FACULTY OF LAW LAWS5010 ADMINISTRATIVE LAW EXAM NOTES

R. M.!! 1 FACULTY OF LAW LAWS5010 ADMINISTRATIVE LAW EXAM NOTES Tpics: Judicial Review - Jurisdictin f the Curts Reasning Prcess Grunds f Judicial Review Judicial Review Remedies Decisinal Grunds f Judicial Review Judicial Review f Rule-making Access t Judicial Review - Standing Prcedural Grunds f Judicial Review Restricting Judicial Review - Privative Clauses

R. M.! Table f Cntents! 2 (2) JUDICIAL REVIEW: JURISDICTION OF THE COURTS STATE AND TERRITORY COURTS...! 6 HIGH COURT: CONSTITUTIONAL WRITS!... 6 FEDERAL COURT...! 8 ADJR Act Avenue f Revue!... 8 A decisin...f an administrative character...made under an enactment!... 9 THE PUBLIC/PRIVATE DISTINCTION - IS THE DECISION JUSTICIABLE?!... 13 Judicial Review!... 13 PUBLIC CONTRACTS...! 14 (3) JUDICIAL REVIEW REMEDIES CERTIORARI, MANDAMUS & PROHIBITION...! 16 Certirari!... 16 Prhibitin!... 18 Mandamus!... 18 INJUNCTION & DECLARATION...! 19 Injunctin!... 19 Declaratin!... 20 THE CONSTITUTIONAL WRITS...! 21 DISCRETION OF COURT TO REFUSE RELIEF!... 22 Mandamus: discretinary cnsideratins!... 22 Injunctins: discretinary cnsideratins!... 22 Declaratins: Discretinary cnsideratins!... 23 SEVERANCE...! 24 THE ADJR ACT REMEDIAL MODEL...! 25 RIVAL THEORIES OF INVALIDITY...! 26 Abslute thery and Relative Thery!... 26 (4) JUDICIAL REVIEW OF RULE-MAKING INTERPRETING ACTS AND REGULATIONS...! 28 Cmplement, Nt Supplement!... 28 The Regulate/Prhibit Distinctin!... 28 Principle f legality!... 29 THE MEANS/END DISTINCTION...! 29 (5) PROCEDURAL GROUNDS OF JUDICIAL REVIEW - THE RULES OF PROCEDURAL FAIRNESS IMPLICATION...! 31 Surces f Prcedural Fairness!... 31 Qualificatins n prcedural fairness!... 31 Threshld issue: when is prcedural fairness implied frm cmmn law int statute?!... 32 LEGITIMATE EXPECTATIONS...! 36 ADVISORY REPORTS AND RECOMMENDATIONS (I.E. IMPLICATION OF PROCEDURAL FAIRNESS AT THE PRELIMINARY STAGE )!... 38 STATUTE PROVIDING FOR A HEARING, CODE OF PROCEDURE OR RIGHT OF APPEAL...! 38 URGENCY!... 39 CONTENT OF THE HEARING RULE...! 39 Ntice & Disclsure!... 39 Disclsure f critical issues!... 40 Disclsure f adverse cnclusins!... 41 THE HEARING...! 43 Must the persn wh decides hear?!... 43 Fair hearings!... 43 Witnesses & Crss-examinatin!... 44 THE RULE AGAINST BIAS...! 45 Reasnable Apprehensin f Bias!... 45 Dispensing with the Bias Rule...!... 48 EXTENDING THE BOUNDARIES OF PROCEDURAL FAIRNESS...! 50 Prcedure and Substance!... 50 Reasns fr Decisin!... 50

R. M.! Table f Cntents! 3 EFFECT OF BREACH OF PROCEDURAL FAIRNESS & DISCRETION OF COURT!... 50 BREACH OF STATUTORY PROCEDURES...! 51 Prcedures: Cmmn law!... 51 Statutry Prcedures: ADJR Act!... 52 (6) REASONING PROCESS GROUNDS OF JUDICIAL REVIEW THE CONSIDERATIONS GROUNDS...! 54 Failing t have regard t relevant cnsideratins!... 54 Having regard t irrelevant cnsideratins!... 56 IMPROPER OR UNAUTHORISED PURPOSE...! 57 POLICIES...! 59 Plicies must be cnsistent with the enabling legislatin!... 59 Decisin maker s discretin must nt be fettered!... 59 REPRESENTATIONS & ESTOPPEL!... 61 Ostensible Authrity and The Presumptin f Regularity!... 62 ACTING UNDER DICTATION...! 63 Discretin must nt be exercised at the directin r behest f anther persn!... 63 Statutry Directins!... 65 UNAUTHORISED DELEGATION...! 66 (7) DECISIONAL GROUNDS OF JUDICIAL REVIEW JURISDICTIONAL ERROR & ERROR OF LAW ON THE FACE OF THE RECORD: COMMON LAW!... 68 Jurisdictinal errrs f law at cmmn law!... 68 Nn-jurisdictinal errr - A reviewable errr if it appears n the face f the recrd!... 70 Jurisdictinal errr in different cntexts!... 70 EXTENSION OF JURISDICTIONAL ERROR: JURISDICTIONAL FACT EXCEPTION!... 72 Type 1: Objective jurisdictinal facts!... 72 Type 2: A decisin-maker s state f mind!... 74 ERRORS OF LAW UNDER THE ADJR ACT...! 75 APPEAL ON A QUESTION OF LAW: DISTINGUISHING ERRORS OF LAW AND FACT!... 76 NO EVIDENCE...! 78 At cmmn law!... 78 Under the ADJR Act: Review f decisin: s5(1)(h) & s 3(a),(b); Review f cnduct related t making f decisin: s 6(1)(h) & s 3(a),(b)!... 78 UNCERTAINTY...! 79 Cmmn law!... 79 ADJR Act: s 5(2)(h)!... 79 WEDNESBURY UNREASONABLENESS...! 80 General Principles: Bth Cmmn law and ADJR apply same test!... 80 Statutry Frmulatin f Wednesbury test: s 5(2)(g); see als s 6(2)(g) - Applicatins fr review f cnduct related t making f decisins)!... 80 Species f Wednesbury Unreasnableness!... 81 (8) ACCESS TO JUDICIAL REVIEW - STANDING STANDING AND PUBLIC LAW REMEDIES...! 83 Prergative remedies!... 83 INJUNCTIONS & DECLARATIONS...! 84 Private persn: Special interest test!... 84 Attrney-General s inherent standing!... 85 ADJR ACT - LIBERALISATION OF STANDING...! 86 Is the applicant eligible under the ADJR Act - a persn aggrieved!... 86 Vcatinal and prfessinal interests adversely affected is enugh!... 87 Participatin in primary decisin-making prcess cnfers standing!... 87 Capacity t represent the public interest may be enugh!... 88 STATUTORY REFORM: OPEN STANDING...! 90 INTERVENTION AND FRIENDS OF THE COURT...! 90 (9) RESTRICTING JUDICIAL REVIEW PRIVATIVE CLAUSES...! 92 Cmmnwealth privative clauses cannt ust s 75(v) jurisdictin!... 92 State Privative Clauses (cannt alter the character f State Supreme Curts!... 93

R. M.! Table f Cntents! 4 NO INVALIDITY CLAUSES...! 94 TIME LIMIT CLAUSES...! 95 Avenues f Review

R. M.! (2) Judicial Review: Jurisdictin f the Curts! 5 (2) Judicial Review: Jurisdictin f the Curts Judicial Review Overview (1) Avenue f review (a) Cnstitutin s 75 (b) Judiciary Act 1903 (Cth) s 39B (c) Administratin Decisins (Judicial Review) Act 1975 (Cth) (d) Supreme Curt Act 1970 (NSW) (2) Preliminary requirements What are the essential requirements fr bringing actin under this avenue? (a) Cnstitutin s 75(v): fficer f the Cmmnwealth (b) ADJR Act: decisin under an enactment f an administrative character (3) Jurisdictin What curts can exercise jurisdictin under this avenue? (4) Standing Wh can apply fr review under this avenue? (5) Grunds What must such a persn establish in rder t succeed? (a) Prcedural fairness Hearing rule Bias rule (b) Decisinal grunds Errr f law N evidence Jurisdictinal facts Wednesbury unreasnableness Uncertainty (c) Reasning prcess grunds (Brad ultra vires?) Accunt f irrelevant cnsideratin Omissin f relevant cnsideratin Imprper purpse Inflexible plicy Behest f thers Unreasnableness (6) Remedies What can a curt rder if the applicant is successful? (a) Prergative remedies Certirari Prhibitin, mandamus Habeas crpus (b) Equitable remedies Injunctin and declaratin (c) Statutry Remedies ADJR Act Statutry refrms in Supreme Curt Act 1970 (NSW) (d) Cnstitutin s 75

R. M.! (2) Judicial Review: Jurisdictin f the Curts! 6 STATE AND TERRITORY COURTS Kirk v Industrial Curt f New Suth Wales (2010) CLR 531 All state Supreme Curts must maintain a supervisry jurisdictin t review fr jurisdictinal errr. A defining characteristic f a state Supreme Curt is the pwer t review decisins made by state decisins-makers n the basis f jurisdictinal errr. Sectin 23 - Jurisdictin generally Supreme Curt Act 1970 (NSW) The Curt shall have all jurisdictin which may be necessary fr the administratin f justice in New Suth Wales. Sectin 65 - Order t fulfil duty (1) The Curt may rder any persn t fulfil any duty in the fulfilment f which the persn seeking the rder is persnally interested. (2) The Curt may, n terms, make an interlcutry rder under subsectin (1) in any case where it appears t the Curt just r cnvenient s t d. (3) The pwers f the Curt under this sectin are in additin t any ther pwers f the Curt. Sectin 69 - Prceedings in lieu f writs (1) Where frmerly: (a) (b) the Curt had jurisdictin t grant any relief r remedy r d any ther thing by way f writ, whether f prhibitin, mandamus, certirari r f any ther descriptin, r in any prceedings in the Curt fr any relief r remedy any writ might have issued ut f the Curt fr the purpse f the cmmencement r cnduct f the prceedings, r therwise in relatin t the prceedings, whether the writ might have issued pursuant t any rule r rder f the Curt r f curse, then, after the cmmencement f this Act: (c) (d) (e) (f) the Curt shall cntinue t have jurisdictin t grant that relief r remedy r t d that thing; but shall nt issue any such writ, and shall grant that relief r remedy r d that thing by way f judgment r rder under this Act and the rules, and prceedings fr that relief r remedy r fr the ding f that thing shall be in accrdance with this Act and the rules. Sectin 75 - Original jurisdictin f High Curt In all matters: (i) (ii)... arising under any treaty; HIGH COURT: CONSTITUTIONAL WRITS Cnstitutin f Australia Act (iii) in which the Cmmnwealth, r a persn suing r being sued n behalf f the Cmmnwealth, is a party; (iv)... [NB ptential prblem: n entrenched remedies) (v) in which a writ f Mandamus r prhibitin r an injunctin is sught against an fficer f the Cmmnwealth; the High Curt shall have riginal jurisdictin. [Can the errr that has been made be characterised as a jurisdictinal errr] [Must be against an fficer f the Cmmnwealth ] Plaintiff M61/2010E v Cmmnwealth f Australia (Offshre Prcessing Case) (2010) 243 CLR 319 Wizard Peple a private cmpany, nt held t be fficers f the Cmmnwealth. Hwever this questin was nt necessary t decide. They were invlved in a prcess which was very much bund tgether with decisins that the Ministry is making under the act. Therefre: The jurisdictin f the curt may be invked under s 75(v) due t the fact the assessments by the private cntractrs were s intertwined with the minster s decisin. The jurisdictin may als be invked under s 75(iii) a persn suing r being sued n behalf f the Cmmnwealth s75(iii).

R. M.! (2) Judicial Review: Jurisdictin f the Curts! 7 May als have jurisdictin under s 75(i) matters arising under a treaty, in rder t give effect t bligatins under the Refugee Cnventin. Officer f the Cmmnwealth Bradbent v Medical Bard f Queensland [2011] FCA 980 Orthdx apprach t the definitin f fficer f the Cmmnwealth : A persn appinted by the Cmmnwealth t an identifiable ffice wh is paid by the Cmmnwealth fr the perfrmance f their functins under the ffice and wh is respnsible t and remvable by the Cmmnwealth cncerning the ffice. Is there a matter? In re Judiciary and Navigatin Act (1921) 29 CLR 257 The wrd matter des nt mean a legal prceeding, but rather the subject matter fr determinatin in a legal prceeding. There can be n matter within the meaning f the sectin unless there is sme immediate right, duty r liability t be established by the determinatin f the Curt and n declaratin f the law divrced frm any attempt t administer that law. A matter can t be an advisry pinin Tw Critical cncepts - there will be n matter if the matter invlves: (i) The ntin f an abstract questin f law nt invlving right r duty f any bdy r persn. (ii) The making f a declaratin f law divrced r dissciated frm any attempt t administer it. Cmmnwealth v Queensland (Queen f Queensland Case) (1975) 134 CLR 298 The judicial pwer delineated in Ch III is exhaustive f the manner in and the extent t which judicial pwer may be cnferred n r exercised by any curt in respect f the subject matters set frth in ss 75 and 76, matters in thse sectins meaning subject matters. This is nt s nly in respect f federal curts but als in respect f State curts whether r nt they are exercising federal jurisdictin cnferred n them under s 77(iii). In respect f the subject matters set ut in ss 75 and 76 judicial pwer may nly be exercised within the limits f the kind f judicial pwer envisaged in Ch III and if in respect f thse matters an investing with federal jurisdictin f a State curt des nt enable it t perfrm the particular judicial functin, then in respect f thse matters the State curt cannt under any law exercise that judicial functin. Mellifnt v Attrney-General (Queensland) (1991) 173 CLR 289 The giving f answers, in pursuance f a statutry reference by a Crwn Law Officer t a State superir curt as t matters arising in particular prceedings, is an exercise f judicial pwer because the seeking and the giving f the answers cnstitutes an influential if nt decisive step in the judicial determinatin f the rights and liabilities in issue. As such answers d nt invlve any abstract questin f law r the making f a declaratin f the law divrced frm any attempt t administer it, they accrdingly fall within the descriptin judgments, decrees, rders in s 73. A matter must be a determinatin f a dispute (i.e. A cntrversy determined accrding t law), and must have an effect n right r duty f a persn/bdy. Crme v Tasmania (1997) 191 CLR 119 Referred t Mellifrnt re what led curt in In re Judiciary and Navigatin t decide there was n matter; 2 critical cncepts: The ntin f an abstract questin f law nt invlving right r duty f any bdy r persn. The making f a declaratin f law divrced r dissciated frm any attempt t administer it. A matter must be distinguished frm the actin r judicial prceeding which is cmmenced in rder t btain a determinatin f a cntrversy between the parties. The matter is nt the

R. M.! (2) Judicial Review: Jurisdictin f the Curts! 8 prceeding but the subject f the cntrversy which is amenable t judicial determinatin in the prceeding. Is the matter justiciable? Is it a suitable dispute t be dealt with by judicial means. If a curt cncludes that a decisin is nn-justiciable, it will decline t exercise its jurisdictin t review it n the basis that judicial invlvement is nt apprpriate r prper - even assuming that judges shuld attempt t steer clear f the merits f the decisin (as in thery they always shuld). Minister fr Arts v Pek-Wallsend (1987) 15 FCR 274 Executive actin is nt immune frm judicial review when carried ut in pursuance f prergative, rather than statutry, pwer. Plycentric decisins are nt justiciable, that is, disputes characterised by numerus, cmplex, interrelated issues and which ptentially affect a large number f interests Re Ditfrt; Ex parte Deputy Cmmissiner f Taxatin (1988) 83 ALR 265 A questin as t the character and extent f the pwers f the executive gvernment in relatin t the cnduct f relatins with ther cuntries may give rise t a matter which arises under r invlves the interpretatin f s 61 f the Cnstitutin and will s affect the interests f a plaintiff as t give the necessary standing.these circumstances will prvide a subject matter fr the exercise f federal jurisdictin pursuant t Ch III f the Cnstitutin. In such a case n questin f nn-justiciability rdinarily will arise. FEDERAL COURT (1) ADJR Act 1977 (Cth) s8: Federal Curt & Federal Circuit Curt has jurisdictin t hear and determine applicatins fr review under the ADJR Act. (2) Judiciary Act 1903 (Cth) s39b(1) : riginal jurisdictin when a writ f mandamus, prhibitin r injunctin is sught against an fficer f the Cth. (3) Judiciary Act 1903 (Cth) s449(1): HC may remit matters that fall within its riginal jurisdictin t the Federal Curt. ADJR Act Avenue f Revue Decisins subject t review: Is it a decisin t which the ADJR Act applies? A decisin will be reviewable if it is: A decisin, which is Of an administrative character C.f. plicy r making regulatins (legislative character); Made (whether in exercise f a discretin r nt) under an enactment; C.f. exercise f prergative r cmmn law pwers; Other than a decisin by the G-G r a decisin included in any f the classes f a decisin set ut in Schedule 1 Sectin 3 - Interpretatin Administrative Decisins (Judicial Review) Act 1977 (1) In this Act, unless the cntrary intentin appears: "decisin t which this Act applies" means a decisin f an administrative character made, prpsed t be made, r required t be made (whether in the exercise f a discretin r nt and whether befre r after the cmmencement f this definitin): (a) under an enactment referred t in paragraph (a), (b), (c) r (d) f the definitin f enactment ; r (b) by a Cmmnwealth authrity r an fficer f the Cmmnwealth under an enactment referred t in paragraph (ca) r (cb) f the definitin f enactment ; ther than: (c) a decisin by the Gvernr-General; r (d) a decisin included in any f the classes f decisins set ut in Schedule 1. See Schedule 1 sectin 3 [in extended ntes]: Classes f decisins that are nt decisins t which this Act applies

R. M.! (2) Judicial Review: Jurisdictin f the Curts! 9 A decisin...f an administrative character...made under an enactment (i) What is a decisin? Sectin 3 - Interpretatin (2) In this Act, a reference t the making f a decisin includes a reference t: (a) (b) (c) (d) (e) (f) (g) making, suspending, revking r refusing t make an rder, award r determinatin; giving, suspending, revking r refusing t give a certificate, directin, apprval, cnsent r permissin; issuing, suspending, revking r refusing t issue a licence, authrity r ther instrument; impsing a cnditin r restrictin; making a declaratin, demand r requirement; retaining, r refusing t deliver up, an article; r ding r refusing t d any ther act r thing; and a reference t a failure t make a decisin shall be cnstrued accrdingly. (3) Where prvisin is made by an enactment fr the making f a reprt r recmmendatin befre a decisin is made in the exercise f a pwer under that enactment r under anther law, the making f such a reprt r recmmendatin shall itself be deemed, fr the purpses f this Act, t be the making f a decisin. (4)... (5) A reference in this Act t cnduct engaged in fr the purpse f making a decisin includes a reference t the ding f any act r thing preparatry t the making f the decisin, including the taking f evidence r the hlding f an inquiry r investigatin. *Australian Bradcasting Tribunal v Bnd (1990) 170 CLR 321 Qualities f a decisin (Masn J): (i) Final and perative: des nt typically include intermediate cnclusins unless statute prvided fr a finding r ruling. (ii) Des nt include findings f fact unless expressly prvided fr under statute. (iii) Substantive: des nt include prcedural determinatins. A cnclusin reached as a step alng the way in a curse f reasning leading t an ultimate decisin will nt rdinarily be a reviewable decisin unless the statute prvides fr the making f a finding r ruling n that pint s that the decisin, thugh an intermediate decisin, might accurately be described as a decisin under an enactment. [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 gvt t make a decisin abut the license hlder (in this case was nt Bnd, but his cmpanies). Issue: were these findings (at an early stage f the decisin-making prcess) reviewable as decisins under s5? - N] (ii) Of an Administrative Character A decisin f an administrative character includes the applicatin f a general plicy r rule t a particular case, and the making f an individual decisin. i.e. the frmulatin f new rules f law which have a general applicatin t the public are legislative activities, whilst the applicatin f general rules t particular cases which affect individuals are administrative activities. Indicia f administrative decisins: individual applicatin, raises questins f plicy, subject t merits review. Indicia f legislative decisins: f general applicatin, rule-like quality, binding legal affect, parliamentary versight, public ntificatin and cnsultatin. R G Capital Radi Ltd v Australian Bradcasting Authrity (2001) 185 ALR 573 Indicatin f legislative : Decisin determining the cntent f rules f general applicatin. Parliamentary cntrl f the decisin - parliamentary disallwance. Public cnsultatin. Indicatin f administrative Applying rules t particular cases. Prvisin fr merits review. Griffith University v Tang (2005) 221 CLR 89

R. M.! (2) Judicial Review: Jurisdictin f the Curts! 10 The evident purpse f this element f the Act s jurisdictinal phrase is the exclusin f a legislative r judicial character. Burns v Australian Natinal University (1982) 40 ALR 707 By a prcess f eliminatin, decisins which are neither legislative nr judicial will be classified as administrative. Ministry fr Industry and Cmmerce v Theys Ltd (1982) 60 FLR 325 Whether the determinatin is legislative r administrative, it is necessary t lk t the cntent (general r particular) f the pwer. The distinctin [between a decisin f a legislative character and a decisin f an administrative character] is essentially between the creatin r frmulatin f new rules f law having general applicatin (legislative) and the applicatin f thse general rules t particular cases (administrative). [Cntrast Theys with] Queensland Medical Labratries v Blewett (1988) 84 ALR 615 Whereas Theys lks t the cntent (general r particular) f the pwer t determine whether it is legislative r administrative, Blewett suggests that what is relevant is nt s much the cntent f the determinatin as its effect...a decisin will be legislative if it has the effect f changing the cntent f the law (Gummw J). *Rche Prducts Pty Ltd v Natinal Drugs and Pisns Schedule Cmmittee (2007) 163 FCR 451 [Factrs relevant t the characterisatin f a decisin as legislative]: Factrs relevant t the characterisatin f a decisin as legislative: These factrs are whether the challenged matter: Creates new rules f general applicatin, rather than applying existing rules t particular cases. Was publicly ntified in the Gazette r similar publicatin. Cannt be made until there has been wide public cnsultatin Incrprates r has regard t wide plicy cnsideratins; Can be varied r amended unilaterally by its maker; Cannt be varied r amended by the Executive; Is nt subject t merits review in a tribunal such as the AAT; Can be reviewed in Parliament (fr example, it is a disallwable instrument); Triggers the peratin f ther legislative prvisins; and Has binding effect. [The applicant was the spnsr/manufacturer f Xenical, the brand name fr rlistat, which is a treatment fr excessive bdy weight. The respndent Natinal Drug and Pisns Schedule Cmmittee decided t include rlistat in Appendix H f the Standard fr the Unifrm Scheduling f Drugs and Pisns (the Pisns Standard). The inclusin f a medicine in Appendix H has the cnsequence that the medicine can be advertised directly t cnsumers. After receiving cmplaints cncerning the advertising f Xenical, the cmmittee decided t remve rlistat frm Appendix H. The cmplaints arse frm cncerns that advertising f Xenical during the televisin prgram Australian Idl culd lead t the inapprpriate use f the substance. Issue: Was the decisin f an administrative character? - N, it was f a legislative character]