Administrative Law Cram Notes 2011 1 st Edition UniCramNotes.com Copyright UniCramNotes.com 2011 Page 1
TABLE OF CONTENTS 1. INTRODUCTION... 5 A. How to use Cram Notes... 5 B. Abbreviations... 5 2. WHAT POWER WAS EXERCISED IN MAKING THE DECISION?... 5 A. Statutory Power... 5 i. Sub-ordinate/Delegated Legislation... 5 1) Justifications for delegating... 6 2) Disadvantages of delegating... 6 ii. Statutory Power and Statutory Interpretation... 6 1) Literal or purposive approach?... 6 2) Judicial presumptions... 7 B. Executive Power... 8 i. Constraints on Executive power... 8 ii. Difference between Legislative and Executive power... 8 iii. Presumption of Regularity... 8 iv. Policy... 8 3. CHALLENGING THE LEGALITY OF SUB-ORDINATE LEGISLATION... 9 A. Test of Invalidity... 9 B. Means/Ends distinction... 9 C. Reasonably proportionate to the end to be achieved?... 9 D. Reasonableness... 10 E. Have procedural requirements been followed?... 10 i. Legislative Instrument... 10 ii. Has it been registered?... 10 iii. Has it been tabled in the correct manner?... 11 iv. Has it been disallowed and remade?... 11 v. Has consultation been undertaken?... 11 4. REQUESTING REASONS FOR DECISION AND FREEDOM OF INFORMATION.. 11 A. Reasons for the decision... 11 i. Common law right?... 11 ii. Statutory duty... 11 1) ADJR Act... 12 2) AAT Act... 12 B. Freedom of Information... 12 i. Definitions... 12 ii. Right of Access... 12 iii. Refusal of Access... 13 iv. Exempt Documents... 13 v. Deletion of Exempt or Irrelevant material... 13 vi. Power of the AAT... 13 5. IS THERE STANDING TO APPLY FOR REVIEW?... 13 A. Indicia of Standing... 13 B. Standing for Bodies... 14 i. Standing under AAT Act... 14 ii. Standing under ADJR Act... 15 6. MERITS REVIEW... 15 Copyright UniCramNotes.com 2011 Page 2
A. Internal Review... 15 B. Powers of the AAT... 15 C. Contemporaneous review by the AAT matters considered anew... 16 i. In the shoes of the original decision maker... 16 ii. Correct or Preferable decision... 16 iii. Change in administrative policy... 16 iv. Change in facts... 16 v. Change in the law... 17 vi. Is the AAT bound by government policy?... 17 1) Legality of policy... 17 2) Is discretion guided or truncated?... 17 3) How does the policy affect discretion?... 18 D. Procedure, Evidence and Onus of Proof... 18 i. Evidence & fact-finding... 19 ii. Onus of proof... 19 E. Appeal to the Federal Court... 19 i. Apply for the AAT s reasons for the decision... 19 7. JUDICIAL REVIEW... 19 A. Background... 19 i. Jurisdiction... 19 1) Federal Court... 19 2) Federal Magistrates Court... 20 3) High Court/Supreme Court... 20 B. Has justiciability been met?... 20 i. Is there a justiciable matter?... 20 ii. Is judicial review inappropriate?... 21 C. Is it a decision (if applying for review under the ADJR Act)?... 21 i. Reviewable decision or conduct... 21 1) Decision... 21 2) Conduct... 21 3) Reports... 22 ii. Administrative character... 22 iii. Made under an enactment... 22 1) Enactment... 22 2) Made Under... 23 D. Have any grounds for judicial review been made out?... 23 i. Jurisdictional error (common law)... 23 ii. Privative clauses... 24 1) Specific denial of remedy... 24 2) Denial of judicial review... 24 iii. Time Limits... 25 iv. Error of fact & error of law... 25 1) Fact-finding... 25 2) Rule Stating... 25 3) Rule Application... 26 v. Jurisdictional fact... 26 vi. No Evidence... 27 vii. Delegation of decision making power... 28 1) Definitions... 28 2) Cases... 28 Copyright UniCramNotes.com 2011 Page 3
viii. Breach of Statutory requirements... 28 ix. Application of policy... 29 1) Non-fettering (s 5(2)(f))... 29 2) Ministerial Directions (s 5(2)(e))... 30 x. Unauthorised purpose... 30 1) What is the authorised purpose?... 30 2) What is the actual purpose?... 30 xi. Taking into account irrelevant considerations... 31 xii. Failure to consider a relevant consideration... 32 xiii. Unreasonableness... 32 1) Common law... 33 2) Lack of Plausible Justification... 33 3) Capricious use of power... 33 4) Duty of Inquiry... 34 xiv. Natural justice... 34 1) Implication... 34 2) Exclusion... 36 3) Content... 36 Copyright UniCramNotes.com 2011 Page 4
1. INTRODUCTION A. HOW TO USE CRAM NOTES The Administrative Law Cram Notes are formatted into a step-by-step guide, which you can use as a checklist in your exams to ensure that every element of the exam question is answered. You may find the Table of Contents to be a quick and useful overview of the law to be applied. You should also answer the exam question using the ILAC method, which will ensure your answer is comprehensive. Issue State the legal issue relevant to the problem Law Identify the relevant case law and legislation Analysis Analyse and apply the law to the legal issue. This is the most important part, so ensure your legal analysis is very thorough. Conclusion Form a conclusion based on your analysis and application of the law, giving some practical advice to the hypothetical client. It is very important to spend time perfecting your analysis section, as this is the part that examiners are most interested in. Do not worry if you reach the correct conclusion (there often isn t one clear answer) examiners will give more weight to your legal analysis, and sometimes may even reward answers that propose an innovative and unconventional answer! B. ABBREVIATIONS The Administrative Law Cram Notes will refer frequently to the following legislation using abbreviations. Legislation Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court Australia Act 1976 (Cth) Freedom of Information Act 1982 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) Abbreviation ADJR Act FCA Act FOI Act AAT Act In addition, the High Court of Australia will be referred to as the HCA, the Federal Court of Australia as the FCA, and the Administrative Appeals Tribunal as the AAT. 2. WHAT POWER WAS EXERCISED IN MAKING THE DECISION? Administrative law deals with the exercise of power conferred by legislation. Before a decision is challenged, the power exercised in making the decision must be identified. A. STATUTORY POWER i. SUB-ORDINATE/DELEGATED LEGISLATION Delegated legislation is a legislative rule made by an executive agency pursuant to an authority delegated by the legislature in an Act. Copyright UniCramNotes.com 2011 Page 5
Delegated authority to make rules to supplement the delegating Act must: - Be authorised by parliament, and are subject to disallowance; - Deal with the procedural steps listed in the Act, as well as the Legislative Instruments Act 2003 (Cth) which regulates delegated legislation; - Be notified in the Gazette; - Be made available to the public. 1) Justifications for delegating Generally, legislation is delegated for law making convenience, as parliament does not have time to describe all the details of the legislation. It also allows for flexibility of a change in regulation in dynamic areas of the law, such as regulating industries or trade. In addition, it allows for greater community participation in the formulation of the legislation, which may be of special relevance to members of a particular industry or group. Delegated legislation is advantageous due to the ease of with which it can be enacted. It is a simpler alternative to law making as it is quicker, but can still be disallowed by parliament who is accountable for it. It can also be a manner in which the policy of the government can be implemented. 2) Disadvantages of delegating It is arguable that delegated legislation breaches the separation of power, as some important aspects of the parliament s role such as law making with respect to reforms of policy or intrusions upon civil liberty should things remain under the control of the parliament. Delegated legislation is also harder to scrutinise by the parliament, and be deliberately used to avoid the scrutiny of parliamentary debate. ii. STATUTORY POWER AND STATUTORY INTERPRETATION 1) Literal or purposive approach? The language of the statute may be interpreted using either the literal or purposive approaches. Under a literal approach, the words are given their ordinary and natural meaning. If the language is clear and unambiguous, the literal approach must not be departed from, even if it leads to a result that may seem inconvenient or unjust. This is because there is a danger that any departure would simply lead to judicial criticism, rather than interpretation of the statute (Cooper Brookes). The purposive approach is recommended under s 15AA of the Acts Interpretation Act 1901 (Cth). Section 15AA states that the words of the legislation should be given a construction that promotes the purpose of the Act in question. In addition, s 15AB provides that: - Consideration may be given to extrinsic material: a) To confirm the ordinary meaning; or b) To determine the meaning when the words are: i) Ambiguous or obscure; or ii) The result of the ordinary meaning is manifestly absurd or is unreasonable - Material that may be considered include: a) All matters not part of Act but in the same document b) Any relevant report produced before the enactment c) Treaties d) Explanatory memorandum e) Second reading speech Copyright UniCramNotes.com 2011 Page 6
Under s 15AB, in deciding whether consideration should be given to additional material, consider the desirability of persons being able to rely on the ordinary meaning, as well as the need to avoid prolonging legal proceedings. 2) Judicial presumptions All common law presumptions are rebuttable, whether by mere words or implication, or by clear, express and unambiguous words. This also depends on the strength of the presumption. Presumptions - Implied incidental power The common law implies a power necessary the performance or execution of the statute (i.e. the incidental power). Herscu v The Queen - Specific provisions are an indication of the breadth of the responsibilities under the statute, but do not prescribe the limits - In enforcing the statute, parties are clothed with general authority in addition to the powers specifically conferred by statute. This is because although the power is incidental and collateral, it serves to promote the accomplishment of the principal purposes of the enactment. Kent v Johnson - The incidental power is implied where it is the necessary for the reasonable fulfilment of the performance of expressly authorised acts. - The power must have some affinity with the statutory power, being not merely economic or convenient. A clear implication can be made if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, inconvenience in carrying out the object authorised by legislation is not enough (Plenty v Dillon). In summary, the incidental power/activity must complement, and not supplement, the statutory act. The incidental power must also not be used for unauthorised purposes; otherwise, this will lead to an inversion of the main and incidental power. Presumptions - Established freedoms and immunities The statute is presumed not to abrogate a fundamental right, freedom or immunity other than by express or unambiguous language. The question to ask is whether the suggested operation of the statute: 1) Would infringe fundamental rights? 2) Is supported by clear legislative intent? We hope you have enjoyed this short preview of the Administrative Law Cram Notes. Don t forget to check out the Law Study Tips we have on our website at www.unicramnotes.com! Copyright UniCramNotes.com 2011 Page 7