Semester 2. Administrative Law Final Notes & Skeletons Monash University LAW3101

Transcription

1 Semester 2 14 Administrative Law Final Notes & Skeletons Monash University LAW3101

2 JURISDICTION TO CONDUCT JUDICIAL REVIEW COMMON LAW/S39B JUDICIARY ACT High Court has original jurisdiction to conduct judicial review - derived from s75(v) Commonwealth Constitution of Australia o "In all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth" o Cannot be excluded by any means including privative clause - it is embedded in the Constitution o "It is a means of assuring to all people that offices of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them": Joint Judgement, Plaintiff S157 Parliament granted the Federal Court an equivalent jurisdiction under s39b Judiciary Act o s39b(1a)(c) enables the Court to directly review the validity of subordinate legislation which courts cannot do under the ADJR o Can be excluded through clear words and necessary intendment There are 3 requirements under s75(v)/s39b to establish jurisdiction: 1. A "matter" o There must be a controversy about rights, duties or liabilities that can be quelled by the exercise of judicial power: McBain 2. Being brought against an officer of the Commonwealth o There is no definitive ruling on this term, however it can reasonably be determined by the nature of the decision maker 3. In which one of the listed remedies of mandamus, prohibition or injunction are sought o A litigant must establish an entitlement to one of these remedies ADJR ACT Commenced 1 October intended to be remedial & a codification of the common law, to be simpler, cheaper and more efficient There are 4 requirements under the ADJR Act to establish jurisdiction: 1. "Decision" within meaning of s5; or o s5: "Decisions to which this Act applies" o Must be FINAL and OPERATIVE or DETERMINATIVE: Bond o A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision will not ordinarily amount to a reviewable decision unless the statute provided for it: Bond o It must be a SUBSTANTIVE DETERMINATION: Bond o If the statute requires/authorises the decision maker to determine an issue of fact as an essential preliminary to the taking of ultimate action/making of an ultimate order, then it would be a reviewable decision: Bond o Certain decisions are excluded in Schedule 1 of the ADJR ABT v Bond (1990) 170 CLR 321 Facts Broadcasting Act gave ABT power to inquire into whether a commercial broadcasting license holder was fit and proper person to hold the license, and if not, what were the consequences Bond had control over number of license holding companies throughout Qld via shares held Tribunal conducted inquiry into whether by reason of Bond s conduct the licensees were fit and proper persons related to 2 incidents: (1) claims of bribery to the Qld Premier over a defamation action and (2) threats relating to business competitors 2

3 In the course of the inquiry, tribunal published a decision on facts statement concluded the allegations against Bond were proven, and also concluded that Bond and, because of his control over them, the licensees of the companies, were not fit and proper people to hold licenses Bond & companies commenced proceedings under ADJR referring to 11 separate decisions and 7 instances of conduct by the tribunal in breach of ss5& 6 of the ADJR Held Tribunal conceded that 1 of its findings was a reviewable decision (that the licensees were not fit and proper people to hold a license) HCA held per curiam no error in that findings Other points of contention were not reviewable because they weren t decisions or conduct or it was held per curiam that there was no legal error Mason CJ: Decision: s3(1) ADJR isn t very clear remedial nature points to not taking a narrow view but other considerations point to the words having a relatively limited field of operation A reviewable decision is one for which provision is made for under statute Will be FINAL OR OPERATIVE AND DETERMINATIVE A conclusion reached as a step in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision unless provided for by statute Must be a SUBSTANTIVE DETERMINATION s3(2) examples; s3(2)(g) should be read as referring to the exercise or refusal to exercise a substantive power Present case: finding that licensees were not fit and proper people = intermediate determination in course of reasoning to the ultimate decision but it was a matter of substance for which the statute provided as an essential preliminary to the ultimate decision Conclusion that Bond was not a fit and proper person was not provided for by the Act while an essential step this is not enough; it was not a decision as per s5 Facts: If the statute requires or authorises the decision maker to determine an issue of fact as an essential preliminary to the taking of ultimate action/making of an ultimate order, then it would be a reviewable decision such was the decision about the licensees In ordinary circumstances a finding of fact will not constitute a reviewable decision Conduct: Looks to the way in which proceedings have been conducted rather than decisions process of decision making was flawed rather than decision being erroneous - PROCEDURAL NOT SUBSTANTIVE IN CHARACTER Finding that Bond would not be found to be a fit and proper person to hold a broadcasting license was not procedural just a step in reasoning therefore not conduct 2. "Conduct" for the purpose of making a decision, within meaning of s6 o Conduct looks to the way that the proceedings in making the decision have been conducted rather than decisions made along the way to making a final determination o It must be PROCEDURAL NOT SUBSTANTIVE in character: Bond o The process of decision making but be flawed NOT that the decision itself is wrong 3. Of an administrative character o Ask whether the action under challenge is legislative or judicial - if not, by deduction, it is administrative o All decisions that are neither judicial or legislative, which Ministers or other officers of the Commonwealth make in executing/carrying into effect the laws of the Commonwealth: Tang o Provision for disallowance by Parliament of a decisions is a factor which tends towards a finding that a decision is administrative rather than legislative in character: Roche o General rule: Legislative decisions determine the content of a law as a rule of conduct, but ADMINISTRATIVE DECISIONS involve applying the LAW to PARTICULAR CASES: Federal Airports v Aerolineas Argentinas Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582 Facts Act provided that The corporation may, from time to time, make determinations fixing or varying aeronautical charges & specifying the persons by whom the charges are payable and the times when the charges are due and payable FAC made a determination in 1991 imposing a landing charge for large aircraft landing at major Australian 3

4 airports Held The determination by FAC was administrative in nature A distinction often made between legislative and administrative acts is that between the general and the particular. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy of expediency or administrative practice Significant that the Corporation carries on a business undertaking, albeit a government enterprise, the conduct of which is in significant respects subject to ministerial direction Once it is accepted, which it must be, that the fixing, in the exercise of a power conferred by statute, of a charge payable, by all those who choose to use the facilities or services in respect of which the charges imposed may, in appropriate circumstances, be regarded as an administrative act, then it my view it is clear whether the 1991 decision is or not 4. Made "under an enactment" a. What is an enactment? o s3(1) ADJR: a Commonwealth Act and 'an instrument (including rules, regulations or bylaws) made under such an Act" o Document must be able to affect legal rights and obligations: Burns v ANU b. When is a decision made under an enactment? o Distinction must be drawn between the statute that creates the body that made the decision, and the statute under which the decision is made o Requires a link between the decision to be reviewed and a power conferred by an enactment to make that decision o Has the enactment played a "relevant part" in affecting or effecting rights or obligations: Tang o Where statute empowers the decision maker to enter contracts, that will not suffice for review of a decision made under that power to enter/break contracts: Tang o Tang Test: 2 main criteria - A decision will be made under an enactment for ADJR purposes where: The decision is expressly/impliedly required or authorised by the statute - "It must have taken its legal force or effect from statute": Gleeson CJ The decision itself confers/alters/affects legal rights and obligations - "it derived from the enactment the capacity to affect legal rights and obligations": Gummow, Callinan & Heydon JJ Griffith University v Tang (2005) 221 CLR 99 Facts Tang was a postgraduate student at Griffith University. A university committee made a decision that she had engaged in academic misconduct, by presenting falsified or improperly obtained data, and that she was thus excluded as a PhD candidate She sought judicial review of that decision under the QLD judicial review act Held High Court held by majority that the action should be dismissed decision was not made under an enactment Gleeson CJ: Nothing in the Act specifically deals with admission/exclusion or academic misconduct All powers exercised in this decision flowed from s5 & s6: University s general functions/processes Doesn t follow that any administrative decision made in the exercise of those powers is a decision made under an enactment Crux of issue = whether the enactment has played a relevant part in affecting/effecting rights/obligations A grant of authority to do that which under the general law a person has authority to do is not sufficient Termination occurred under general law and under the terms and conditions of the parties agreement with one 4

5 another Gummow, Callinan & Heydon JJ: Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for the enforcement? Are legal rights and obligations affected not under the general law but by virtue of the statute? A statutory grant of a bare capacity to contract does not suffice to endow subsequent contracts with the character of having been made under that enacytment 2 criteria: (1) was the decision expressly or impliedly required or authorised by the statute? (2) did the decision itself confer, alter or otherwise affect legal rights and obligations? There was a consensual relationship that existed between the 2 parties, continuing only by mutuality. The decisions in question were authorised, though not required by the Act. The Committee derived their power from the Act. But this doesn t mean the decision in question was made under the Act in the way required to make them reviewable. KirbyJ (dissenting); Said the correct test was to question whether a decision challenged was made under an enactment is answered by first determining whether the lawful source of the power to make the decision lies in the enactment propounded and, secondly, deciding whether an individual would, apart from that source, have the power outside of the enactment (either by common law or under some other statute) to make the decisions concerned If the answer is yes, the decision was not made under the enactment. If not, the source of power in the statute is established is governing the case. In the present case, it would have been made solely under the enactment FOR BOTH JURISDICTIONS: JUSTICIABILITY Although a court may have jurisdiction to hear an administrative law dispute, this does not automatically mean the dispute it one that the court is capable of resolving Non-justiciable issue = a matter the Court determines as inappropriate to be resolved through the courts: i.e. whether the matter SHOULD be resolved by the courts No fixed criteria - historically, considerations have included: o Status of the decision maker o Source of the power exercised o Nature of the power Hypothetical interests are not justiciable: McBain Issues of national security may make matters non-justiciable: Council of Civil Service Unions A decision made under a prerogative power will generally be reviewable under common law: CCSU Decisions of cabinet are generally considered to be non-justiciable: Peko Wallsend There is no general principle that decision which are made in the public interest and/or which are politically controversial are immune from judicial review: Century Medals The fact that a decision/matter concerns issues of foreign affairs/international relations will not automatically make it non-justiciable - must look at individual facts and alleged grounds of review: Hicks, although decisions concerning international relations have historically been considered largely non-justiciable: Peko Wallsend 5

6 JURISDICTION TO CONDUCT JUDICIAL REVIEW - SKELETON COMMON LAW By virtue of s75(v) of the Australian Constitution, The High Court has original jurisdiction to conduct judicial review. To establish jurisdiction, [party] must shown that they have (1) a matter, (2) entitling them to one of the listed remedies, (3) where relief is sought against an officer of the Commonwealth. The Federal Court has identical jurisdiction under s39b Judiciary Act. Has s39b jurisdiction been excluded by clear words of necessary intendment? A "matter" There must be a controversy about rights, duties or liabilities that can be quelled by the exercise of judicial power: McBain Being brought against an officer of the Commonwealth There is no definitive ruling on this term, however it can reasonably be determined by the nature of the decision maker In which one of the listed remedies of mandamus, prohibition or injunction are sought A litigant must establish an entitlement to one of these remedies ADJR ACT To establish jurisdiction under the ADJR Act, [party] must show that there is a reviewable decision/instant of conduct within the meaning of ss5 and 6 ADJR respectively, that such a decision/conduct is administrative in nature and was made under an enactment. S 7 allows for the same courts to hear an application made by a person aggrieved by a decisionmaker s failure to make a decision. Decision A decision under s5 is one that is final and operative/determinative: Bond. Additionally, it must be a substantive determination: Bond. S3(3) ADJR extends this definition to include reports or condition precedents leading to the making of the decision If the statute requires/authorises the decision maker to determine an issue of fact as an essential preliminary to the taking of ultimate action/making of an ultimate order, then it would be a reviewable decision: Bond Certain decisions/classes of decision are excluded in Schedule 1 ADJR: is this one of those? Conduct Reviewable conduct concerns the manner in which proceedings in making the decision have been conducted. Thus, it must be procedural rather than substantive in character: Bond. S3(5) includes in the definition of conduct doing anything preparatory to the making of a decision, including taking evidence or holding of an inquiry or investigation Of an administrative character Generally, an administrative decision applies a pre-determined rule to particular facts, as opposed to legislative decisions which involve determination of the content of the law: Federal Airports v Aerolineas Argentinas; Toohey Consider whether the decision is judicial or legislative if not, by deduction, it is administrative Made under an enactment Pursuant to s3, [relevant decision] must be made under an enactment, which includes both Acts and instruments: s3(1). Per Tang, this requires a decision to be expressly or impliedly authorised by the enactment, and must affect legal rights and obligations 2 step test. 6

7 In this present case, the decision to [relevant decision] is made under [Act/instrument] [expressly/impliendly] under [s?]. It is evident that it affects the legal rights and obligations of [aggrieved party] in that [effect]. Thus, this requirement is satisfied Justiciability Even where [aggrieved person] is able to satisfy the above requirements, [court] my refuse to hear and determine a matter on the basis that it is non-justiciable, i.e. that it does not consider the situation to be amenable to judicial intervention. See notes for cases 7

8 STANDING Standing is the right to commence legal proceedings in a court or tribunal - locus standi COMMON LAW There are 3 possible avenues to gaining standing in the common law: ADJR 1. Direct Impact on a Private Right o Any individual who holds a private right impacted by the decision will have standing 2. Special Interest Test o Does an individual have a special interest in the matter? i.e. have they suffered some special damage peculiar to him/herself from the interference with the public right that is greater than that held by an ordinary member of the public?: Boyce; ACF o Have to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his actions succeeds or to suffer some disadvantage, other than a sense of grievance: ACF 3. Attorney General's Fiat o In common law, the Attorney General has standing ex ufficio to seek an injunction to protect 'public rights' o An individual may ask for the Fiat to commence proceedings against a decision that impacts public rights were they do not have a special interest o The Attorney General's refusal to grant the Fiat cannot be subject to judicial review: Gouriet o The granting of the fiat is rare - the Attorney-General will not generally challenge a decision of a fellow member of the executive Proceedings may be instituted by a "person who is aggrieved" by a decision/conduct: ss5 & 6 Person aggrieved is defined in s3(4) as including persons "whose interests are adversely affected" by the decision or conduct "Person Aggrieved" should not be given a narrow construction: Tooheys Application: The common law 'special interest' test and the statutory 'person aggrieved' are virtually indistinguishable. This is because the ADJR's purpose was to be remedial and codify the common law - thus, wherever the words of the statute allow, the statute should be interpreted at least as broad as the common law: Gummow J in Marine & Power Engineers JOINDER Where a court has a power to allow a third party to be joined in an existing proceeding as an intervener - under both common law and ADJR S12 ADJR: confers a discretion on the court to allow a person interested in a decision that is being challenged in proceedings before the court to be made a party to those proceedings Judiciary Act s78a: confers power on the Commonwealth & State Attorney Generals to be joined as a party in any case in which a constitutional issue arises If joinder is seen to be inconvenient or unnecessary the discretion to join parties may not be exercised: Telecasters North Qld May be liable for share of costs Discretion is less likely to be exercised if to do so would add to the expense or length of the proceedings, transform them into a much broader inquiry or not add to the arguments already before the court: Re City of Doncaster 8

9 AMICUS CURIAE Alternative option for the court to allow a 3 rd party to participate in proceedings Role is to present arguments on matters on which the court requires assistance or where the interests of a disadvantaged person would be otherwise insufficiently protected: US Tobacco v Minister for Consumer Affairs Not a party to the case and are not usually liable for costs STANDING SKELETON COMMON LAW [Relevant party] must show that they have standing in the court in common law to bring proceedings. Private Right: [Party] may show that [decision] has interfered with a public right such that some private right of [aggrieved party is directly impacted: Boyce per Buckley J. Special Interest Test: Where a private right has not been directly impacted, [aggrieved party] must show that the decision to [relevant decision] gives them a special interest in that they have suffered some special damage peculiar to him/herself from the interference with the public right that is greater than that held by an ordinary member of the public ACF per Gibbs J; Boyce per Buckley J There must be something more shown other than satisfaction of righting a wrong or upholding a principle if the action succeeds, or to suffer some disadvantage other than a sense of grievance if they are unsuccessful: ACF Attorney General s Fiat: In common law, the Attorney General has standing ex ufficio to seek an injunction to protect public rights, known as the fiat. [Relevant party] may ask for the fiat to commence proceedings against a decision that impacts public rights where they do not have a special interest However the granting of the Fiat is rare: Gouriet ADJR ACT [Relevant party] must show that they have standing under the ADJR Act to bring proceedings under ss5, 6 or 7, that is, they must show they are a person aggrieved : s3(4). T he common law special interest test and the ADJR test have been held to be virtually indistinguishable (Marin Engineers per Gummow J) thus the special interest test applies to determine whether an applicant has standing under the ADJR as well: Tooheys. Thus, [aggrieved party] must show a grievance suffered as a result of the [decision] beyond that of an ordinary member of the public [Tooheys per Ellicot J]. Factors to consider: see table 9

10 Factor Case Case More than a mere emotional or intellectual concern? Proximity/r elationship of applicant to the subject matter of the decision Impact on members Link between objects of association and subject matter of a decision/obj ects of the Act under which the decision was made ACF Have to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his actions succeeds or to suffer some disadvantage, other than a sense of grievance Neither a natural person nor a body corporate gains standing simply be reason that they hold certain beliefs and wish to translate them into action Even if a member has a special interest it doesn't follow that ACF has standing NCEC BUT NCEC had a close and important concern with the subject matter NCEC = peak environmental organisation in the region had 44 environmental groups as members It activities relate to the areas affected by the operations subject to the license contest Shop Distributive Onus v Alcoa Onus v Alcoa A special interest will be sufficient, even if there is an emotional or intellectual concern attached Plaintiffs were elders of their tribe, had a customary duty to teach others about the relics The position of a small community of aboriginal people of a particular group living in a particular area which that group has traditionally occupied, and which claims an interest in ancestral relics in that area, is very different indeed from that of a diverse group of white Australian associated by some common opinion on a matter of social policy which might equally concern any other Australian Distinction b/w this case and ACF cannot be found in any ready rule of thumb capable of mechanical application Determining special interest requires a curial assessment of the importance of the concern which a plaintiff has with a particular subject matter and of the closeness of that plaintiff s relationship to that subject matter Importance of the relics to the appellants and their intimate relationship to them readily finds curial acceptance Different to ACF in both weight and proximity Union had a large number of members employed as shop assistants in the affected area they clearly had an interest in the matter Because the union was a representative body for the specific class of workers, they also had standing Rule of standing is flexible and subject matter of the legislation will determine what amounts to a special interest NCEC Marine Engineers Cannot rely solely on its objects - an organisation does not demonstrate a special interest sufficient to establish standing simply by formulating objects that demonstrate and interest in and commitment to the subject matter although in combination with other factors may demonstrate SI Marine Institute had among its objects and interests the obtaining and maintenance of reasonable conditions of employment of its members and the negotiation of awards and agreements with employers including the owner this was the matter concerned in the contested administrative decision Ogle v Strickland Marine Engineers Priest s special duty to maintain the sanctity of the scriptures, foster Christian beliefs, repel or oppose blasphemy Doctrines and teachings of the Christian faith were of great cultural/spiritual significance to the priests They were susceptible to special damage in the sense of being offended and outraged by the blasphemous nature of the film which wouldn t not be suffered by non-christians As a matter of practicality the Manning scale provided for in the Manning notice may be a determinant of the number of members of the applicant that will be engaged The Institute was representative body of the workers, especially in regards to their working conditions Right to Life Act under which decision was made was about clinical trials, not one directed to the wider social issue of right to life/abortion these moral and political issues are not addressed by the Act or the regulations yet these are the very questions which are central to the existence of R2L association Doesn t align with the objectives of the Act which relate to the quality, safety, efficacy and timely availability of therapeutic goods Only thing R2L can gain is winning a contest may improve its position in persuading the public and politics of the correctness of its cause 10

11 Invitation to make submissions Seriousness of subject matter Government recognition of their interest/role e.g. funding, committee membership Length/stre ngth of involvement with issue Marine Engineers 2 nd factor the court looked at was that the Institute had been invited to participate in the Manning Committee in respect of the ship in question and make submissions in regard to the proposed Manning Notice Marine Engineers NCEC NCEC From the decision in question there flowed a danger and peril to the interests of the applicant that is clear and imminent rather than remote, indirect or fanciful NCEC NCEC was recognised by NSW govt as the body that should represent environmental concerns on advisory committees Was member of advisory committee to state Minister on forestry matters Batemans Bay Who is the opposing side/financ ial interests NCEC had been recognised by the Cth since 1977 as a significant and responsible environmental organisation This recognition has taken the form of regular financial grants for the general purpose of the organisation The grants were modest but recurrent and reflected acceptance of Cth of the significance of the role played by NCEC in environmental protection advocacy Has coordinated projects and conferences on matters of environmental concern for which it has received significant Cth funding The fact that a person makes comments on a decision/part of a decision does not of itself confer standing NCEC had been recognised by the Cth since 1977 as a significant and responsible environmental organisation ACF Test is to be construed as an enabling not a restrictive procedural stipulation The test was satisfied is, by reason of the statutory authority failing to observe the statutory limitations on its powers, it would cause severe detriment to the business of a company that was immediate, significant and peculiar to them: Plurality SI test is satisfied if the alleged unlawful activities affected them financially and to an extent that exceeded the injury to any other individual Right to Life Aus Govt doesn t recognise R2L as representing a particular public interest in the subject matter of the decision, by way of funding or otherwise A person/group that is concerned enough to furnish their comments on it (make submissions uninvited) does not necessarily gain or have an interest in the proposed action That fact would only have significance if the administrative procedures revealed an intention that a person who sent written comments thereby acquired further rights - not the case in ACF 11