JUDICIAL REVIEW Courts= concerned with legality, do not have the power to vary or substitute Can affirm original decision or set it aside If set aside, then must be remitted to original decision-maker to be re-made according to law= two-step process Starting point is to determine which jurisdiction: Commonwealth or Qld? Role and scope of judicial review Courts= concerned with the exercise of public power and decide on the existence/scope/limits of such powers. Do not step into the shoes of the original decision-maker and substitute their own decisions (role of merits review) Judicial review= process by which superior courts check the lawfulness of executive conduct, decisions and omissions and decide whether public power is authorised to act under legislative enactment. Also concerned with the lawfulness of govt action where it is founded upon non-statutory sources recognised at common law. Choice of JR avenues 2 choices for Cth JR: 1. s75 of Consti- gives power to HC (s75: In all matters (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth: the High Court shall have original jurisdiction ) 2. ADJR Act (Administrative Decisions (Judicial Review) Act 1977 (Cth)- typically administered by FC. Contains a list of grounds for judicial review. Subject to some key limitations (GG and other listed bodies are exempt, only applies to decisions made under a statute) Threshold requirements at common law = Justiciability Meaning of Matter Re Judiciary & Navigation Acts (1921): HC held legislation which purported to give an advisory opinion invalid as this was not a matter. Re McBain; ex parte Australian Catholic Bishops Conference (2002): HC held there was no matter involving the Bishops and Dr McBain/other parties. Common law threshold: Justiciability 1
Powers of the Executive which are not suitable for review by the judiciary? Eg. complex high-level policy decisions (Cabinet) or certain prerogative powers such as declaration of war etc. No settled categories, it is an evolving threshold issue Not appropriate for court to decide on areas such as declaring wars, sending troops= non justiciable. Gov needs to act. Hicks v Ruddock (2007): there was not automatic non-justiciability applied to foreign relations. Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987). Complex high level policy decisions (sometimes called polycentric decisions) are non-justiciable. Didn t hold that all cabinet decisions were non-justiciable. Threshold issues for ADJR Act Threshold requirements for an application for JR: in ADJR Act itself- substantive power of JR is contained in s5 and 6. Difference between these two sections: s5= decision to which this Act applies Decision to which this Act applies Key requirements in section 3 of this term: Decision Of administrative character Made under an enactment Each of these 3 elements must be present for an application for judicial review under the ADJR Act ( reviewability ) ADJR Act reviewability 1. First element = decision Seminal case ABT v Bond 2. Second element = of administrative character Purpose is to exclude decisions of a legislative or judicial character 2
Legislative acts= involve the formulation of new rules of law having general application. Judicial acts= entail determination of questions of law and fact in relation to disputes susceptible of determination by reference to established rules or principles. 3. Third element = made under an enactment Griffith University v Tang: Two criteria (1) the decision had to be expressly or impliedly authorised by the enactment, and (2) the decision itself had to confer, alter or otherwise affect rights or obligations. Ms Tang failed to establish the second limb. Any expectation that she might have had that the University would follow its own disciplinary code did not create substantive rights under the general law nor did it arise under an enactment, but rather under the soft law policy. THRESHOLD ISSUES The threshold requirements for an application for JR are contained in the ADJR Act itself. Section 5/6 decision to which this Act applies ->section 3 decision, administrative character, under an enactment Threshold requirements for Constitutional JR= derived from s75(v)= matter, officer of the Commonwealth and justiciability. Grounds? Must fit the legal error into one of the defined categories where JR is available Case may raise more than one ground for challenge and the distinction between the grounds may not always be clear- explore every reasonable arguable ground of review in the alternative. Statutory provision ADJR Act s.5(1)(a) = JR Act (Qld) s.20(2)(a): (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the 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; Procedural fairness/natural justice Concerned with securing a fair hearing for individuals, and the right to an unbiased decision. PF requires 2 things: right to a fair hearing and right to an unbiased decision maker 3
Right to a fair hearing Before a decision is made adversely affecting a person's rights, interest or legitimate expectations, the decision-maker must give the person prior notice that a decision may be made, the information relied upon and the right to make a submission in reply. Scope of the duty Which public bodies must observe natural justice principles? Initially applied to judicial bodies then gradually extended In what context/circumstances does natural justice apply to public decision makers? Initially if it affected an individual s rights then extended to interests then legitimate expectations Can it be excluded, replaced and/or modified if so how? Use of statutes to do this remember statutes prevail over common law. Traditionally applied to judicial bodies, then extended to quasi-judicial bodies and finally extended to administrative bodies Banks v Transport Registration Board (Vic) (1968): B had his taxi driver license cancelled. Did the transport registration board owe B a duty of procedural fairness? Yes- had to tell him they were going to cancel his license and let him have the opp. to respond Presumption of application Wide spectrum of decision-making powers to which the doctrine applies has led to a flexible approach, which favours a generalised assessment of the case rather than strict rules. Now in the absence of a contrary statutory intention= presumption that PF applies to all administrative decision-makers. Kioa v West (1985): K here on a business visa from Samoa. Applied for a different type of visa so he could remain in Aus. Visa consideration took a really long time. K moved from QLD to Vic. Immigration department decided that he should not have visa changed because he didn t say of his change of address and was telling others how to get visas. He wasn t told this. For PF: decision has to affect individuals in a personal capacity (not as a general member of the community) Legitimate expectations A legitimate expectation= an expectation, which is reasonable, that a legal right or a legal liberty will not be interfered with, or will be received. FAI Insurances Ltd v Winneke (1981) (HC): FAI had always had workers comp insurance. Then suddenly it was told that it wasn t getting it again. This was a business interest, therefore they had the right to be heard. A legitimate expectation that its licence would be renewed unless there were adequate reasons to the contrary a matter on which it was entitled to be heard. 4
Need for caution: MIEA v Teoh (1995) (HC): T was to be deported because of a term of imprisonment for drug possession. He was successful in having the deportation set aside, because the best interests of his children were not a primary consideration. Re MIMA; Ex parte Lam [2003]: Minister intended to deport an Australian resident on character grounds re a drug conviction. Applicant was asked to comment on number of matters including the way in which his deportation might affect the best interests of his children (legislation had been tightened since Teoh). Was also asked to provide details of children s mother so that the Department could contact her. He did so. Department failed to contact mother. Applicant argued decision to deport was therefore flawed i.e. he had a legitimate expectation that the mother would be consulted. HC rejected this argument, as no practical unfairness followed. Case study legal representation WABZ v MIMIA (2004). Full FC: Identified 4 factors to be considered in determining whether an applicant before the RRT is entitled to representation: the applicant s capacity to understand the nature of the proceedings and the issues; the applicant s ability to communicate effectively (in language used); the legal and factual complexity of the case; and the importance of the decision to the applicant s liberty or welfare. BIAS S5(1)(a) Procedural fairness Bias: 2 nd element of PF is an unbiased decision-maker= all decision-makers required to accord PF must be free of any reasonable suspicion or preconception. Could arise from circumstances such as decision-maker s financial or personal interests, prior expression of views or previous role in decision to be made. Actual bias is much harder to establish= requires applicant to prove the actual state of mind of the decision-maker (Jia) Jia: Minister went on radio: said tribunal who made the decision had been too lenient on criminals and that it was the govs position that people who had a serious criminal record had to be deported. Didn t specifically reference Jia. After radio interview, visa cancelled on character grounds. Jia sought JR, argued he had been denied PF and particularly that he was subject to bias- said minister had a closed mind. Had to argue actual bias here (because of the Migration act at the time). HC: Position of a minister is substantially different to a judge. Took particular notice of who the decision maker was and what role they had. 5