INTRODUCTION TO ADMINISTRATIVE LAW

Transcription

1 Administrative Law Table f Cntents INTRODUCTION TO ADMINISTRATIVE LAW 5 (A) RATIONALE FOR ADMINISTRATIVE LAW 5 (B) REMEDIES AVAILABLE 5 (C) RECAP OF PUBLIC LAW 6 (D) LEGALITY / MERITS DISTINCTION QUINN 7 (E) CONSTITUTIONAL PRINCIPLES UNDERPINNING ADMINISTRATIVE LAW 8 (F) PRINCIPLE OF LEGALITY 8 (G) STATUTORY INTERPRETATION 8 (H) INTRODUCTION TO THE GROUNDS OF REVIEW 9 (1) JURISDICTIONAL ERROR WHAT IS A JURISDICTIONAL ERROR IN 2015? 9 (2) PROCEDURAL GROUNDS 9 (3) REASONING PROCESS GROUNDS HOW TO GO ABOUT MAKING THE DECISION 9 (4) DECISIONAL GROUNDS THE ACTUAL DECISION THAT HAS BEEN MADE 9 (I) JUSTICIABILITY 9 JUDICIAL REVIEW JURISDICTION OF THE COURTS 11 (A) JURISDICTION OF THE COURTS 11 (I) HIGH COURT CONSTITUTIONAL WRITS 11 (II) FEDERAL COURT OF AUSTRALIA 11 (III) FEDERAL MAGISTRATES COURT 12 (IV) STATE AND TERRITORY COURTS 13 (D) THE ADJR ACT 1977 (CTH) 13 (E) ELEMENTS OF THE ADJR ACT TO BE AWARE OF NB S 3(1) 14 (I) WHAT IS A DECISION UNDER THE ADJR ACT? 14 (II) OF AN ADMINISTRATIVE CHARACTER 15 (III) UNDER AN ENACTMENT 16 (B) PUBLIC/PRIVATE DISTINCTION 19 (I) JUDICIAL REVIEW 19 (II) PUBLIC CONTRACTS 21 JUDICIAL REVIEW REMEDIES 22 (A) CONSTITUTIONAL WRITS 22 (I) CERTIORARI 22 (II) PROHIBITION 25 (III) MANDAMUS 25 (IV) HABEAS CORPUS 25 (B) EQUITABLE REMEDIES 26 (I) INJUNCTION 26 (II) DECLARATION 26 (C) STATUTORY REMEDIES 26 (I) STATUTORY MANDAMUS 26 (II) ADJR ACT REMEDIES ON APPLICATION FOR AN ORDER OF REVIEW S 16 I.E. CODIFIED 27 (D) THE CONSTITUTIONAL WRITS 27 (E) DISCRETION TO REFUSE RELIEF 27 (F) RIVAL THEORIES OF INVALIDITY 28 (I) DIFFICULTY WHEN DECISION IS VOID AB INITIO ABSOLUTE THEORY 28 (II) THE RELATIVE THEORY OF INVALIDITY 29 (G) SEVERANCE AND READING DOWN 30

2 JUDICIAL REVIEW OF RULE-MAKING / DELEGATED LEGISLATION (STATUTORY INTERPRETATION) 32 (I) THE NECESSARY OR CONVENIENT POWER COMPLEMENT NOT SUPPLEMENT 32 (II) READING DOWN THE EMPOWERING ACT 33 (III) THE REGULATE / PROHIBIT DISTINCTION 34 (IV) PURPOSIVE RULE-MAKING POWER THE MEANS/END DISTINCTION 35 (IV) GENERAL CONSIDERATIONS RE DELEGATED LEGISLATION 36 PROCEDURAL GROUNDS OF JUDICIAL REVIEW THE RULES OF PROCEDURAL FAIRNESS 38 (A) BREACH OF STATUTORY PROCEDURES 38 (B) IMPLIED PROCEDURAL FAIRNESS BREACH OF IMPLIED PROCEDURAL FAIRNESS GROUND 39 (I) CURRENT APPROACH BASELINE VIEW 40 (II) DOCTRINE OF LEGITIMATE EXPECTATION 45 (II) ADVISORY REPORTS AND RECOMMENDATIONS 48 (III) STATUTE PROVIDING FOR A HEARING, CODE OF PROCEDURE OR RIGHT OF APPEAL 48 (IV) QUALIFICATIONS TO THE IMPLICATION PRINCIPLE URGENCY 49 (V) SUMMARY IMPLICATION 50 (C) CONTENT OF THE HEARING RULE 51 (I) DISCLOSURE OF ADVERSE INFORMATION 51 (II) DISCLOSURE OF CRITICAL ISSUES 52 (III) DISCLOSURE OF ADVERSE CONCLUSIONS 53 (IV) MUST THE PERSON WHO DECIDES HEAR? 54 (V) FAIR HEARINGS DUTY TO PROVIDE A REASONABLE OPPORTUNITY TO PRESENT CASE 55 (VI) WITNESS AND CROSS-EXAMINATION 57 (D) RULE AGAINST BIAS ACTUAL BIAS AND REASONABLE APPREHENSION OF BIAS 58 (I) PECUNIARY INTEREST 59 (II) NECESSITY AND STATUTORY EXCLUSION 63 (III) WAIVER 64 (E) EXTENDING THE BOUNDARIES OF PROCEDURAL FAIRNESS REQUIREMENT TO UNDERSTAND THE SUBSTANCE OF A CLAIM 65 (F) THE EFFECT OF A BREACH OF PROCEDURAL FAIRNESS AND REMEDIES 66 REASONING PROCESS GROUNDS 67 (A) THE CONSIDERATIONS GROUNDS 67 (I) RELEVANT CONSIDERATION FAILING TO HAVE REGARD TO RELEVANT CONSIDERATIONS 67 (II) IRRELEVANT CONSIDERATION HAVING REGARD TO IRRELEVANT CONSIDERATIONS 70 (III) INTERNATIONAL CONVENTIONS ARE NOT MANDATORY RELEVANT CONSIDERATIONS 72 (B) IMPROPER (AND UNAUTHORISED) PURPOSE GROUND 72 (I) ADJR ACT AND COMMON LAW 72 (II) THE CROWN S REPRESENTATIVE MAY BE REVIEWED ON GROUNDS OF IMPROPER PURPOSE 72 (III) MULTIPLE PURPOSES (THE BUT FOR TEST + A SLIGHT DIVERGENCE) 73 (IV) MULTIPLE POWERS 74 (C) POLICIES 75 (I) POLICIES MUST BE CONSISTENT WITH THE ENABLING LEGISLATION 75 (II) POLICIES MUST NOT BE INFLEXIBLY APPLIED MUST NOT FETTER DISCRETION GROUND 75 (III) AN EXCURSUS 77 (D) REPRESENTATIONS & ESTOPPEL 77 (I) POSSIBLE EXCEPTIONS 79 (E) ACTING UNDER DICTATION (I.E. UNDUE INFLUENCE) 79 (I) STATUTORY DIRECTIONS 81 (F) UNAUTHORISED DELEGATION 82 (I) THE CARLTONA OR ALTER EGO PRINCIPLE (CARLTONA LTD V COMMISSIONER OF WORKS) 83 DECISIONAL GROUNDS OF JUDICIAL REVIEW 86 (A) JURISDICTIONAL ERROR INTRODUCTION 86 (I) WHEN IT IS NECESSARY TO USE JURISDICTIONAL ERROR? 86 2

3 (II) JURISDICTIONAL ERROR VS ERROR WITHIN LAW 86 (I) EXAMPLES OF JURISDICTIONAL ERROR 88 (II) EXAMPLES OF ERRORS THAT DID NOT RESULT IN NULLIFYING THE DECISION 89 (III) WHEN WILL THE LANGUAGE OF JURISDICTIONAL ERROR BE USED? 89 (B) JURISDICTIONAL FACT REVIEW 89 (I) OBJECTIVE JURISDICTIONAL FACTS 89 (II) STATE OF MIND POWERS 91 (C) JURISDICTIONAL ERROR IN DIFFERENT CONTEXT 93 (D) ERROR OF LAW ON THE FACE OF THE RECORD 93 (I) WHAT IS THE FACE OF THE RECORD? (CRAIG) 94 (E) THE FACT / LAW DISTINCTION 94 (I) FINDING THE FACTS GENERALLY A QUESTION OF FACT 95 (II) FINDING AND INTERPRETING THE LAW A QUESTION OF LAW 95 (III) APPLYING THE LAW TO THE FACTS GENERALLY, A QUESTION OF LAW 96 (G) ADJR ACT GROUNDS ERROR OF LAW 96 (I) ADJR ACT NO EVIDENCE 97 (I) UNCERTAINTY GROUND WHERE THE ACT REQUIRES CERTAINTY 98 (I) SOURCES 98 (II) GENERAL RULE 98 (II) USING THIS GROUND TO CHALLENGE BENEFITS CONFERRED SUBJECT TO UNCERTAIN CONDITIONS 99 (I) WEDNESBURY UNREASONABLENESS GROUND 100 (II) SPECIES OF UNREASONABLENESS (NOT A CLOSED LIST) 101 (III) FAILURE TO OBTAIN READILY AVAILABLE AND CENTRALLY RELEVANT INFORMATION MAY BE UNLAWFUL (FAILURE TO MAKE INQUIRIES) 103 (J) THE POTENTIAL IMPACT OF A HUMAN RIGHTS ACT ON GROUNDS OF JUDICIAL REVIEW 104 ACCESS TO JUDICIAL REVIEW STANDING 105 (A) INTRODUCTION 105 (I) WHAT IS STANDING? 105 (II) ATTORNEY-GENERAL S INHERENT STANDING GO HERE IF NO STANDING 105 (B) REMEDIES 106 (I) CERTIORARI AND PROHIBITION TEST 106 (II) MANDAMUS TEST 106 (III) STATUTORY MANDAMUS 106 (III) HABEAS CORPUS 106 (C) SPECIAL INTEREST TEST INJUNCTION & DECLARATION 106 (I) INUNCTION 106 (II) THE SPECIAL INTEREST TEST 106 (III) DANGER OF A LACUNA 108 (D) REVIEW UNDER THE ADJR ACT TEST A PERSON AGGRIEVED 108 (I) VOCATIONAL AND PROFESSIONAL INTEREST ADVERSELY AFFECTED IS ENOUGH 109 (II) PARTICIPATION IN PRIMARY DECISION-MAKING PROCESS CONFERS STANDING 109 (III) CAPACITY TO REPRESENT THE PUBLIC INTEREST MAY BE ENOUGH 109 (E) STATUTORY REFORM 110 (F) INTERVENTION AND FRIENDS OF THE COURT 111 (I) FRIENDS OF THE COURT 111 (II) INTERVENTION 111 PRIVATIVE CLAUSES RESTRICTING JUDICIAL REVIEW 112 (A) INTRODUCTION 112 (I) BEFORE CONSTITUTIONALLY-ENTRENCHED REVIEW WAS RECOGNISED THE HICKMAN PROVISOS 112 (B) CTH PRIVATIVE CLAUSES CANNOT OUST S 75(V) JURISDICTION 112 (I) TIME LIMITS NON-EXTENDABLE LIMITS QUESTIONABLE 113 (II) NO VALIDITY CLAUSES READING DOWN TO APPLY ONLY TO NON-JURISDICTIONAL ERRORS 114 (C) STATE PRIVATIVE CLAUSES CANNOT ALTER THE CHARACTER OF STATE SUPREME COURTS 114 3

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5 Intrductin t administrative law Only fcused n the rle f judiciary and its functin in keeping the executive accuntable Rule f law The gvernment has t act in cnfrmity with the law this rule gives everybdy a right t judicial review The curts are the ultimate determiners f what a legal wrd means Privative (uster) clause intends t preclude the judiciary frm reviewing administrative decisins E.g. Migratin Act under the Hward Gvernment Plaintiff S157 HCA clawed back its Ch III pwer Law must be prspective, nt retrspective fundamental rule f law Exceptin in the past has been terrrism law (A) Ratinale fr administrative law The red light apprach admin law is t prtect the rights and interests f the individual and prevent abuses t state pwer essentially and checks and balances apprach The green light apprach admin law is t uphld the standards f gd administratin prmting gd gvernment including penness, fairness, participatin, accuntability, accessibility, ratinality etc The legal apprach admin law is t frce administratrs t accunt fr past breaches The regulatry apprach admin law is an attempt t regulate future decisin-making a fcus n prmting gd decisin-making as it happens (B) Remedies available Habeas crpus (mst ancient remedy) unlawful detentin withut due prcess t cnvict Tampa Case Certirari if successful and establish grunds f unlawfulness, then the decisin is quashed, and the decisin made again Mandamus Decisin made, but it has nt been made cnsistently with the pwers given, decisin t be remade in accrdance with pwers rdering the decisin t be re-made Prhibitin if a decisin has been made, the maker is nt allwed t act n the decisin that has been made Injunctin Anticipatin that a decisin is ging t be made that will be prejudicial Nte Curt cannt assume the pwer f the executive / decisin-maker Remaining prergative pwers: Granting awards and pwers Gate-keeping pwers Pardns Parliamentary svereignty Interpreting the will f the parliament / nt verreaching Federal Curt f Australia Statutry curt established by Cth statute pwer t engage in judicial review Nthing cnstraining the pwers f svereign parliament, unless it infringes the Cnstitutin 5

6 (C) Recap f public law Ch III The Judicature s 72 vests the judicial pwer f the Cth in the HCA, and such ther Federal Curts as Parliament creates (such as the Federal Curt f Australia and the Federal Magistrates Curt) and such ther Curts as it invests with federal jurisdictin Other curts refers t state curts (Kirk) The Parliament has n pwer t invest the judicial pwer f the Cth in any hands ther than thse f a Ch III curt In an attempt t prevent judicial review, the decisin maker will attempt t shw it is a prergative pwer, and therefre, nn-judiciable Exceptins t the Ch III rule Military tribunals Public service disciplinary tribunals Huses f Parliament exercising pwer t punish fr cntempt Kirk v Industrial Relatins Cmmissin Facts Industrial curt cnvicted Kirk fr ffences under ss 15 & 16 f the OH&S Act 1983 (NSW) fr failing t ensure the health, safety and welfare at wrk f Palmer, an emplyee wh was killed while driving an all-terrain vehicle Kirk appealed t NSW Curt f Appeal fr certirari t quash the cnvictin appeal dismissed Kirk n appeal t the HCA fr certirari as a result f errr f law Ch III f the Cnstitutin requires were have a bdy fitting the descriptin The Supreme Curt f a State It is beynd the legislative pwer f a state t alter the cnstitutin r character f its SC that it ceases t meet cnstitutinal descriptin A defining characteristic f a state SC is the pwer t cnfine inferir curts and tribunals within the limits f their authrity t decide by granting relief in the nature f prhibitin and mandamus, and, as explained further in these reasns, als certirari, directed t inferir curts and tribunals n grunds f jurisdictinal errr First jurisdictinal errr failure t particularise the nature f the ffence [The curt said] The cmmn law requires that the defendant is entitled t be tld nt nly the legal nature f the ffence with which he r she is charged, but als f the particular act, matter r thing alleged as the fundatin f the charge Secnd jurisdictinal errr calling defendant t give evidence Cannt prevent review, as this wuld change the functin f the state SC s as t nt fit its cnstitutinal requirement eches Plaintiff s 157 Jurisdictinal errr Definitin the persn in whm the pwers are vested des nt understand the extent r limit f pwer the Parliament has delegated t them Curts are the final arbiters in the interpretatin f wrds in a statute It is the intentin f Parliament that the persn whm the pwer is vested, interprets that pwer prperly One grund f review Curt is finding different ways t preserve its jurisdictin, E.g. cmbatting privative clauses 6

7 HCA is merging prblems relating t the ultra vires decisin with jurisdictinal errrs in an attempt t cmbat all privative clauses Executive accuntability t Parliament Mechanisms f accuntability, including ministerial respnsibility Ministerial respnsibility t Parliament Debates and mtins Questins n ntice and withut ntice Cmmittee inquiries (Senate Estimates Cmmittee and Gillian Triggs) Grievance-handling by MPs Prductin f dcuments Executive rule-making law & plicy maker Frmal binding laws, E.g. subrdinate legislatin/regulatins Infrmal plicies (r internal law ), E.g. directins, cdes, manuals, guidelines, precedents, prtcls etc Interpreting the empwering legislatin Adpting prcedures May develpment Accuntability fr executive rule-making Public participatin prir ntice & cnsultatin Parliamentary scrutiny and disallwance Judicial review f legality f the regulatins Ombudsman as an investigative functin and ICAC Gvernment Departmental Plicies (r Internal Law ) Ntificatin and access under FOI legislatin Gvernment Infrmatin (Public Plicy) Act 2009 (NSW) N public participatin in plicy-making as a matter f law Judicial review f legality t ensure within pwer vested by the statute and flexibility applied Green v Daniels Scrutiny by sme appellate tribunals, E.g. AAT may depart frm gvernment plicy Re Drake and MIEA Ombudsman may criticise as unreasnable, unjust, ppressive r imprperly discriminatry Open gvernment Individuals right t knw Reasns fr decisins (n right at cmmn law, nly statute (ADJR s 13) Persnal infrmatin held by gvernment Privacy Accuracy Cmmunity right t knw Westminster traditin f secrecy FOI legislatin (D) Legality / merits distinctin Quinn Judicial review is limited t examining the legality f the decisin (AG v Quinn) this is the cnstitutinal mandate f the judicature, the judges rle Legality whether it is a lawful basis 7

8 Merits whether the decisin was a crrect ne (fact based) Cnstitutinal underpinnings f the distinctin (E) Cnstitutinal principles underpinning administrative law Rule f law Everything a gvernment des must be accrding t law and have a legal surce f authrity Link t Federal Cnstitutinal Law Parliamentary svereignty Dicey prpses 3 parts: (1) Statute law prevails ver CL where there is incnsistency (2) Parliament is free t enact whatever laws it chses (within its cnstitutinal pwer) (3) Parliament cannt bind future Parliaments Respnsible gvernment Ministers (executive) are members f Parliament (legislature) in a frmal sense, respnsible gvernment refers t ministerial respnsibility: Individual Cllective (F) Principle f legality There must be sme surce f legal authrity fr executive actin usually the administratr pints t a statutry cnferral f pwer, hwever, sme actin: May derive authrity frm the prergative, E.g. Ruddck v Vardarlis May be the exercise f the gvernments inherent capacity t functin as a legal persn, E.g. entering int a cntract, wning prperty, cnducting legal prceedings BUT this must nt be incnsistent with statute, in breach f criminal r civil law, r be cercive r punitive (G) Statutry interpretatin Mst executive actin is made pursuant t a statutrily-cnferred pwer (with the exceptins abve, E.g. if prergative pwer, if inherent legal capacity) therefre, we must lk twards and interpret the statute The starting pint textualism Ask what is the natural and rdinary meaning f the wrds? Where the statute admits t mre than ne interpretatin, Australia takes the purpsive apprach, I.e. lk at the underlying purpse and bject f the Act (whether r nt expressly stated) what did Parliament intent t mean? This apprach is required in the Interpretatin Acts an apprach which prmtes the underlying purpse f the legislatin The Acts permit the use f extrinsic material abut the histry f the legislatin, E.g. 2R speeches, law refrm reprts t: Cnfirm the rdinary meaning; r T determine the meaning f an ambiguus r bscure prvisin, r a prvisin that leads t a result that is manifestly absurd r unreasnable Where there is ambiguity, there are sme (rebuttable) presumptins f legislative intent 8

9 Curts will nt impute t the legislature an intentin t abrgate r curtail fundamental rights r freedms unless such an intentin is clearly manifested by unmistakable and unambiguus language (Cc v R; Al Kateb) Statutry interpretatin and the Human Rights Act Can t review / measure against human rights, since we dn t have a Bill f Rights Can nly measure against cmmn law rights ACT Human Rights Act 2004 Victrian Charter f Rights and Respnsibility Act 2006 Mdelled n the UK Human Rights Act An interpretatin r dialgue mdel f human rights prtectin, rather than cnstitutinally prtected rights in a bill f rights Seeks t enhance judicial prtectin f human rights withut undermining parliamentary svereignty Sets up dialgue between the legislature, curts and executive abut the best way t prtect human rights Best ways t prtect everyne including refugees, Australia, turists frm the arbitrary pwer frm the Parliament? The curts are cntinuing t d this (H) Intrductin t the grunds f review Grunds f judicial review (1) Jurisdictinal errr what is a jurisdictinal errr in 2015? (2) Prcedural grunds Statutry requirements which must be fllwed while perfrming an administrative task Prcedural fairness (duty t give a fair hearing and nt be biased) Curts have had t determine what a fair hearing is is it a written submissin r smething mdelled n a trial? (3) Reasning prcess grunds hw t g abut making the decisin Culd be unreasnable Must take int accunt all the infrmatin that is relevant Must nt take int accunt all the infrmatin that is irrelevant (4) Decisinal grunds the actual decisin that has been made (I) Justiciability Justiciability (including the prergative pwer) Justiciability means is the dispute apprpriate fr judicial reslutin? Shuld the curt get invlved? At cmmn law there are judge-made criteria Hicks v Ruddcks 9

10 Facts Cuncil fr Hicks was applying fr habeas crpus Issue fr the curt was whether r nt it had justifiability t determine this matter Argument being made fr Hicks was that the executive had assumed a Ch III functin in Australia, nly a curt can cnvict and imprisn T remain there, the executive had assumed a Ch III functin detained, withut cnvictin, with n freseeable release Questin shuld the curt get invlved? The gvernment argument it was a prergative pwer, and therefre, the curt culd nt get invlved Held Federal Curt said it had jurisdictin Parliament can determine questins f justiciability as well Statutry review ADJR Act 1997 (Cth) decisin t which this Act applies Determines when a matter is justiciable Privative clauses, I.e. attempts by the Parliament t ust the jurisdictin f the curts in areas where the executive wants less curt interference with its decisin, E.g. migratin / industrial relatins The prergative The residue f discretinary r arbitrary authrity which at any given time is legally left in the hands f the Crwn (A V Dicey) Vardalis, Plaintiff M61 Executive prergatives Passed t the Cth and states accrding t the divisin f legislative pwers 10

11 Judicial review jurisdictin f the curts (A) Jurisdictin f the curts The legality f administrative actin may be raised n applicatin fr judicial review In state / territry Supreme Curts if it invlves state / territry administrative actin; r In the HCA / Federal Curt / Federal Magistrate s Curt if it invlves federal administrative actin Cllaterally in criminal, trt r cntract cases Exam ask first, which curt can applicatin be made t? (i) High Curt cnstitutinal writs Has appellate jurisdictin frm Cth, state and territry curts Original jurisdictin Cnstitutin s 75 (iii) in which the Cth, r a persn suing r being sued n behalf f the Cth, is a party (wh); and (v) in which a writ f mandamus r prhibitin r an injunctin is sught against an ffice f the Cth (remedies) See Aala in which the HCA freed the cnstitutinal writs frm many f the technicalities f the cmmn law writs HCA said the writs they give are nt cmmn law writs Have cnstitutinal authrity t issue cnstitutinal writs set wn rules abut what can be issued Under cnstitutinal, riginal jurisdictin, certirari can als be issued Als, certirari Aala s 44 Judiciary Act 1903 (Cth) the HCA may remit matters (cmmenced in its riginal jurisdictin) t the Federal Curt The cnstitutinal cnferral f jurisdictin is imprtant because it means that this riginal jurisdictin cannt be abrgated by an rdinary Act f Parliament (cf. Plaintiff S157/1992 v Cth) (ii) Federal Curt f Australia The FCA has n inherent jurisdictin its jurisdictin is entirely cnferred by state This means the Cth Parliament can validly restrict the jurisdictin f the FCA by rdinary legislatin E.g. Pt 8 f the Migratin Act 1958 (Cth), created in 1992, and amended in 2001 t restrict the FCA jurisdictin, but then changed back in 2005 after an verwhelming number f applicatins enlivening the HCA s riginal jurisdictin FCA statutry basis f jurisdictin 1. Administrative Decisins (Judicial Review) Act 1977 (Cth) [ ADJR ] Very simple prcedure fr judicial review f Cth actin by way f an applicatin fr review (seeking an rder f review ) Hwever, t enliven this jurisdictin, the administrative actin must meet the s 3 definitin discussed belw 11

12 Nte this means that challenging delegated legislatin is clearly excluded under the ADJR Act it is NOT f an administrative character Advantages Simple prcedure Simplifies judicial remedies Rights t reasns; and Cdifies the grunds f review 2. Judiciary Act 1903 (Cth) ss 39B, 44 Federal Curt s cmmn law jurisdictin s 39B(1) 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 Cth s 39B(1A) riginal jurisdictin f the FCA als includes matters in which the Cth is seeking injunctin r declaratin, arising under the Cnstitutin r invlving its interpretatin, and arising under any Cth law (ther than criminal prsecutin) s 44 the HCA may remit matters (cmmenced in its riginal jurisdictin) t the FCA Nte s 39B(1A) is a very brad cnferral f jurisdictin if the ADJR test fails and cannt be applied (discussed belw), yu will be likely t fall within this wide residual jurisdictin. This is because yu are permitted t rely n bth statutry basis f jurisdictin in the alternative, I.e. Judiciary Act and ADJR Act 3. Appellate jurisdictin The FCA may hear appeals frm the Federal Magistrates Curt It can als hear appeals n questins f law frm certain tribunals, E.g. the AAT I.e. interpreting smething as a matter f law 4. Further ntes n basis f FCA jurisdictin FCA jurisdictin extended by: Assciated jurisdictin (Federal Curt Act s 32) jurisdictin nt therwise within its jurisdictin that are assciated with matters with its jurisdictin, E.g. CL damages against a Cth agency Accrued jurisdictin inherent pwer f a superir curt t settle the cntrversy by dealing with all the issues that arise ut f the same transactin, E.g. a nn-federal claim under a CL r state law The HCA CANNOT review state administrative actin Jurisdictin t review Cth administrative has largely been remved frm state curts Crss-vesting ADJR Act and s 39 matters are special federal matters which MUST be transferred t the FCA unless the state SC decides that there are special reasns fr the matters tt be heard by the state SC (mre than parties cnvenience) (iii) Federal Magistrates Curt Limited t certain types f matters, intended t functin mre efficiently and cheaply than the FCA The FCA may transfer matters t the FMC Appeals can be made frm the FMC t the FCA ADJR Act jurisdictin 12

13 (iv) State and territry curts State SC s f general jurisdictin have inherent jurisdictin t review the legality f state administrative decisins Sme state curts als have jurisdictin cnferred by statute: Supreme Curt Act 1970 (NSW) s 23 All jurisdictin which may be necessary fr the administratin f justice in NSW Administrative Law Act 1978 (Vic) Judicial Review Act 1991 (Qld) ADJR Act 1989 (ACT) Judicial Review Act 2000 (Tas) NSWLEC (Land and Envirnment Curt Act 1970 (NSW) s 20 envirnment planning and prtectin) Further, nte als that in Kirk, it was held that legislatin purprting t remve the pwer exercised by a SC f judicial review f unlawful decisins is invalid as it alters the defining cnstitutinal characteristics f a SC (thus, judicial review jurisdictin fr SCs seems als t be prtected in the Cnstitutin) I.e. State SCs will nt give effect t privative clauses which attempt t make Tribunal decisins unreviewable (D) The ADJR Act 1977 (Cth) ADJR Act cdifies, and in sme cases, remedies, the principles f the cmmn law and applies nly where the decisin f Cth fficers is being challenged If the applicatin is in regards t Cth legislatin, then there are nly tw curts riginal jurisdictin f the HCA, r the Federal Curt under the ADJR r ss 39B, 44 Judiciary Act If the legislatin is state legislatin, must g t the state curts first The ADJR Act prvides review f: 1. Decisins that have been made s 5 a persn aggrieved by a decisin that has been made may apply fr judicial review n any f the fllwing grunds [grunds f review set ut] 2. Cnduct engaged in fr the purpses f making a decisin s 6 where a persn has engaged, is engaging r prpses in cnduct fr the purpses f making a decisin, a persn aggrieved by this cnduct may apply fr judicial review f any f the fllwing grunds [grunds f review] s 3(5) defines cnduct t include any act r thing preparatry t making f a decisin 3. Failure t make a decisin required by statute s 7 where a persn has a duty t make a decisin and has failed t make that decisin, a persn aggrieved by this failure may apply fr judicial review within the prescribed timeframe [in the empwering statute] [r if nt prescribed, withut unreasnable delay] Imprtant, s 3(1) f the ADJR defines precisely what the Act applies t s 3(1) decisins t which this Act applies means a decisin f an administrative character made, prpsed t be made, r required t be made as the case may be (whether in exercise f a discretin r nt) under an enactment ther than a decisin by the Gvernr-General, r a decisin included in any f the classes f 13

14 decisin set ut in Sch 1 [which includes privative clause decisins within the meaning f the Migratin Act Pt 8] (E) Elements f the ADJR Act t be aware f NB s 3(1) (i) In relatin t a decisin (ii) Of an administrative character (iii) Made under an enactment (i) What is a decisin under the ADJR Act? BUT fr the ADJR Act t apply, s 3(1) requires the decisin t be a decisin f an administrative character made under an enactment, ther than a decisin by the GG r decisin in Schedule 1 Questins is t ask What is a decisin? At what pint des an administratr s wrk becme a decisin reviewable under s 5? ABT v Bnd Facts Bnd was seeking t challenge findings (at early stages) made by the Department which fund he was nt a fit and prper persn t hld a license The Act itself nly empwered the gvernment t make a decisin abut the license hlder (in this case was nt Bnd, but his cmpanies) Issue were the findings (as an early stage f the decisin-making prcess) review as decisins under s 5? Masn CJ (majrity) defined a decisin as: A decisin is that which a statute requires r authrises rather than a step taken in the curse f reasning n the way t the making f the ultimate decisin A determinatin effectively reslving an actual substantive issue having the character f FINALITY The decisin was whether r nt a bradcasting license was issued N applicatin t bring under the ADJR Act Bnd didn t satisfy what a decisin is under Masn s requirements Masn J The wrd decisin shuld nt be interpreted t narrwly as the ADJR Act is a remedial statute designed t allw fr review. Hwever, t allw review alng the way wuld be t fragment the decisinmaking prcess Masn s plicy pints (1) Parliament wuldn t have bthered t als prvide merits appeals t the AAT if it didn t intend this Act t be read strictly t be applied t judicial review and the final ultimate decisin (2) If allw everything leading up t the decisin t be taken int accunt, then it is an invitatin fr curts t get invlved in the merits, rather than just the legality Nte even if an intermediate decisin was prvided fr by enactment it may nt be reviewable if it decides nthing (Edelsten v Dealth Insurance) They and Gaudrn JJ (dissenting) argue it is t restricted Where a statute prvides fr making f a reprt r recmmendatin befre a decisin is made that wuld als be a decisin Nte acts dne prir t making decisin = cnduct 14

15 Decisin substantive / cnduct prcedural T s cnclusive re Bnd step in T s reasning, nt decisin Findings f facts are generally a step alng way t ultimate determinatin à s accrding t Bnd nt reviewable Bnd s legacy Decisins shuld be cnstrued narrwer rather than brader Ushered in cuntless jurisdictinal challenges and generated a large, highly technical and smetimes absurd jurisprudence s 39B plugs many f the gaps which have emerged because f its cmmn law jurisdictin (ii) Of an administrative character Relating t an individual Affects an individual directly, rather than a decisin f a legislative character à a decisin f legislative character will apply t everyne, n just an individual In a brad sense, the curts have apprached this issue by distinguishing the administrative frm the legislative and judicial Is it legislative? N It is judicial? N Then it must be administrative E.g. a judge issuing a search warrant is f an administrative character NB the making f subrdinate legislatin is nt reviewable as this is f a legislative character (Blewett) BUT a decisin by smene empwered by that legislatin is reviewable What cnstitutes legislatin r a legislative decisin has mre t d with its institutinal mde f prductin (hw it is prduced), than with a cnceptual understanding f the nature f making r changing the law [C&M 59] Queensland v Blewett Issue whether the making f a determinatin by the Minister regarding pathlgy services prvided under Medicare was administrative? Held Accepted that a ministerial decisin t substitute a new table f fees fr an existing table, set ut in a schedule t the relevant enactment, was f a legislative character Nte Gummw J Accepted that legislatin nrmally invlves the frmulatin f general rules (where administratin applies the law r rule t a particular case) he did nt think that all decisins f a legislative character must frmulate a rule f general applicatin Emphasis shuld be put n hw legislative decisins change the cntent f the law, where as administrative apply that cntent Affects everybdy, nt nly the labratry cncerned Rche Prducts Pty Ltd v Natinal Drugs and Pisns Schedule Cmmittee Facts Dealt with delisting f an besity drugs frm Appendix H f the Pisns Standard If n this appendix, the drug may be directly advertised and marketed t cnsumers 15

16 The cmmittee exercising statutry functins, decided there were t many cmplaints, s changed its mind abut whether the drug shuld g n Appendix H Impacted Rach, wh were distributing the drug Tk the cmmittee t judicial review, arguing the cnduct was unlawful Issue was the decisin f administrative character affecting nly Rach, r is it affecting mre than just Rach? Held Althugh Rach wuld suffer, the changed law wuld still f general applicatin therefre, legislative Bransn J There is n simple rule fr determining whether a decisin is administrative r legislative The distinctin is between the creatin r frmulatin f new rules r law having general applicatin and the applicatin f thse general rules t particular cases Generally, if it has a (frce f) law, then it is prbably legislative character Exercise f pwer was legislative ratinale The inclusin f a substance in a schedule f the Pisns Standards is a rule f general applicatin Public cnsultatin is an imprtant element f the listing decisin Pisns Standards is intended t prvide a unifrm natinal standard system f cntrlling all states and territries There is n prvisin fr merits review Decisin abut listings are public in the Gazette General cmments Increasingly, the curts have relied upn cnsidering a number f factrs t determine whether it is legislative: Where it has a general r rule-like quality (then YES) Whether it has a binding/legal affect r raises brad questins f plicy Whether it is subject t merits review (then NO because subrdinate legislatin cannt be reviewed n the merits)) r parliamentary versight (s YES, parliament reviews subrdinate legislatin) Whether it invlves public ntificatin and cnsultatin (then YES because this applies t subrdinate legislatin but NOT plicy) (iii) Under an enactment This includes decisins made under all Cth Acts and instruments made under the Acts, I.e. subrdinate legislatin it als includes decisins made under ther dcuments (Chittick v Ackland) IF: (1) The dcument was made under an Act (2) The dcument authrises decisins f an administrative character (3) The decisin has the capacity t affect legal rights and bligatins General Newspapers v Telstra Facts Were exercising pwers under the Telecmmunicatins Act, decided it wuld print the White Pagers Telstra cntracting withut calling fr tenders General Newspapers felt it was aggrieved by the failure f Telstra t put the tenders ut 16