! 1. Scope of Judicial Review - Performed by superior courts - Concerned with legality of decisions - Limited to reviewing executive power

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1 THE NATURE OF ADMINISTRATIVE LAW Nature f Admin Law - Branch f public law (rather than private law) - Bdy f law that regulates the exercise f pwer and making f decisins by: Executive arm f gvernment (t implement what the legislature has legislated) Administrative arm f gvernment (prvides sme means t review exec decisins) Nn-gvernment bdies (prvides the prcess f accuntability fr decisins made by the exec gvt) - Branch f public law dealing with: Actual peratins f gvernment and administrative prcesses and impact n citizens Making f decisins that affect rights, interests and legitimate expectatins f citizens Carrying ut f public wrks and management and prvisin f public services, and; Regulating the abve prcess Develpment f Administrative Law - Old administrative law Cmmn law Entirely cncerned with judicial review Had t be reviewed by the judiciary under the Cmmn Law system. But if judicial arm will sit n decisin f executive pwer, then there is n separatin f pwer (Mst admin law develped in late 20 th Century in Australia. Dicey s thery: public fficials) - New administrative law Primary cncern with administrative review Prvisin fr statutry frm f judicial review Als cncerned with:! Human rights! Cmplaint handling! Privacy and infrmatin! Integrity Largely based n legislatin. Rather than ging t judiciary t seek administrative decisin there shuld be sme quick way t reslve such prblems, i.e. the Admin f Tribunal Act - It encmpasses bth judicial and extra-judicial review (merit review, mbudsman etc) - The purpse f admin law is t ensure penness and accuntability f gvernments, and quality and cnsistency in their decisin making Rle f Admin Law - Cnstitutinal law cncerned with validity f laws; fcuses n legality - Cncerned with validity f decisins and actins f executive gvernment under valid laws - Separatin f pwers allws judiciary t review: Validity f laws (cnstitutinal law) Decisins and actins f executive (admin law) Judicial review by the judiciary = t see whether they are acting legally 1. Standing: des the persn wh wants t seek the review f this have standing t d s? 2. Grunds: if they have standing, what are their grunds t seek legal review? Purpse f Admin Law: Balance between: - Accessible and effective justice fr aggrieved individuals - Openness and accuntability f gvernment - Quality and cnsistency f gvernment decisins AND - Administrative and fiscal efficiency - Cst and cmplexity in dispute reslutin - Cllective public interest and individual interest Scpe f Judicial Review - Perfrmed by superir curts - Cncerned with legality f decisins - Limited t reviewing executive pwer! 1

2 - Breached limits f pwer Acted unlawfully Acted irratinally Prcedurally flawed - Decisin treated as illegality - Des nt extend dwn t Magistrate Curt (as it is part f the Judicial system), thus rather it is an administrative curt. Therefre, they are subject under admin law rather than judicial reviews - Here the Magistrate Curt is cncerned with legality f decisin - It is imprtant t nte the bdy des nt remake the decisin (it is judicial, thus they can nly send back the decisin t decisin-maker fr reviews) Remedies Cmmn Law: - Certirari quash invalid decisin - Prhibitin t prhibit further unlawful actin - Mandamus t cmpel lawful exercise f pwer, and - Habeas crpus t require release f persn frm lawful detentin; Equitable remedies: - N review f merits Separatin f pwers Curts avid plitics - Masn J It is nt the functin f a curt t substitute its wn decisin fr that f an administratr its rle is t set limits n the exercise f that discretin, and a decisin made within thse bundaries cannt be impugned (MAA v Pek-Wallsend) Judicial Review Requirements: - Curt must have jurisdictin (have pwer t seek the review, e.g. inherent pwer (thrugh clny), pwer t curt by statute) - Curt must accept that a justiciable issue (is the decisin curt prepared t review? E.g. natinal security r war (big plicy decisin) is nt subject t judicial reviews) - Legislature has nt validly excluded curt s review - Curt must have pwer t grant remedy - Applicant must have standing - I.e. grund f review available (what have they dne t make it illegal? E.g. fail t take accunt f relevant cnsideratin) - NOTE: stand and grund are separate issues JUDICIAL REVIEW - Distinctin between Judicial and Extra-Judicial reviews - When Curt lks at judicial review: lk at legality - Have they acted within their pwer t make such decisin? - The Curt cannt lk t see if it is the best decisin, that is the rle f extra-judicial reviews such as Ombudsman and Tribunals (part f administrative executive arms, thus can make r remake that decisin) - Judicial review can be undertaken either under Cmmn Law r can be statutry pwer - Scpe f judicial review Limitatins n scpe - Jurisdictin Limitatins - Justiciability Limitatins - Remedies frm judicial review - Standing fr judicial review - Grunds fr judicial review Judicial Review Requirements:! 2

3 - Curt must have jurisdictin - Curt must accept that a justiciable issue - Legislature has nt validly excluded curt s review - Curt must have pwer t grant remedy - Applicant must have standing (again lk at Cmmn Law and statutry) - I.e. grund f review available (lk at grund that decisin is being made: whether there are any legal errrs). "Befre applicant seeks judicial review, they need t be granted standing by the curt. Thus, standing needs t be established first and these tw are different cncepts and established differently Jurisdictin "enactment" means: - S3 ADJR (Dictinary) (a) an Act, ther than: (i) the Cmmnwealth Places (Applicatin f Laws) Act 1970 ; r (ii) the Nrthern Territry (Self-Gvernment) Act 1978 ; r (iii) an Act r part f an Act that is nt an enactment because f sectin 3A (certain legislatin relating t the ACT); r (b) an Ordinance f a Territry ther than the Australian Capital Territry r the Nrthern Territry; r (c) an instrument (including rules, regulatins r by-laws) made under such an Act r under such an Ordinance, ther than any such instrument that is nt an enactment because f sectin 3A; r (ca) an Act f a State, the Australian Capital Territry r the Nrthern Territry, r a part f such an Act, described in Schedule 3; r (cb) an instrument (including rules, regulatins r by-laws) made under an Act r part f an Act cvered by paragraph (ca); r (d) any ther law, r a part f a law, f the Nrthern Territry declared by the regulatins, in accrdance with sectin 19A, t be an enactment fr the purpses f this Act; and, fr the purpses f paragraph (a), (b), (c), (ca) r (cb), includes a part f an enactment. Nte: Regulatins fr the purpses f sectin 19B can amend Schedule 3 (see sectin 19B). "decisin t which this Act applies" S3 ADJR (Dictinary) 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 and whether befre r after the cmmencement f this definitin): (a) under an enactment referred t in paragraph (a), (b), (c) r (d) f the definitin f enactment ; r (b) by a Cmmnwealth authrity r an fficer f the Cmmnwealth under an enactment referred t in paragraph (ca) r (cb) f the definitin f 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. Nte: Regulatins fr the purpses f sectin 19 can declare that decisins that are cvered by this definitin are nt subject t judicial review under this Act. Applicatins fr review f decisins s5 ADJR (1) A persn wh is aggrieved by a decisin t which this Act applies that is made after the cmmencement f this Act may apply t the Federal Curt r the Federal Circuit Curt fr an rder f review in respect f the decisin n any ne r mre f the fllwing grunds: (a) that a breach f the rules f natural justice ccurred in cnnectin with the making f the decisin; (b) that prcedures that were required by law t be bserved in cnnectin with the making f the decisin were nt bserved; (c) that the persn wh purprted t make the decisin did nt have jurisdictin t make the decisin; (d) that the decisin was nt authrized by the enactment in pursuance f which it was purprted t be made; (e) that the making f the decisin was an imprper exercise f the pwer cnferred by the enactment in pursuance f which it was purprted t be made; (f) that the decisin invlved an errr f law, whether r nt the errr appears n the recrd f the decisin; (g) that the decisin was induced r affected by fraud; (h) that there was n evidence r ther material t justify the making f the decisin; (j) that the decisin was therwise cntrary t law. (2) The reference in paragraph (1)(e) t an imprper exercise f a pwer shall be cnstrued as including a reference t: (a) taking an irrelevant cnsideratin int accunt in the exercise f a pwer; (b) failing t take a relevant cnsideratin int accunt in the exercise f a pwer; (c) an exercise f a pwer fr a purpse ther than a purpse fr which the pwer is cnferred; (d) an exercise f a discretinary pwer in bad faith; (e) an exercise f a persnal discretinary pwer at the directin r behest f anther persn; (f) an exercise f a discretinary pwer in accrdance with a rule r plicy withut regard t the merits f the particular case;! 3

4 (g) an exercise f a pwer that is s unreasnable that n reasnable persn culd have s exercised the pwer; (h) an exercise f a pwer in such a way that the result f the exercise f the pwer is uncertain; and (j) any ther exercise f a pwer in a way that cnstitutes abuse f the pwer. (3) The grund specified in paragraph (1)(h) shall nt be taken t be made ut unless: (a) the persn wh made the decisin was required by law t reach that decisin nly if a particular matter was established, and there was n evidence r ther material (including facts f which he r she was entitled t take ntice) frm which he r she culd reasnably be satisfied that the matter was established; r (b) the persn wh made the decisin based the decisin n the existence f a particular fact, and that fact did nt exist. Jurisdictin f Federal Curt and Federal Circuit Curt s8 ADJR (1) The Federal Curt has jurisdictin t hear and determine applicatins made t the Federal Curt under this Act. (2) The Federal Circuit Curt has jurisdictin t hear and determine applicatins made t the Federal Circuit Curt under this Act. Nte: See als subsectins 3(10), (11) and (12). Original jurisdictin f Federal Curt f Australia Sectin 39B Judiciary Act 1903 (Cth) Scpe f riginal jurisdictin (1) Subject t subsectins (1B), (1C) and (1EA), the riginal jurisdictin f the Federal Curt f Australia includes jurisdictin with respect t any matter in which a writ f mandamus r prhibitin r an injunctin is sught against an fficer r fficers f the Cmmnwealth. (1A) The riginal jurisdictin f the Federal Curt f Australia als includes jurisdictin in any matter: (a) in which the Cmmnwealth is seeking an injunctin r a declaratin; r (b) arising under the Cnstitutin, r invlving its interpretatin; r (c) arising under any laws made by the Parliament, ther than a matter in respect f which a criminal prsecutin is instituted r any ther criminal matter. (1B) If a decisin t prsecute a persn fr an ffence against a law f the Cmmnwealth, a State r a Territry has been made by an fficer r fficers f the Cmmnwealth and the prsecutin is prpsed t be cmmenced in a curt f a State r Territry: (a) the Federal Curt f Australia des nt have jurisdictin with respect t any matter in which a persn seeks a writ f mandamus r prhibitin r an injunctin against the fficer r fficers in relatin t that decisin; and (b) the Supreme Curt f the State r Territry in which the prsecutin is prpsed t be cmmenced is invested with, r has cnferred n it, jurisdictin with respect t any such matter. (1C) Subject t subsectin (1D), at any time when: (a) a prsecutin fr an ffence against a law f the Cmmnwealth, a State r a Territry is befre a curt f a State r Territry; r (b) an appeal arising ut f such a prsecutin is befre a curt f a State r Territry; the fllwing apply: (c) the Federal Curt f Australia des nt have jurisdictin with respect t any matter in which the persn wh is r was the defendant in the prsecutin seeks a writ f mandamus r prhibitin r an injunctin against an fficer r fficers f the Cmmnwealth in relatin t a related criminal justice prcess decisin; (d) the Supreme Curt f the State r Territry in which the prsecutin r appeal is befre a curt is invested with, r has cnferred n it, jurisdictin with respect t any such matter. (1D) Subsectin (1C) des nt apply where a persn has applied fr a writ f mandamus r prhibitin, r an injunctin, against an fficer r fficers f the Cmmnwealth in relatin t a related criminal justice prcess decisin befre the cmmencement f a prsecutin fr an ffence against a law f the Cmmnwealth, r f a State r a Territry. (1E) Where subsectin (1D) applies, the prsecutr may apply t the curt fr a permanent stay f the prceedings referred t in that subsectin, and the curt may grant such a stay if the curt determines that: (a) the matters the subject f the prceedings are mre apprpriately dealt with in the criminal justice prcess; and (b) a stay f prceedings will nt substantially prejudice the persn. Jurisdictin fr certain writs that relate t civil prceedings (1EA) If: (a) a civil prceeding is befre the Family Curt f Australia, the Federal Circuit Curt f Australia r a curt f a State r Territry; r! 4

5 (b) an appeal arising ut f such a prceeding is befre the Family Curt f Australia r a curt f a State r Territry; the fllwing apply: (c) the Federal Curt f Australia des nt have jurisdictin with respect t any matter in which a persn wh is r was a party t the prceeding seeks a writ f mandamus r prhibitin r an injunctin against an fficer r fficers f the Cmmnwealth in relatin t a related civil prceeding decisin; (d) the fllwing curt is invested with, r has cnferred n it, jurisdictin with respect t any such matter: (i) if the civil prceeding r appeal is befre the Family Curt f Australia--that curt; r (ii) if the civil prceeding is befre the Federal Circuit Curt f Australia--that curt; r (iii) if the civil prceeding r appeal is befre a curt f a State r Territry--the Supreme Curt f the State r Territry. Jurisdictinal rules t apply despite any ther law (1F) Subsectins (1B), (1C), (1D), (1E) and (1EA) have effect despite anything in any ther law. In particular: (a) neither the Jurisdictin f Curts (Crss-vesting) Act 1987, nr any ther law, has the effect f giving the Federal Curt f Australia jurisdictin cntrary t subsectin (1B), (1C) r (1EA); and (b) neither sectin 9 f the Administrative Decisins (Judicial Review) Act 1977, nr any ther law, has the effect f remving frm the Supreme Curt f a State r Territry the jurisdictin given t that Curt by subsectin (1B), (1C) r (1EA). References t fficer r fficers f the Cmmnwealth (2) The reference in subsectin (1), (1B), (1C) r (1D) t an fficer r fficers f the Cmmnwealth des nt include a reference t a Judge r Judges f the Family Curt f Australia. Definitins (3) In this sectin: "civil prceeding" has the same meaning as in the Natinal Security Infrmatin (Criminal and Civil Prceedings) Act "related civil prceeding decisin", in relatin t a civil prceeding, means: (a) a decisin f the Attrney-General t give: (i) ntice under sectin 6A f the Natinal Security Infrmatin (Criminal and Civil Prceedings) Act 2004 in relatin t the prceeding; r (ii) a certificate under sectin 38F r 38H f that Act in relatin t the prceeding; r (b) a decisin f the Minister appinted by the Attrney-General under sectin 6A f that Act t give: (i) ntice under sectin 6A f that Act in relatin t the prceeding; r (ii) a certificate under sectin 38F r 38H f that Act in relatin t the prceeding. "related criminal justice prcess decisin", in relatin t an ffence, means: (a) a decisin (ther than a decisin t prsecute) made in the criminal justice prcess in relatin t the ffence, including: (i) a decisin in cnnectin with the investigatin, cmmittal fr trial r prsecutin f the defendant; and (ii) a decisin in cnnectin with the appintment f investigatrs r inspectrs fr the purpses f such an investigatin; and (iii) a decisin in cnnectin with the issue f a warrant, including a search warrant r a seizure warrant; and (iv) a decisin requiring the prductin f dcuments, the giving f infrmatin r the summning f persns as witnesses; and (v) a decisin in cnnectin with an appeal arising ut f the prsecutin; r (b) a decisin f the Attrney-General t give a certificate under sectin 26 r 28 f the Natinal Security Infrmatin (Criminal and Civil Prceedings) Act 2004 befre r during a federal criminal prceeding (within the meaning f that Act) in relatin t the ffence. - Feature f rule f law - Curt jurisdictin Cnstitutin Statute - High Curt has riginal jurisdictin frm Cnstitutin ss75-77 S 75(v) In all matters in which a writ f mandamus r prhibitin r an injunctin is sught against an fficer f the Cmmnwealth " Plaintiff (2002) case - Federal Curt! 5

6 ! Creature f statute by the Australian Act 1966 as result f new admin law! It s jurisdictin is limited by what statute gives it pwer (thus, riginally nt a wide jurisdictin, but gt widened) ADJR Act; the federal magistrate pwer t engage in nn-judicial reviews (gives extensive admin jurisdictin n administrative matters) Judiciary Act 1903 Original jurisdictin crrespnds t HC Limitatins - Federal Magistrates Curt Federal Magistrates Act State Supreme Curts Superir curts f recrd Statute! They inherited pwer when they were created after the creatin f States pst clnisatin f Australia! Sme states still rely n this inherent pwer t engage admin matters! NSW s23 Supreme Curt Act: gives it pwer t engage in admin reviews - Is this a decisin f administratin under the authrity f state legislatin r was it made under the pwer given under Cth? - If its decisin was made under pwer grant by state legislatin, there is n pwer in HC. State curt gives yu pwer. - If act under Cth legislatin, it is the ADJR Act that gives yu pwer Justiciability - Nature f pwer Prergative pwer (nn-statutry executive pwer Cmmn Law pwer frm the Mnarchy during the 13 th Century. Such as King pssesses such pwer rather than thse frm statute) Plicy, natinal security, defence! Cuncil f Civil Service Unins v Minister fr the Civil Service (CCSU) Public service sught t change the cnditins f public servants withut cnsultatin thrugh prergative matters. There is right t challenge such pwer but such right is nt qualified. Such as there is sme pwer such as natinal security r decisin t g t war is high level, decisins are nt justiciable by prergative pwer. Lk at the nature f the pwer Minister fr Arts, Heritage and Envirnment v Peka Wallsend - Determine legal rights Re McBain; Ex parte Australian Cathlic Bishps Cnference! HC: prceeding did nt give rise t a matter! Gleesn CJ: curt has n right t lk at the interesting issues, rather they are there t slve matters - Status f decisin maker Gvernr General nce utside judicial review Changed R v They; Ex parte Nrthern Land Cuncil Limitatin n Justiciability - Nn-justiciable pwers Nt advisry pinin! Re McBain; Ex parte Australian Cathlic Bishps Cnference N manageable legal standards Unfettered pwer Capacity t functin Limitatins n judicial review In recent times, gvernment has been privatising cmpanies which means nw the decisins are made by private/crprate bdies. Are decisins f these bdies still subject t judicial review? - Use f private sectr mdel by gvernment UK amenable t judicial review Datafin (nn-gvernment industry bdy: curt held even the decisin as nt in gvernment executive bdy, yu d nt lk at the identity r surce f pwer r nature, critical factr is what is the nature f decisin thus is it subject t judicial reviews)! 6

7 AUST n judicial review NEAT v AWB (whether there culd be judicial review made by this crprate bdy? HC: recgnized but sidestepped the issue. Pwer f vet derived frm incrprate cmpany thus actin is nt subject t judicial review. In Australia, we lked at the nature f the bdy rather than nature f the decisin such as UK has dne, e.g. gvernment culd incrprate the cmpany and what nce was gvernment bdy is n lnger subject t judicial reviews as they are nw crpratins) - Clubs etc Frbes v NSW Trtting Club (the club was required t view the rule f natural justice, if it breaches such rule there culd be judicial review and render such decisin illegal) P51/2002: curt tried t prevent decisins made by Migratin Tribunal Reviews. Sught t preclude thse decisins, HC said there is n decisin here as the decisin was made illegally - Statutry restrictins privative clauses Statutry pwer in areas such as industrial act Judicial reviews can ccur fr disciplinary matters fr clubs Remedies Pwers f the Federal Curt and the Federal Circuit Curt in respect f applicatins fr rder f review s16 ADJR (1) On an applicatin fr an rder f review in respect f a decisin, the Federal Curt r the Federal Circuit Curt may, in its discretin, make all r any f the fllwing rders: (a) an rder quashing r setting aside the decisin, r a part f the decisin, with effect frm the date f the rder r frm such earlier r later date as the curt specifies; (b) an rder referring the matter t which the decisin relates t the persn wh made the decisin fr further cnsideratin, subject t such directins as the curt thinks fit; (c) an rder declaring the rights f the parties in respect f any matter t which the decisin relates; (d) an rder directing any f the parties t d, r t refrain frm ding, any act r thing the ding, r the refraining frm the ding, f which the curt cnsiders necessary t d justice between the parties. (2) On an applicatin fr an rder f review in respect f cnduct that has been, is being, r is prpsed t be, engaged in fr the purpse f the making f a decisin, the Federal Curt r the Federal Circuit Curt may, in its discretin, make either r bth f the fllwing rders: (a) an rder declaring the rights f the parties in respect f any matter t which the cnduct relates; (b) an rder directing any f the parties t d, r t refrain frm ding, any act r thing the ding, r the refraining frm the ding, f which the curt cnsiders necessary t d justice between the parties. (3) On an applicatin fr an rder f review in respect f a failure t make a decisin, r in respect f a failure t make a decisin within the perid within which the decisin was required t be made, the Federal Curt r the Federal Circuit Curt may, in its discretin, make all r any f the fllwing rders: (a) an rder directing the making f the decisin; (b) an rder declaring the rights f the parties in relatin t the making f the decisin; (c) an rder directing any f the parties t d, r t refrain frm ding, any act r thing the ding, r the refraining frm the ding, f which the curt cnsiders necessary t d justice between the parties. (4) The Federal Curt r the Federal Circuit Curt may at any time, f its wn mtin r n the applicatin f any party, revke, vary, r suspend the peratin f, any rder made by it under this sectin. Applicatins fr review f decisins s5 ADJR (1) A persn wh is aggrieved by a decisin t which this Act applies that is made after the cmmencement f this Act may apply t the Federal Curt r the Federal Circuit Curt fr an rder f review in respect f the decisin n any ne r mre f the fllwing grunds: (a) that a breach f the rules f natural justice ccurred in cnnectin with the making f the decisin; (b) that prcedures that were required by law t be bserved in cnnectin with the making f the decisin were nt bserved; (c) that the persn wh purprted t make the decisin did nt have jurisdictin t make the decisin; (d) that the decisin was nt authrized by the enactment in pursuance f which it was purprted t be made; (e) that the making f the decisin was an imprper exercise f the pwer cnferred by the enactment in pursuance f which it was purprted t be made; (f) that the decisin invlved an errr f law, whether r nt the errr appears n the recrd f the decisin; (g) that the decisin was induced r affected by fraud; (h) that there was n evidence r ther material t justify the making f the decisin; (j) that the decisin was therwise cntrary t law. (2) The reference in paragraph (1)(e) t an imprper exercise f a pwer shall be cnstrued as including a reference t: (a) taking an irrelevant cnsideratin int accunt in the exercise f a pwer; (b) failing t take a relevant cnsideratin int accunt in the exercise f a pwer; (c) an exercise f a pwer fr a purpse ther than a purpse fr which the pwer is cnferred; (d) an exercise f a discretinary pwer in bad faith; (e) an exercise f a persnal discretinary pwer at the directin r behest f anther persn;! 7

8 (f) an exercise f a discretinary pwer in accrdance with a rule r plicy withut regard t the merits f the particular case; (g) an exercise f a pwer that is s unreasnable that n reasnable persn culd have s exercised the pwer; (h) an exercise f a pwer in such a way that the result f the exercise f the pwer is uncertain; and (j) any ther exercise f a pwer in a way that cnstitutes abuse f the pwer. (3) The grund specified in paragraph (1)(h) shall nt be taken t be made ut unless: (a) the persn wh made the decisin was required by law t reach that decisin nly if a particular matter was established, and there was n evidence r ther material (including facts f which he r she was entitled t take ntice) frm which he r she culd reasnably be satisfied that the matter was established; r (b) the persn wh made the decisin based the decisin n the existence f a particular fact, and that fact did nt exist. Applicatins fr review f cnduct related t making f decisins s6 ADJR (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 t the Federal Curt r the Federal Circuit Curt fr an rder f review in respect f the cnduct n any ne r mre f the fllwing grunds: (a) that a breach f the rules f natural justice has ccurred, is ccurring, r is likely t ccur, in cnnectin with the cnduct; (b) that prcedures that are required by law t be bserved in respect f the cnduct have nt been, are nt being, r are likely nt t be, bserved; (c) that the persn wh has engaged, is engaging, r prpses t engage, in the cnduct des nt have jurisdictin t make the prpsed decisin; (d) that the enactment in pursuance f which the decisin is prpsed t be made des nt authrize the making f the prpsed decisin; (e) that the making f the prpsed decisin wuld be an imprper exercise f the pwer cnferred by the enactment in pursuance f which the decisin is prpsed t be made; (f) that an errr f law had been, is being, r is likely t be, cmmitted in the curse f the cnduct r is likely t be cmmitted in the making f the prpsed decisin; (g) that fraud has taken place, is taking place, r is likely t take place, in the curse f the cnduct; (h) that there is n evidence r ther material t justify the making f the prpsed decisin; (j) that the making f the prpsed decisin wuld be therwise cntrary t law. (2) The reference in paragraph (1)(e) t an imprper exercise f a pwer shall be cnstrued as including a reference t: (a) taking an irrelevant cnsideratin int accunt in the exercise f a pwer; (b) failing t take a relevant cnsideratin int accunt in the exercise f a pwer; (c) an exercise f a pwer fr a purpse ther than a purpse fr which the pwer is cnferred; (d) an exercise f a discretinary pwer in bad faith; (e) an exercise f a persnal discretinary pwer at the directin r behest f anther persn; (f) an exercise f a discretinary pwer in accrdance with a rule r plicy withut regard t the merits f the particular case; (g) an exercise f a pwer that is s unreasnable that n reasnable persn culd have s exercised the pwer; (h) an exercise f a pwer in such a way that the result f the exercise f the pwer is uncertain; and (j) any ther exercise f a pwer in a way that cnstitutes abuse f the pwer. (3) The grund specified in paragraph (1)(h) shall nt be taken t be made ut unless: (a) the persn wh prpses t make the decisin is required by law t reach that decisin nly if a particular matter is established, and there is n evidence r ther material (including facts f which he r she is entitled t take ntice) frm which he r she can reasnably be satisfied that the matter is established; r (b) the persn prpses t make the decisin n the basis f the existence f a particular fact, and that fact des nt exist. Applicatins in respect f failures t make decisins s7 ADJR (1) Where: (a) a persn has a duty t make a decisin t which this Act applies; (b) there is n law that prescribes a perid within which the persn is required t make that decisin; and (c) the persn has failed t make that decisin; a persn wh is aggrieved by the failure f the first-mentined persn t make the decisin may apply t the Federal Curt r the Federal Circuit Curt fr an rder f review in respect f the failure t make the decisin n the grund that there has been unreasnable delay in making the decisin. (2) Where: (a) a persn has a duty t make a decisin t which this Act applies; (b) a law prescribes a perid within which the persn is required t make that decisin; and (c) the persn failed t make that decisin befre the expiratin f that perid;! 8

9 a persn wh is aggrieved by the failure f the first-mentined persn t make the decisin within that perid may apply t the Federal Curt r the Federal Circuit Curt fr an rder f review in respect f the failure t make the decisin within that perid n the grund that the first-mentined persn has a duty t make the decisin ntwithstanding the expiratin f that perid. - Cmmn law and statutry judicial review is nly allwed in Curt t review whether the decisin is made legal. Such as did they act under a particular pwer r nt (the Curt cannt remake the decisin because it wuld be a breach f the pwer f the executive administrative pwer and breach the separatin f pwers) - Cmmn law prergative writs Certirari setting decisin aside Prhibitin prhibiting rder Mandamus mandatry rder t act Habeas Crpus release if unlawful detentin - Equitable remedies Injunctin restraining administratr Declaratin declaratry relief Certirari - Quashing impugned decisin: if Curt decides the matter is made illegally, they may quash the decisin rather than tell the decisin-maker t remake the decisin - Requirements Errr must be errr f law Errr must appear n the face f the recrd - Des nt cmpel decisin maker t start again mandamus required - Operated retrspectively - Must be a decisin Ainswrth v CJC: Curt: there was n decisin rather a reprt by investigatin bdy. Thus, at this state there was n decisin t quash. Althugh there was illegality but again there was n decisin thus CJC did nt lie Nt Hldings v Creasy Prhibitin - Restrain bdy frm acting in excess f jurisdictin - Prhibits impugned decisin-maker frm ding smething illegal - Prhibitin can be used prir t decisin - Nt available nce decisin-making prcess cmplete Difference between prhibitin and certirari is timing (has t be a decisin), but fr prhibitin, there need nt be a decisin. Yu can stp the decisin befre prhibitin, t stp anybdy else acting n the decisin Mandamus - Cmpels perfrmance f public duty; dne in cnjunctin with certirari. Can be used where persn has nt perfrmed the public duty, thus used t make them perfrm their duty - Establish respndent has failed t perfrm public duty - Whether a public duty f discretin exists WA Field & Game Assc v Minister fr Cnservatin: Curt: the duty fr the Minister is t exercise a discretin as whether t pen seasn r nt. Thus the public duty is t decide the matter and make a decisin. He has dne his duty thus n rle fr mandamus - Only rdered t d what under a duty t d Habeas Crpus - Right t be free frm wrngful restraint - Test legality f detentin MIMA v Vadarlis Tampa rescuees; nt a restraint amenable t habeas crpus Hicks v Ruddck deprivatin f liberty prima facie unlawful: Cth applicatin t prceed but was struck ut. Case never went t trial Injunctin - Restrain breach f statutry duty - Available whether prhibitin available r nt! 9

10 - Available if n duty t affrd prcedural fairness An equitable remedy, thus may be available mre widely than prhibitin Declaratin - Reslve dispute ver law applicable t situatin in which applicant has sufficient interest - Implied pwer curts t d all that is necessary t reslve legal dispute Standing Applicatins fr review f decisins s5 ADJR (1) A persn wh is aggrieved by a decisin t which this Act applies that is made after the cmmencement f this Act may apply t the Federal Curt r the Federal Circuit Curt fr an rder f review in respect f the decisin n any ne r mre f the fllwing grunds - Lcus standi sufficient cnnectin t institute prceedings (ensures the applicant nly litigates their wn business, curt will nt lk at matter that des nt cncern yu) - Generally substantial ecnmic interest - Frmal filter t curts Hussein v Sec DIMIA Graham J standing demands a cnnectin between the applicant s interest and the relief sught. As a general rule the Curt will nt recgnize busybdies wh interfere in things that d nt cncern them - Separate frm the merits - Statutry rules AAT Act, ADJR Act - Test varies with remedy sught Prergative writs Prhibitin and certirari partly aggrieved; curt discretin! Re McBain McHugh J stranger may apply fr certirari r prhibitin lack f standing will frequently result in curt refusing either writ n discretinary grunds Mandamus mre restrictive (mandamus is higher threshld: enfrcing smene t d smething. Such standing t get this must be high as it is cmpelling smene t d smething) Habeas crpus lwer threshld but still need t satisfy the curt; curt has discretin Vadarlis - Equitable remedies Originally preserve f Attrney General (AG was there t lk after the public interest, thus they had standing. Individuals sught t jin AG in a related actin, then by this way standing is available. But this des nt wrk well in Australia, as it is unlikely AG will seek judicial review) Byce v Paddingtn Brugh Cuncil 2 exceptins that applicant culd base n t gain standing:! Interferes with plaintiff s private right, r! Plaintiff suffered special damage peculiar t himself Applicatin f Standing - Australian Cnservatin Fundatin v Cth Gibbs J! Special damage nt limited t pecuniary mnetary lss! The plaintiff need t suffer in a greater way than rest f the cmmunity! Interest nt a mere intellectual r emtinal cncern! Nt interest unless sme advantage r disadvantage Masn J! Prperty r prprietary rights, business r ecnmic interests, perhaps scial and plitical issues! Mere belief r cncern is nt enugh t cnstitute special interest Murphy J! Wider than prperty! Plitical and envirnmental interests - ACF v Minister fr Resurces (1989) Davies J plitical perceptin has changed! Rles played by ACF increased and its rle gave it enugh interest t gain standing. Plitical perceptins have changed such as envirnmental cncerns grew, such representative bdies were seen t act mre in the interest f us and were given mre fcus! 10

11 - Onus v Alca f Australia Stephen J assess imprtance f cncern and clseness f relatinship Brennan J deny effective prcedure fr curial enfrcement - Nrth Cast Envirnmental Cuncil Inc v Minister fr Resurces Sackville J factrs:! Peak envirnment bdy! Recgnized by Cth grants! On NSW advisry bdies! Prjects and cnferences Has standing as it was funded t run cnferences and funding, it had special interest. Thus, enugh t give a standing, it determines n nature and scpe f legislatin t determine this - Right t Life Assn (NSW) v Secretary, Dept f Human Resurces and Health Lckhart J right t speak nt transmuted int right f standing! Intellectual, philsphical and emtinal cncern Beaumnt J cnsider cmmunity perceptins and values Decisin made t allw drug fr child, which was cntrary t abrtin law. But this was nt enugh t have a standing as did nt demnstrate enugh special interest - Shp Distributive and Allied Emplyees Assciatin v Minister fr Industrial Affairs (SA) Special interest rule is flexible Dictated by nature and subject matter f legislatin Decisin made t start Sunday trading. Curt: did have standing the special interest represents the special interest f thse wrkers that will wrk n the weekends. But the rule is flexible; the nature and subject matter determines what amunts t special interest - Bateman s Bay Lcal Abriginal Land Cuncil v Abriginal Cmmunity Benefits Fund Gaudrn, Gummw, They JJ nature and subject matter f litigatin dictate what amunts t special interest Bdy sught injunctin t prevent arrival in the cmmunity, granted standing as the rule is flexible and curt said there were immediate and significant peculiar effect t them. Thus the bdy wuld suffer damage t private rights Remedies are all based n judicial review. ONLY LOOK AT LEGALITY, rather than right r wrng. Standing and grund are tw distinct and separate cncepts. Need t get standing befre mving nt grund (seek judicial review) STATUTORY INTERPRETATION Mst admin actins will be based n a pwer that is based n statute, get frm prergative pwer (frm Kings r Queens) r statutry pwer fr decisin makers t make decisins. - Legislatin General rules applied t particular situatin Interpretatin! Cmmn law rules (develped by curt ver a lng time) nt changed at will Crprate Affairs Cmm f NSW v Yull (authrity fr curt t change its CL rules f statutry interpretatin is very limited, as curt came up with these rules and shuld nt readily depart frm them)! Statutry rules (these apply at bth Cth and state level) Acts Interpretatin Act 1901 (Cth) Interpretatin Act 1987 (NSW) Parts f Legislatin - Preamble reasn fr legislatin - Titles Lng title (act f Parliament actin) Shrt title! 11

12 - Parts and divisins - Sectins Traditinal divisin f legislatin Sectin headings nt part f Act Cmmn Law Interpretatin - Literal apprach Language f statute wrk ut the intent f the legislatin by lking at the clear wrd f the legislatin; black letter rule (what they said is what the legislatin intended) Amalgamated Sciety f Engineers v Adelaide Steamship C Higgins J examinatin f the language used in its rdinary and natural sense (fllw the clear wrds f the legislatin) Cper Brkes (Wllngng) v FCT Gibbs CJ rdinary and grammatical meaning (wrds must mean what they mean, it des nt mean the curt shuld lk at the real intent, but must try nt t depart frm the real meaning f the wrds) Limitatin glden rule - Purpsive apprach Origin in mischief rule Purpse frm statute as a whle (seen as preferable apprach t literal apprach, as it lks at the statute as a whle, such as lking at the purpse f the act in rder t define the act) Nt always clear Avel Pty Ltd v AG fr NSW Kirby P statute a jumble f ill-matched and prly integrated enactments (the nly safe apprach is if drafting is dne prperly, then bth appraches will get the same result, but when legislatins have been drafted and amended s many times, its purpse may change s it is better t apply the literal apprach) Statutry aids t interpretatin - Acts Interpretatin Act 1901 (Cth) Sectin 5 Cmmencement f Acts! shall cme int peratin n the twenty-eighth day after the day n which that Act receives the Ryal Assent, unless the cntrary intentin appears in the Act Sectin 18A parts f speech and grammatical frms have crrespnding meanings Sectin 22 meaning f certain wrd (1) In any Act, unless the cntrary intentin appears: (a) expressins used t dente persns generally (such as persn, party, smene, anyne, n-ne, ne, anther and whever ), include a bdy plitic r crprate as well as an individual; (aa) individual means a natural persn Statutry aids - Sectin 15AA cnstructin that prmtes purpse is preferred Mills v Meeking displaced cmmn law appraches (Dawsn J: purpsive apprach fr Cth legislatin is the preferred apprach, displaced the CL appraches) - Sectin 15AB reference t extrinsic material (allws access t extrinsic materials, such as Ryal Memrandums r speech. If the rdinary gives an ambiguus result, then yu can g t extrinsic material fr cnsultatin) T cnfirm meaning T determine meaning if! Ambiguus r bscure! Ordinary meaning manifestly absurd Re Australian Federatin f Cnstructin Cntractrs; Ex parte Billing extrinsic material nly if cnditin met Re Bltn; Ex parte Beane wrds f Minister dn t replace text f law Grammatical Aids - Acts t be read as a whle Sectin limited by ther sectins (scpe may be limited by the cntext f ther part f the legislatin) Metrplitan Gas C v Federated Gas Emplyees Industrial Unin read as whle instrument K & S Lake City Freighters v Grdn & Gtch wrds read in cntext - Wrds assumed t be used cnsistently Craig Williamsn v Barrwcliffe same meaning t same wrds! 12

13 Rebuttable Cmm f Taxes (Vic) v Lennn - Wrds have rdinary and current meaning Act may intend t depart frm meaning (where an act indicates an act t depart frm the intended meaning, then the curt shall depart frm this meaning. If there is n accepted meaning, then curt shall apply the cntext and cme up with apprpriate meaning) Current meaning an Act is always speaking - Legal technical wrds Legal meaning AG (NSW) v Brewery Emplyees Unin NSW (unless legislatin defines the wrd t mean smething else, then yu can assume t legislature t knw that [take the well knwn meaning]) Technical wrds whether cmmn usage (nn-technical wrds, the curt generally can take the cmmn usage f the wrd where it is well knwn, the less cmmercial use f such wrd the less likely the curt wuld use its meaning and vice versa) Syntactical Presumptins - Nscitur a sciis meaning derived frm cntext Avndale Mtrs v FCT meaning depends n cntext Prir v Sherwd meaning limited by cntext; huse, ffice, rm r place did nt include public lane - Ejusdem generis general matters cnstrained by particular matters Re Lathum (dec d) trustee, guardian, cmmittee r ther persn excluded persn beneficially entitled; limited t persns in fiduciary capacity Canwan Cals v FCT railway, rad, pipeline r ther facility excluded strage facility - Expressi unius est exclusi alterius express reference t ne matter excludes ther matters Heatley v Tasmanian Racing and Gaming Cmm hearing fr revcatin f licence, but nt fr warning ff Hussein v Under Secretary, Dept f Indus Relatins & Technlgy applied with care, valuable servant but dangerus master - Generalia specialibus nn dergant specific prevails ver the general if a cnflict ccurs Within an Act rather than between Acts Purcell v Electricity Cmm f NSW shuld nly be used if there is an incnsistency that cannt be recnciled Last resrt later sectins prevail ver earlier (with presumptin that drafter intends t have later ne prevail ver earlier ne) - Reddend singula singulis tw r mre subjects qualified by tw r mre matters, qualificatins attach t subject in rder that they appear Bishp v Deakin persn disqualified frm being elected r being a member if within 5 years befre electin r since electin, cnvicted; within 5 years attached t being elected ; since elected attached t being a member Cmmn Law Presumptins - Implied incidental pwer (where a persn is given a pwer t d smething, there is an implied incidental pwer that des with the pwer t act) Pwer frm incidental and cnsequential functins Herscu v The Queen (cncerned a Minister wh received bribes t change the rad entrance t a shpping centre. Argument: activities fr which the mney has been paid was nt the explicit duty f the Minister, rejected by the HC: he had the pwer but he had the pwer f the administratin f the gvernment (incidental pwer went with his ministerial pwer) Limitatins:! Clear language t interfere with fundamental rights! Nt fr authrized purpses! Activity must cmplement nt supplement Kent v Jhnsn - Established freedms and immunities If curt wants t interfere with thse basic CL rights, can nly d s by clear and unambiguus language Nt t abrgate fundamental cmmn law rights! Cc v R (drug dealer cnvicted n telephne cnversatin. Plice had a warrant t use listening device but did nt extend t unauthrized entry t install the device)! 13