TOPIC 2: Jurisdiction to Conduct Judicial Review

Transcription

1

2 ~~~~~ TOPIC 2: Jurisdiction to Conduct Judicial Review Introduction There are two avenues to seek judicial review of a Commonwealth decision: o Section 75(v) of the Constitution (or s 39B Judiciary Act); o ADJR Act Avenue 1 The High Court and the Constitution Section 75 of the Constitution: The HCA shall have original jurisdiction in all matters: (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (v) in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Section 77(iii) Commonwealth Parliament may vest any court of the State with federal jurisdiction. As s 75(v) does not include a scheme for review, the original jurisdiction still allows for common law judicial review. Direct to High Court of Australia: o Section 75(v); and o Section 32 of the Judiciary Act allows HCA to grant any remedies not listed in s 75(v) as are appropriate to settle the dispute, like declaration/certiorari. Direct to Federal Court of Australia: o Section 39B of Judiciary Act grants jurisdiction to FC where writ of mandamus, prohibition or injunction is sought against officer of Commonwealth.

3 S 39B(1A)(c) specifically enables FC to review validity of subordinate legislation, which court cannot do under ADJR Act because it is not of an administrative character. Federal Circuit Court has no jurisdiction to undertake judicial review at common law, only under ADJR. Via High Court to Federal Court: o If HCA does not want to hear matter itself, by virtue of s 44(2A) Judiciary Act, it can remit matter to FC, which will then exercise jurisdiction under s 39B. Elements of s 75(v) E1: Matter Matter requires some immediate controversy between the parties (McBain). McBain; Ex parte Catholic Bishops Conference (2002) CLR F: Case concerned Infertility Treatment Act. Dr McBain wanted to undertake IVF treatment on a single woman, contrary to Act which only allowed married/de facto women. He sought declaration from FC that Act was inconsistent with the Sexual Discrimination Act. Victoria did not put up a fight to the validity of legislation, but the Bishops made submissions as amicus curiae. FC sided with McBain so Bishops appealed to HCA seeking certiorari on basis that FC s reasoning was flawed, not on the grounds that FC was acting outside jurisdiction. H (Gleeson CJ): Bishops had no controversy with McBain they merely did not like outcome of judgment. There was no immediate right, duty or liability that required determination by a court, and so no matter. Thus matter requires that there be some controversy about rights which, by the application of judicial power, will be quelled, and that controversy must be immediate. E2: A writ is sought

4 Broadly, a prerogative writ (prohibition, certiorari, mandamus) or other remedy (injunction, declaration) must be sought by the applicant for the HCA to have jurisdiction to hear the application. By virtue of s 32 Judiciary Act certiorari/declaration can be granted. The prerogative writs are: o Prohibition order prohibiting DM from taking a proposed course of action or making a proposed decision; o Certiorari order quashing a defective decision; o Mandamus order requiring DM to exercise a discretion in accordance with the law and make a decision. Other remedies are more popular as they are not subject to the same stringent conditions as are the prerogative writs. These include: o Declaration order by court, which has no coercive effect, but merely declares the legal rights and liabilities of the parties. o Injunction order by court that DM refrains from undertaking a particular act or to undertake a particular act. Prohibition and Certiorari Public Power For prohibition and certiorari to operate, it is necessary that the decision that is sought to be challenged was made pursuant to public power (Datafin). Certiorari is further limited as it operates only to quash the legal effects or the legal consequences of a decision under review, as opposed to a mere tarnished reputation (Hot Holdings). R v Panel on Take-Overs & Mergers; ex parte Datafin (1986) QB F: Panel administered London stock exchange and was capable of excluding a party from the stock exchange. There was no statute empowering the Panel. Panel excluded Datafin who then sought judicial review. H: Panel was exercising public power: a body, in carrying out a particular function, exercises public power if it is a power the government would so

5 exercise. Hot Holdings v Creasy (2002) ALR F: WA Mining Act gave Minister discretion to grant or refuse an application for a mining lease. Before he made his decision, he had to receive a report from Mining Warden containing a recommendation to grant or refuse an application. If more than one applicant, in report Warden must specify who has priority with regards to who lodged first. Eight applications were lodged within 51 seconds of the Mining Registry s doors opening. Warden used a ballot to pick the priority applicant, but before he did this HH, who was the first person to walk in, commenced proceedings seeking certiorari to quash decision of Warden to hold a ballot. H: If certiorari was sought against decision of Minister to grant or refuse a mining application, that would have a legal effect because it would determine whether HH could mine the land or not. The decision of the Warden here, although much earlier, carried with it legal consequences also Minister had to get report from Warden recommending a priority applicant before making its decision. Thus if a decision is a necessary precondition for a DM to make a decision which will affect someone legally, that is regarded as having legal effect. Forbes v NSW Trotting Club (1979) CLR F: Club had a trotting course and was vested with power by parliament to regulate all trotting meetings in NSW. Under the club s Rules, it could issue a warning off notice to exclude a person in that state from attending. Forbes was issued one so he sought a declaration he was denied procedural fairness. Club argued the decision to exclude Forbes was made as an exercise of a private right to exclude people from its property. Forbes argued it was public power per the Rules which applied to all members of the public attending racecourses in NSW. H: Here the Club was exercising public power, as it was under the Rule. To determine whether public law applies, look at the type of power being exercised

6 and the extent to which it affects the public here Club had power to prohibit anyone in NSW from attending a racecourse, so clearly public power. John Fairfax v Aus Telecommunications Commission [1977] NSWLR F: JF rented two teleprinters from Commission. There was a contract in place which had a clause stipulating that while Commission is liable for any disruption or delays in transmission, it would not be liable for any loss suffered as a result of delays in telegraphic communication. There were by-laws in place which provided that when a teleprinter was rented from Commission, Commission would maintain it. Machine broke, Commission refused to repair as workers were engaged in industrial action. JF sought mandamus. H (Moffit J): Commission had both contractual (private) and statutory (public) obligations to maintain printer, but the duty to maintain and repair was private. This is because right to payment of rent is a private right, as is the right to have the service maintained, when rent is paid. Court awarded injunction. NEAT v AMB (2003) CLR F: WEA was a statutory body established to regulate export of Australian wheat. To export, statute required the exporter get WEA s consent first. However, Act also stipulated that this rule did not apply to AWB and WEA had to consult with AWB each time consent was asked for. Thus AWB could export without consent and could refuse exporting from competitors. NEAT wanted consent, AWB refused so NEAT brought judicial review arguing refusals were made under its statutory power and that AWB adopted an inflexible policy without regard to the merits of the individual applicant. H (Gleeson CJ): Although AWB had statutory powers, it was a private company entitled to act in best interests of its shareholders. While AWB had private commercial interests in denying NEAT s export, it also had a broad statutory power to do so, so its policy of refusing consent was consistent with statute.

7 Mandamus Public Duty Order of mandamus will lie only in respect of a public duty to exercise a discretion and DM refrains from exercising that discretion (WA Game). o The discretion must be mandatory, not permissive. WA Game Association v Minister for Conservation (1992) ALD F: Under the WA Conservation Act, Minister was empowered to declare a hunting season in respect to any fauna. Minister did not consider whether he should declare an open season in relation to ducks and waterfowl, so WGA sought an order for mandamus that Minister make a decision one way or the other. H: Minister was not under any duty to consider whether to declare an open season. This is because the broad purpose of the Act is the conservation of wildlife it was not going to compel him to declare a slaughter. E3: Officer of the Commonwealth It is generally accepted that a Commonwealth Minister or employee of a Commonwealth department will satisfy this element unclear area of law. Elements of FC Original Jurisdiction There must be a matter ; Commonwealth must be involved in the dispute (s 39B(1A)(b)); If s 39B(1) is sought to be used, then the applicant must be seeking and entitled to the remedy of mandamus, prohibition or an injunction; If s 39B(1A)(c) is sought to be used, then there must be a dispute relating to right or duty under a law made by the Commonwealth Parliament and not merely interpretation of a federal law. Avenue 2 The ADJR Act ADJR was introduced to streamline judicial review to make it easier for applicants, as well as eliminating costs associated with common law judicial review. It also entitles applicants to reasons (s 13).

8 To get relief under ADJR, a person aggrieved by the decision must seek to challenge a decision (s 5), conduct in connection with the making of a decision (s 6) or a failure to make a decision (s 7). Remedies for ADJR applications are under s 16 and take the form of s 75(v) remedies. Acts confers jurisdiction to hear review applications under ADJR on FC and FCC under s 8. Courts have discretion to refuse to grant an application for review if applicant has applied to a different court for review of the same decision (s 10). FC (s 15) or FCC (s 15A) may stay the operation of a decision being challenged in a review application. Elements of ADJR Review E1a: Decision (s 5) A decision is amenable to judicial review under s 3(1) if it is a decision of an administrative character made under an enactment, other than a decision by GG or decision under Schedule 1. Under s 3(2), reference to making a decision includes a reference to: o Making, suspending, revoking or refusing to make an order, award or determination; o Giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; o Issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; o Imposing a condition or restriction; o Making a declaration, demand or requirement; o Retaining, or refusing to deliver up, an article; o Doing or refusing to do any other act or thing. Under s 3(3), if a report or recommendation is required before decision is made, the making of such a report or recommendation is deemed to be a decision.

9 Australian Broadcasting Tribunal v Bond (1990) CLR F: Bond had companies that required broadcasting licences. To get one, Bond had to be considered a fit and proper person to hold such a licence. Bond s fitness was called into question after a scandal whereby he bribed Premier of Qld in defamation action he brought against Bond in exchange for favourable treatment of Bond s companies. As a result, ABT commenced inquiry into Bond s fitness under Broadcasting Act and concluded Bond and his companies were not fit and proper to hold the licence, and this could lead to cancellation. They made no such decision to cancel at this stage, though. Bond challenged ABT s ancillary findings that Bond was not fit to hold licence, that he exerted influence over the company etc under s 5 and, alternatively, s 6 of ADJR Act. H (Mason CJ): A decision for which provision is made under the relevant statute is generally one that is final and operative. A conclusion merely reached along the way as a step in the course of reasoning, leading up to an ultimate decision, is not a reviewable decision in itself unless statute provides for it. A decision to revoke Bond s licence would be final and operative, and so satisfy s 5 because statute made it clear that ABT had to determine this. The findings of ABT that company was not fit and proper was also a decision because it was provided for under Act and was substantive, as opposed to merely procedural. But other decisions like the settlement with Premier was excessive, that Bond was not fit and proper, were not decisions but mere stepping stone findings leading up to the determination that company was not fit and proper, and were not provided for under the Act. Thus if a decision is not provided for under Act, it is (a) not reviewable in itself and (b) nor are the ancillary decisions leading up to it. Review of ancillary decisions must be brought along with the main claim against the final decision, and not a separate application. E1b: Conduct Conduct includes the doing of any act or thing preparatory to making a decision, taking evidence, or holding an inquiry or investigation (s 3(5)).