Standing Road Map The Question The Commonwealth Government introduced the Federal Tobacco Products Advertising Regulation in 2000, the effect of which was to ban advertising of all tobacco products without a permit. The Minister for Health and Ageing has the power to grant a permit if they believe that the advertisement adequately warns of the health risks associated with use of tobacco products. The relevant Act does nothing to limit Federal Court review under the ADJR Act. Breathless Ltd manufactures cigarettes, and wants to show a television advertisement, which suggests that the link between smoking and lung cancer has not been scientifically established. The Minister granted the permit. The Health Benefits Fund ( HBF ), a major health fund, is upset by the decision, as is a group called FACE ( Families Against Cancer and Emphysema ), which represents families and friends of those who have died from lung cancer and emphysema. Advise HBF if it has standing to seek judicial review. Can FACE intervene in any way? Structure Ask yourself What is the decision/act you are challenging? Who is the decision-maker? What power was it made under? Does this power depend for its validity on anything else? For instance, does it depend on the proper exercise of another power? Does it depend on authority from a primary Act etc? (ie is the power granted through delegated legislation) Structure 1. Jurisdiction 2. Remedies available 3. Standing under ADJR Act: person aggrieved by decision common law: depends on remedies sought, generally - person whose interests are affected by decision 4. Ground for reviews The basis for which the decision was contrary to law Note some but not all grounds have divergent tests under ADJR Act and CL For example: No evidence ground CL and ADJR is very different 5. Conclusion Judicial Review Intro
Judicial review is available for people aggrieved by an administrative decision to seek review of the lawfulness of that decision rather than the merits of the case. Judicial review may succeed if the court has jurisdiction to judicially review the decision and accepts that the decision is justiciable. The applicant must have standing and the applicant must prove that there are grounds for review. The court has the power to grant an appropriate remedy, if there are no privative clauses preventing judicial review. STEP 1: Commonwealth or NSW Legislation If NSW - the jurisdiction for judicial review comes from common law, and CL writs must be sought in the NSW Supreme Court If Commonwealth - the situation is more complicated. Jurisdiction may be available under common law or the ADJR Act or both. The relevant legislation in this particular question is the Federal Tobacco Products Advertising Regulation, a piece of Commonwealth legislation. STEP 2: Commonwealth legislation 1. ADJR Act will be used for judicial review. 2. Federal Court of Australia will have jurisdiction to be based on the lawfulness of a decision, not its merits Section 16 3. ADJR Act gives Federal Court and Federal Magistrates Court power to engage in judicial review Section 8 4. Using the ADJR Act, the person affected can argue that either the decision or conduct of the Minister was invalid or unlawful STEP 3: Jurisdiction 1. To eligible for judicial review under the ADJR Act the decision must be of an administrative character made under an enactment SECTION 3 2. This may also include a failure to make a decision SECTION 6 or conduct while making a decision SECTION 7 3. Decision Generally decisions under ADJR have to be FINAL OPERATIVE ULTIMATE DECISIONS - However, an interim step in the decision making process MAY constitute a reviewable decision if THE RELEVANT STATUTE EXPRESSLY PROVIDES FOR IT Bond A decision must be required or authorised by statute and may include the decisions of Ministers (Minister for Aboriginal Affairs v Peko Wallsend), making orders or determinations, granting licenses, awards s 3(2) and reports and recommendations required by statute s 3(3) * * * Application * * * Decision is AUTHORIZED BY STATUTE - The Minister for Health and Ageing has the power to grant a permit if it is believed that the advertisement adequately warns of the health risks associated with the use of tobacco products
It s a FINAL AND OPERATIVE decision The facts of this question suggest that the Ministers decision is within the confines of what adequately parallels the definition of a decision under the ADJR Act and therefore can be reviewed 4. Administrative character - Legislation is about creation of general rules of wide application. Executive using general rule APPLIED to particular CASE - Hamblin v Duffy. Judicial decisions determine questions of law with reference to established rules and principles and are not reviewable under ADJR. 5. Made under an enactment Griffith University v Tang Tang accused of falsifying lab results academic misconduct She sought review under QLD equivalent ADJR Held university s decision was made under MISCONDUCT CODE not made under an enactment Conduct code is not legislation or statute Held: to be a decision made under an enactment BOTH these criteria must be met The test It must be expressly or impliedly required or AUTHORISED by enactment that there is the power to make that decision, and The decision must confer, alter or otherwise effect the legal RIGHTS or obligations the capacity to do this must derive from the enactment SECTION 3 An enactment is defined to include Acts, rules, regulations, and by-laws made under statute and Ordinances (except for territories) The enactment must have been the source of power to make the decision Hutchins v. Commissioner of Taxation, General Newspapers Pty Ltd v Telstra Corporation 6. Exceptions decisions by the GG and decisions regarding national security, conciliation and arbitration, defence, tax, criminal processes and specific decisions under the Migration Act (Schedule 1 ADJR Act). * * * Application * * * This is an administrative decision applied rules to a particular case not a creation of new rules The decision was made under an enactment it was expressly authorized by an enactment there was a power to make this decision, it affected rights STEP 4: Standing If the jurisdiction is satisfied, standing needs to be established for the decision to be judicially reviewed.
Under the ADJR Act, a person who is aggrieved by a decision may have STANDING to seek judicial review s 5 A person aggrieved means someone whose interests are adversely affected by the decision s 3(4)(a)(i) A narrow meaning is not intended but grievance must be beyond grievance of public generally - More than just intellectual emotional concern - Tooheys v Minister for Business & Consumer Affairs See also - Right to Life Association, United States Tobacco v Minister for Consumer Affairs The context and specific factors in the case are to be considered to determine whether the applicant has a special interest peculiar to themselves North Coast Environmental Council Inc v Minister for Resources Cant be busybody still, but wider approach than CL allowed AUS Institute of Marine & Power Engineers 2 priests claimed to be persons aggrieved by a decision of censorship board to approve a film - aggrieved more than general public - closer proximity than other members of Christian community - SPECIAL DAMAGE suffered - VERY WIDE INTERPRETATION - Ogle v Strickland Must be able to prove that they have a special interest in this decision, which has a significant connection to the subject matter - Australian Conservation Foundation v Commonwealth * * * Application * * * HBF must be able to prove this special interest and it must be greater than interest of general public As HBF is a major health fund, we can assume that it is well recognised by the government as a body that promotes and supports good health. Their aim would be to prevent smoking, thus their activities relate directly with the decision of the Minister. HBF could argue, that not only is the Minister s decision unlawful but also that the proposal by Breathless will have an adverse economic impact on them, as it passively may encourage smoking, particularly amongst it members. This could lead to its members making increased claims, to the financial detriment of HBF, for illnesses relating to cancer as a result of tobacco use. Further, they may face repercussions as the public s belief in the need for health insurance may diminish with no link established between smoking and emphysema. Essentially, the permit to allow the advertisement to go ahead would be counterproductive to the essence of HBF s activities. HBF S concerns can be said to go beyond merely one of an intellectual or emotional concern, establishing that they have a special interest which will grant them standing to question the Ministers decision. If HBF are successful in their claim, they can seek relief by means of an injunction or a declaration. There is no indication that FACE is a representative organization, which supports families that have died solely as a repercussion of smoking tobacco products. Rather, it is a body, which represents families and friends of those who have died from lung cancer and emphysema. The extent to which FACE makes this representation is unknown. The facts shed little light on whether FACE attempts to influence opinions of the public and policy makers, but their actions in representing family and friends does not necessarily transpose into the right of standing to seek judicial review. We
NSW can assume that FACE has the same interest in the subject matter as any ordinary person may have. In this sense, there is only an intellectual or emotional objection in the matter with regard to granting the permit to Breathless to show their advertisement. No disadvantage will be suffered if FACE does not obtain standing. Therefore, it would be unlikely that FACE would be given standing to intervene as an individual body. If FACE was a body that advocated against smoking or if they were a charity organisation, they would be in a stronger position to ascertain standing as they could argue that not only do they have an intangible interest, but also tangible interests which would be adversely affected by the Ministers decision. Other avenues can be addressed to allow for alternate means of intervention for FACE. Where persons have claims identical to those of the applicant, courts have discretion to join the person(s) as parties. Section 12 of ADJR Act provides that a person with an interest in the decision can apply to the court to be made a party to the application. The court will look at costs and delays that may arise as a result of adding FACE to the proceedings, in exercising their discretion - Friends of Hinchinbrook Society Inc v Minister for Environment. FACE must show that they have a common interest in the subject to be reviewed. If FACE becomes a joinder to the proceedings, they will enjoy all the benefits (including the right of appeal) and burdens (including costs) that HBF obtain. FACE could further argue their case as an amicus curiae ( friend of the court ) or as an intervener - Levy v Victoria. The former is a party who is not involved in the case who materialise at the discretion of the courts, to advise on aspects of the case that may have been overlooked. An amicus has no rights in the proceedings and the involvement is restricted by the courts to a submission of a written brief highlighting their concerns. As an intervener, FACE will be treated as a third party, whereby the courts may grant leave to participate in the proceedings so that all interests of the parties are included in the final decision. Unlike amicus curiae, an intervener will have all the rights and liabilities that HBF may encounter Levy v Victoria. NSW LEGISLATION: If it is NSW legislation, Common law will be used for judicial review, as there is no statute governing judicial review in NSW. NSW JURISDICTION: Judicial review is only available for cases that are deemed to be justiciable. If a case is justiciable it means it is appropriate for determination by the particular court. A case may be non-justiciable if there are no manageable legal standards in the case, if judicial intervention is not constitutionally appropriate or legitimate, if the decision maker has open discretion and unfettered power (no boundaries on what they can do), academic grading decisions, religious or inherently political questions (Minister for Arts Heritage and Environment v Peko-Wallsend (1987) 15 FCR 274), ASIO, national security, diplomacy, national relations (Thorpe v Commonwealth (No 3) (1997) 144 ALR 677). The judiciary must not encroach on the legislative or executive as this would be a breach of the separation of powers. In this case, the matter is [describe matter], which is in the jurisdiction of the [executive, legislature or judiciary], therefore it is/is not justiciable. NSW STANDING: To have standing for judicial review under common law, the applicant generally needs to have substantial economic interest private pecuniary interests, apprehended or actual damage to proprietary rights (ACF v Cth (1980). Mere intellectual, emotional or philosophical interests will not constitute standing (ACF v
Cth (1980), Right to Life Association (1994). Applicants must suffer damage peculiar to themselves, more so than the rest of society (Onus v Alcoa v Australia (1981), Batemans Bay Local Aboriginal Land Council (1998)). The rules of standing vary according to the remedy sought. In the case of equitable remedies, individuals generally do not have standing (this is for the A-G), unless it also affects their private rights (as well as public) and causes them to suffer special damage peculiar to themselves (Boyce v Paddington Borough Council). The applicant may have standing in this case due to [reasons]. Remedies Under the ADJR Act, the HBF may apply for an order (section 16 ADJR) or reasons (section 13 ADJR). An order effectively reproduces common law prerogative writs, for example orders to set aside or quash a decision (certiorari), declare the rights of the parties (declaration), directing a party to do something or refrain from doing something (mandamus, prohibition and injunction). Orders are more flexible than the common law, and the Federal Court can fashion any sort of remedy to provide equity. If HBF and FACE are found to be aggrieved they will be entitled to ask for the reason for the decision. The applicants will be able to get findings on material question of fact, evidence on which findings were based and reasons for decision