that a claimant can bring the claim before the Administrative Appeals Tribunal. Nevertheless, there are still a

14 14 number of applicants who are not represented in cases before the Administrative Appeals Tribunal. The Tribunal seeks to assist unrepresented applicants as much as it can. There is an outreach program under which an unrepresented applicant will be contacted immediately after the proceeding has been commenced. The outreach officer will discuss what is required of an applicant and offer assistance. The Administrative Appeals Tribunal also has a process by which, during the period of preparation, there will be one or more conferences with an officer of the Tribunal called a Conference Registrar. This is so in every case. The conference registrars take particular care to seek to assist unrepresented applicants to understand what they need for the preparation of their case and how they can go about taking the necessary steps. 2.6 Neither an appeal to the Federal Court, nor to the Tribunal, affects an automatic stay of the decision. However, both bodies have extensive powers to issue interim orders staying the decision under review pending determination of the application. 20 The exercise of the power is generally confined to circumstances in which a successful appeal might be rendered ineffective if no stay was granted. 2.7 The process of discovery in the Federal Court and the ordinary process under which the Government must give copies of every relevant document to applicants in the Administrative Appeals Tribunal, ensures that parties have access to all relevant documents, including documents to which they were not previously entitled. The only exceptions are documents to which legal professional privilege or public interest immunity attaches, or documents involving issues such as national security. The Federal Court and the Tribunal are generally entitled to see the documents to determine whether such claims are justified. 20 Federal Court of Australia Act 1976 (Cth) s 23; Administrative Decisions (Judicial Review) Act 1977 (Cth) s 15 and Administrative Appeals Tribunal Act 1975 (Cth) s 41.

15 Both the Federal Court and the Tribunal have emergency or interim measures available to them in keeping with the nature of their juridictions. The powers of the Court are generally wider than the powers of the Tribunal, which are confined to those conferred by statute. The Federal Court can issue injunctions and orders both restraining parties from any proposed conduct, including the enforcement of administrative decisions, and directing parties to engage in conduct. This power exists both on an interim and final basis. In addition to the power of injunction the Federal Court can also make declarations of right and issue writs of mandamus and prohibition compelling public officers to act or to desist from acting. Although the powers of the Administrative Appeals Tribunal to act on an interim basis are more limited, the Tribunal does have power to stay decisions, together with associated powers such as powers to prohibit publication of decisions or the names of persons affected The Power of the Administrative Judge 3.1 The Australian Constitution is the fundamental text establishing the Australian polity and controlling its governance. All courts and tribunals, indeed all administrative decision-makers, are bound by it. Although the High Court of Australia is Australia s constitutional court the Federal Court has power to interpret the Constitution in matters before it and the Administrative Appeals Tribunal must correctly apply the Constitution, even if this involves interpreting it, in the matters before it. Statute law is as binding on the courts, tribunals and administrative decisionmakers, as is the Constitution, save that the statute law must be validly made and not in conflict with the Constitution. Because the Constitution has been held by the High Court to impose a separation of powers between legislative, 21 Administrative Appeals Tribunal Act 1975 (Cth) ss 35 and 41.

16 16 executive and judicial power at the Commonwealth level in Australia 22, the Commonwealth Parliament could not enact legislation conferring judicial power on a tribunal. An example of such an offence might be the conferring of a power to determine disputes between private citizens on a body whose members (judges) did not have tenure until the Constitutional retiring age of 70 years. This would be the conferring of judicial power on a body which was not a court because its members did not have the tenure required for judges. Otherwise, however, statute law is central to administrative decision-making and review in Australia. Administrative decision-making is not routinely affected by the common law. This is because the executive arm of government generally finds the source of its decision-making authority, both general and specific, in statutes of the Parliament. The common law established by decisions of courts over centuries nevertheless plays some role in administrative decision-making and review. If, for example, the authority to make an administrative decision, such as the granting of a licence, depended on whether a contract had been made or not, that question would be determined in accordance with the common law of contract. The question of whether an administrative decision is unlawful is also largely determined by the common law. An administrative decision will be infected with error of law if it is so unreasonable that no reasonable person could have made it. This principle was definitively established for the common law, although it has been the subject of significant scrutiny by courts in recent years, by a decision of the Court of Appeal in England in It is interesting to note that recent decisions of the courts of Australia and England on the application of this principle have differed. In England, partly as the result of the reception of the doctrine of proportionality from Europe, the principle is applied less rigidly than in Australia. In Australia, where proportionality plays a very limited role, the principle is still rigidly applied in 22 New South Wales v Commonwealth (Wheat Case) [1915] 20 CLR Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] AC 1 KB 223.

17 17 accordance with the twin test of unreasonableness. Another reason for Australian courts not having made the test more liberal may be the significant opportunity for merits review of administrative decisions conferred at the time of the establishment of the Administrative Appeals Tribunal in One consequence of the separation of powers doctrine in Australia is that it is always for the courts to determine the law. The interpretation of a statute by the Executive or a public authority will not stand if a court determines the true meaning of the statute to be different. This is because it is exclusively the function of the courts to determine the law. There is no doctrine of deference in Australia like that found in Canadian and United States jurisprudence. This approach is generally true throughout Australia although the separation of powers doctrine does not apply to the governance of the states. The Administrative Appeals Tribunal, although not being a court, must still apply the law in determining matters before it, just as any administrative decision-maker must. The Tribunal is frequently required to determine difficult questions of law. Its members include Federal Court judges and other distinguished lawyers. However, when they are deciding cases in the Tribunal they are exercising executive power and since the determination of questions of law is a matter finally to be resolved by courts there is an appeal from the Tribunal to the Federal Court which is narrowly limited to the determination of questions of law. There are, accordingly, no particular standards or criteria relevant to the role of the courts in determining questions of law other than the questions of law themselves. It follows that policy decisions of the Executive concerning issues of law do not bind the Federal Court when the court is determining the question of law. It also follows that, in the unusual circumstance that a court finds a policy to be so unreasonable that no reasonable person could adopt it, the court would

18 18 not be bound by the policy. It is also a principle of the common law that no administrative decision should be based on a rule of policy without consideration being given to the merits of the particular case. A court can interfere in the case of an administrative decision offending against that principle. However, generally the courts will not be called upon to consider questions of policy because they will not involve questions of law and will not arise for consideration by courts. The Administrative Appeals Tribunal is in quite a different position. The role of the Tribunal is to consider the merit of the decisions to make the decision afresh. Accordingly, it frequently deals with decisions based on Government policy. Since its earliest days it has been established that the Tribunal is not bound by Government policy. 24 The Tribunal should take note of Government policy and exercise caution before it departs from it. However, where the Tribunal, after careful reflection, determines that Government policy should not be applied in a matter before it, it will be free to disregard it. 3.3 The principle that the courts alone can definitively determine the law has the consequence that determinations of the Executive, even on treaty law, are not binding on the courts. In Australia, International Treaties do not come into operation unless and until they have been adopted by the Australian Parliament as part of the law of Australia by act of Parliament. A very large number of international treaties have been so adopted into Australian law and applied by the Courts in resolving disputes. The ratification of a treaty does not of itself make the provisions of that treaty part of Australian law. However, ratification of the treaty has been held to give rise to a decision maker and a failure to do so may lead to a failure to take account of a relevant consideration and thereby invalidate the decision. The law in this area of legitimate expectation arising from ratification of treaties is still in a developing state. In interpreting international law whether for the purpose of domestic law or otherwise the 24 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 2 ALD 60; 24 ALR 577.

19 19 courts will have regard to the provisions of the Vienna Convention on the Law of Treaties Once a treaty is incorporated into the body of Australian law by act of Parliament then it stands on an equal footing with other statutes of the Parliament and will be applied having regard to the same principles as statute law. Customary principles of international law will be taken into account by the courts as part of the body of Australian law in an appropriate case. 3.4 In cases in which it has jurisdiction, the role of the Administrative Appeals Tribunal is to determine the matter afresh and substitute its decision on the merits. It is not bound by and need not be influenced by, the decision it is reviewing. Accordingly, there are no tests for verification of the reasonableness of a decision, or its proportionality, or any similar tests which affect the decision-making process in the Tribunal. The same is not true of the Federal Court which can adjudicate only in the case of an error of law. Many aspects of error of law involve technical legal questions such as the correct interpretation of a statute and whether it has been properly applied by the decision-maker. However, the common law principle of reasonableness and related principles, such as the principle that decision-makers must not take into account irrelevant considerations and must not omit relevant considerations, permit courts a certain freedom. Nevertheless, Australian courts, unlike English courts, have so far confined their application of these principles. Cases raising them successfully are not common. This report has previously suggested that this difference may reflect the absence of any doctrine of proportionality in Australia and the presence in Australia of extensive review of the merits of administrative decisions in tribunals. 3.5 The Federal Court has a significant power to make declarations which permit it to make determinative pronouncements related to administrative decisions. It can also restrain the Executive from acting on a decision and compel it to act in accordance with the court s requirement. Nevertheless, its

20 20 power to act is confined to error of law. The usual result in proceedings before the Federal Court is for that court to determine the question of law before it and, where that establishes that the decision-maker has made an error of law, to remit the matter to the decision-maker or to a different decision-maker for further consideration in accordance with its determination of the law. In those cases in which the Federal Court s determination permits only one result where no discretion exists on the law as the Federal Court finds it to be - the Court will effectively finally determine the matter by declaring the result and requiring the Executive to act in accordance with it. Accordingly, although the power of the Federal Court, other than the power to dismiss a claim, is strictly a power to set aside a decision infected with error of law and remit the matter to the Executive for further consideration, there are some circumstances, where no discretion remains, in which the Federal Court can finally determine the matter and direct the Executive to act accordingly. The position is entirely different for the Administrative Appeals Tribunal, which has power to set aside the decision and substitute an entirely new and different decision. It also has power to amend the decision or to remit the matter with a direction as to how the original decision-maker must act. This is part of the Tribunal s power to reconsider the decision afresh, without influence from the prior decision, and to reconsider the matter from the beginning. It can have regard to facts which have occurred since the original decision was made and makes its decision as at the time the matter is before it and not as at the time the matter was before the original decision-maker Where a court sets aside an administrative decision for error of law, in accordance with common law principles, whether or not the decision will be set aside retrospectively, or merely prospectively, depends on the nature of the error of law. Common law rules on this issue are complex, unclear and constantly reviewed and debated. Broadly speaking, where it can be said that the error so tainted the decision that it can be said to be no decision at all, 25 Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

21 21 the decision will be treated as always having been a nullity. The modern tendency in Australia has been to expand the class of cases in this category. If, however, the decision was based on error of law, but remains, nevertheless, a decision, then the invalidity will only affect it prospectively. The common law used to distinguish decisions which had no validity from those which, although affected by error of law, remained valid until declared by a competent court to be invalid. In Australia, this distinction appears no longer to be favoured. 26 Where the Federal Court exercises its statutory power to review administrative decisions it is given by statute the power to determine from what time the invalidity shall have effect. 27 Accordingly, in many cases in the Federal Court, the technical problems just discussed do not arise. The position of the Administrative Appeals Tribunal is clear. Where it amends a decision or substitutes a new one, the new decision will, by force of statute, operate retrospectively from the time the original decision was made unless the Tribunal determines that it shall operate from another time. 28 There is, of course, no question of the decision being a nullity because it is not part of the role of the Tribunal to determine that matter, even though it may have to consider what is the correct answer to a question of law arising both before the original decision-maker and before the Tribunal. 3.7 The Federal Court of Australia, being a superior court, has full power to enforce its own decisions. Of course, primarily because it would be unthinkable that the Executive would ignore a valid determination of a court and also because the Federal Court has ample powers of enforcement and facilities to carry them out, decisions of the Federal Court are routinely implemented by the Executive without enforcement. It is to be remembered that the Federal court is a superior civil court in Australia as well as a court of administrative review and has available to it the abilities of most civil courts to 26 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR Administrative Decisions (Judicial Review) Act 1977(Cth) s Administrative Appeals Tribunal Act 1975 (Cth) s 43(6).

22 22 enforce their decisions. The power to enforce decisions is, under the common law, one of the determinative indicia of a court. Because the Administrative Appeals Tribunal is not a court, but formally part of the Executive, it does not, and could not, have power to enforce its decisions because enforcement is an exercise of judicial power. In an appropriate case, however, proceedings could be taken in the Federal Court for orders enforcing the decision of the Tribunal. In practice, however, no occasion arises for such proceedings, for the same primary reason that they are unnecessary in the Federal Court.