PART X ADMINISTRATIVE REVIEW

Transcription

1 PART X ADMINISTRATIVE REVIEW I Intrductin A Types f Review 1 Merits review Merits review may be available under the fllwing avenues: 1 Avenue f review (a) (b) Cmmnwealth decisin-makers: Administrative Appeals Tribunal State decisin-makers: Victrian Civil and Administrative Tribunal (r similar) 2 Jurisdictin Has the statute pursuant t which the decisin was made cnferred jurisdictin upn the Tribunal t hear applicatins fr review? (AAT Act s 25) 3 Standing Is the applicant affected by the decisin? Organisatins with relevant bjectives may als be included (AAT Act s 27(1), (2)) 4 Time limit Applicatins must be brught within 28 days frm the date the applicant was ntified f the first-instance decisin (AAT Act s 29(2)) 5 Applicatin f plicy Gvernment plicies are relevant factrs t be cnsidered by the Tribunal (Drake [N 1]); hwever, the Tribunal shuld remain independent and shuld nt apply unlawful r manifestly unjust plicies (Drake [N 2]); see VCAT Act s 57(2) 6 Appeal Unsuccessful applicants can appeal t the Federal Curt f Australia (AAT Act s 44) r Supreme Curt f Victria (VCAT Act s 148) 2 Judicial review The fllwing prcedure shuld be used t determine whether judicial review is available t an applicant aggrieved by a decisin: 1 Avenue f review (a) Cnstitutin s 75 (b) Judiciary Act 1903 (Cth) s 39B (c) Administrative Decisins (Judicial Review) Act 1975 (Cth) (d) Administrative Law Act 1978 (Vic) Page 1 f 24

2 2 Preliminary requirements What are the essential requirements fr bringing actin under this avenue? (a) Cnstitutin s 75(v): fficer f the Cmmnwealth (b) AD(JR) Act: decisin under an enactment f an administrative character 3 Jurisdictin What curt r curts can exercise jurisdictin under this avenue? 4 Standing Wh can apply fr review under this avenue? (a) AD(JR) Act: by a persn aggrieved (b) Cmmn law: special interest test (ACF) 5 Grunds What must such a persn establish in rder t succeed? (a) Prcedural fairness (i) Hearing rule (ii) Bias rule (b) Jurisdictinal errr (c) Brad Ultra vires (i) Accunt f irrelevant cnsideratin (ii) Omissin f relevant cnsideratin (iii) Imprper purpse (iv) Inflexible plicy (v) Behest f thers (vi) Unreasnableness 6 Remedies What can a curt rder if the applicant is successful? Page 2 f 24

3 II Administrative Review f Executive Actin A Intrductin Merits review entitles a statutry tribunal t re-examine the circumstances f an applicant s case and make the appealed decisin again. Merits review places the decisin befre an Administrative Appeals Tribunal, cmprised by members ther than the riginal decisin-maker, whse task it is t determine the crrect r preferable decisin (Drake s Case): The questin fr the determinatin f the Tribunal is whether the decisin was the crrect r preferable ne n the material befre the Tribunal The Tribunal is able t recnsider all relevant facts, law and plicy relevant t the decisin. Having regard t the evidence, the Tribunal determines the crrect r preferable decisin. 1 Cmmnwealth decisins Fr Cmmnwealth decisins, the prcedure fr review and pwers f the reviewer are set ut in the Administrative Appeals Tribunal Act 1975 (Cth) ( AAT Act ). The tribunal has all the pwers f the riginal decisin-maker: s 43(1). Cnsequently, it can grant r refuse applicatins, set levels f payment r ther awards, r rder such ther tasks as may be required t carry ut the substance f the revised decisin. If an applicatin fr merits review is successful, the new decisin will take the place f the riginal ne. This is prvided fr by the Act: the decisin f the Tribunal is directly substituted in place f the decisin f the riginal decisin-maker: s 43(6). If the applicatin fr review is unsuccessful, the Tribunal affirms the decisin f the riginal decisin-maker. 2 State decisins Fr state decisins, the prcedures and pwers are described in state legislatin. In Victria, the relevant act is the Victrian Civil and Administrative Tribunal Act 1998 (Vic) ( VCAT Act ). As fr Cmmnwealth decisins, the decisin f the Tribunal is substituted fr that f the firstinstance decisin-maker if the applicatin fr review is successful: VCAT Act s Ratinale fr merits review Merits review aims t prvide an avenue fr review that is fair, just, ecnmical, infrmal and quick : AAT Act s 2A. It des s by enabling a decisin t be reviewed n its substance and nt just fr technical, legal r prcedural missins (the subjects f judicial review). Administrative review may als be justified n the same ratinales that supprt administrative law generally: Page 3 f 24

4 The right fr a decisin t be made with regard t all relevant circumstances; The right fr a decisin t be made accrding t law (judicial review); The expectatin that a decisin will be fair and reasnable (merits review); The right t due prcess; and The bjective f better decisin-making. B Decisins Subject t Merits Review 1 Current psitin Decisins are nt autmatically capable f review. Merits review is nly available where an enactment specifically prvides fr such review. In many cases, statutry instruments cnferring administrative pwer upn a decisin-maker will prvide fr merits review; hwever, such a prvisin is required befre a Tribunal can hear any applicatins in respect f decisins made pursuant t it. Fr example, s 25 f the Scial Security Act cnfers jurisdictin n the AAT t hear review cases. The FOI Act, Incme Tax Assessment Act, and s 42 f the VCAT Act als prvide fr review t the AAT. First step: identify a statutry prvisin which cnfers a right t administrative review by the AAT r VCAT. If n such prvisin exists, n merits review is pssible. 2 Prpsed refrms The Administrative Review Cuncil has recmmended, as a starting pint, that an administrative decisin that will, r is likely t, affect the interests f a persn shuld be subject t merits review. It suggests that the scpe f reviewable decisins shuld be defined negatively. Prima facie, it recmmends, all decisins are inherently suitable fr administrative review. Hwever, there will be tw classes f decisins which are never suitable fr merits review: Plitical r plicy decisins It is undesirable t review these matters since the Tribunal is nt demcratically elected; and Autmatic results Where the decisin is nt discretinary, being the autmatic result f the peratin f statutry cnditins r rules, it is unnecessary t review since the result cannt change. Additinal factrs indicate may that a decisin is unsuited t merits review: Effect f the decisin Preliminary r prcedural decisins; Decisins allcating a finite resurce between cmpeting applicants; Cntrversial plicy decisins; Decisins enfrcing the law; Financial decisins with a significant public interest element; Page 4 f 24

5 Decisins t delegate a pwer r task; Recmmendatins t decisin-makers; Cst f the decisin Decisins invlving extensive inquiry prcesses; and Decisins f little impact. Hwever, the fllwing factrs shuld nt exclude merits review: Decisins affecting natinal svereignty r prergative pwer; Decisins made by reference t gvernment plicy; Decisins made by an expert; Decisins made by a persn with a high reputatin; Decisins that may als be subject t judicial review; and Where granting review will be likely t spurn many additinal applicatins. C The Administrative Appeals Tribunal The Administrative Appeals Tribunal is cmprised by members appinted by the Gvernr General. Its President is a Federal Curt judge (upn whm pwer is cnferred in a persnal and nt judicial capacity). The prcedure fr appinting and eligibility requirements fr Deputy Presidents, Presidential Members, Senir Members, and Members are set ut in ss 6 7 f the AAT Act. Members are appinted fr a fixed term (AAT Act s 8) with statutry prvisins fr remval in case f misbehaviur (s 13). (Divisin 1, pt 2 f the VCAT Act als prvides fr remval n certain grunds.) Grunds include demnstrated incapacity, prved misbehaviur and the like. Nte that the appintment f a Federal Curt judge as President is perfectly cmpatible with the secnd limb f the Bilermakers principle. The decisin-maker is nt exercising judicial pwer fr the Tribunal; hwever, he r she acts as persna designata (an exceptin t the separatin f pwers) s that pwer is cnferred t the judge as a designated individual and nt the Ch III Curt itself. See further abve Part II. D Requirements f Review 1 Standing Secnd step: is the applicant entitled t request administrative review? T be eligible fr review f a decisin, the applicant must be a persn whse interests are affected by the decisin : AAT Act s 27(1) (see als VCAT Act s 5). Page 5 f 24

6 Sectin 27 Persns wh may apply t Tribunal: (1) Where this Act r any ther enactment (ther than the Australian Security Intelligence Organisatin Act 1979) prvides that an applicatin may be made t the Tribunal fr a review f a decisin, the applicatin may be made by r n behalf f any persn r persns (including the Cmmnwealth r an authrity f the Cmmnwealth) whse interests are affected by the decisin. Sectin 27(2) is a deeming prvisin which widens the class f peple entitled t challenge decisins under the Act, creating a lser test f standing than the cmmn law psitin: Sectin 27 Persns wh may apply t Tribunal: (2) An rganisatin, whether incrprated r nt, shall be taken t have interests that are affected by a decisin if the decisin relates t a matter included in the bjects r purpses f the rganisatin r assciatin. A persn wh makes a reviewable decisin must take reasnable steps t ntify ptential applicants f their right t review the decisin: s 27A. Sectin 27A Ntice f decisin and review rights t be given: (1) a persn wh makes a reviewable decisin must take such steps as are reasnable in the circumstances t give t any persn whse interests are affected by the decisin ntice, in writing r therwise: (a) f the making f the decisin; and (b) f the right f the persn t have the decisin reviewed. Thus, the riginal decisin-maker is generally bliged t ntify the affected individual f their ability t apply fr merits review. 2 Reasns If the applicant is entitled t apply fr administrative review, and their interests are sufficiently affected, then the applicant als has the right t apply fr a statement f reasns. The right is nt general: it is cnfined t eligible persns The right is further cnfined by certain exceptins Time perid and public interest certificate: AAT Act s 28(2) (VCAT Act ss 45 7, 53 4) The Attrney General can issue a public interest certificate where disclsure wuld prejudice internatinal relatins, natinal security, etc If the decisin itself is itself accmpanied by a written statement f reasns Page 6 f 24

7 A ptential applicant wuld prbably want t btain a statement f reasns befre applying review. This way they can determine whether it is feasible t have the decisin verturned. 3 Time perid The AAT Act requires by s 29(2) that applicatins be made within 28 days f a decisin being given t the applicant, subject t discretinary extensin by Tribunal: s 29(4). Assuming these requirements are met and the applicatin is made, the applicatin may be brught befre the relevant tribunal (AAT r VCAT). E Rle f Gvernment Plicy Drake v Minister fr Immigratin and Ethnic Affairs (1979) FCA: Facts Drake is an American citizen; he cmmits an ffence and the Minister f Immigratin makes a decisin t deprt him This decisin was gverned by plicy cnclusively utlining relevant cnsideratins: gravity f the ffence, likelihd f recidivism, etc Issue The questin fr determinatin f the Tribunal is nt whether the decisin which the decisin-maker made was the crrect r preferable ne n the material befre him. The questin fr the determinatin f the Tribunal is whether the decisin was the crrect r preferable decisin n the material befre the Tribunal Reasning Pssible rle fr gvernment plicy One extreme: apply strictly and withut questin Other extreme: disregard entirely and maintain independence There is n universal rule; the Tribunal must weigh plicy in cntext Plicy is a matter fr the Tribunal itself t determine in the cntext f the particular case and in light f the need fr cmprmise On the ne hand: gd gvernment and cnsistency Plicies must be applied cnsistency t ensure brad fairness Gvernment plicy shuld be fllwed in deference t the demcratic will it (presumably) reflects On the ther: justice in the individual case Inflexibly applying plicy means that the merits f the individual case aren t fully taken int accunt Statutes may als blige a tribunal t take int accunt matters f gvernment plicy In such cases that tribunal will be bund t apply the plicy t the extent required Hwever, even if there is nt such a requirement, plicy is still a relevant factr t be cnsidered when determining what is the crrect r preferable decisin Nevertheless, a tribunal cannt uncritically r blindly apply gvernment plicy The tribunal must make it clear that it has cnsidered the plicy, apprves it and Page 7 f 24

8 is therefre applying it Otherwise, the tribunal wuld simply be abdicating its functin t the gvernment Decisin Plicy is a relevant factr t be taken int accunt In the cntext f immigratin, cnsistency is particularly imprtant. Fr this reasn the applicatin f gvernment plicy may be mre warranted in this area (see Al Kateb). Re Drake v Minister fr Immigratin and Ethnic Affairs [N 2] (1979) HCA: Reasning (Brennan J) Arguably, the plicy factrs make the decisin mre transparent, reasnable and cnsistent Enquiry f a reviewer: Can the Minister rder deprtatin? If a plicy exists n the matter, is it cnsistent with the legislatin? If s, is there any cause shwn why the Tribunal ught nt apply that plicy, either generally r in the specific case? If nt, then n the facts f the case and having regard t any plicy cnsideratins which ught t be applied, is the Minister s decisin the right r preferable ne? Brennan J: Cnsistency is very imprtant Incnsistency is inelegant and brings the administrative prcess int disrepute, making it seem arbitrary As a general rule, the Tribunal will rdinarily apply [the] plicy in reviewing [a] decisin Hwever, plicy will nt apply if it is unlawful (cntrary t the statute) r if its applicatin wuld be unjust (cgent reasns must be shwn against its applicatin) Parliamentary scrutiny cnfers demcratic legitimacy, and has the effect f subjecting it t debate, making it mre justifiable t influence decisin-making Tribunals shuld defer cntrversial decisin-making t the Parliament and executive Als cnsider Swift and weight given t different types f plicy Swift s Case: Facts Cncerns a taxatin ruling made by the Australian Taxatin Office Decisin Federal Curt reviews plicy f ATO Page 8 f 24

9 In Victria, s 57(2) f the VCAT Act bliges the Tribunal t apply gvernment plicy in particular circumstances with a few t reaching the crrect decisin: A Minister can certify that gvernment plicy is applicable: s 57(1); r If the Tribunal is satisfied that any f the fllwing exist, it must apply the plicy: s 57(2) The applicant was aware f the plicy; Such peple culd reasnably have been expected t be aware f it; r The plicy must was published in the Gvernment Gazette; and The decisin-maker must have stated that they relied n that plicy in making the decisin. Hwever, at a state level, if n certificate has been issued, if the plicy was nt public r if the decisin-maker has nt stated their reliance n the plicy, then the enquiry falls back t the nrmal Cmmnwealth-style guidelines cncerning the applicatin f gvernment plicy (relevant factr, generally but nt always apprpriate). F Appealing against Merits Review Fllwing the tribunal s redeterminatin f a matter, there are n further avenues fr merits review. 1 AAT Questins f law and standing can be appealed t the Federal Curt within 28 days: s 44. Hwever, such appeals are nt cncerned with merits, nly technical issues. The Tribunal may als refer questins f law t the Federal Curt: s VCAT An appeal t the Supreme Curt f Victria may be made within 28 days and if leave t appeal is granted: VCAT Act s 148. G Other Relevant AAT Prvisins Applicatins t the Tribunal: s 29 Infrmal hearing: s 33 Preliminary cnference: s 34 Material furnished by the respndent: s 37 Prcedural fairness applies: s 39 Inquisitrial pwers exist: s 40 Decisin-making pwers: s 43(1) Obligatin t prvide reasns: ss 43(2), 43(2B) Enfrceability f decisins: s 43(6) Appealing n questins f law: s 44(1) Seeking judicial review: ADJR s 10(2)(b)(ii) Page 9 f 24

10 H Evaluating the Success f Merits Review Merits review is ften mre effective fr claimants than judicial review because they can have the decisin permanently changed By cntrast, if judicial review is successful, the decisin is usually just made again by the riginal decisin maker, bringing with it the pssibility f bad faith twards the claimant and the ease with which the same decisin can be made under a mre legitimate guise Merits review is a relatively simple and infrmal prcedure, but csts can be prhibitive fr sme parties Mre bjective than internal review (but als mre expensive and slwer) Page 10 f 24

11 III Judicial Review f Administrative Decisins A Intrductin Judicial review is a prcess fr evaluating the legality f a decisin. Unlike merits review, it des nt permit the recnsideratin f substantive issues. Review is based n purely technical r prcedural issues. In rder t succeed, the decisin must be fund t be unlawful in sme way. The varius grunds n which may be pssible are explred later (see belw Part XI). There are several reasns why judicial review prcesses are imprtant: Rule f law They uphld the rule f law by ensuring statutry decisin-making prceeds lawfully Representative gvernment Statutes under which the executive make decisins frm expressins f the legislature, and indirectly the will f the peple; cnsequently, when curts enfrce statutry law, they uphld the will f the peple, and, thus, representative demcracy Respnsible gvernment This cnventin is upheld in bth narrw and brader senses: Narrw: prcedural fairness and due prcess are guaranteed Brad: gvernment must act apprpriately and be respnsive its citizens, etc Simplificatin f remedies prcedure Previusly, applicatins fr review and cmmn law remedies were cmplex: The cnstitutinal right t apply fr judicial review f actins by fficers f the cmmnwealth under s 75(v) f the Cnstitutin Prergative writs f mandamus, certirari, and the like These avenues fr review were limited; their cmplexity and the requirement that applicatins be made fr a specific remedy ut f a fixed set f remedies, frm the utset, were extremely prhibitive The AD(JR) Act was intended t simplify the prcess f applying fr judicial review and make available a mre flexible range f remedies t successful applicants Accessibility Making mre accessible judicial review thrugh applicatins t the Federal Magistrates Service and the Federal Curt (rather than just the High Curt r ther such curts as are cnferred jurisdictin) Reasns fr decisin In general, persns affected by administrative decisins had n entitlement t reasns; the AD(JR) Act sught t cnfer a cnfined right t reasns. The right t reasns under the AD(JR) Act is cnfined because reasns are nly available t applicants able t demnstrate that they satisfy the preliminary requirements f standing (aggrieved by a decisin r by cnduct t which the Act applies). Page 11 f 24

12 B Cmmn Law If the applicant has standing, he r she may apply fr ne f the fllwing remedies: Orders in the nature f a prergative r cmmn law writ; and Equitable remedies such as declaratins and injunctins. Whether a curt has jurisdictin t hear such an applicatin depends n the nature f the decisin-maker, the legislatin cnferring decisin-making authrity and the jurisdictin in which the decisin was made. The riginal jurisdictin f the High Curt f Australia includes the grant f cnstitutinal (prergative) writs: Cnstitutin s 75(v) The riginal jurisdictin f the Federal Curt f Australia is set ut in s 39B f the Judiciary Act 1903 (Cth) in the same terms as s 75(5) f the Cnstitutin Hwever, it is subject t statutry mdificatin (eg, by the Migratin Act 1958 (Cth)) Sectin 44 f the Judiciary Act enables the High Curt t remit matters t the Federal Curt The state supreme curts have inherent supervisry jurisdictin by virtue f the Cnstitutin General law review f executive decisins prceeds by means f applicatins fr writs. Curts als recgnise certain grunds f review, which bear sme similarities t the AD(JR) Act grunds but are als slightly different. See further belw Part XII. C Statutry: Cmmnwealth Decisins The AD(JR) Act frmalises cmmn law review mechanisms in ss 5 6. Hwever, it als impses several preliminary requirements which must be satisfied befre a decisin will be reviewable. Here we are cncerned with whether a decisin is reviewable by a party. Sectin 5 Applicatins fr review f decisins: (1) A persn wh is aggrieved by a decisin t which this Act applies may apply fr an rder f review in respect f the decisin n any ne r mre f the fllwing grunds Sectin 6 Applicatins fr review f cnduct related t making f decisins: (1) Where a persn has engaged, is engaging, r prpses t engage, in cnduct fr the purpse f making a decisin t which this Act applies, a persn wh is aggrieved by the cnduct may apply fr an rder f review in respect f the cnduct n any ne r mre f the fllwing grunds Page 12 f 24

13 The basic requirements and prcedure fr review are as fllws: A persn aggrieved by Sectin 5: a decisin ; r Sectin 6: cnduct fr the purpse f making a decisin ; r Sectin 7: failure t make a decisin May apply fr an rder f review : s 11 T the Federal Curt, which has jurisdictin: s 8 Cmplying with the requirements fr applicatins: s 11; and If ne r mre grunds f review can be successfully asserted: ss 5 6; then A remedy may be granted: s 16; and in any event The applicant will be entitled t reasns: s 13. The Federal Curt and Federal Magistrates Curt have jurisdictin t hear applicatins made t each respective curt: Sectin 8 Jurisdictin f Federal Curt f Australia and Federal Magistrates Curt: (1) The Federal Curt has jurisdictin t hear and determine applicatins made t the Federal Curt under this Act. (2) The Federal Magistrates Curt has jurisdictin t hear and determine applicatins made t the Federal Magistrates Curt under this Act. The state supreme curts d nt have jurisdictin t hear applicatins: Sectin 9 Limitatin f jurisdictin f State curts: (3) a curt f a State des nt have jurisdictin t review: (a) a decisin t which this sectin applies [a decisin that is a decisin t which this Act applies]; r (d) any ther decisin given, r any rder made, by an fficer f the Cmmnwealth r any ther cnduct that has been, is being, r is prpsed t be, engaged in by an fficer f the Cmmnwealth, including a decisin, rder r cnduct given, made r engaged in, as the case may be, in the exercise f judicial pwer. Sectins 3 ( decisin t which this Act applies ), 5 and 6 delimit the scpe f judicial review and the Curt s jurisdictin t review decisins. Namely, the decisin must be a decisin, f an administrative character and made under an enactment, r cnduct that is engaged in fr the purpses f a decisin. The applicant must be a persn aggrieved by such a decisin. These requirements are nw discussed in turn. Page 13 f 24

14 1 decisin Sectin 5 limits judicial review t decisins t which this Act applies. This phrase imprts several limiting requirements which are smetimes raised as threshld issues in respnse t an applicatin fr review: Accrding t s 3(1), decisin t which this Act applies means: Sectin 3 Interpretatin: (1) decisin t which this Act applies means a decisin f an administrative character made, prpsed t be made, r required t be made (whether in the exercise f a discretin r nt ): (a) (b) under an enactment ; r by a Cmmnwealth authrity r an fficer f the Cmmnwealth under an enactment ; ther than (c) a decisin by the Gvernr General; r (d) a decisin included in any f the classes f decisins set ut in Schedule 1. In summary, a decisin will be reviewable if it is A decisin ; which is Of an administrative character ; Cf plicy r making regulatins (legislative character); Made (whether in exercise f a discretin r nt) under an enactment; Cf exercise f prergative r cmmn law pwers; Other than a decisin by the Gvernr General r a decisin included in any f the classes f decisin set ut in Schedule 1. There is n general definitin f decisin. Hwever, s 3(2) des state that it includes varius actins: Sectin 3 Interpretatin: (2) In this Act, a reference t the making f a decisin includes a reference t: (a) (b) (c) (d) (e) (f) making, suspending, revking r refusing t make an rder, award r determinatin; giving, suspending, revking r refusing t give a certificate, directin, apprval, cnsent r permissin; issuing, suspending, revking r refusing t issue a licence, authrity r ther instrument; impsing a cnditin r restrictin; making a declaratin, demand r requirement; retaining, r refusing t deliver up, an article; r Page 14 f 24

15 (g) ding r refusing t d any ther act r thing; and a reference t a failure t make a decisin shall be cnstrued accrdingly. It is als deemed t include the making f a reprt that is required t be made befre a decisin is given t be part f that decisin: s 3(3). These inclusins have the effect f expanding the cncept f a decisin quite cnsiderably. Because f these examples and the cntext in which they arise, intermediate decisins are nt reviewable unless prvided fr by the statute. T be reviewable, a decisin [must be] final r perative and determinative f the issue f fact being cnsidered and nt a step alng the way. It must be a substantive determinatin (rather than a prcedural ne) (Australian Bradcasting Tribunal v Bnd). Australian Bradcasting Tribunal v Bnd (1990) HCA: Facts T hld a bradcasting licence, the Bradcasting Act requires that the hlder be a fit and prper persn t hld such a licence The Australian Bradcasting Tribunal ( ABT ) finds that the Bnd cmpany is nt a fit and prper persn t hld licences because, amng ther things, fund Bnd himself is nt a fit and prper persn The ABT s decisin is t revke the bradcasting licences f Bnd and cmpanies that he cntrls In rder t reach that decisin, they frm the few that the cmpanies are nt fit and prper persns t hld licences (as required by the statute) The principal grund fr reaching that view is that Mr Bnd himself is nt a fit and prper persn (because he cntrlled the ther cmpanies) Issue The final decisin (revking licences) is clearly reviewable, but are there grunds reviewing the basis fr the ABT s ultimate finding under the AD(JR) Act? What is a decisin? What is cnduct? Reasning (Masn J) Adpts a purpsive apprach: relevant plicy cnsideratins determine meaning Cnsideratins in interpreting the meaning f the wrd decisin include: Plicy cnsideratins: remedial nature f the AD(JR) Act being balanced the efficient administratin f decisin-making The statute is remedial in nature; designed t make judicial review mre accessible Therefre, the brader interpretatin shuld be preferred But it might als be argued that a narrwer interpretatin is justified by the need fr efficiency in administering the matters f the tribunal Opening grunds t challenge intermediate reasning might pen the fldgates t thusands f aggrieved parties seeking t challenge their decisins r varius aspects f them This pints twards a narrw meaning Textual cnsideratins: under an enactment ; examples in s 3(2); s 3(3) extensin; s 3(5): cnduct Page 15 f 24

16 All the examples given in s 3(2) (licence revcatin, making suspending r revking an rder, &c) suggest a sense f finality This als pints twards the narrwer meaning Making a reprt has t be deemed t be a decisin (by s 3(3)) This suggests that a brad meaning was nt intended The reprt itself is final, but nt the grunds supprting it Thus, a decisin is ne fr which prvisin is made by r under statute Qualities f a decisin : Final and perative: des nt typically include intermediate cnclusins unless statute prvided fr a finding r ruling Des nt include findings f fact unless expressly prvided fr under statute Substantive: des nt include prcedural determinatins Decisin Althugh the decisin that the cmpanies were nt fit and prper persns was prvided fr by the Act, and hence a decisin and therefre reviewable, the grund n which that finding is predicated (ex rel Bnd) is nt such a decisin The finding that Mr Bnd was nt a fit and prper persn was a finding f fact Finding that Bnd was nt fit and prper persn is neither A decisin such as t be reviewable; nr Cnduct that is reviewable Thus, the premise is nt directly reviewable and must be attacked indirectly (prbably unsuccessfully, as by arguing that the cnclusin it supprted was s unreasnable that a reasnable decisin-maker culd nt have made it ) By cntrast, Lamb v Mss (1983) adpts a brader interpretatin f decisin. Accrding t Bnd, it is arguably t brad having regard t practical and textual cnsideratins. 2 cnduct Sectin 6 allws fr judicial review f cnduct engaged in fr the purpse f making a decisin t which this Act applies: There is n general definitin f cnduct. Hwever, it but stated t include ding f any act r thing preparatry t the making f a decisin, including the taking f evidence r the hlding f an enquiry r investigatin. Sectin 3 Interpretatin: (5) A reference in this Act t cnduct engaged in fr the purpse f making a decisin includes a reference t the ding f any act r thing preparatry t the making f the decisin, including the taking f evidence r the hlding f an inquiry r investigatin. Cnduct is a prcess f decisin-making (Bnd). It cncerns prcedural and nt substantive matters. Page 16 f 24

17 Australian Bradcasting Tribunal v Bnd (1990) HCA: Reasning (Masn J) What is cnduct? the cncept f cnduct lks t the way in which the prceedings have been cnducted, the cnduct f prceedings... cnduct is essentially prcedural and nt substantive in character. Decisin The finding that Bnd was nt fit and prper persn is nt cnduct 3 f an administrative character T be f an administrative character, a decisin cannt embdy legislative r judicial characteristics. A brad interpretatin was adpted in Minister f Cmmerce v Theys Ltd by the Full Curt f the Federal Curt f Australia, which treated the making f a by-law as administrative and nt legislative. Minister f Industry and Cmmerce v Theys Ltd (1981) FCA: Facts The Custms Act impses duties n imprted gds The Minister had pwer t create by-laws with the effect f reducing the amunt f duty payable n particular gds He culd als issue determinatins under s 273 f the Act identifying certain classes f gds as falling within a particular categry The Minister refuses t issue a determinatin with respect t gds Theys wants t imprt (autmatic palletisers) Theys seeks review f the decisin (the refusal t make the determinatin) Issue Was the Minister s refusal t make the declaratin f an administrative character? Reasning (Full Curt f the Federal Curt) Citing Latham CJ frm Grunseit: The general distinctin between legislatin and the executin f legislatin is that legislatin determines the cntent f a law as a rule f cnduct r a declaratin as t pwer, right r duty, whereas executive authrity applies the law in particular cases The delegatin f legislative pwer sets dwn a general rule f brad applicatin general guidance The apprpriate categrisatin f by-laws is determined by their cntext and subject-matter On the facts, the restricted scpe f the determinatins is evidence that they are administrative Decisin Determinatins under s 273 f the Custms Act are f an administrative character Page 17 f 24

18 A rather different apprach was adpted by Gummw J in Blewett. Whereas Theys lks t the cntent (general r particular) f the pwer t determine whether it is legislative r administrative, Blewett suggests that what is relevant is nt s much the cntent f the determinatin as its effect. Namely, a decisin will be legislative if it has the effect f changing the cntent f the law. On the facts, the insertin f a table int an Act was a legislative decisin because it had the same effect as if the statute had been amended by Parliament and, were it nt fr the vesting f pwer by the Parliament in the executive, such an insertin culd nt have been made. This is a narrwer view f administrative cnduct than that adpted in Theys. Queensland Medical Labratries v Blewett (1988) FCA: Issue What is the distinctin between legislative and administrative acts? Reasning (Gummw J) Making delegated legislatin is legislative in character the primary characteristic f the activities f administratrs in relatin t enactments f the legislature is t maintain and execute thse laws, as is indicated by the terms f s 61 f the Cnstitutin itself. When making delegated legislatin, the executive is nt exercising the pwer cntained in s 61 f the Cnstitutin. The prergative pwer t make law withut statutry mandate is limited Rather, the federal legislative pwers f the Parliament (fund principally in ch I f the Cnstitutin) authrise the Parliament t repse in the executive an authrity f an essentially legislative character, at least where the exercise f the authrity is subject t a measure f Parliamentary cntrl. S it is that a decisin made under an enactment f the Parliament by a Minister r his delegate under statutry pwer may be essentially legislative in character in a direct and immediate rather than in any incidental sense. And such a decisin will be excluded frm review under the AD(JR) Act as much as if it had fallen within the direct terms f exclusin f decisins, under an enactment, by the Gvernr General in Cuncil. The effect is what is relevant In Cmmnwealth v Grunseit (1943), Latham CJ said: The general distinctin between legislatin and the executin f legislatin is that legislatin determines the cntent f a law as a rule f cnduct r a declaratin as t pwer, right r duty, whereas executive authrity applies the law in particular case. Thus, it is difficult t see hw a sufficient distinctin between legislative and administrative acts is that between the creatin r frmulatin f new rules f law having general applicatin and the applicatin f thse general rules t particular cases: cf Minister fr Industry and Cmmerce v Theys Ltd Nevertheless, in my view, when the Minister makes a determinatin that the table specified in the determinatin be substituted fr the pathlgy services table then set ut in Schedule 1A f the Act, he is making a decisin f a legislative rather than an administrative character This is because, t adapt the expressin f Dixn J, sub-s 4A(8) has repsed in Page 18 f 24

19 him an authrity f an essentially legislative character (Dignan s Case ). The Minister is in a sense executing a law f the Cmmnwealth because were it nt fr sub-s 4A(8), he wuld lack cmpetence t make the determinatin; but that law was a permitted delegatin by the Parliament f legislative authrity and t decide t exercise the pwer cnferred by the law is t act as delegate f the Parliament and thus t act legislatively. Regardless f the cntent f a determinatin, if its effect is t change the cntent f the law (a statute), then it is a legislative and nt administrative act Accepting Latham CJ s distinctin des nt mean accepting that that legislative acts must result in a rule f general applicatin hence, legislative acts can still apply t particular ccasins An act is legislative if it has the immediate effect f changing the cntent f a law as a rule f cnduct Applicatin: The Schedules t the Act plainly are parts f that statute (the Interpretatin Act s 13) and upn the [the delegated legislatin] cming int effect the result is that the ld table in Schedule 1A ceases t have effect and the new table has effect as if it were set ut in Schedule 1A in place f the ld table. Medicare benefits will thencefrth be calculated by reference t the fees set ut in the new table (s 9) and the quantum f the entitlement t payment t medicare benefits will be mdified accrdingly (ss 10, 20, 20A). The result is the same as if the Schedule had been changed by an amending statute Decisin Here, the effect is essentially the same as if a schedule in the Act was changed Because f this effect, the law is effectively changed The Plan is therefre f a legislative rather than administrative character In SAT FM, the Curt lks at a series f factrs t determine whether the cnduct is administrative r therwise in character. SAT FM v ABA (1997) FCA: Facts The ABA prepared a Bradcasting Plan that entailed nt granting any further licences fr the Kalgrlie area Issue Is the making f the plan cnduct f an administrative character? Reasning (Sundberg J) Relevant factrs: The Plan set ut rules f general applicatin; Similar t Theys Ntificatin was prvided in the Gazette; There was public cnsultatin prir t adptin; The prcess embdies legislative features It takes int accunt wider public cnsideratins; Page 19 f 24

20 It has a binding legal effect nce adpted. Effect f the plan is legislative (similar t Blewitt) Decisin The Plan is f a legislative rather than administrative character The current test thus appears t include a series f factrs. NEAT Dmestic Trading Pty Ltd v Australian Wheat Bard Ltd (2003) HCA: Facts Sectin 57 f the Wheat Marketing Act bans the exprt f wheat, but makes prvisin fr permissin t exprt t be granted in certain cases: i) Permissin t exprt is t be given by the WEA; ii) Permissin is nt t be given unless cnsent in writing is given by the Australian Wheat Bard Internatinal; iii) TPA immunity is prvided t AWBI fr actins taken under this sectin; AWBI is wned by AWB; bth cmpanies are limited by shares and incrprated under the Crpratins Act; AWBI is whlly cntrlled by the Wheat Bard Its sharehlders are (mst f) the wheat grwers f Australia Hwever, AWBI des nt need permissin t exprt effectively, they had a mnply, and they culd als determine wh else culd exprt wheat There were several reasns fr retaining an exprt mnply and single desk system (mstly related t the value f wheat) The statutry bdy intended t increase its bargaining pwer by unifying the internatinal sale and distributin f wheat, and thereby prevent the verseas market being flded by an excess f wheat exprts NEAT wanted t exprt a lwer grade wheat, nt in direct cmpetitin t AWBI s brand f exprt, t be used by Italian pasta manufacturers NEAT, upn being refused permissin t exprt, argues breach f TPA and applies fr judicial review f the refusal f cnsent by AWBI ( the refusal ) NEAT argues that the actin is unlawful, therefre nt authrised by s 57, therefre nt immune frm TPA actins Issues a) Is the refusal a decisin f an administrative character under an enactment? b) If yes, then was the decisin unlawful because f an imprper exercise f discretin? Reasning Gleesn CJ: The decisin is f an administrative character This is because AWBI is nt representing purely private interests Their actins were suppsed t be subject t public scrutiny Therefre, the determinatin is nt purely private It wuld be t mischaracterise AWBI t say that it slely pursues private interests Hwever, n the facts, the decisin was lawful McHugh, Hayne and Callinan JJ: n, the refusal is nt a decisin f an administrative Page 20 f 24

21 character under an enactment because: The decisin whether r nt give cnsent is authrised by the cnstitutin f the cmpany under crpratins law That is the surce f the pwer it is nt a decisin made under s 57 f the WMA, but rather under the cmpany s structure Thus, the pwer t refuse etc, while being given statutry significance under WMA, derived frm AWBI s incrpratin and the applicable cmpanies legislatin Of the private character f AWBI and impssibility accmmdating its pursuit f private interests while subjecting it t public law bligatins; This raises difficult issues abut whether private bdies shuld be subject t public law remedies (ie administrative review prvisins) The decisin is f a private character: its cnstitutin requires directrs t maximise returns t sharehlders It is therefre nt a decisin made under the Act itself but rather the cmpany Because f its private character, and what the judges describe as the impssibility f frcing a prfit-seeking entity t cmply with public law bligatins (which wuld require them t cnsider ther interests), the determinatin is nt f an administrative character Their Hnurs d nt address the mre general questin f whether public law remedies can be granted against private bdies Kirby J (dissenting): The issues must be determined in a cnstitutinal cntext and in light f the cnventin f respnsible gvt The fcus shuld be n the nature f the decisin The nature f the bdy is relevant but nt determinative Refusal is a decisin f an administrative character under an enactment because: The pwer t refuse permissin was integral t the statutry scheme; That pwer is public pwer because f the legislatin and their exprt mnply The decisin was made under an enactment AWBI has a special statutry psitin (a state-sanctined mnply) The fact that AWBI is a private crpratin is nt decisive Therefre, the decisin is f an administrative character If yes, was the decisin unlawful because f an imprper exercise f discretin? Yes, the bard did nt cnsider individual applicatins n their merits Decisin McHugh, Hayne and Callinan JJ: surce f pwer is private dcument; nt administrative, unnecessary t decide Gleesn CJ: the bdy is nt really private; administrative, lawful Kirby J (dissenting): fcus n the nature f the decisin; administrative, unlawful 4 under an enactment An enactment means an Act f Parliament r an instrument under such an Act. An instrument includes rules, regulatins r by-laws. Under means in pursuance f r under the authrity f the Act. Page 21 f 24

22 The issue f under an enactment ften arises in emplyment situatins invlving public servants r gvernment cmmercial cntracts. In such cases, it may be that the decisin t terminate an emplyee r breach a cntract was cnferred by a cntractual, and nt statutry, authrity (Burns). Further issues arise in the cntext f private crpratins. The apprach f the majrity in NEAT Dmestic Trading (cf Gleesn CJ) illustrates that a decisin may be authrised by an alternative surce f pwer t a legislative instrument. In NEAT, that surce is the cmpany s cnstitutin. NEAT Dmestic Trading Pty Ltd v Australian Wheat Bard Ltd (2003) HCA: Issue Was the decisin t refuse permissin made under an enactment? Reasning Gleesn CJ: Yes, is a decisin under an enactment: s 57 [27] While AWBI is nt a statutry authrity, it represents and pursues the interests f a large class f primary prducers. It hlds what amunts, in practical effect, t a virtual r at least ptential statutry mnply in the bulk exprt f wheat; a mnply which is seen as being nt nly in the interests f wheat grwers generally, but als in the natinal interest. T describe it as representing purely private interests is inaccurate. It exercises an effective vet ver decisins f the statutry authrity established t manage the exprt mnply in wheat; r, in legal terms, it has pwer t withhld apprval which is a cnditin precedent t a decisin in favur f an applicant fr cnsent. Its cnduct in the exercise f that pwer is taken utside the purview f the Trade Practices Act. [29] the character f what it des, which is, in substance, the exercise f a statutry pwer t deprive the Wheat Exprt Authrity f the capacity t cnsent t the bulk exprt f wheat in a given case. The AD(JR) Act is therefre applicable Hwever, NEAT fails t establish a grund and s its case fails n its administrative law merits McHugh, Hayne and Callinan JJ: Fcus n the nature f the decisin-maker Unlike the Authrity, AWBI needed n statutry pwer t give it capacity t prvide an apprval in writing. As a cmpany, AWBI had pwer t create such a dcument. N dubt the prductin f such a dcument was given statutry significance by s 57(3B) but that sub-sectin did nt, by implicatin, cnfer statutry authrity n AWBI t make the decisin t give its apprval r t express that decisin in writing. Pwer, bth t make the decisin, and t express it in writing, derived frm AWBI's incrpratin and the applicable cmpanies legislatinhttp:// - fn31. Unlike a statutry crpratin, r an ffice hlder such as a Minister, it was neither necessary nr apprpriate t read s 57(3B) as impliedly cnferring thse pwers n AWBI. On the facts, a public law remedy did nt lie against the private bdy in questin Kirby J: Fcus shuld be n the nature f the decisin, nt the decisin-maker Page 22 f 24

23 Citing Murphy J: there is a difference between public and private pwer, but ne may shade int the ther The decisins were made under an enactment: In Australian Bradcasting Tribunal v Bnd, Masn CJ held that the phrase decisin f an administrative character made... under an enactment, read as a whle, indicated that a decisin which a statute requires r authrizes r fr which prvisin is made by r under a statute is reviewable under the ADJR Act. That apprach recgnises that the elements f decisin, administrative character and under an enactment in the definitin cannt be cnstrued in islatin. They are interrelated. Each infrms the meaning and cntent f the thers. AWBI was an identified repsitry f a pwer cnferred upn it by an Act f the Parliament. As the primary judge fund, withut a decisin by AWBI a large part f the scheme created under s 57 wuld becme unwrkable. In the Full Curt, Gyles J expressed a view accepting that s 57(3B) may impse an enfrceable duty upn [AWBI] t give an answer when requested. I regard it as unthinkable that AWBI culd simply ignre, r unduly delay, a cnsultatin that the Authrity was bliged by the Act t cnduct with it upn receiving an applicatin fr cnsent t the exprt f wheat. In the result, AWBI did nt d either f thse things. In each case it acted with a speed made pssible by its inflexible and publicly stated apprach t all such applicatins. The decisin here was administrative in character, and made under an enactment 5 Standing Standing raises the issue f wh shuld be entitled t challenge, r take part in the challenge t an exercise f administrative pwer. The requirement f standing is what distinguishes public law frm private law. It serves a gatekeeper functin, preventing unrelated parties frm challenging decisins which d nt really affect them r with which the primary party is satisfied. The AD(JR) Act limits review t a persn wh is aggrieved by a decisin: ss 5(1), 6(1): Sectin 3 Interpretatin: (4) In this Act: (a) a reference t a persn aggrieved by a decisin includes a reference: (i) t a persn whse interests are adversely affected by the decisin; r (ii) in the case f a decisin by way f the making f a reprt r recmmendatin t a persn whse interests wuld be adversely affected if a decisin were, r were nt, made in accrdance with the reprt r recmmendatin; and (b) a reference t a persn aggrieved by cnduct includes a reference t a persn whse interests are r wuld be adversely affected by the cnduct r failure. Page 23 f 24

24 Sectin 3(4) is an inclusive (nn-exhaustive) definitin. [P]ersn aggrieved includes a persn whse interests are (r wuld be) adversely affected. This sub-sectin effectively imprts the cmmn law test f standing t the AD(JR) Act: 1 Australian Cnservatin Fundatin Inc v Cmmnwealth (1980) HCA: Reasning A persn r entity has standing if he, she r it has special interests in the subject matter Such special interests will be held if he, she r it is affected in a manner different t that in which the general public is affected Their prprietary interests must be affected The fact that they pssess a mere intellectual r emtinal cncern des nt give rise t a special interest in the subject matter Decisin On the facts, ACF des nt have standing Gibbs CJ: it has a mere emtinal r intellectual cncern This requirement that a prprietary interest be affected is stricter than that applied in relatin t merits review. Sectin 27(a)(2) f the AAT Act cnfers brader standing t certain parties. Fr example, in NEAT Dmestic Trading (Kirby J): It was nt disputed that NEAT was a persn aggrieved by AWBI s refusals t apprve its applicatins. Only the Attrney General has an abslute right t seek an injunctin t prtect public rights. An individual must demnstrate a special interest in the subject matter. If n legal right is affected, the individual must demnstrate an interest ver and abve that held by an rdinary member f the public (Theys). C Statutry: State Decisins See belw Part XIV. 1 See further D&J Page 24 f 24