REVIEW OF EXECUTIVE TYPES OF REVIEW JUDICIAL REVIEW

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1 REVIEW OF EXECUTIVE 3 main types of Executive (administrative) review:! Internal review (conducted by individual Departments);! External merits review (by independent Panel/Tribunal); " Bodies set up by stat, usually have power (conferred by stat) to undertake full merits review. " Tribs subject to further review/appeal to Cts on Qs of law.! Review by Ombudsmen. " O has no power to change dec; may recommend. Additional Measures FOI leg confers right of access to info held by govt agencies, subject to certain exemptions. May give access to valuable evidentiary material to challenge dec. TYPES OF REVIEW Merits Review (conducted by tribunals) Trib takes no acct of o-dec. Starts from scratch, hears evidence anew, decides facts, interprets & applies statute itself. Trib dec stands in place of original dec under review. Legalities Review (conducted by courts) Limited to questions of law.! Ct doesn t start from scratch; doesn t rehear all evidence.! Examines procedures followed by ODM, to ensure they were fair & reasonable.! Therefore: review of processes used to make dec, not review of the substantive outcome of decision. When court finds incorrect procedures used by ODM will not (generally) substitute own dec; rather, original dec declared void, matter remitted back to DM.! When ODM re-decides matter, this time following correct procedures as determined by the ct, may reach same dec as that originally reached. Review by Ombudsmen Statute confers power on the Ombudsman to investigate forms of administrative malpractice. o Unlike tribs and courts, no coercive powers # cannot enforce any conclusion they reach about an error. JUDICIAL REVIEW JR originally inherent c-law jurisd claimed by superior Cts. Constitutionally limited to Qs of legality ; courts will only examine process by which A-dec made.! Grounds of review involve challenge to rationality or fairness of DM process (ie. legalities), rather than direct challenge to substantive outcome of process (ie. merits).! Remedies do not transgress into merits of admin dec. Remedies available Prerogative Writs (only against public bodies & their exercise of public power, ie. statutory or prerogative powers) (1) SCOPE OF ADMINISTRATIVE LAW! Certiorari: quashes dec, makes it void, no legal effect. " where flawed DM process has been completed.! Prohibition: order govt body not to proceed w a particular course of action. " where flawed ad process not yet completed.! Mandamus: mandatory order 4 govt body do 2 s.thing. " Usually issued w cert to direct following of proper procedures. Equitable Remedies (broader in scope & more flexible than prerogative writs)! Declaration: dec legally flawed, thus void. " technically no coercive effect; in practice treated as cert.! Injunction: prohibitory or mandatory. " Can cover same ground as prohibition & mandamus. SA: State Supreme Court inherent c-law jurisdiction to review in rule 98, SC rules:! State administrative decs.! Cth A-decs (s 76 Constitution; J Act 1903 (Cth)) " Cth leg restricts possibility to limited circs. Available remedies:! S17 SC Act: sets out simplified procedure for securing prerogative writs & equitable remedies of injunction and declaration. Commonwealth: 3 potential sources of jurisd for JR ADJR Act 1977 (Cth) $ confers statutory jurisdiction upon:! Federal Court (s8(1))! Federal Magistrates Court (s8(2)). $ Advantages: Doctrine of JR doesn t apply; s5! Errors of law not limited to jurisdictional matters. $ Provides for the review of:! Decisions: of an ad character required to be made, proposed to be made or made under an enactment; s3(1). " Dec must be final and operative. making of a report may be a dec; s3(3)! Conduct leading to a decision (s6): " includes preparatory actions to making of dec. Eg: taking evidence, holding inquires; s3(5).! Failure to reach a decision; s7, s3(2)(g) " Includes review in circs of unreasonable delay, where a time period is specified and has expired.! does not include exercise of PPs by G-G (s3(1)(c $ App for review must be by an aggrieved person $ Sched 1 sets stat provs where decs made are not decs for ADJR Act. $ Grounds for review; s5 " S5(1)(a)- breach of natural justice " S 5(1)(b)- procedural fairness " S5(1)(c)- jurisdiction of decision maker " S5(1)(d)- not authorized by the enactment " S5(1)(e)- improper exercise of the power conferred " S5(1)(f)- error of law " S5(1)(g)- fraud " S5(1)(h)- no evidence 1

2 " S5(1)(j)- contrary to law $ Remedies: simpler, less technical than c-law prerog writs.! For decisions (applications under s5) " S16(1)(a)- quash " S16(1)(b)- refer to decision maker for further consideration " S16(1)(c)- order declaring rights of the parties " S 16(1)(d)- make an order requiring the parties to do or not do anything $ For conduct (applications under s6) " S16(2)(a)- order declaring the rights of the parties " S 16(2)(b)- make an order requiring the parties to do or not do anything $ For failure to decide (applications under s7) " S16(3)(a)- order directing making of the decision " S16(3)(b)- order declaring rights of parties " S16(3)(c)- make an order requiring the parties to do or not do anything. $ Tribunals and inferior courts decisions:! Only reviewed/quashed if infected with JE " JE an extended concept under s5, any error of law can mean grounds for review, pure JE not required.! Seen as a superior court correcting an error before it becomes precedent. $ Aggrieved party may seek written statement about material questions of fact, evidence and reasons for dec s13(1).! C-law doesn t permit app to request reasons for decs.! s13 (5): circs where statement of reasons may be refused.! app for reasons must be within 28 days of dec. " subject to exclusions in sched 2. s39b Judiciary Act Gives Federal Court jurisdiction to conduct JR $ replicates const jurisd of HC under s75(v)! S39B(1A)- extends jurisd of FC to be same as HC $ Accrued/associated jurisdiction:! S32 FC Act- jurisd for matters not otherwise in FC s jurisd assoc w matters in which ct s jurisd is invoked.! FC has power (and responsibility) to settle matters before it by dealing w all issues arising under same set of facts - Fencott v Muller $ Remedies: c-law remedies.! s44 (2A): matter may be remitted from HC to FC.! In conjunction w ADJR Act (s 9A), JAct s39b (1B)- (1F) states that FC cannot undertake JR of decs made during criminal justice process. Federal magistrates Court $ FMC has jurisd similar to FC s, not as broad as FC s. Constitution s75(v) $ HC has entrenched jurisdiction to grant remedies of mandamus, prohibition and injunction against officers of Cth.! officer must be natural legal person, not body corporate $ Inherent power to conduct JR of ad action in absence of leg conferring such jurisd. $ Has obligation to resolve matters that come before it. $ Remedies:! 5 common law remedies.! May imply certiori and declarations as remedies, although no express provision in Const. 2 (1) SCOPE OF ADMINISTRATIVE LAW " Judiciary Act S 32. s75(v) may be first source of jurisd to consider whether valid PC exists in statute - JR still allowable where JE exists. MERITS REVIEW JURISDICTION All merits review jurisdiction conferred by statute. SA: merits review tribunals exercising limited jurisdictions in the State. District Court has limited merits review jurisdiction. Cth specialist merits review bodies (eg. SSAT) & AAT.

3 Constitutional Framework Balance in courts decs between: concern 4 indiv rights + freedoms, recognition that elected govt takes action in overall public interest. Admin law a policy subject:! In every substantive area, difficult decs to be made by ADMs which courts will second-guess ;! Policy issues underly courts decs re extent 2 which govt entitled 2 intervene in citizens lives on basis of democratic mandate. Constitutional Principles Rule of Law Focus on controlling exercise of official power by exec.! Govt not above law, is subject to it! Public subject to law, does not need source of law (unlike govt) to move/operate. $ 3 principles: 1. Govt can t take coercive action against any person except in accordance with clear & existing legal authority; action unlawful unless legal authority to support it. " Entick v Carrington Leg presumed not to abrogate a fundamental right, freedom or immunity other than by express or unambiguous language. " Coco v The Queen 2. Legal equality of govt and citizens: govt doesn t inherently have power 2 authorise officials 2 act in defiance of crim law " A v Hayden (No 2); 3. protecting civil liberties and rights Separation of Powers $ Leg enacts laws, exec applies laws, jud resolves any disputes.! No pure separation; some overlap! Checks & balances on exercise of govt power, ensure diff govt functions discharged by arm of govt best suited.! Prevents courts from carrying out merits review o limited to looking for legal error Responsible Government $ G-G formal head of exec! Mins who control exec depts are mps; right to function as govt continues only with confidence of lower house " Judicial and trib review extend to ministerial decs $ JR can apply to dec made by vice-regal officer because min effectively made the decision:! FAI v Winneke, R v Toohey; Ex parte Northern Land Council; Constitutionalism power exercised by govt limited by rules:! written const rules, values or principles such as representative democracy, RoL! JR mechanism ensures legal compliance by govt; Marbury v Madison Parliamentary Supremacy Parliament the supreme source of legal authority : o Parlt can make/unmake any law; o Stats overrides c-law; and o PPs can be abrogated/replaced by statute. Theoretically, Exec firmly under Parlt s control. Parliamentary supremacy: Parlt represents will of the ppl; highest source of legal authority # cts can t invalidate Acts. Doctrine underpins:! Statutory interpretation rules; and! Tradition of judicial deference to the will of Parlt. Ltd doctrine in Aust: Const has certain heads of power. Tensions: Practical app of constitutional principles 3 constitutional principles underlying fundamental principles of admin law often conflict # tension. Statutory interpretation & common law rights UV principle: a-action must be w/in power (stat or c-law). To determine whether UV, courts interpret statutes. Interpreting statutes: courts defer to Parlt:! interpret stats in light of existing c-law (therefore indiv rights, freedoms & liberties recognised by c-law) # Courts imply legislative intent that c-law rights and freedoms to be preserved. Cts recognise parlt supremacy by acknowledging that Parlt can confer extensive power on exec: BUT also uphold RoL, subjecting such power to implied limitations.! Parlt can remove indiv rights & freedoms if uses clear & unambiguous language. Privative clauses PC: stat clause that expressly purports to exclude JR. Cts limit operation of PCs, asserting they are only intended to protect a dec made in accordance with A-law principles. Any other type of dec not all; rather, a nullity. Legality/Merits Distinction Cts intervene where dec s legality in issue, but not where its merit in issue # judicial deference to ODM.! While tribs (part of Exec) must determine Qs of law, they cannot do so in a final/binding way. Distinction between:! Qs of law (legalities) & Qs of fact (merits) Quin;! Substantive outcome of ADM process (merits) & actual process used to reach outcome (legalities); and o Weight attributed to considerations (merits) & unreasonable weight attributed to a particular factor (legalities). Difference only a matter of degree. Unreasonableness: Associated Provincial Picture Houses L v Wednesbury Corp W had disc power under statute to grant license for sun performances; did so subject to condition that no children under 15 be admitted to any entertainment whether accompanied by an adult or not; argued unreasonable.! Court wont interfere with exec action unless authority has contravened the law (fact/merit distinction)! W/in 4 corners of principles in which disc can be exercised, discretion is absolute, can t be questioned in court of law! Reviewing exercise of a disc: ct might inquire whether irrelevant considerations taken into acct, whether matters which authority might have to consider were considered or whether auth acted in bad faith! dec may only be attacked as unreasonable if no reasonable body could have come to it Attorney-General (NSW) v Quin: 3

4 Exec & Judicial control of policy (a dynamic relationship) Mag Cts system reorganised, AG now appointed mags on merit requiring assessment of competing applicants.! Q, former mag before reorg, not recommended; sought application to be considered on own merits, not in competition w apps from other (new) applicants.! AG s new policy in conformity w Act, therefore no justification for granting relief that would compel exec to adhere to approach of appointment it had discarded in favour of different approach.! Wednesbury unreasonableness leaves merits of a dec unaffected unless dec or action is such as to amount to an abuse of power Purpose of JR: merits/legalities distinction: Chief Constable of the North Wales Police v Evans $ Dec by Chief Constable (based on factual errors re E s private life) to pressure Evans into resigning; invalid for serious and arbitrary breach of NJ.! L Hailsham: purpose of JR to ensure indiv receives fair treatment, not that authority, after according fair treatment, reaches a conclusion on a matter which it is authorised by law to decide, that is correct in eyes of ct.! L Brighton: JR not appeal from a dec; review of manner in which dec made. Discretionary Powers & Judicial Review Discretion - choice given to Exec DMs to the way they exercise power. o Advantage: Provides flexibility to achieve best dec in indiv case. o Disadvantage: Decisions can be inconsistent, arbitrary & unjust # against rule of law. Rule of law: Exercises of power must have a source of authority # discretionary powers be legally checked & controlled. Courts take a balanced approach to control of discretion: o Our grounds of review confine discretion: " Procedural fairness " Relevant/irrelevant considerations (eg. Roberts) " Unreasonableness (eg. Roberts) " Statutory interpretation (eg. Shopping hours case) No such thing as absolute discretions (Padfield) # Courts imply limits on discretions. o But our grounds of review also preserve discretion (eg. ALS v Minister). Policy controls the exercise of discretion by decision-makers. Policy 2 types: broad level (overall govt aims & objectives) & lower level (govt s interpretation of statute; directions on how to exercise discretion under specific legislation). $ Policies desirable because:! Improve consistency;! Improve fairness to individuals;! Achieve purpose of power;! Minimise unnecessary inconvenience;! Give upper Exec control over lower Exec. A law comes into play when govt implements policy in indiv instances. How Exec controls policy: o Policy manuals; o Ministerial statements of policy; o Unwritten policy: day-to-day practice. How Judiciary controls policy (its rules): o Policy must be consistent with the statute; o Policy can t be applied inflexibly to all cases must consider whether anything special re indiv case which warrants dept from general rule. Consideration need not be long/detailed, but must exist. (eg. Green v Daniels) o Policy not binding on government (no estoppel). Exec s response to courts frustrating policy by review: o Putting/clarifying policy in Act (eg. SS; Tax); o Changing discretions into rules (eg. Mig Act); o Immunising policy from review; o Stat powers to issue policy guidelines & directions # gives policy statutory force (ADC v Hand, ALS v Min); o Shift of use from stat power to contractual power (cts scrutinise c-law powers much less, & privity limits range of ppl who can pursue a contractual remedy). Green v Daniels Infelxible application of policy G a school leaver. Nov 76, applied to DSS for unemployt benefits, told not entitled until Feb 77-end of holidays; condition included in policy manual (not part of leg); applied as inflexible rule. Re policy and guidelines for exercise of DM power:! must be within bounds of leg, neither narrowing or confining it, nor expanding it; must maintain legislative intent; should provide for consistency between like cases, but allow different cases to be treated differently and individual elements of cases to be considered. Erroneous test was applied to determine Pl s eligibility during holidays # Remedy = declaration: DG should have considered all circs of Pl s claim. o Cannot give decl that entitled to benefits during holiday period; court would be usurping DG s power of attaining satisfaction. [ie. reviewing merits] Aboriginal Development Commission v Hand $ Comm 2 exercise powers in accord w gen directions by Min:! General directions to comm to cooperate w Min re proposed reorg of Dept & other bodies to facilitate formation of ATSIC, to provide Min w info, and reps to attend certain meetings to discuss reorg of Dept & other bodies required for formation of ATSIC. Comm sought declaration that directions invalid (ie. UV). General indicates direction not to be directed to indiv case, but applied generally.! General direction similar to a binding guideline; sets the structure of activity or DMing.! May require Comm to undertake activity of a specified character but may not direct its attention to a specific case arising for dec before Comm. Directions should be read in such a manner as to maintain validity. To so read them is merely to read them in context. 4

5 ALS v Minister for Aboriginal Affairs Directions determining outcome of particular cases (invalid). Act gave commission power to make grants & loans for Abs interests; Comm to exercise powers in accordance w general directions given by Min. Min gave directions to ATSIC re making of grant/loans. One of the directions not general therefore invalid;! direction beyond setting up general process, conferred power & disc on SA to override ATSIC s discretion re particular applicants.! It allowed SA to effectively veto ATSIC s grant in particular cases # Took away disc conferred to Comm, gave it to someone Parlt has not conferred power on. Remedy = decl that dirs not general, of no effect. Under s12, Min could set up a procedural process, and give dirs as to priorities to apply. But Min cannot command ATSIC how to determine outcome of its dec to grant. Consequence of invalid decision: $ Matter normally remitted 2 DM for reconsideration subject to directions given by court as 2 how matter 2 be reconsidered.! Inappropriate for ct undertaking JR to substitute own view on the issue requiring judgement, disc, formation of opinion by DM " Unless Q under consideration is confined in scope, admitting only one correct answer; Green v Daniels $ Examples where court substituted new dec (without addressing broader issue of doctrine):! R v Anderson; Ex parte Ipec-Air Ltd; app had complied w stat criteria for grant of an aircraft charter licence! Makisi v Min for Imm & Ethnic Affairs; app for resident status lodged by app at date earlier than claimed by Dept.! State of Qld v Wyvill; held that person who died in custody wasn t Aboriginal! AG (NT) v Hand; land can t be subject of Ab land claim if in court s view contained road over which public had right of way.! Harris v Repatriation Commission; veteran s claim for benefit couldn t succeed if correct legal test applied by DM. State of mind or subjective language: Liversidge v Sir John Anderson; ct had to decide meaning and effect of power conferred on Min to detain a person during wartime if Min had reasonable cause to believe that person a security risk. $ For Min, not court, to decide; stat standard was subjective rather objective &court had no role to play! L Atkin dissent: there must be reasonable grounds capable of demonstration to a court for min s decision if X satisfied there are reasonable grounds : 2 elements. (1) if X is satisfied $ R v Connell; Ex parte The Hetton Bellbird Collieries Ltd:! Where existence of opinion made condition of exercise of power, leg conferring power treated as referring to an opinion which can be formed by a reasonable man who correctly understands the meaning of the law under which he acts! Such a person may not act on his opinion if it is shown he has misconstrued stat and/or nature of opinion to form! Court should enquire whether opinion required by relevant leg has really been formed (2) on reasonable grounds $ George v Rockett:! when stat prescribes there must be reasonable grounds for a state of mind it requires existence of facts sufficient induce that state of mind in a reasonable person. $ Greiner v Independent Commission Against Corruption;! Reasonable grounds to be applied objectively $ Minister for Foreign Affairs and Trade v Magno;! Standard form power conferred on GG to make regulations necessary and convenient for carrying an Act into effect should be construed subjectively. Judicial Deference & Restraint $ When prompt/efficient action required, is in public s interest disputes are resolved quickly, w finality by specialist tribs. $ Courts may sometimes defer to dec of specialist trib (or attribute special weight to them): $ R v Ludeke; Ex parte Qld Electricity Commission;! Comm specially equipped by reason of its knowledge and experience of industrial relations in the industry to make value judgement on some of the issues which arose $ Kalil v Bray; Filo v Pharmacy Board of NSW;! special weight to tribs in matters re taking of disciplinary action against professional accused of unprofessional conduct;! in applying A-law standard to Min, some acct of context of political legitimacy & accountability in which minister functions must be taken into consideration: Minister for Immigration and Multicultural Affairs v Jia;! Min s earlier remarks re Jia didn t mean dec whether J of good character for Mig Act was flawed for bias.! Significant difference between discretion given to min and a departmental head Statements of reasons: important but should be judicial restraint in scrutinising them: $ May not have been prepared as carefully as court judgement; difficult to properly explain reasons for dec in writing. $ should not over-zealously pick Trib up in way it has expressed itself, particularly when it appears properly to have understood legal principles which it is to apply ;! Northrop, Sheppard JJ: Lennell v Repatriation Commission $ Min for Imm & Multicultural Affairs v Yusuf:! it is not right to read material as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of DM. Chaudry v Min for Imm, Local Govt & Ethnic Affairs (1994) C applied for permanent residence in Aust for himself and family under s6a(1)(e) of Mig Act, allowing for applications on compassionate grounds 5