ADMINISTRATIVE LAW: Relationship between people in power and people affected by power (about power)

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1 [1] CONSTITUTIONAL FUNDAMENTALS: ADMINISTRATIVE LAW: Relationship between people in power and people affected by power (about power) BRITISH HERITAGE OF CONTEMPORARY AUSTRALIAN ADMIN LAW Settlers brought their law with them (as they viewed the land as terra nullius) Local legislation could be struck down as invalid if repugnant (conflict) to UK law o This principle survived (in theory), until 1986 (Australia Acts) Remaining rights of appeal from state courts to Privy Council were abolished (1986), o Freed Aus courts of obligation to follow decisions of non-aus judicial body Approach of Australian courts and legislatures to the British heritage is a o Mixture of imitation, adaptation, reaction, innovation Responsible government: Bagehot o Executive (Cabinet) relied on the elected legislature s support for its existence Integration of legislative, executive individual ministerial responsibility (IMR) o Members of government Provide legislature with info about, explanations for their conduct Take remedial steps when things go wrong; Resign (in extreme cases of personal failure/misconduct) o Legislature can exercise control over executive w/o threatening its existence o Important mechanism of political accountability Supremacy of parliament: Dicey 1. Statute law prevails where there is conflict between statute and common law 2. Parliament was free to enact whatever laws it chose 3. No act of parliament in courts could be challenged on grounds of invalidity 4. No parliament could bind its successors But qualification of supremacy of Westminster parliament in the UK 1. UK courts can invalidate statutes that conflict with European Community law, and 2. A statutory provision that infringes a right under the European Convention on Human Rights can be declared incompatible (s 4 Human Rights Act 1998 (UK)) Rule of law (Dicey): 1. Exercise of power by government over citizens constrained by clear rules of law; 2. Laws applied, enforced by ordinary courts (not special tribunals); 3. These rules also regulated the conduct of citizens; 4. Right of citizens protected by the ordinary law (not higher law bill of rights) Power of parliament subject to political, social constraints (not need legal limitations)

2 Prerogative writs: Used for administrative purposes, tool of governance Document containing orders/instructions sent by one government official to another Writ of prohibition Writ of mandamus Writ of certiorari Ordered addressee to make unlawful decision/unlawful action Ordered address to make decision/action required by law Ordered addressee deliver to court the official record of decision made by addressee so the decision could be quashed (deprived of legal effect) US HERITAGE OF CONTEMPORARY AUSTRALIAN ADMIN LAW Australian Constitution, like US Constitution, embodies a separation of powers Most significant separation of power relates to the position of the federal judiciary COLONIAL HERITAGE OF CONTEMPORARY AUSTRALIAN ADMIN LAW Supremacy of parliament: Colonial legislatures given very wide power to legislate for peace, order, good government of their respective territories (Colonia Laws Validity Act 1865) But, could not pass laws with extra-territorial operation, or that conflicted with statutes of the Westminster parliament which extended to colonies But, parliamentary supremacy is sustained as no statutory enactment of a bill of rights at the federal level (judges have a limited role in controlling executive, legislature) Rule of law: Introduced into Australia through the prerogative writs in the Judicature Acts FEDERATION AND ONWARDS Supremacy of parliament (more pronounced in Cth parliament): Cth parliament State parliaments Specific legislative powers in ss Constitution Residual powers to make laws for peace, order, good government Cth law is favoured of state laws where inconsistencies exist (s 109 Constitution) Legislative powers of Cth parliament are limited by the constitution Those limitations are enforceable by courts Rule of law: s 75(v) Const confers original jurisdiction on HCA in all matters in which a writ of mandamus/prohibition, or injunction is sought against an officer of the Cth o Basis for JR/control of officers of the Cth o ROL is the conceptual foundation of JR (Bank Nationalisation) 2/6

3 Separation of powers (Kerr Committee s 1971 Report): Recommended establishing a tribunal, with jurisdiction covering a wide range of government activities, to review decisions of administrative officials and first-tier administrative tribunals (AAT Act 1975 (Cth) established AAT to do merits reviews) Prerogative writs (Kerr Committee s 1971 Report): Recommended introducing a simplified procedure of applying for JR, with a new federal court to exercise JR jurisdiction Thus, ADJR Act 1977 (Cth) introduced a new single procedure for review of the exercise of statutory powers (rather than common law/prerogative powers), with a shift in focus from the availability of remedies to grounds of review (15 discrete grounds listed), and, an obligation to give reasons for decisions SEPARATION OF POWERS AND PARLIAMENTARY SOVEREIGNTY: Cth Const: Federal judicial power can be conferred only on a Chpt III court Chpt III court can only exercise judicial power (s 72 Const) Judicial power includes: Imposing a sentence of imprisonment Administrative detention of non-citizens (Chu Kheng Lim; Al Kateb) Imposing a fine (Boilmakers) Imposing a coercive order such as an injunction (Brandy) Making a binding and conclusive declaration of the law THE RULE OF LAW AND CONSTITUTIONALISM: Limited government principle of legality Purely formal or substantive? Historically significant, remains foundational Abstract, contested therefore formal Does not in itself explain why courts provide review of executive action In this sense: There should be legal norms All legal norms should be prospective, open and clear It should not be impossible to comply with the legal norm The making of particular legal norms should be guided by open, clear and fairly stable general norms Those having legal authority to apply or enforce legal norms should do so correctly and consistently and should be accountable for their compliance 3/6

4 More normative understandings: Meaning of ROL must be found in ideals of freedom and justice (it is not value-free) Statutory interpretation, JR informed by general principles of justice derived from CL Parliamentary sovereignty must be understood in this light o The intention of parliament is a product of both legislative purposes gleaned from the statute as a whole and, o Judicial interpretation sensitive to deeply rooted constitutional values ACCOUNTABILITY THE WESTMINSTER SYSTEM OF GOVERNMENT Mechanisms of accountability, including ministerial responsibility Responsible government: Ministers are members of parliament (competencies) Individual and collective ministerial accountability to parliament Influences on administrative law o Delayed introduction of FOI, Ombudsman o Weaknesses in political accountability led to expansion of JR, merits review Cabinet confidentiality may be a practical impediment to accountability How does our system compare to that used in US? Different ways of holding government to account: Political (through parliament) Financial (Estimates Committee) Legal within parliament Parliamentary Committees o i.e. Human Rights Committee o Bills and Ordinances o Legal and Constitutional Legislation/Affairs o Joint Standing Committees Holding governments to account through administrative law: Const provides a guarantee of right to judicial oversight of administrative action Parlt has established non-judicial bodies to oversee administrative decision making TRIBUNALS Independent Merits Review Tribunals (Cth AAT; NSW ADT) Independent Investigative Tribunals (Ombudsman; ICAC) Issues relevant to Federal administrative tribunals: o A tribunal cannot rule on the constitutional validity of legislation (Re Adams) o A tribunal can rule on lawfulness of decisions but not finally (Brian Lawlor) o Federal judges can be appointed to tribunals and inquiries in their personal capacity (persona designata) (Drake s case); but 4/6

5 INTRO TO GROUNDS OF JR & LAW/MERITS DISTINCTION: JR jurisdiction: Federal level HCA has original JR jurisdiction (Const) Federal Court shares HCA s constitutional jurisdiction and has further sources of jurisdiction under ADJR and Judiciary Act State level State courts have inherent JR jurisdiction JR application: 1. Court must have jurisdiction to judicially review the impugned act/decision, 2. Court must accept the application raises justiciable issues, a. Issues of politics, policy, international relations are non-justiciable 3. Applicant must have standing (as an appropriate person to make the application), 4. There must be a breach of an administrative law norm (ground of review), and a. Procedural grounds of review (conduct of decision-maker), b. Reasoning process grounds (reasoning processes of decision-maker), c. Decisional grounds (decision itself) 5. Court must have power to grant an appropriate remedy a. Writ of prohibition (for a jurisdictional error) b. Writ of mandamus (for a jurisdictional error) c. Writ of certiorari (for an error of law apparent on the face of the record) Nature of the courts review jurisdiction: Appeal/review distinction (remedial power): Appeal JR Appeal courts can substitute Review court can conclude on the legality/validity (but not the own decision for that of the correctness of decisions), must remit the decision to the original decision-maker original decision-maker to be made in accordance with the law Supervisory rationale for JR: The role of the courts, in upholding ROL, is to ensure those exercising powers conferred by parliament do not act beyond their powers JR is not intended to take away from authorities the powers properly vested in them by law and to substitute the courts as the bodies making the decisions Neither branch usurps upon the functions proper to the other JR/merits review distinction: JR Review of the manner in which the decision was made (focuses on procedure) Merits review Focuses on substance 5/6

6 Strict approach to the separation of judicial power: Whatever the merits of administrative decision-making involves, it is off limits to federal judges as it would involve the courts in the exercise of non-judicial functions Whether/not a particular ground of JR is available in a given case; o If it is not, then judges cannot interfere with the merits of the decision AG v Quin (1990) (Brennan J) limits of JR: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone Purpose of JR is to set aside administrative acts, decision which are unjust o Extent of power, legality of the exercise of power JR of administrative decision making concerns only legality not merits (limited scope) o The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository s (decision maker s) power Weakness of JR of administrative decision making o If, in so doing, the court avoids administrative justice/error, so be it, but the court has no jurisdiction simply to cure administrative injustice/error Justified argument with law/merits distinction o The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone So, JR of administrative decision making cannot impact upon its merits, otherwise, the function of courts would be exceeded and it would put its own legitimacy at risk Limitation Wednesbury unreasonableness (Wednesbury case) o Merits of a decision/action are left unaffected unless the decision is such as to amount to an abuse of power (may allow JR of the merits of decisions) o Purported exercise of power is so unreasonable that no reasonable repository of the power could have taken the impugned decision/action o But, this limitation is extremely confined Parliament is always sovereign and courts should always respect this, o It is not court s role to make what they believe is preferable/desirable decision, o Courts should only determine what parliaments have said 6/6

7 [2] JUDICIAL REVIEW: JURISDICTION OF THE COURTS [1] Avenue of review (a) s 75 Constitution (b) s 39B Judiciary Act (Cth) (c) ADJR Act (Cth) (d) Supreme Court Act (NSW) [2] Preliminary requirements What are the essential requirements for bringing action under this avenue? (a) s 75(v) Constitution officer of the Cth (b) ADJR Act decision under an enactment of an administrative character [3] Jurisdiction What courts can exercise jurisdiction under this avenue? [4] Standing Who can apply for review under this avenue? [5] Grounds of review An administrator must not act in excess of power/jurisdiction Substantive ultra vires (Act says apple, but law re pears, outside jurisdiction, JE) Procedural ultra vires (has not followed the procedure laid down in the law) Procedure by which a decision is has been made must not be unfair/in abuse of power Breach of rules of PF (hearing rules, rule against bias) PF [6] Remedies Hearing rule Bias rule What must such a person establish in order to succeed? Decisional Error of law No evidence Jurisdictional fact Wednesbury Uncertainty What can a court order if the applicant is successful? Prerogative writ remedies o Certiorari o Prohibition, mandamus o Habeas corpus Equitable remedies o Injunction and declaration Statutory Remedies o ADJR Act o Statutory reforms in Supreme Court Act (NSW) (s 75 Constitution) Reasoning process (broad ultra vires?) Irrelevant consideration Relevant consideration Improper purpose Inflexible policy Behest of others Unreasonableness

8 Decision made by a state official (NSW Act) Decision made by a federal official (Cth Act) Challenge decision in NSW Courts (State Supreme Court) Challenge decision in a federal court (most likely the Federal Court, can be HCA) The sources of the power to JR: s 75(v) Constitution; s 44 Judiciary Act 1903 HCA s constitutionally entrenched original JR jurisdiction is conferred in terms of the availability of remedies below: Prerogative writs of mandamus, prohibition, certiorari, habeas corpus etc. Equitable remedies of injunction Declaration against officers of the Cth State Supreme Courts: Inherent power of JR by statute Can issue prerogative writs in relation to administrative decisions by state officials s 69 Supreme Court Act 1970 (NSW) proceedings in lieu of writs Confirmation in Kirk (check textbook) Federal court: ADJR Act 1977 s 39B Judiciary Act 1903 Pt 8 Migration Act /25

9 STATE & TERRITORY COURTS: CL source of jurisdiction for SSC inherent supervisory jurisdiction: At CL, all State Supreme Courts have an inherent (supervisory) jurisdiction of JR This review refers to JR of administrative decision making to supervise (not usurp) the lawful exercise of the decision makers powers Thus, a state legislative body could limit the State Supreme Court s jurisdiction of JR Constitutional source of jurisdiction for SSC s 73(ii) Constitution: Kirk v Industrial Court of NSW (2010) SSC s inherent (supervisory) jurisdiction of JR whereby it can issue prerogative writs for jurisdiction error is now deemed to be constitutionally entrenched Because, s 73(ii) Constitution gives HCA jurisdiction to hear and etermine appeals from SSC, thus, state legislatures are required to maintain a body that meets the constitutional description of a Supreme Court A defining characteristic of a state Supreme Court is the power to review decisions made by state decisions-makers on the basis of jurisdictional error, therefore, this defining characteristic is constitutionally entrenched Some State Courts have statutory jurisdiction: Administrative Law Act 1978 (Vic) Judicial Review Act 1991 (Qld) ADJR Act 1989 (Act) Judicial Review Act 2000 (Tas) NSW Land & Environment Court (L&E Ct Act s 20 environmental planning, protection) Statutory source of jurisdiction for SSC State Supreme Court Act 1970 (NSW): State Supreme Court Act s 23 jurisdiction generally Court has all jurisdiction which may be necessary for administration of justice in NSW (Statutory support for the inherent supervisory jurisdiction of SSC and also allows for JR of delegated legislation at state level) State Supreme Court Act s 65 order to fulfil duty (1) Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested (provides for the writ of mandamus) (2) Court may, on terms, make an interlocutory order under (1) in any case where it appears to the Court just/convenient so to do (3) Powers of the Court under this section are in addition to any other powers of the Court 3/25

10 State Supreme Court Act s 69 proceedings in lieu of writs (1) Where formerly: (a) Court has jurisdiction to grant any relief/remedy/do any other thing by way of writ, whether of prohibition/mandamus/certiorari/any other description, or (b) In any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, Then, after the commencement of this Act: (c) The Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) Shall not issue any such writ, and (e) Shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) Proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules (2) Subject to the rules, this section does not apply to: (a) The writ of habeas corpus ad subjiciendum, (b) Any writ of execution for the enforcement of a judgment/order of the Court, or (c) Any writ in aid of any such writ of execution (3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings (4) For the purposes of (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination But: There is no statutory JR jurisdiction modelled on ADJR Act 1977 (Cth) at state level in NSW, thus, there is no scope for Supreme Court of NSW to exercise federal JR jurisdiction 4/25

11 HCA CONSTITUTIONAL WRITS: s 75 Constitution original jurisdiction of HCA HCA shall have original jurisdiction in all matters in which: (iii) The Cth, or a person suing/being sued on behalf of the Cth, is a party; (v) A writ of Mandamus/prohibition/injunction is sought against an officer of the Cth; Certiorari is missing from here, but, HCA has said that if you could have got one of those remedies, can grant certiorari as well (Constitutional writs of mandamus, prohibition, injunction only available for excess/denial of jurisdiction (jurisdictional error)) Officer of the Cth: Limiting function Must establish institutional nexus between decision-maker and government Broadbent v Medical Board of Qld orthodox definition of officer of the Cth A person appointed by the Cth to an identifiable office who is paid by the Cth for the performance of their functions under the office and who is responsible to and removable by the Cth concerning the office Public servants Cth Director of Public Prosecutions Police Ministers Members of the AAT Federal judges (excluding HCA justices) Plaintiff M61/2010E v Cth (2010) Facts Ps detained on Christmas Island (offshore), could not make application under Migration Act for a visa on the basis of their claimed refugee status Only onshore applications were allowed (unless the minister gave permission for an application to be made) Administrative process 1. RSA undertaken by departmental officer 2. RSA can be reviewed on its merits, through an IMR (but, IMR undertaken by persons who were not officers of the department outsourced firm W) 5/25

12 Plaintiff M61/2010E v Cth (2010) Issue, Did HCA have jurisdiction under s 75 Constitution to review IMR decisions? decision Cth argued that people who work in companies are not officers of the Cth No, HCA does have jurisdiction (decisions are reviewable) There could be an issue about whether W s people are officers of the Cth But, this does not matter HCA need not resolve the issue of If a private firm/independent contractor exercising the public functions of Cth which had been contracted out may be deemed an officer of Cth Because, the jurisdiction of HCA was available on other grounds HCA made a declaration that the administrative processes were procedurally unfair (which is not a constitutional writ in s 75(v)) Minister and departmental officer were both officers of Cth under s 75(v) These involved matters arising under a treaty (Refugees Convention and the Refugees Protocol), so, jurisdiction was available under s 75(i) Principle Even though the decision-maker may be a company with regulatory functions, HCA will find a way to get jurisdiction to be able to hold it accountable HCA is reluctant to decide that it does not have jurisdiction Remittal of matters by HCA to other courts: s 44 Judiciary Act 1903 (Cth) (1) Any matter other than a matter to which (2) applies that is at any time pending in HCA, whether originally commenced in HCA/not, or any part of such a matter, may, upon the application of a party or of HCA s own motion, be remitted by HCA to any federal court, court of a State/court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of HCA, further proceedings in the matter/in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted (2) Where a matter referred to in paragraph 38(a), (b), (c) or (d) is at any time pending in HCA, HCA may, upon the application of a party or of HCA s own motion, remit the matter, or any part of the matter, to the FCA or any court of a State/Territory (2A) Where a matter in which Cth, or a person suing or being sued on behalf of Cth, is a party is at any time pending in HCA, HCA may, upon the application of a party or of HCA s own motion, remit the matter, or any part of the matter, to FCA (3) Where HCA remits a matter, or any part of a matter, under (2) or (2A) to a court: (a) That court has jurisdiction in matter/that part of matter, as the case may be; and 6/25

13 (b) Subject to any directions of HCA, further proceedings in the matter, or in that part of the matter, as the case may be, shall be as directed by that court (4) HCA may remit a matter/any part of a matter, under this section w/o an oral hearing FEDERAL COURT: s 39B(1) Judiciary Act is identical to s 75(v) Constitution, inserted to confer an identical jurisdiction upon Federal Court and thus avoid overburdening HCA s 39B Judiciary Act (Cth) original jurisdiction of FCA (1) Subject to (1B), (1C) and (1EA), the original jurisdiction of FCA includes jurisdiction with respect to any matter in which a writ of mandamus/prohibition/an injunction is sought against an officer/officers of Cth (1A) The original jurisdiction of FCA also includes jurisdiction in any matter: 1. In which the Cth is seeking an injunction or a declaration; or 2. Arising under the Constitution/involving its interpretation; or 3. Arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter ADJR ACT: Introduced after 1971 Report of Cth Administrative Review Committee (Kerr Comm) Designed to be the main vehicle for JR of decisions of Cth Thus, ADJR Act introduced a single procedure for review of the exercise of statutory powers, with a shift in focus from the availability of remedies to grounds of review (15 discrete grounds listed) and an obligation to give reasons for decisions (as 1971 Report found that the previous system of JR was both unwieldy and unnecessary ) Both Federal Court and Federal Circuit Court have jurisdiction over applications made under ADJR Act (s 5 ADJR Act) Federal court established: ADJR express exclusions: Governor-General (historically explicable) Sch 1 includes private cl decisions within the meaning of Migration Act Pt 8 Decisions subject to review: s 3(1) ADJR Act decision to which this act applies (referred to in s 5) A decision of an administrative character made, proposed to be made/required to be made (whether in the exercise of a discretion/not and whether before/after the commencement of this definition): (a) Under an enactment referred to in (a)/(b)/(c)/(d) of the definition of enactment; or (b) By a Cth authority/an officer of Cth under an enactment referred to in (ca)/(cb) of the definition of enactment; 7/25

14 Other than (c) A decision by the Governor-General; or (d) A decision included in any of the classes of decisions set out in Sch 1 Sch 1 ADJR Act classes of decisions that are not decisions to which this Act applies (a) Decisions under the Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the Road Safety Remuneration Act 2012, the Workplace Relations Act 1996, the Building and Construction Industry Improvement Act 2005 (d) Decisions under any of the following Acts: Australian Security Intelligence Organisation Act 1956 Intelligence Services Act 2001 Australian Security Intelligence Organisation Act 1979 Inspector-General of Intelligence and Security Act 1986 Telecommunications (Interception and Access) Act 1979 Telephonic Communications (Interception) Act 1960 (da) A privative clause decision within the meaning of s 474(2) Migration Act 1958 (db) A purported privative clause decision within the meaning of s 5E Migration Act 1958 What is a decision? s 3(2) ADJR Act In this Act, a reference to the making of a decision includes a reference to: (a) Making, suspending, revoking or refusing to make an order, award or determination; (b) Giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (c) Issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) Imposing a condition or restriction; (e) Making a declaration, demand or requirement; (f) Retaining/refusing to deliver up, an article; or (g) Doing/refusing to do any other act or thing; and a reference to a failure to make a decision shall be construed accordingly s 3(3) ADJR Act Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision 8/25

15 s 3(5) ADJR Act A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation s 5 ADJR Act applications for review of decisions (1) A person who is aggrieved by a decision to which this Act applies (defined in s 3(1) above) that is made after the commencement of this Act may apply to Federal Court/Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that procedures that were required by law to be observed in connection with the making of the decision were not observed; (c) that the person who purported to make the decision did not have jurisdiction to make the decision; (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made; (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; (f) that the decision involved an error of law, whether or not the error appears on the record of the decision; (g) that the decision was induced or affected by fraud; (h) that there was no evidence/other material to justify the making of the decision; (i) that the decision was otherwise contrary to law (2) The reference in (1)(e) to an improper exercise of a power shall be construed as including a reference to: (a) Taking an irrelevant consideration into account in the exercise of a power; (b) Failing to take a relevant consideration into account in the exercise of a power; (c) An exercise of a power for a purpose other than a purpose for which the power is conferred; (d) An exercise of a discretionary power in bad faith; (e) An exercise of a personal discretionary power at the direction or behest of another person; (f) An exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; (g) An exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; 9/25

16 (h) An exercise of a power in such a way that the result of the exercise of the power is uncertain; and (i) Any other exercise of a power in a way that constitutes abuse of the power s 5 ADJR Act applications for review of decisions (3) The ground specified in (1)(h) shall not be taken to be made out unless: (a) The person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b) The person who made the decision based the decision on the existence of a particular fact, and that fact did not exist s 6 ADJR Act applications for review of conduct related to making of decisions (1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to Federal Court/Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds: (a) that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct; (b) that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed; (c) that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision; (d) that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision; (e) that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made; (f) that an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision; (g) that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct; (h) that there is no evidence or other material to justify the making of the proposed decision; (i) that the making of the proposed decision would be otherwise contrary to law 10/25

17 s 6 ADJR Act applications for review of conduct related to making of decisions (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power; (c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith; (e) an exercise of a personal discretionary power at the direction or behest of another person; (f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and (i) any other exercise of a power in a way that constitutes abuse of the power (3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the person who proposes to make the decision is required by law to reach that decision only if a particular matter is established, and there is no evidence or other material (including facts of which he or she is entitled to take notice) from which he or she can reasonably be satisfied that the matter is established; or (b) the person proposes to make the decision on the basis of the existence of a particular fact, and that fact does not exist s 7 ADJR Act applications in respect of failures to make decisions (1) Where: (a) a person has a duty to make a decision to which this Act applies; (b) there is no law that prescribes a period within which the person is required to make that decision; and (c) the person has failed to make that decision; a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court/Federal Circuit Court for an order of review 11/25

18 in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision s 7 ADJR Act applications in respect of failures to make decisions (2) Where: (a) a person has a duty to make a decision to which this Act applies; (b) a law prescribes a period within which the person is required to make that decision; and (c) the person failed to make that decision before the expiration of that period; a person who is aggrieved by the failure of the first-mentioned person to make the decision within that period may apply to the Federal Court/Federal Circuit Court for an order of review in respect of the failure to make the decision within that period on the ground that the first-mentioned person has a duty to make the decision notwithstanding the expiration of that period Australian Broadcasting Tribunal v Bond Facts s 88(2) Broadcasting Act (Cth) The Tribunal may suspend or revoke a commercial licence if (b) The Tribunal is satisfied that the licensee is no longer a fit and proper person to hold the licence Tribunal s findings on the facts Mr Bond was not a fit and proper person to hold a broadcasting licence The licensee companies were not fit and proper persons to hold broadcasting licenses Issue Were the Tribunal s findings decisions under s 5 ADJR Act? No Decision Licensee companies are referred to in the s 88(2)(b) Act It is a step along the way, but, because it is referred to in the Act, we will treat it as a decision and the ADJR Act can apply to what happened there No reviewable decision Nothing in the Act about B (non-licensees/people who control licensee companies) Some findings need to be made about B, But, they are not findings that are treated by the Act as a decision (Conclusion that B would not be found to be fit, proper person to hold a licence was not a determination for which the Act provided and was no 12/25

19 more than a step in ABT s reasoning on the way to finding that the licensees were no longer fit, proper persons to hold their licences) No reviewable conduct Finding that B would not be found to be a fit, proper person to hold a licence was not procedural, thus, the finding did not amount to conduct Australian Broadcasting Tribunal v Bond Mason J Decision: Generally means a final/operative decision Does not typically include a conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision But, the Act can provide that a finding made as a step along the way be treated as a decision (turn a step along the way into a decision) Conduct: Conduct points to action, conduct of proceedings Conduct relates to procedural matters (how the Tribunal wishes to organise its investigative function in investigating actions) Must be procedural matter for ADJR Act to apply for review of conduct Of an administrative character: Roche v National Drugs and Poisons Schedule Committee Facts Issue Applicant was an importer/manufacturer of medicine Orlistat Orlistat was included on Therapeutic Standard which enabled Supply by pharmacist without a prescription Advertising directly to consumers Complaints made about advertising of Orlistat Decision by respondent to remove Orlistat from the Poisons Standard appendix relating to advertising Was the decision to remove Orlistat of an administrative character? Decision No, decision was of a legislative character (not an administrative decision) Task given to the committee was more in the realm of legislative decision Decision determining the rules of general application Public consultation required by the Act No merits review 13/25

20 Roche v National Drugs and Poisons Schedule Committee Principle Administrative character means not legislative character [RG Capital]: Indication of legislative Decision determining the content of rules (e.g. Regulation) Parliamentary control of the decision (e.g. required or Regulations to be tabled in Parliament politicians can look at them and argue about them) Public consultation (giving notice, allow public submissions) Indication of administrative Applying rules to particular cases Provision for merits review Other option Cannot go under ADJR Act, but, applicant also applied under s 39B Judiciary Act Can challenge decision of legislative character under s 39B Judiciary Act Under an enactment: [1] Private decisions of government statutory authorities Statutes establishing state-owned enterprises generally confer power broadly, with little precision [Telstra] [2] Decisions of non-government entities under statutory schemes of regulation Decisions of private corporation will not generally be regarded as reviewable [NEAT] s 3(1) ADJR Act enactment means (a) An Act, other than: (i) (ii) (iii) the Cth Places (Application of Laws) Act 1970; or the NT (Self-Government) Act 1978; or an Act/part of an Act that is not an enactment because of s 3A (certain legislation relating to the ACT); or (b) An Ordinance of a Territory other than ACT/NT; or 14/25

21 (c) An instrument (incl. rules, regulations/by-laws) made under such an Act/under such an Ordinance, other than any such instrument that is not an enactment because of s 3A; or (ca) An Act of a State, ACT/NT, or a part of such an Act, described in Sch 3; or (cb) An instrument (including rules/regulations/by-laws) made under an Act/part of an Act covered by paragraph (ca); or (d) Any other law/a part of a law, of the NT declared by the regulations, in accordance with s 19A, to be an enactment for the purposes of this Act; and, for the purposes of paragraph (a), (b), (c), (ca) or (cb), includes a part of an enactment General Newspapers v Telstra Facts Applicant sought a k with T to print telephone books T entered into a k with a different company (M) Legislation conferred on Telstra all the powers of a natural person Australian Telecommunications Corporation Act (Cth) Corporations Law (ACT) and T s memorandum of association Issue Was T s decision to make a k with M a decision made under an enactment? Decision Both Acts gave T the powers of a natural person Is just the fact that the Acts have given T the powers of a natural person enough to say that this decision has been made under an Act? No All that the Acts did was to provide capacity for T to act ks not relevantly authorised/required by and not made under an enactment What T was really acting on in making the ks was ks law (using its powers as a natural person to enter into ks) ks had to be regulated by k law (rather than ADJR Act and public law) Act was not specific enough about the particular decision to be treated as an Act for the made under an enactment principle (no statute made specific provision for such ks) Main principle General conferral of capacity to enter ks does not make the decision reviewable Decision to enter a k is not a decision under an enactment Reviewable decisions are decisions which are given force/effect by the enactment which authorises them 15/25

22 General Newspapers v Telstra Other By reference to 2 enactments, each of which conferred on T the legal capacity of principle a natural person, including the capacity to enter ks No conduct/decision by T which was amendable to an order under ADJR ADJR Act provides the structure for JR JR not apply to acts taken under general law applicable in community, Applies only to acts which have statutory effect because of the provisions of a federal enactment, Thus, a decision taken under a federal enactment is an action/refusal to act which, by virtue of the statute, affects legal rights and/or obligations A step which no such effect is not a reviewable decision under s 5 ADJR Reviewable decisions are those given force, effect by the empowering enactment Force, effect of the decision to enter the k is derived from k law k entered into by a firm under a general power to enter into ks is not given force and effect by the empowering statute The empowering statute merely confers capacity to k Validity and effect of ks is determined by the ordinary laws of k Cannot review Decisions involving entry of ks and conduct leading to the making of ks, Where the validity of the ks and the acts done is governed entirely by the general law of k and not by any enactment The statute conferred a capacity to k (ks themselves were not authorised or required by the Act) The rights, duties and legal obligations of the parties were derived under ks and not the enactment Statute can create a body, but, what that body does (decisions made in its dayto-day operation) occurs outside the structure of the statute JR applies only if there is a govt department regulated by the enactment 16/25

23 Griffith v Tang Facts Decision to exclude T from PhD program was made in accordance with Policy on Academic Misconduct Decision made by Committees: 1. Research and Postgraduate Studies Committee 2. University Appeals Committee Griffith University Act (Q) ss 4, 6 s 9 s 11 University to have all powers of an individual (enter ks, acquire property) University Council to have management, control of University's affairs University Council could delegate powers to committees Issue Decision Was the decision (to exclude T) made under an enactment? No The source of the authority to exclude T was not the Act (it was according to a mutual consensual relationship) [1] Established decision was not required by the Act (but, could be regarded as authorised by the Act) [2] Not established it was not legal rights/obligations that were in play, what was in play was mutual consensual relationship/voluntary association (either could walk away from relationship when they liked) Principle A decision will only be made under an enactment if both these criteria are met [1] Decision must be expressly/impliedly required/authorised by the enactment If decision derives its capacity to bind from k/some other private law source, then decision is not made under the enactment in question A relationship of mutual consensus will not suffice [2] Decision must itself confer/alter/otherwise affect legal rights/obligations (and in that sense the decision must derive from the enactment) 17/25