introduction to administrative law · web viewa foundational principle of austn administrative law,...

Introduction to Administrative Law

What is Administrative Law?•• Concerns the legal rules & institutions directed at keeping the ‘governors’ Concerns the legal rules & institutions directed at keeping the ‘governors’

(principally, decision-makers in the executive arm of govt) ‘accountable’ (principally, decision-makers in the executive arm of govt) ‘accountable’ •• Executive arm Executive arm

oo ‘the administration’ of gov’t ‘the administration’ of gov’t •• focus of admin law is on the legal regulation of the exercise of power by the focus of admin law is on the legal regulation of the exercise of power by the

executiveexecutive branch of gov. branch of gov. oo (Legal ctrl of the legisl(Legal ctrl of the legislative branch is the core concern of ative branch is the core concern of

constitutional law.) constitutional law.)

What are the Separation of Powers•• 3 arms of gov 3 arms of gov

1.1. Legislature (makes law); Legislature (makes law); 2.2. Executive (administers law ); andExecutive (administers law ); and3.3. Judiciary (Courts & Judges - interpret and apply the law)Judiciary (Courts & Judges - interpret and apply the law)

•• Why keep them separate? Why keep them separate? oo Prevent concentration of powerPrevent concentration of poweroo An external check on powerAn external check on power

What is the Rule of Law •• The law binds both govts & citizens.The law binds both govts & citizens.•• No ruler is above the lawNo ruler is above the law•• Laws should be written & public, enforced with due processLaws should be written & public, enforced with due process•• Its core principles are:Its core principles are:

oo Clear separation of powers & independence of the crts & judiciaryClear separation of powers & independence of the crts & judiciaryoo Legal certaintyLegal certaintyoo Principle of legitimate expectationPrinciple of legitimate expectationoo Equality before the lawEquality before the law

•• The rule of law requires a fair & equal application of powerThe rule of law requires a fair & equal application of power

What is Judicial & non-judicial modes of accountability Judicial (by the courts)Judicial (by the courts)

oo is a supervisory function – not to usurp powers of administration but to is a supervisory function – not to usurp powers of administration but to supervise the exercise of it (separation of powers) supervise the exercise of it (separation of powers)

•• Some of the grounds for review are that the decision maker:Some of the grounds for review are that the decision maker: breached the rules of natural justice;breached the rules of natural justice; did not observe the correct legal procedures; did not observe the correct legal procedures; did not have the authority to make the decision. did not have the authority to make the decision.

Notes, Copyright © and Full Attribution2011 to Alita – a member of All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs.

http://law.timdavis.com.au/

misinterpreted or did not apply the relevant legislation.misinterpreted or did not apply the relevant legislation.

–– Non Judicial (not by the courts):Non Judicial (not by the courts): eg administrative tribunals eg administrative tribunals merits review merits review

oo review of an administrative decision involves considering afresh review of an administrative decision involves considering afresh the facts & law relating to that decision the facts & law relating to that decision

OmbudsmenOmbudsmen legislation allowing access to info.legislation allowing access to info. Legislation limiting the purposes for which gov can use info. Legislation limiting the purposes for which gov can use info.

•• Public Law v Private LawPublic Law v Private Law oo Relations btw citizens – privateRelations btw citizens – privateoo Relations btw governors & the governed – publicRelations btw governors & the governed – public

•• Institutional v Functional concept of Administrative LawInstitutional v Functional concept of Administrative Law oo Gov functions -v - Public functionsGov functions -v - Public functions

A Regulatory Approach•• Focus on the future - influencing human behaviour & its outcomesFocus on the future - influencing human behaviour & its outcomes

•• 3 Components:3 Components: 1.1. Set of standards that tell people how they should behave Set of standards that tell people how they should behave 2.2. System for monitoring compliance System for monitoring compliance 3.3. System for promoting future complianceSystem for promoting future compliance

•• Admin law – a set of rules & principles about how decisions ought to be made, Admin law – a set of rules & principles about how decisions ought to be made, eg:eg:

oo Procedural fairnessProcedural fairnessoo ConsistencyConsistencyoo Etc..Etc..

Review In the Federal System•• Strict separation of powersStrict separation of powers•• HCrt has jurisidiction to undertake judicial reviewHCrt has jurisidiction to undertake judicial review – s75(v) Constitution – s75(v) Constitution •• Kerr Committee 1971 Report:Kerr Committee 1971 Report:

oo Establishment of new Fed CrtEstablishment of new Fed Crtoo Simplified procedures for Administrative Review Simplified procedures for Administrative Review

•• Fed Crt/Fed Mags CrtFed Crt/Fed Mags Crt•• Administrative Decisions (Judicial Review) (ADJR) Act 1977 Administrative Decisions (Judicial Review) (ADJR) Act 1977 (Cth)(Cth)•• Administrative Appeals Tribunal (Administrative Appeals Tribunal (Administrative Appeals Tribunal Act 1975 Administrative Appeals Tribunal Act 1975

(Cth))(Cth))oo merits review of administrative decisions merits review of administrative decisions oo aims to provide a mechanism of review that is fair, just, economical, informal aims to provide a mechanism of review that is fair, just, economical, informal

& quick& quick



oo does not have a gen power to review decisions made under Cth legislation. does not have a gen power to review decisions made under Cth legislation. The Tribunal can only review a decision if an Act, regulation or other The Tribunal can only review a decision if an Act, regulation or other legislative instrument states that the decision is subject to review by the legislative instrument states that the decision is subject to review by the Tribunal Tribunal

What Modes of Review Available In QLD•• Not the same constitutional/sep of powers restrictions as the Fed System Not the same constitutional/sep of powers restrictions as the Fed System

oo Tribunals exercise both ‘judicial type’ & administrative functions Tribunals exercise both ‘judicial type’ & administrative functions •• SCrt – SCrt – Judicial Review Act 1991Judicial Review Act 1991•• Queensland Civil & Administrative Tribunal Queensland Civil & Administrative Tribunal

oo merits review (merits review (Queensland Civil and Administrative Tribunal Act 2009)Queensland Civil and Administrative Tribunal Act 2009) •• Information Privacy Act 2009Information Privacy Act 2009

Object: Object: oo the fair collection & handling in the public sector environment of personalthe fair collection & handling in the public sector environment of personal

info. & a right of access to, & amendment of, personal info in the govt’sinfo. & a right of access to, & amendment of, personal info in the govt’s possession or under the govt’s ctrl possession or under the govt’s ctrl

•• Ombudsman Ombudsman •• Freedom of Information Freedom of Information

oo From 1 July 2009, the From 1 July 2009, the Right to Information Act 2009Right to Information Act 2009 replaced the replaced the Freedom ofFreedom of Information Act 1992Information Act 1992

Judicial Review & Scope of Judicial review

What is Administrative Law?What is Administrative Law?



What is admin law?What is admin law? Admin law is on the legal regulation of the exercise of power by the executive branch of Admin law is on the legal regulation of the exercise of power by the executive branch of

govtgovtWhat does it do?What does it do? Admin Law regulates govt decision making Admin Law regulates govt decision making

–– Q is the decision lawful? Q is the decision lawful? – Judicial review by crts– Judicial review by crts–– Q Is the decision correct? Q Is the decision correct? – Merits review – Merits review

External review: External review: by tribunals, a commission, a board by tribunals, a commission, a board Internal review: Internal review: the minister, another public servant the minister, another public servant

•• For Eg: For Eg: –– Applying for a licence (firearm, car, boat, builders)Applying for a licence (firearm, car, boat, builders)–– Obtaining a passport or visaObtaining a passport or visa–– Applying for a govt benefit Applying for a govt benefit –– Adopting a childAdopting a child

Key Points To RememberKey Points To Remember•• What is the Separation of powers?What is the Separation of powers?

1.1. Executive, Executive, 2.2. Legislature, Legislature, 3.3. Judiciary – therefore a crt can only supervise the executive, not make decisions for themJudiciary – therefore a crt can only supervise the executive, not make decisions for them

•• Public v Private law distinctionPublic v Private law distinction::–– Should decisions by those exercising “public functions” subject to Admin Law?Should decisions by those exercising “public functions” subject to Admin Law?

•• Regulatory approach to Admin Law Regulatory approach to Admin Law –– focus on improving govt decision makingfocus on improving govt decision making

•• Federal Admin Law & State Admin Law system & components Federal Admin Law & State Admin Law system & components – legislation, crts, tribunals, ombudsman – legislation, crts, tribunals, ombudsman

What Decisions Are Subject To Judicial Review?What Decisions Are Subject To Judicial Review?–– Sources of judicial review powers Sources of judicial review powers (jurisdiction to hear an application for judicial review)(jurisdiction to hear an application for judicial review)–– Crt hierarchy Crt hierarchy (Fed & State) (Fed & State) –– What is the function performed by judicial review? What is the function performed by judicial review?

oo Legality v Merits reviewLegality v Merits review–– Fed Crt: Fed Crt:

oo Sources of review jurisdiction - the Sources of review jurisdiction - the ADJR ActADJR Act What Are The Sources Of Judical Review Powers?What Are The Sources Of Judical Review Powers?1.1. Constitution s75(v) - High Crt using com lawConstitution s75(v) - High Crt using com law2.2. Com Law: Inherent jurisdiction - Supreme Crts using com lawCom Law: Inherent jurisdiction - Supreme Crts using com law3.3. Statutes:Statutes:

•• Cth: Cth: –– ADJR Act (Cth) Fed & Fed Mags Ct using powers under that ActADJR Act (Cth) Fed & Fed Mags Ct using powers under that Act–– Judiciary Act s 39B (Cth) applies to Fed Ct using com law powersJudiciary Act s 39B (Cth) applies to Fed Ct using com law powers

•• Qld:Qld:



–– JR Act (Qld) Supreme Ct using powers under that ActJR Act (Qld) Supreme Ct using powers under that Act

Court Hierarchy – Cth SystemCourt Hierarchy – Cth System

Court Hierarchy – State SystemCourt Hierarchy – State System



The Function Of Judicial Review The Function Of Judicial Review (Appeal V Review)(Appeal V Review) •• Appeal v ReviewAppeal v Review

–– Can the crt substitute their own decision for that of the original decision-maker? Can the crt substitute their own decision for that of the original decision-maker? Appeal – yes; Appeal – yes; Review – No.Review – No.

•• Judicial Review v Merits ReviewJudicial Review v Merits Review–– Sep of Powers DoctrineSep of Powers Doctrine–– a foundational principle of Austn administrative law, that a foundational principle of Austn administrative law, that ‘the merits of administrative ‘the merits of administrative

action, to the extent that they can be distinguished from legality, are for the repositoryaction, to the extent that they can be distinguished from legality, are for the repository of the relevant power &, subject to political ctrl, for the repository alone’: of the relevant power &, subject to political ctrl, for the repository alone’: Attorney-Attorney-General (NSW) v QuinGeneral (NSW) v Quin (1990) 170 CLR 1, 36 (1990) 170 CLR 1, 36

What Is Merits Review?What Is Merits Review?–– Examines whether the correct & preferable decision has been made considering all the Examines whether the correct & preferable decision has been made considering all the

relevant facts & circumstances of the case & any policy on which the decision is basedrelevant facts & circumstances of the case & any policy on which the decision is based–– May result in the decision of the reviewer being substituted for that of the original May result in the decision of the reviewer being substituted for that of the original

decision maker decision maker –– Is undertaken by members of the executive – Ministers, statutory boards & tribunalsIs undertaken by members of the executive – Ministers, statutory boards & tribunals–– May be internal or external – look at statuteMay be internal or external – look at statute

What is Judicial Review ?What is Judicial Review ?



–– The Q is - Was the decision made in accordance with the law? The Q is - Was the decision made in accordance with the law? i.e. look at the legality of ai.e. look at the legality of a decision rather than the merits e.g.:decision rather than the merits e.g.:Answer Plan:Answer Plan:

•• Did the decision maker have legal authority to make the decision? – look @ theDid the decision maker have legal authority to make the decision? – look @ the relevant legislationrelevant legislation

•• Did the decision maker apply the correct statutory criteria when making the Did the decision maker apply the correct statutory criteria when making the decision? decision? (Haneef case)(Haneef case)

•• Did the decision maker apply the rules of natural justice? ADJRA s5(1)(a)Did the decision maker apply the rules of natural justice? ADJRA s5(1)(a)•• Did they take irrelevant considerations into account when making the Did they take irrelevant considerations into account when making the

decision? ADJRA s5(2)(a)decision? ADJRA s5(2)(a)

Administrative Decisions (Judicial Review) Act 1977 (ADJRA)Administrative Decisions (Judicial Review) Act 1977 (ADJRA)•• Substantially declaratory of the com lawSubstantially declaratory of the com law

But:But:–– Com law grounds of review broadenedCom law grounds of review broadened–– Shift away from focus on remedies to whether or not a grounds of review could be Shift away from focus on remedies to whether or not a grounds of review could be

established established i.e. can a legal error be showni.e. can a legal error be shown??•• Applications to either Fed Crt or Fed Mags CrtApplications to either Fed Crt or Fed Mags Crt

‘‘Scope of the Act’Scope of the Act’•• Key to the scope of the ADJRA - “Decision to which this Act applies”Key to the scope of the ADJRA - “Decision to which this Act applies”•• Application for review may be bought by ‘aggrieved persons’ in relation to:Application for review may be bought by ‘aggrieved persons’ in relation to:

–– a decision to which this act applies (s5);a decision to which this act applies (s5);–– proposed & actual conduct engaged in for the purpose of making a decision to which proposed & actual conduct engaged in for the purpose of making a decision to which

this act applies (s6);this act applies (s6);–– a failure to make a decision to which this act applies (s7) a failure to make a decision to which this act applies (s7)

““decision to which this Act applies” means:decision to which this Act applies” means:•• ‘‘Decision to which this Act applies’ defined in Decision to which this Act applies’ defined in s 3s 3 – Interpretation: – Interpretation:

–– "decision to which this Act applies" "decision to which this Act applies" means a decision of an administrative means a decision of an administrative character made, proposed to be made, or required to be made (whether in the character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not & whether bf or after the commencement of this exercise of a discretion or not & whether bf or after the commencement of this definition): definition): (a)(a) under an under an enactmentenactment referred to in paragraph referred to in paragraph (a), (b), (c) or (d) of the (a), (b), (c) or (d) of the definition of definition of enactmentenactment ; or ; or (b)(b) by a by a Cth authorityCth authority or an or an officer of the Cthofficer of the Cth under an under an enactmentenactment referred to referred to in paragraphin paragraph (ca) or (cb) of the definition of (ca) or (cb) of the definition of enactmentenactment ; ; other than: other than: (c) (c) a decision by the Gov a decision by the Gov--General; or General; or (d) (d) a decision included in any of the classes of decisions set out in Sch a decision included in any of the classes of decisions set out in Sch 1. 1.

““enactment” means:enactment” means:•• "enactment" "enactment" means: means:



(a)(a) an Act, other than: an Act, other than: (i) (i) the the Cth Places (Application of Laws) Act 1970Cth Places (Application of Laws) Act 1970 ; or ; or (ii)(ii) the the Northern Territory (SelfNorthern Territory (Self--Government) Act 1978 Government) Act 1978 ; or ; or (iii) (iii) an Act or part of an Act that is not an an Act or part of an Act that is not an enactmentenactment bc of s3A (certain legislation bc of s3A (certain legislation relating to the ACT); or relating to the ACT); or

(b)(b) an Ordinance of a Territory other than the A.C.T or the N.T; or an Ordinance of a Territory other than the A.C.T or the N.T; or (c)(c) an instrument (including rules, regulations or by an instrument (including rules, regulations or by--laws) made under such an Act or laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an under such an Ordinance, other than any such instrument that is not an enactmentenactment because of sectionbecause of section 3A; or 3A; or

(ca)(ca) an Act of a State, the A.C.T or the N.T, or a part of such an Act, described in an Act of a State, the A.C.T or the N.T, or a part of such an Act, described in SchSch 3; or 3; or

(cb)(cb) an instrument (including rules, regulations or by an instrument (including rules, regulations or by--laws) made under an Act or laws) made under an Act or part of an Act covered by paragraphpart of an Act covered by paragraph (ca); or (ca); or

(d)(d) any other law, or a part of a law, of the N.T declared by the regulations, in accordance any other law, or a part of a law, of the N.T declared by the regulations, in accordance with sectionwith section 19A, to be an 19A, to be an enactmentenactment for the purposes of this Act; for the purposes of this Act;

&, for the purposes of paragraph&, for the purposes of paragraph (a), (b), (c), (ca) or (cb), includes a part of an (a), (b), (c), (ca) or (cb), includes a part of an enactmentenactment. .

““decision to which this Act applies”decision to which this Act applies”•• A decision, (or conduct engaged in for the purpose of making a decision or a A decision, (or conduct engaged in for the purpose of making a decision or a

failure to make a decision);failure to make a decision);•• Of an administrative character;Of an administrative character;•• Made under an enactment.Made under an enactment.

–– Decisions excluded:Decisions excluded:•• Governor GeneralGovernor General•• Schedule 1Schedule 1

–– Report or recommendation before a decision is made - s 3(3) – this is a decision to Report or recommendation before a decision is made - s 3(3) – this is a decision to which Act applieswhich Act applies

What is the meaning in s5 of “decision’’What is the meaning in s5 of “decision’’•• Australian Broadcasting Tribunal v Bond (1990)Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 170 CLR 321

–– A final decision (“final or operative & determinative”) or,A final decision (“final or operative & determinative”) or,–– An intermediate decision if and only if legislation provides that the An intermediate decision if and only if legislation provides that the

intermediate decision must be made before making the final decisionintermediate decision must be made before making the final decision•• Otherwise, not a decision reached as a step along the way to reaching Otherwise, not a decision reached as a step along the way to reaching

the final decision the final decision

““of an administrative character”mean?of an administrative character”mean?•• Purpose is Purpose is “the exclusion of decisions of legislative or judicial character” “the exclusion of decisions of legislative or judicial character” Griffith Griffith

University v TangUniversity v Tang (2005)(2005) 221 CLR 89 p 123. 221 CLR 89 p 123. •• Subordinate legislation not reviewable but decisions under it areSubordinate legislation not reviewable but decisions under it are•• Queensland Medical Laboratory V Blewett Queensland Medical Laboratory V Blewett (1988) 16 ALD 440 (1988) 16 ALD 440



– Decision to change table by Minister – Decision to change table by Minister Health Insurance Act Health Insurance Act 1973 1973 – held legislative in character – held legislative in character

how to decide if it is an administrative decisionhow to decide if it is an administrative decision•• Federal Airports Corporation v Aerolineas ArgentinasFederal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582 (1997) 76 FCR 582

– – Federal Airports Corporation ActFederal Airports Corporation Act decision to change landing fees administrative in decision to change landing fees administrative in nature - FAC had to act commerciallynature - FAC had to act commercially

•• To help decide if it is an administrative decision:To help decide if it is an administrative decision:–– Administrative decisions apply gen rules to specific cases while legislation Administrative decisions apply gen rules to specific cases while legislation

contains the content of gen rulescontains the content of gen rules–– Parliamentary ctrl through disallowance indicates legislative intentParliamentary ctrl through disallowance indicates legislative intent–– Provision of merits review indicates its administrativeProvision of merits review indicates its administrative

What doesWhat does “under enactment” & “private decisions of statutory authorities”mean “under enactment” & “private decisions of statutory authorities”mean•• Griffith University v TangGriffith University v Tang (2005)(2005) 221 CLR 89 221 CLR 89

–– The decision must be:The decision must be:•• Expressly or impliedly required or authorised under an enactment; &Expressly or impliedly required or authorised under an enactment; &•• The decision must itself confer, alter or otherwise affect legal rights or The decision must itself confer, alter or otherwise affect legal rights or

obligationsobligations–– A decision of a ‘public body’? – why not reviewable?A decision of a ‘public body’? – why not reviewable?

What isWhat is ‘decisions on non-govt entities under statutory schemes of regulation’ ‘decisions on non-govt entities under statutory schemes of regulation’•• NEAT Domestic Trading Pty Ltd v AWB LtdNEAT Domestic Trading Pty Ltd v AWB Ltd (2003)(2003) 216 CLR 277 216 CLR 277

–– Held: the decision was not made under an enactmentHeld: the decision was not made under an enactment–– WEA’sWEA’s decision was the operative decision authorised by the Act decision was the operative decision authorised by the Act–– AWBI Ltd’sAWBI Ltd’s veto power was not a decision made under the veto power was not a decision made under the Wheat MarketingWheat Marketing

Act (1989)Act (1989) (Cth) (Cth)

What is ‘What is ‘Conduct engaged in for the purpose of making a decision’ – Conduct engaged in for the purpose of making a decision’ – s 6s 6 s3(5) definition – “including…” therefore not exhaustive s3(5) definition – “including…” therefore not exhaustive ABT v Bond ABT v Bond

–– per Mason CJ at 342: …per Mason CJ at 342: …the concept of conduct looks into the way in which the concept of conduct looks into the way in which proceedings have been conducted, the conduct of proceedings, rather than the proceedings have been conducted, the conduct of proceedings, rather than the decisions made along the way with a view to the making of a final decisions made along the way with a view to the making of a final determination. Thus conduct is essentially procedural & not substantive in determination. Thus conduct is essentially procedural & not substantive in character .character .

–– Once a final decision is made, conduct leading to it is not independently Once a final decision is made, conduct leading to it is not independently reviewable but should be considered in the context of the review of the reviewable but should be considered in the context of the review of the decision itself (decision itself (Minister for Immigration & Multicultural Affairs v OzmanianMinister for Immigration & Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 20) – therefore a s6 review cannot be made once a final (1996) 71 FCR 1 at 20) – therefore a s6 review cannot be made once a final decision is made decision is made (must then be a s5 review)(must then be a s5 review)

‘failure to make a decision’ – s 7‘failure to make a decision’ – s 7 s3(2) definition of ‘making a decision’s3(2) definition of ‘making a decision’



If a duty to make a decision exists & the decision is not made in the prescribed time or If a duty to make a decision exists & the decision is not made in the prescribed time or if no prescribed time then an unreasonable delay an applicant may request a s7 if no prescribed time then an unreasonable delay an applicant may request a s7 review review

Tutorial Q’sTutorial Q’s

Tutorial: Diff Approaches to the scope of administrative law—comparing Datafin & the ADJR Tutorial: Diff Approaches to the scope of administrative law—comparing Datafin & the ADJR ActAct



•• In what sense was the Take-overs Panel a remarkable body? In what sense was the Take-overs Panel a remarkable body? •• Is the Panel an example of any of the trends in contemporary governance Is the Panel an example of any of the trends in contemporary governance

associated with privatisation, outsourcing etc?associated with privatisation, outsourcing etc?•• How did the English Crt of Appeal define the scope or reach of administrativeHow did the English Crt of Appeal define the scope or reach of administrative

law (in particular, judicial review) in this case?law (in particular, judicial review) in this case?•• Why did the crt conclude that it may in practice be difficult for aggrieved Why did the crt conclude that it may in practice be difficult for aggrieved

persons to get a remedy, even though the Panel’s decisions were in principle persons to get a remedy, even though the Panel’s decisions were in principle subject to judicial review?subject to judicial review?

•• Is the extension of administrative law norms to non-State decision-makers Is the extension of administrative law norms to non-State decision-makers exercising so-called ‘public functions’ the only way for law to regulate their exercising so-called ‘public functions’ the only way for law to regulate their decisions? What are the alternatives? decisions? What are the alternatives?

•• Tutorial: Different Approaches to the scope of administrative law—Tutorial: Different Approaches to the scope of administrative law—comparing Datafin and the ADJR Actcomparing Datafin and the ADJR Act

The The ADJR ActADJR Act•• What sort of actions can be reviewed under the What sort of actions can be reviewed under the ADJR ActADJR Act??•• Is it possible that a decision made by a non-govt decision-maker could be Is it possible that a decision made by a non-govt decision-maker could be

reviewed under the reviewed under the ADJR ActADJR Act??•• What are the main elements an applicant needs to estab to succeed under What are the main elements an applicant needs to estab to succeed under

the the ADJR ActADJR Act??•• In what circum can applicants under the In what circum can applicants under the ADJR ActADJR Act demand reasons be given demand reasons be given

for the actions they are challenging? for the actions they are challenging? •• What ‘grounds of review’ may be difficult to argue without a statement of What ‘grounds of review’ may be difficult to argue without a statement of

reasons? (Administrative law imposes various standards of behaviour reasons? (Administrative law imposes various standards of behaviour (norms) on administrators. In the context of judicial review, these (norms) on administrators. In the context of judicial review, these administrative law norms are referred to as administrative law norms are referred to as grounds of reviewgrounds of review.).)

•• If an applicant can show that a ground of review has been made out (ie the If an applicant can show that a ground of review has been made out (ie the decision-maker made a legal error) are they entitled to a remedy? decision-maker made a legal error) are they entitled to a remedy?

•• Describe the key diff’s btw the approaches to judicial review taken in Describe the key diff’s btw the approaches to judicial review taken in DatafinDatafin & under the & under the ADJR ActADJR Act..

•• What is the purpose of administrative law? How should its success or failure What is the purpose of administrative law? How should its success or failure be judged? (see Text, 1.3 for some ideas)be judged? (see Text, 1.3 for some ideas)

Judicial Review & Scope of Judicial review



What is Administrative Law?What is Administrative Law?•• What is admin law?What is admin law?

–– Administrative law is on the legal regulation of the exercise of power Administrative law is on the legal regulation of the exercise of power by the executive branch of govtby the executive branch of govt

•• What does it do?What does it do?Admin Law regulates govt decision making Admin Law regulates govt decision making –– Q is the decision lawful? Q is the decision lawful? – Judicial review by crts– Judicial review by crts–– Q Is the decision correct? Q Is the decision correct? – Merits review – Merits review

External review: External review: by tribunals, a commission, a board by tribunals, a commission, a board Internal review: Internal review: the minister, another public servant the minister, another public servant

•• For Eg: For Eg: –– Applying for a licence (firearm, car, boat, builders)Applying for a licence (firearm, car, boat, builders)–– Obtaining a passport or visaObtaining a passport or visa–– Applying for a govt benefit Applying for a govt benefit –– Adopting a childAdopting a child

The Key points to rememberThe Key points to remember•• What is the Separation of powers?What is the Separation of powers?

4.4. Executive, Executive, 5.5. Legislature, Legislature, 6.6. Judiciary – therefore a crt can only supervise the executive, not make Judiciary – therefore a crt can only supervise the executive, not make

decisions for themdecisions for them

•• Public v Private law distinctionPublic v Private law distinction::–– Should decisions by those exercising “public functions” subject to Should decisions by those exercising “public functions” subject to

Admin Law?Admin Law?•• Regulatory approach to Admin Law Regulatory approach to Admin Law

–– focus on improving govt decision makingfocus on improving govt decision making•• Federal Admin Law & State Admin Law system & components Federal Admin Law & State Admin Law system & components

– legislation, crts, tribunals, ombudsman – legislation, crts, tribunals, ombudsman

What Decisions are subject to Judicial Review?What Decisions are subject to Judicial Review?•• Which decisions are subject to judicial review?Which decisions are subject to judicial review?

–– Sources of judicial review powers (jurisdiction to here an Sources of judicial review powers (jurisdiction to here an application for judicial review)application for judicial review)

–– Crt hierarchy (Fed & State) Crt hierarchy (Fed & State) –– What is the function performed by judicial review? What is the function performed by judicial review?

–– Legality v Merits reviewLegality v Merits review–– Fed Crt: Sources of review jurisdiction - the ADJR ActFed Crt: Sources of review jurisdiction - the ADJR Act



What are the Sources of Judical Review Powers?What are the Sources of Judical Review Powers?•• Sources of Judicial Review powers are:Sources of Judicial Review powers are:

–– Constitution s75(v) - High Crt using com lawConstitution s75(v) - High Crt using com law–– Com Law: Inherent jurisdiction - Supreme Crts using com lawCom Law: Inherent jurisdiction - Supreme Crts using com law–– StatutesStatutes

•• Cth: Cth: –– ADJR Act (Cth) Fed & Fed Mags Ct using powers under ADJR Act (Cth) Fed & Fed Mags Ct using powers under

that Actthat Act–– Judiciary Act s 39B (Cth) applies to Fed Ct using com lawJudiciary Act s 39B (Cth) applies to Fed Ct using com law

powerspowers•• Qld:Qld:

–– JR Act (Qld) Supreme Ct using powers under that ActJR Act (Qld) Supreme Ct using powers under that Act

Court Hierarchy – Cth SystemCourt Hierarchy – Cth System

Court Hierarchy – State SystemCourt Hierarchy – State System



The Function of Judicial Review The Function of Judicial Review (Appeal v Review)(Appeal v Review)•• Appeal v ReviewAppeal v Review

–– Can the crt substitute their own decision for that of the original Can the crt substitute their own decision for that of the original decision-maker? decision-maker?

Appeal – yes; Appeal – yes; Review – No.Review – No.

•• Judicial Review v Merits ReviewJudicial Review v Merits Review–– Sep of Powers DoctrineSep of Powers Doctrine–– a foundational principle of Austn administrative law, that a foundational principle of Austn administrative law, that ‘the merits ‘the merits

of administrative action, to the extent that they can be distinguished of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power &, subject from legality, are for the repository of the relevant power &, subject to political ctrl, for the repository alone’: to political ctrl, for the repository alone’: Attorney-General (NSW) v Attorney-General (NSW) v QuinQuin (1990) 170 CLR 1, 36 (1990) 170 CLR 1, 36

what is Merits Reviewwhat is Merits Review–– Examines whether the correct & preferable decision has been Examines whether the correct & preferable decision has been

made considering all the relevant facts & circumstances of the made considering all the relevant facts & circumstances of the case & any policy on which the decision is basedcase & any policy on which the decision is based

–– May result in the decision of the reviewer being substituted for thatMay result in the decision of the reviewer being substituted for that of the original decision maker of the original decision maker

–– Is undertaken by members of the executive – Ministers, statutory Is undertaken by members of the executive – Ministers, statutory boards & tribunalsboards & tribunals

–– May be internal or external – look at statuteMay be internal or external – look at statuteWhat is Judicial Review What is Judicial Review



–– The Q is - Was the decision made in accordance with the The Q is - Was the decision made in accordance with the law? law? i.e. look at the legality of a decision rather than the merits i.e. look at the legality of a decision rather than the merits e.g.:e.g.:Answer Plan:Answer Plan:

•• Did the decision maker have legal authority to make the Did the decision maker have legal authority to make the decision? – look @ the relevant legislationdecision? – look @ the relevant legislation

•• Did the decision maker apply the correct statutory criteria Did the decision maker apply the correct statutory criteria when making the decision? when making the decision? (Haneef case)(Haneef case)

•• Did the decision maker apply the rules of natural justice? Did the decision maker apply the rules of natural justice? ADJRA s5(1)(a)ADJRA s5(1)(a)

•• Did they take irrelevant considerations into account when Did they take irrelevant considerations into account when making the decision? ADJRA s5(2)(a)making the decision? ADJRA s5(2)(a)

Administrative Decisions (Judicial Review) Act Administrative Decisions (Judicial Review) Act 1977 (ADJRA)1977 (ADJRA)•• Substantially declaratory of the com lawSubstantially declaratory of the com law•• But:But:

–– Com law grounds of review broadenedCom law grounds of review broadened–– Shift away from focus on remedies to whether or not a grounds of Shift away from focus on remedies to whether or not a grounds of

review could be established i.e. can a legal error be shown?review could be established i.e. can a legal error be shown?•• Applications to either Fed Crt or Fed Mags CrtApplications to either Fed Crt or Fed Mags Crt

‘Scope of the Act’‘Scope of the Act’•• Key to the scope of the ADJRA - “Decision to which this Act Key to the scope of the ADJRA - “Decision to which this Act

applies”applies”•• Application for review may be bought by ‘aggrieved persons’ in Application for review may be bought by ‘aggrieved persons’ in

relation to:relation to:–– a decision to which this act applies (s5);a decision to which this act applies (s5);–– proposed & actual conduct engaged in for the purpose of making a proposed & actual conduct engaged in for the purpose of making a

decision to which this act applies (s6);decision to which this act applies (s6);–– a failure to make a decision to which this act applies (s7) a failure to make a decision to which this act applies (s7)

“decision to which this Act applies” means:“decision to which this Act applies” means:•• ‘‘Decision to which this Act applies’ defined in s 3 – Decision to which this Act applies’ defined in s 3 –

Interpretation:Interpretation:–– "decision to which this Act applies" "decision to which this Act applies" means a decision of an means a decision of an

administrative character made, proposed to be made, or administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or required to be made (whether in the exercise of a discretion or not & whether bf or after the commencement of this definition): not & whether bf or after the commencement of this definition):

–– (a) (a) under an under an enactmentenactment referred to in referred to in paragraphparagraph (a), (b), (c) or (d) of the definition of (a), (b), (c) or (d) of the definition of enactmentenactment ; or ; or

–– (b) (b) by a by a Cth authorityCth authority or an or an officer of the Cthofficer of the Cth under an under an enactmentenactment referred to in paragraph referred to in paragraph (ca) or (cb) of the (ca) or (cb) of the definition of definition of enactmentenactment ; ;

–– other than: other than:



–– (c) (c) a decision by the Gov a decision by the Gov--General; or General; or –– (d) (d) a decision included in any of the classes of a decision included in any of the classes of

decisions set out in Schdecisions set out in Sch 1. 1.

“enactment” means:“enactment” means:•• "enactment" "enactment" means: means: •• (a) (a) an Act, other than: an Act, other than: •• (i) (i) the the Cth Places (Application of Laws) Act 1970Cth Places (Application of Laws) Act 1970 ; ;

or or •• (ii) (ii) the the Northern Territory (SelfNorthern Territory (Self--Government) Act Government) Act

1978 1978 ; or ; or •• (iii) (iii) an Act or part of an Act that is not an an Act or part of an Act that is not an

enactmentenactment bc of s3A (certain legislation relating to the ACT); or bc of s3A (certain legislation relating to the ACT); or •• (b) (b) an Ordinance of a Territory other than the A.C.T or an Ordinance of a Territory other than the A.C.T or

the N.T; or the N.T; or •• (c) (c) an instrument (including rules, regulations or an instrument (including rules, regulations or

byby--laws) made under such an Act or under such an Ordinance, other laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an than any such instrument that is not an enactmentenactment because of because of sectionsection 3A; or 3A; or

•• (ca) (ca) an Act of a State, the A.C.T or the N.T, or a part of an Act of a State, the A.C.T or the N.T, or a part of such an Act, described in Schedulesuch an Act, described in Schedule 3; or 3; or

•• (cb) (cb) an instrument (including rules, regulations or an instrument (including rules, regulations or byby--laws) made under an Act or part of an Act covered by laws) made under an Act or part of an Act covered by paragraphparagraph (ca); or (ca); or

•• (d) (d) any other law, or a part of a law, of the N.T declared any other law, or a part of a law, of the N.T declared by the regulations, in accordance with sectionby the regulations, in accordance with section 19A, to be an 19A, to be an enactmentenactment for the purposes of this Act; for the purposes of this Act;

•• &, for the purposes of paragraph&, for the purposes of paragraph (a), (b), (c), (ca) or (cb), includes a (a), (b), (c), (ca) or (cb), includes a part of an part of an enactmentenactment. .

“decision to which this Act applies”“decision to which this Act applies”•• A decision to which this Act applies:A decision to which this Act applies:

•• A decision, (or conduct engaged in for the purpose of making a A decision, (or conduct engaged in for the purpose of making a decision or a failure to make a decision);decision or a failure to make a decision);

•• Of an administrative character;Of an administrative character;•• Made under an enactment.Made under an enactment.

–– Decisions excluded:Decisions excluded:•• Governor GeneralGovernor General•• Schedule 1Schedule 1

–– Report or recommendation before a decision is made - s 3(3) – Report or recommendation before a decision is made - s 3(3) – this is a decision to which Act appliesthis is a decision to which Act applies



What is the meaning in s5 of “decision’’What is the meaning in s5 of “decision’’•• Australian Broadcasting Tribunal v Bond (1990)Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 170 CLR 321

–– A final decision (“final or operative & determinative”) or,A final decision (“final or operative & determinative”) or,–– An intermediate decision if and only if legislation provides that the An intermediate decision if and only if legislation provides that the

intermediate decision must be made before making the final intermediate decision must be made before making the final decisiondecision

•• Otherwise, not a decision reached as a step along the way to Otherwise, not a decision reached as a step along the way to reaching the final decision reaching the final decision

“of an administrative character”mean?“of an administrative character”mean?•• What does “of an administrative character” mean?What does “of an administrative character” mean?•• Purpose is Purpose is “the exclusion of decisions of legislative or judicial “the exclusion of decisions of legislative or judicial

character” character” Griffith University v TangGriffith University v Tang (2005)(2005) 221 CLR 89 p 123. 221 CLR 89 p 123. •• Subordinate legislation not reviewable but decisions under it areSubordinate legislation not reviewable but decisions under it are•• Queensland Medical Laboratory V Blewett Queensland Medical Laboratory V Blewett (1988) 16 ALD 440 (1988) 16 ALD 440

– Decision to change table by Minister – Decision to change table by Minister Health Insurance Act Health Insurance Act 1973 1973 – held legislative in character – held legislative in character

how to decide if it is an administrative decisionhow to decide if it is an administrative decision•• Federal Airports Corporation v Aerolineas ArgentinasFederal Airports Corporation v Aerolineas Argentinas (1997) 76 (1997) 76

FCR 582 FCR 582 – – Federal Airports Corporation ActFederal Airports Corporation Act decision to change landing fees decision to change landing fees administrative in nature - FAC had to act commerciallyadministrative in nature - FAC had to act commercially

•• To help decide if it is an administrative decision:To help decide if it is an administrative decision:–– Administrative decisions apply gen rules to specific cases while Administrative decisions apply gen rules to specific cases while

legislation contains the content of gen ruleslegislation contains the content of gen rules–– Parliamentary ctrl through disallowance indicates legislative intentParliamentary ctrl through disallowance indicates legislative intent–– Provision of merits review indicates its administrativeProvision of merits review indicates its administrative

“under enactment” & private decisions of statutory “under enactment” & private decisions of statutory authoritiesauthorities•• What does “Under an enactment” mean?What does “Under an enactment” mean?•• Private decisions of Statutory Authorities?Private decisions of Statutory Authorities?•• Griffith University v TangGriffith University v Tang (2005)(2005) 221 CLR 89 221 CLR 89

–– The decision must be:The decision must be:•• Expressly or impliedly required or authorised under an Expressly or impliedly required or authorised under an

enactment; &enactment; &•• The decision must itself confer, alter or otherwise affect legal The decision must itself confer, alter or otherwise affect legal

rights or obligationsrights or obligations–– A decision of a ‘public body’? – why not reviewable?A decision of a ‘public body’? – why not reviewable?



decisions on non-govt entities under statutory schemes of decisions on non-govt entities under statutory schemes of regulationregulation•• NEAT Domestic Trading Pty Ltd v AWB LtdNEAT Domestic Trading Pty Ltd v AWB Ltd (2003)(2003) 216 CLR 277 216 CLR 277

–– Held, the decision was not made under an enactmentHeld, the decision was not made under an enactment–– WEA’s decision was the operative decision authorised by the ActWEA’s decision was the operative decision authorised by the Act–– AWBI Ltd’s veto power was not a decision made under the AWBI Ltd’s veto power was not a decision made under the WheatWheat

Marketing Act (1989)Marketing Act (1989) (Cth) (Cth)

“Conduct engaged in for the purpose of making a “Conduct engaged in for the purpose of making a decision”decision”•• What is ‘conduct engaged in for the purpose of making a What is ‘conduct engaged in for the purpose of making a

decision’ – s 6?decision’ – s 6?–– s3(5) definition – “including…” therefore not exhaustive s3(5) definition – “including…” therefore not exhaustive –– ABT v Bond ABT v Bond

•• per Mason CJ at 342: …per Mason CJ at 342: …the concept of conduct looks into the the concept of conduct looks into the way in which proceedings have been conducted, the conduct way in which proceedings have been conducted, the conduct of proceedings, rather than the decisions made along the wayof proceedings, rather than the decisions made along the way with a view to the making of a final determination. Thus with a view to the making of a final determination. Thus conduct is essentially procedural & not substantive in conduct is essentially procedural & not substantive in character .character .

–– Once a final decision is made, conduct leading to it is not Once a final decision is made, conduct leading to it is not independently reviewable but should be considered in the context independently reviewable but should be considered in the context of the review of the decision itself (of the review of the decision itself (Minister for Immigration & Minister for Immigration & Multicultural Affairs v OzmanianMulticultural Affairs v Ozmanian (1996) 71 FCR 1 at 20) – therefore (1996) 71 FCR 1 at 20) – therefore a s6 review cannot be made once a final decision is made a s6 review cannot be made once a final decision is made (must (must then be a s5 review)then be a s5 review)

“failure to make a decision”“failure to make a decision”•• s7 – Failure to make a decisions7 – Failure to make a decision

–– s3(2) definition of ‘making a decision’s3(2) definition of ‘making a decision’–– If a duty to make a decision exists & the decision is not made in theIf a duty to make a decision exists & the decision is not made in the

prescribed time or if no prescribed time then an unreasonable prescribed time or if no prescribed time then an unreasonable delay an applicant may request a s7 review delay an applicant may request a s7 review



Tutorial Q’sTutorial Q’sTutorial: Diff Approaches to the scope of administrative law—Tutorial: Diff Approaches to the scope of administrative law—comparing Datafin & the ADJR Actcomparing Datafin & the ADJR Act

•• In what sense was the Take-overs Panel a remarkable body? In what sense was the Take-overs Panel a remarkable body? •• Is the Panel an example of any of the trends in contemporary Is the Panel an example of any of the trends in contemporary

governance associated with privatisation, outsourcing etc?governance associated with privatisation, outsourcing etc?•• How did the English Crt of Appeal define the scope or reach of How did the English Crt of Appeal define the scope or reach of

administrative law (in particular, judicial review) in this case?administrative law (in particular, judicial review) in this case?•• Why did the crt conclude that it may in practice be difficult for aggrievedWhy did the crt conclude that it may in practice be difficult for aggrieved

persons to get a remedy, even though the Panel’s decisions were in persons to get a remedy, even though the Panel’s decisions were in principle subject to judicial review?principle subject to judicial review?

•• Is the extension of administrative law norms to non-State decision-Is the extension of administrative law norms to non-State decision-makers exercising so-called ‘public functions’ the only way for law to makers exercising so-called ‘public functions’ the only way for law to regulate their decisions? What are the alternatives? regulate their decisions? What are the alternatives?

•• Tutorial: Different Approaches to the scope of administrative Tutorial: Different Approaches to the scope of administrative law—comparing Datafin and the ADJR Actlaw—comparing Datafin and the ADJR Act

The The ADJR ActADJR Act•• What sort of actions can be reviewed under the What sort of actions can be reviewed under the ADJR ActADJR Act??•• Is it possible that a decision made by a non-govt decision-maker could Is it possible that a decision made by a non-govt decision-maker could

be reviewed under the be reviewed under the ADJR ActADJR Act??•• What are the main elements an applicant needs to estab to succeed What are the main elements an applicant needs to estab to succeed

under the under the ADJR ActADJR Act??•• In what circum can applicants under the In what circum can applicants under the ADJR ActADJR Act demand reasons be demand reasons be

given for the actions they are challenging? given for the actions they are challenging? •• What ‘grounds of review’ may be difficult to argue without a statement What ‘grounds of review’ may be difficult to argue without a statement

of reasons? (Administrative law imposes various standards of behaviour of reasons? (Administrative law imposes various standards of behaviour (norms) on administrators. In the context of judicial review, these (norms) on administrators. In the context of judicial review, these administrative law norms are referred to as administrative law norms are referred to as grounds of reviewgrounds of review.).)

•• If an applicant can show that a ground of review has been made out (ie If an applicant can show that a ground of review has been made out (ie the decision-maker made a legal error) are they entitled to a remedy? the decision-maker made a legal error) are they entitled to a remedy?

•• Describe the key diff’s btw the approaches to judicial review taken in Describe the key diff’s btw the approaches to judicial review taken in DatafinDatafin & under the & under the ADJR ActADJR Act..

•• What is the purpose of administrative law? How should its success or What is the purpose of administrative law? How should its success or failure be judged? (see Text, 1.3 for some ideas)failure be judged? (see Text, 1.3 for some ideas)



The constitutional (common law) judicial review regime Common law judicial review jurisdiction & State crts

Judicial review remedies: the basics

The Scope Of Judicial ReviewThe Scope Of Judicial Review (Which Decisions Are Subject To Judicial Review?)(Which Decisions Are Subject To Judicial Review?) Sources of judicial review powers Sources of judicial review powers (jurisdiction to here an application for judicial review)(jurisdiction to here an application for judicial review)

–– Fedl Crt: Sources of review jurisdiction - the ADJR ActFedl Crt: Sources of review jurisdiction - the ADJR Act–– The constitutional (common law) judicial review regimeThe constitutional (common law) judicial review regime–– Common law judicial review jurisdiction & State crtsCommon law judicial review jurisdiction & State crts–– Judicial review remedies: the basicsJudicial review remedies: the basics

THE “CONSTITUTIONAL” JUDICIAL REVIEW REGIMETHE “CONSTITUTIONAL” JUDICIAL REVIEW REGIMESourcesSources•• Consitution s75(v) – High CrtConsitution s75(v) – High Crt•• Judiciary Act s39B(1) – Fed Crt Judiciary Act s39B(1) – Fed Crt

Constitutional common law remediesConstitutional common law remedies Writ of mandamus, prohibition, injunction Writ of mandamus, prohibition, injunction are stated are stated

oo also available is also available is certiorari certiorari where it is required for effective exercise of stated where it is required for effective exercise of stated remedies only where there has been a jurisdictional error – not available for non-remedies only where there has been a jurisdictional error – not available for non-jurisdictional error under these Constitutional heads of power jurisdictional error under these Constitutional heads of power

Under com law certiorari Under com law certiorari is available for jurisdictional error & for non-jurisdictional error is available for jurisdictional error & for non-jurisdictional error only where the error is apparent on the face of the record only where the error is apparent on the face of the record

What is equired?What is equired?•• Relieve must be sought against an “officer of the Cth”Relieve must be sought against an “officer of the Cth” The NEAT decision? – private corporations performing regulatory functionsThe NEAT decision? – private corporations performing regulatory functions•• The ‘matter’ concept The ‘matter’ concept

oo Constitution confers jurisdiction & parliament may only make laws in respect of Constitution confers jurisdiction & parliament may only make laws in respect of “matters” “matters”

oo Can be no matter unless there is some immediate “right, duty or liability Can be no matter unless there is some immediate “right, duty or liability (obligation)” (obligation)”

oo Must be a justiciable controversy (a dispute that involves some right, duty or Must be a justiciable controversy (a dispute that involves some right, duty or obligation) obligation)

oo TangTang decision - High Crt’s application of the matter concept decision - High Crt’s application of the matter concept Additional sources of power:Additional sources of power: Constitution s 75(iii) Constitution s 75(iii)

•• Jurisdiction not defined in terms of remedies but that one party be “the Cth”Jurisdiction not defined in terms of remedies but that one party be “the Cth” Judiciary Act s 39B(1A)(c)Judiciary Act s 39B(1A)(c)



•• All matters “arising under any laws made by parliament”All matters “arising under any laws made by parliament”•• Fed crt can review the legality of subordinate legislation – can’t under ADJRA Fed crt can review the legality of subordinate legislation – can’t under ADJRA

– not of an administrative character– not of an administrative character

Elements “High Crt” to exercise its orig. Constitutional (com law) judicial review jurisdiction

Must be a ‘matter’ The Cth or an officer of the Cth must be a party to the dispute If s75(v) is used the applicant must seek & be entitled to one of the stated remedies

(although certiorari & declaration are also available if required (s32 Judiciary Act)

Elements“Fed” Crt to exercise its orig. Com. law (derived from the Constitution) judicial review

jurisdiction Must be a ‘matter’ Cth must be involved in the dispute If s39B(1) is used:

o the applicant must seek & be entitled to one of the stated remedies If s39B(1A)(c) is used:

o then there must be a dispute relating to a right or duty under a law made by the Cth Parliament

If s39B(1A)(a) and (b) are used:o Then those sections must be made out

JUDICIAL REVIEW - COMMON LAW REVIEWJUDICIAL REVIEW - COMMON LAW REVIEW•• Inherent com law jurisdiction inherited from superior crts of EnglandInherent com law jurisdiction inherited from superior crts of England• inherent com law judicial review jurisdiction was developed through the law on whether inherent com law judicial review jurisdiction was developed through the law on whether

particular remedies (prerogative writs of certiorari, prohibition & mandamus) were particular remedies (prerogative writs of certiorari, prohibition & mandamus) were available.available.

CertiorariCertiorari issued to quash (that is, deprive of legal effect) decisions which were issued to quash (that is, deprive of legal effect) decisions which were invalidly or unlawfully madeinvalidly or unlawfully made

ProhibitionProhibition issued to prohibit the making of invalid decisions or actionsissued to prohibit the making of invalid decisions or actions MandamusMandamus issued to compel the exercise of a public duty issued to compel the exercise of a public duty

o These writs were not concerned to allow crts to substitute their own decisions for These writs were not concerned to allow crts to substitute their own decisions for administrators, but focused on the legality of decisionsadministrators, but focused on the legality of decisions

Justiciability –v- Non-JusticiabilityJusticiability –v- Non-Justiciability Q is the issue suitable for judicial review? – closely related to issues of jurisdiction & Q is the issue suitable for judicial review? – closely related to issues of jurisdiction &

standingstanding Principles taken into account:Principles taken into account:

•• Are the applicant's rights sufficiently affectedAre the applicant's rights sufficiently affected



•• What is the nature & subject matter of the dispute? (eg national security issues)What is the nature & subject matter of the dispute? (eg national security issues)•• Is there a privative clause (ousts jurisdiction of the crt)Is there a privative clause (ousts jurisdiction of the crt)•• Is there a ‘matter’ if HC or Fed CtIs there a ‘matter’ if HC or Fed Ct

Separation of powers doctrineSeparation of powers doctrine

Eg limited review of prerogative powersEg limited review of prerogative powersUnique executive powersUnique executive powers

•• Declare warDeclare war•• Enter into treatiesEnter into treaties•• Conduct foreign diplomacyConduct foreign diplomacy•• Award honoursAward honours•• Grant pardonsGrant pardons•• Appoint judgesAppoint judges•• Issues of national securityIssues of national security

Non- JustibilityNon- JustibilityCCSU v Minister for Civil ServiceCCSU v Minister for Civil Service [1985] 1 AC 374 [1985] 1 AC 374

Issue – Issue – oo did the use of prerogative powers make the dispute non-justiciable & further did the use of prerogative powers make the dispute non-justiciable & further

did the fact that the dispute dealt with national security make it non-did the fact that the dispute dealt with national security make it non-justiciable?justiciable?

Held:Held:oo Depends on the subject matter of the dispute – therefore a case by case Depends on the subject matter of the dispute – therefore a case by case

basis used to determine if a matter is non-justiciable basis used to determine if a matter is non-justiciable oo In this case it involved national security & therefore was non-justiciableIn this case it involved national security & therefore was non-justiciable

Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 o Cabinet decided that Stage 2 of Kakadu National Park to be included on World

Heritage Listo Fact that power exercised was a prerogative power was inconclusive of whether it

should be subject to judicial reviewHeld:o the decision was non-justiciable – “the whole of the subject matter of the decision

involved complex policy questions ..therefore the crt should vacate the arena & leave the decision to the political process”

R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs , Ex Parte Abbasi [2003] UKHRR 76 CA

o Policy considerations are non-justiciable, but Q of a legitimate expectation of consideration of diplomatic assistance was justiciable.

Hicks v Ruddock (2007) 156 FCR 574



Judicial review remedies: Judicial review remedies:

Introduction• The com. law approach-v- the statutory approach embodied in the ADJR Act • Common law

o The writ is a formula with various ingredientsoo Eg Certiorari Eg Certiorari

•• Exercise of public powerExercise of public power•• Must affect the rights of a personMust affect the rights of a person•• Administrative (or judicial for minor crts) decision makerAdministrative (or judicial for minor crts) decision maker•• Jurisdictional error or error on face of the record Jurisdictional error or error on face of the record

The basicsThe basics Jurisdictional errors

o all writs are available to remedy Non-jurisdictional errors

o only certiorari available to remedy a non-jurisdictional error of law but only if the error appeared ‘on the face of the record’

jurisdictional error o certiorari is retrospective

non-jurisdictional erroro certiorari is prospective

ADJRA Q is not ‘is a remedy available?’ but ‘has one of the specified grounds of review been

established?’ o If YES crt may, at its discretion, make one of the orders in s16

No unremediable breaches of admin law norms (grounds of review) No distinction btw jurisdictional & non-jurisdictional errors

Com law remedies still relevant: State crts judicial review Constitutional com law judicial review

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Whether the breach of a statutory requirement should render a decision retrospectively

invalid or otherwise is determined by asking if it is the purpose of the legislation that such a decision should be invalid

This decision was prospectively unlawful



Tutorial: Different Approaches to the scope of administrative law—comparing Datafin and Tutorial: Different Approaches to the scope of administrative law—comparing Datafin and the ADJR Actthe ADJR ActIn what sense was the Take-overs Panel a remarkable body? In what sense was the Take-overs Panel a remarkable body? •• Is the Panel an example of any of the trends in contemporary governance associated with Is the Panel an example of any of the trends in contemporary governance associated with

privatisation, outsourcing etc?privatisation, outsourcing etc?•• How did the English Crt of Appeal define the scope or reach of administrative law (in How did the English Crt of Appeal define the scope or reach of administrative law (in

particular, judicial review) in this case?particular, judicial review) in this case?•• Why did the crt conclude that it may in practice be difficult for aggrieved persons to get a Why did the crt conclude that it may in practice be difficult for aggrieved persons to get a

remedy, even though the Panel’s decisions were in principle subject to judicial review?remedy, even though the Panel’s decisions were in principle subject to judicial review?•• Is the extension of administrative law norms to non-State decision-makers exercising so-Is the extension of administrative law norms to non-State decision-makers exercising so-

called ‘public functions’ the only way for law to regulate their decisions? What are the called ‘public functions’ the only way for law to regulate their decisions? What are the alternatives? alternatives?

The The ADJR ActADJR Act •• What sort of actions can be reviewed under the What sort of actions can be reviewed under the ADJR ActADJR Act??•• Is it possible that a decision made by a non-government decision-maker could be Is it possible that a decision made by a non-government decision-maker could be

reviewed under the reviewed under the ADJR ActADJR Act??•• What are the main elements an applicant needs to establish to succeed under the What are the main elements an applicant needs to establish to succeed under the ADJR ADJR

ActAct??•• In what circumstances can applicants under the In what circumstances can applicants under the ADJR ActADJR Act demand reasons be given for demand reasons be given for

the actions they are challenging? the actions they are challenging? •• What ‘grounds of review’ may be difficult to argue without a statement of reasons? What ‘grounds of review’ may be difficult to argue without a statement of reasons?

(Administrative law imposes various standards of behaviour (norms) on administrators. In (Administrative law imposes various standards of behaviour (norms) on administrators. In the context of judicial review, these administrative law norms are referred to as the context of judicial review, these administrative law norms are referred to as grounds grounds of reviewof review.).)

•• If an applicant can show that a ground of review has been made out (ie the decision-If an applicant can show that a ground of review has been made out (ie the decision-maker made a legal error) are they entitled to a remedy? maker made a legal error) are they entitled to a remedy?

•• Describe the key differences between the approaches to judicial review taken in Describe the key differences between the approaches to judicial review taken in DatafinDatafin & & under the under the ADJR ActADJR Act..

•• What is the purpose of administrative law? How should its success or failure be judged? What is the purpose of administrative law? How should its success or failure be judged? (see Text, 1.3 for some ideas)(see Text, 1.3 for some ideas)

Tutorial: Green v Daniels (1977) 13 ALR 1 • What are the main elements of a judicial review application?• Did the crt grant the P the remedy which she sought? (Explain why or why not?)• What general lessons about the use of ‘policy’ by administrators can be drawn from this

case?• In what sense does this case illustrate the limited role played by judicial review?• After the crt’s decision, how do you expect that the Director-General would have

redetermined the plaintiff’s application?



Judicial review Cont..Module 4



What is the scope of judicial review? What is the scope of judicial review? –– The constitutional (common law) judicial review regimeThe constitutional (common law) judicial review regime–– Common law judicial review jurisdiction and State courtsCommon law judicial review jurisdiction and State courts–– Judicial review remedies: the basicsJudicial review remedies: the basics

Judicial Review Regimes (means 3 sources of judicial review powers)

Constitutional Judicial Constitutional Judicial ReviewReview

Common Law Judical ReviewCommon Law Judical Review Statutory Judical ReviewStatutory Judical Review

Constitution (fed matter):Constitution (fed matter):s75(v)s75(v)s75(iii)s75(iii)Gives the HCrt original Gives the HCrt original jurisdictionjurisdictionJudiciary Act s39B(1) & Judiciary Act s39B(1) & s39B(1A)(c) gives Fed Crt s39B(1A)(c) gives Fed Crt original jurisdictionoriginal jurisdiction

Inherent com. law Inherent com. law jurisdictionjurisdictionGives superior crts of record,Gives superior crts of record, i.e. Supreme Crts of the i.e. Supreme Crts of the States original jurisdictionStates original jurisdiction

CTH:CTH:ADJRA – gives Fed Crt & Fed ADJRA – gives Fed Crt & Fed Mags Crt original jurisdictionMags Crt original jurisdictionState – e.g. QLDState – e.g. QLDJRA – gives Supreme Crt JRA – gives Supreme Crt original statutory jurisdictionoriginal statutory jurisdiction

In both cases the HCrt & FedIn both cases the HCrt & Fed Crt apply com. law remedies,Crt apply com. law remedies, norms, rules & principles as norms, rules & principles as modified by the modified by the Constitutional or statutory Constitutional or statutory origins of the crt’s power; origins of the crt’s power; e.g. certiorari not stated as ae.g. certiorari not stated as a remedy in 75(v) and s39B(1)remedy in 75(v) and s39B(1)

Crts apply com. law Crts apply com. law remedies, rules, norms & remedies, rules, norms & principlesprinciples

Crts apply the relevant Crts apply the relevant statutory scheme contained statutory scheme contained in the actin the act

Judicial review remedies an overviewJudicial review remedies an overview•• Common Law remedies:Common Law remedies:

–– Prerogative WritsPrerogative Writsoo CertiorariCertiorarioo ProhibitionProhibitionoo MandamusMandamus

–– Equitable RemediesEquitable Remediesoo InjunctionInjunctionoo DeclarationDeclaration

•• Constitutional remedies Constitutional remedies •• ADJRA remediesADJRA remedies

Remedies – Judicial Review



Certiorari – a quashing order - to quash the original decision Is Only available for Jurisdictional error if you make an application under the constitution

– If it is awarded for jurisdictional error it has a retrospective effect & makes the decision invalid (as if the decision had never been made)

– not available for Non jurisdictional error (but is if the error is apparent on the face of the record)

– If it is awared for non- jurisdictional error it has a prospective effect (makes the decision unlawful)

Elements1. Must be an exercise of public power (legal authority i.e pulic power)– public v private

rights

• Forbes v New South Trotting Club Ltd (1979) 143 CLR 242 HC

• John Fairfax & Sons v Australia Telecommunications Commission [1977] 2 NSWLR 400 - NSWCA

2. Must affect the rights of a person: decision must have some legal effect on rights

• Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 – publication of report had “had no legal effect & carried no legal consequences” (Mason CJ, Dawson, Toohey & Gaudron JJ at 580) even though detrimental to the applicant’s business reputation

• a preliminary decision is not usually sufficient

3. has to be Administrative (or judicial) decision maker

4. Has got to be an Jurisdictional error or error on face of the record (Craig v South Australia (1995) 184 CLR 163

Prohibition• Only available for jurisdictional error• Granted to restrain a decision maker from exceeding their powers• Both certiorari & prohibition operate to correct the same legal error but at different stages of the

decision making process• Certiorari – corrects error after, eg, deportation - to quash • Prohibition – corrects error before, eg deportation - to restrain actual deportation

ELEMENTS - Same requirements to certiorari, but only for jurisdictional error1. Exercise of public power 2. Must affect the rights of a person 3. Administrative (or judicial for minor courts) decision maker4. Jurisdictional error only (Craig)



Mandamus • Issued to command the performance of a public duty which is unperformed• eg, remake the decision according to law• Certiorari – to quash• Mandamus – to remake lawfully• Note: Can be issued for non-jurisdiction error but only if issued in conjunction with primary remedy

of certiorari

ELEMENTS(authority - R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228)

1. Must be an exercise of public power (a duty of a public nature exists) - John Fairfax & Sons v Australia Telecommunications Commission – writ of mandamus not granted – private obligation not a public duty

2. The public duty must remain unperformed - attempt may be made to perform duty but duty may remain unperformed if misconstrued

Injunction • An equitable remedy – developed in private law – crt has a broad power to grant • To do something – mandatory – instead of mandamus?• To refrain – prohibitory – instead of prohibition?• may be issued in cases of non-jurisdictional error

Declaration• Not coercive• Crt declares correct legal position • Useful in public law, not so useful in private law• Crt has wide powers to grant

Constitutional remedies• S75(v) & s39B of Judiciary Act

– mandamus, prohibition & injunction• Mandamus & Prohibition only available for jurisdictional error – certiorari as an ancillary

remedy only & not for non-jurisdictional error• Constitutional injunction – may be avail for non-jurisdictional error – no HCrt decision as

yet

ADJRA remedies s16 – to be construed widely • 16(1) – review of decision under s5• 16(2) – review of conduct under s6• 16(3) – review of a failure to make a decision under s7



– Legality/merits distinction still exists– See also Qld JRA remedies are contained in s30– Essentially mirrors effect of common law remedies

• 16(1)(a) – quashing order• 16(1)(d); 16(2)(b); 16(3)(c) – prohibitory orders• 16(1)(b) & (d), 16(2)(b); 16(3)(a) & (c) – mandatory orders• 16(1)(c); 16(2)(a); 16(3)(b) – declaratory orders

Interlocutory orders (ïn the meantime order for a certain period of time”)• Eg interlocutory injunction to prevent deportation until judicial review application is decided

– Serious Q to be tried– Irreparable injury can’t be compensated by damages– Balance of convenience favours granting the application

• ADJRA s15 & 15A allow for Interlocutory order for stay of proceedings

Re-making a Decision– Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

(Supplement 116–130) – Issue – can an administrator remake a decision that they believe has been decided

incorrectly?– If jurisdictional error then there is no decision at all and it can be remade– Unless the statute contradicts this – eg decision is binding until overturned by crt

Tutorial: Federal judicial review jurisdiction (Week 4Tutorial: Federal judicial review jurisdiction (Week 4))–– The The Tourism Development Grants Act 2005 Tourism Development Grants Act 2005 (Cth) provides that:(Cth) provides that:–– There shall be a Tourism Grants Board (‘the Board’) appointed by the Minister.There shall be a Tourism Grants Board (‘the Board’) appointed by the Minister.–– The Board may make grants of up to 5 million dollars for major development The Board may make grants of up to 5 million dollars for major development

projects for the purpose of creating new tourist attractions.projects for the purpose of creating new tourist attractions.–– Where a development project will likely place significant demands on local water Where a development project will likely place significant demands on local water

supplies, the applicant must submit a ‘water impact statement’.supplies, the applicant must submit a ‘water impact statement’.–– The Board must have regard to all information provided in submitted applications.The Board must have regard to all information provided in submitted applications.



–– The Board may seek and receive any further information it considers relevant.The Board may seek and receive any further information it considers relevant.In its call for applications, the Board notes that the scheme involves significant opportunities forIn its call for applications, the Board notes that the scheme involves significant opportunities for

co-operative public-private developments. Under the terms of a consultancy contract, it co-operative public-private developments. Under the terms of a consultancy contract, it forwards all applications received to a private company, Rational Accountancy Pty Ltd forwards all applications received to a private company, Rational Accountancy Pty Ltd (‘RA’) and asks that a financial assessment of the applications be completed.(‘RA’) and asks that a financial assessment of the applications be completed.

RA’s report to the Board (a) summarises the complicated financial information provided in each RA’s report to the Board (a) summarises the complicated financial information provided in each application and (b) comments that its research demonstrates that demand for ‘theme application and (b) comments that its research demonstrates that demand for ‘theme park-style’ attractions (such as Dreamworld, SeaWorld etc) is diminishing. RA attaches the park-style’ attractions (such as Dreamworld, SeaWorld etc) is diminishing. RA attaches the applications (all 35 of them) to its report, which it then forwards to the Board. The Board applications (all 35 of them) to its report, which it then forwards to the Board. The Board is yet to make a decision.is yet to make a decision.

Could an applicant who proposed to build a ‘theme park-style’ attraction seek review of RA’s Could an applicant who proposed to build a ‘theme park-style’ attraction seek review of RA’s report to the Board, either under the report to the Board, either under the ADJR ActADJR Act or under s 39B of the Judiciary Act? or under s 39B of the Judiciary Act?

– The Australian Telecommunications Authority (‘the ATA’) is the regulatory body which oversees the industry under the Telecommunications Act 1997 (Cth) (‘the Telecommunications Act’).

– Section 4 states: ‘The Parliament intends that telecommunications be regulated in a manner that (a) promotes the greatest practicable use of industry self-regulation; and (b) does not impose undue financial and administrative burdens on [industry participants].’

– The Telecommunications Act provides for the making of ‘self-regulatory codes’ which are to be developed by the industry itself. However, any industry codes which are developed must be registered with the ATA.

– The Telecommunications Industry Forum (‘the Forum’) is the peak industry association and has been developing self-regulatory codes for the industry. It has produced a technical performance code for mobile phone networks, which requires adoption of the new ‘DDD’ technology. The ATA registers the new code.

– (a) Advise on the reviewability under the ADJR Act of the ATA’s registration of the DDD Code.

– (b) Does the code registered by the ATA also have to be registered under the Legislative Instruments Act 2003 (Cth)? What is the consequence of it not being registered? (See Text, 276 or check the legislation.)

Tutorial: Federal judicial review jurisdiction (Week 4)Tutorial: Federal judicial review jurisdiction (Week 4)– The following provisions appear in the Gene Technology Act 2005 (Cth):– A person is guilty of an offence if the person knowingly deals with a genetically-

modified organism (‘GMO’) without holding a GMO licence or if the person breaches a condition of their GMO licence.



– The Office of the Regulator is hereby established and the Regulator has the functions of:• developing codes of practice;• issuing licences to deal with GMOs, subject to any condition which the Regulator

thinks fit.35. In determining whether to grant a s 2(b) licence, the Regulator must consider:(a) the risks posed by the licence application to persons or the environment;(b) any policy advice received by the organisation listed in Schedule 1. [Schedule 1 lists the Gene Technology Foundation Inc, a not-for-profit organisation.]36. Where a licence is granted, the Regulator must publish a notice on the Regulator’s website.98. The functions of the Regulator are to be exercised in accordance with any specific directions

issued in writing by the Minister and with any applicable general policies of the Government notified by the Minister.

The Gene Technology Foundation Inc has issued a report which argues that the government should not encourage any further research into important export crops until a national approach to the issue has been determined.

Would this report be reviewable under the ADJR Act (assuming that a case was brought by an applicant with standing)?

REMEDIES

Judicial Review Regimes - 3 sources of judicial review powers

Constitutional Judicial Constitutional Judicial ReviewReview

Common Law Judical ReviewCommon Law Judical Review Statutory Judical ReviewStatutory Judical Review

Constitution (fed matter):Constitution (fed matter): s75(v)s75(v) s75(iii)s75(iii)

Gives the HCrt original Gives the HCrt original jurisdictionjurisdiction

Inherent com. law Inherent com. law jurisdictionjurisdictionGives superior crts of record,Gives superior crts of record, i.e. Supreme Crts of the i.e. Supreme Crts of the States original jurisdictionStates original jurisdiction

CTH:CTH:ADJRA – gives Fed Crt & Fed ADJRA – gives Fed Crt & Fed Mags Crt original jurisdictionMags Crt original jurisdictionState – e.g. QLDState – e.g. QLDJRA – gives Supreme Crt JRA – gives Supreme Crt



Judiciary Act s39B(1) & Judiciary Act s39B(1) & s39B(1A)(c) gives Fed Crt s39B(1A)(c) gives Fed Crt original jurisdictionoriginal jurisdiction

original statutory jurisdictionoriginal statutory jurisdiction

In both cases the HCrt & FedIn both cases the HCrt & Fed Crt apply com. law remedies,Crt apply com. law remedies, norms, rules & principles as norms, rules & principles as modified by the modified by the Constitutional or statutory Constitutional or statutory origins of the crt’s power; origins of the crt’s power; e.g. certiorari not stated as ae.g. certiorari not stated as a remedy in 75(v) and s39B(1)remedy in 75(v) and s39B(1)

Crts apply com. law Crts apply com. law remedies, rules, norms & remedies, rules, norms & principlesprinciples

Crts apply the relevant Crts apply the relevant statutory scheme contained statutory scheme contained in the actin the act

OverviewOverview•• Common Law remedies:Common Law remedies:

–– Prerogative WritsPrerogative Writsoo CertiorariCertiorarioo ProhibitionProhibitionoo MandamusMandamus

–– Equitable RemediesEquitable Remediesoo InjunctionInjunctionoo DeclarationDeclaration

•• Constitutional remedies Constitutional remedies •• ADJRA remediesADJRA remedies

Remedies – Judicial ReviewCertiorari – a quashing order - to quash the original decision

Only available for Juris. error if you make an application under the constitution

- If it is awarded for juris. error o has a retrospective effect & makes the decision invalid (as if the

decision had never been made)- not available for Non juris. error

o (but is if the error is apparent on the face of the record)o If it is awared for non- juris. error it has a prospective effect

(makes the decision unlawful)

Elements3. Must be an exercise of public power (legal authority i.e pulic

power)– public v private rights• Forbes v New South Trotting Club Ltd (1979) 143 CLR 242 HC



• John Fairfax & Sons v Australia Telecommunications Commission [1977] 2 NSWLR 400 - NSWCA

4. Must affect the rights of a person: decision must have some legal effect on rights • Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 –

publication of report had “had no legal effect & carried no legal consequences” (Mason CJ, Dawson, Toohey & Gaudron JJ at 580) even though detrimental to the applicant’s business reputation

• a preliminary decision is not usually sufficient

3. has to be Administrative (or judicial) decision maker

4. Has got to be an Jurisdictional error or error on face of the record (Craig v South Australia (1995) 184 CLR 163

Prohibition• Only available for jurisdictional error• Granted to restrain a decision maker from exceeding their powers• Both certiorari & prohibition operate to correct the same legal error but at

different stages of the decision making process Certiorari – corrects error after, eg, deportation - to quash Prohibition – corrects error before, eg deportation - to restrain actual

deportation

Elements - Same as certiorari, but only for jurisdictional error5. Exercise of public power 6. Must affect the rights of a person 7. Administrative (or judicial for minor courts) decision maker8. Jurisdictional error only (Craig)

Mandamus • Issued to command the performance of a public duty which is unperformed• eg, remake the decision according to law• Certiorari – to quash• Mandamus – to remake lawfully• Note: Can be issued for non-jurisdiction error but only if issued in

conjunction with primary remedy of certiorari

Elements



(authority - R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228)

3. Must be an exercise of public power (a duty of a public nature exists) - John Fairfax & Sons v Australia Telecommunications Commission – writ of mandamus not granted – private obligation not a public duty

4. The public duty must remain unperformed - attempt may be made to perform duty but duty may remain unperformed if misconstrued

Injunction • An equitable remedy – developed in private law – crt has a broad power to

grant • To do something – mandatory – instead of mandamus?• To refrain – prohibitory – instead of prohibition?• may be issued in cases of non-jurisdictional error

Declaration• Not coercive• Crt declares correct legal position • Useful in public law, not so useful in private law• Crt has wide powers to grant

Constitutional remedies• S75(v) & s39B of Judiciary Act

– mandamus, prohibition & injunction• Mandamus & Prohibition only available for jurisdictional error – certiorari as

an ancillary remedy only & not for non-jurisdictional error• Constitutional injunction – may be avail for non-jurisdictional error – no HCrt

decision as yet

ADJRA remedies s16 – to be construed widely • 16(1) – review of decision under s5• 16(2) – review of conduct under s6• 16(3) – review of a failure to make a decision under s7

– Legality/merits distinction still exists– See also Qld JRA remedies are contained in s30– Essentially mirrors effect of common law remedies

• 16(1)(a) – quashing order



• 16(1)(d); 16(2)(b); 16(3)(c) – prohibitory orders• 16(1)(b) & (d), 16(2)(b); 16(3)(a) & (c) – mandatory orders• 16(1)(c); 16(2)(a); 16(3)(b) – declaratory orders

ALSOInterlocutory orders (ïn the meantime order for a certain period of time”)• Eg interlocutory injunction to prevent deportation until judicial review

application is decided– Serious Q to be tried– Irreparable injury can’t be compensated by damages– Balance of convenience favours granting the application

• ADJRA s15 & 15A allow for Interlocutory order for stay of proceedings

Re-making a Decision Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR

597 (Supplement 116–130) Issue – can an administrator remake a decision that they

believe has been decided incorrectly? If jurisd. error then there is no decision at all and it can be

remade Unless the statute contradicts this – eg decision is binding

until overturned by crt

Grounds of review Grounds of review Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5

JUDICIAL REVIEW REGIMES

Constitutional Common Law Statutory

Constitution:s75(v)s75(iii)

Gives the HCrt orig. jurisdiction

Judiciary Act s39B(1) & s39B(1A)(c)o gives Fed Crt original

Inherent com. law jurisdictiono Gives superior crts

of record, i.e. SCrts of the States original jurisdiction

Commonwealth:o ADJRA – gives Fed.

Crt & Fed. Mag Crt orig. jurisdiction

State – e.g. QLDo JRA – gives SCrt

original statutory



jurisdiction jurisdiction

In both cases the HCrt & Fed Crt apply com.law remedies, norms, rules & principles as modified by the Constitutional or statutory origins of the crt’s power;

o e.g. certiorari not stated as a remedy in 75(v) and s39B(1)

Crts apply com. law remedies, rules, norms & principles

Crts apply the relevant statutory scheme contained in the act

GROUNDS OF JUDICIAL REVIEW:• Breaches of “administrative law norms”• The reasons why a decision is unlawful or invalid• Values & grounds of review

– Rule of law• Note the intersection of the rules of statutory interpretation & judicial review principles • Common law – jurisdictional error / non jurisdictional error – what remedy is available?• ADJRA – no consideration of jurisdictional error / non-jurisdictional error but must be a decision to

which the act applies – “under an enactment”

Categories Of Grounds Of Review – 3 Types1. Procedural grounds – conduct of decision maker2. Reasoning process grounds3. Grounds to do with the decision itself

– ADJRA s 5(1)(a) & s 6(1)(a)

TYPE 1 - BREACH OF THE RULES OF PROCEDURAL FAIRNESS (NATURAL JUSTICE)TYPE 1 - BREACH OF THE RULES OF PROCEDURAL FAIRNESS (NATURAL JUSTICE)2 Types of breach2 Types of breach1. The fair hearing rule2. The rule against bias

BREACH OF THE FAIR HEARING RULE2 issues to determine:

1. When does the rule apply? (when is someone entitled to a fair hearing)2. What does the rule require in the particular circumstances of the case? (content of the hearing)

Issue 1. SCOPE OF THE RULE -When Does The Rule Apply: o Kioa v West (1985) 159 CLR 550, Supplement, 156-176

• A decision which affects an individual’s rights, interests or legitimate expectations – attracts a com. law duty to afford procedural fairness

• Legitimate expectation – a reasonable expectation which cannot be disappointed without giving a fair hearing

• Unless:o a clear statutory intention to the contraryo The person is not affected in a meaningful & direct way

Expansion of the concept of legitimate expectation:• Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

– existence of a regular adopted known decision-making practice may create a legitimate expectation that it will applied in the instant case



• Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1, Supplement, 205-222.

– The rules of procedural fairness are presumptively applicable to administrative decisions – McHugh & Gummow JJ in Lam quoting McHugh J dissenting in Teoh

Judges in Lam criticised decision in Teoh : • The mere fact that a legitimate expectation is disappointed will not breach the hearing rule if

no unfairness or practical injustice is occasioned• In Lam the mere fact that that the department did not keep its promise to contact the

children's carers did not breach the rule bc on the facts of the case it did not deprive the applicant of the opportunity to advance his case

• Crts will only require those procedures that fairness requires in the circumstances – see text p140-141

Statutory exclusion of the rule: Must be a direct & clear intention There is a general rule against decreasing citizens rights & freedoms in interpreting

legislation Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57,

Supplement, 176-190– Argued that the code of statutory procedures excluded the fair hearing rule –

majority said no– Further amendments to Migration Act 1958 (Cth) to overturn the decision

Issue 2. Content Of The Hearing Rule- What Does It Require • Look at the statute to decide if the person has had a fair opportunity to put their case - the

overriding requirement - Lam• Includes:

• Adequate notice that an adverse decision may be made;• Disclosure of prejudicial allegations with sufficient details to enable a meaningful hearing

on the critical issues arising for that decision (Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, Supplement, 190-198);

• An opportunity to adduce relevant evidence & make relevant submissions;• Allowance of sufficient time to prepare for the hearing.

THE RULE AGAINST BIAS Actual bias (harder to prove) o Must establish that decision maker had a closed mind and was not open to persuasion

Apparent bias (less harder to prove) Would an informed and fair minded lay observer reasonably apprehend that the decision

maker might not bring an impartial mind to the decision to be made– Derogatory or insulting comments

– Personal connections with interested persons– Prior involvement with the issue

– Personal pecuniary interest

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Supplement 222–241) – Issue: did Minister’s specific comments about Mr Jia’s case show bias?



– Held: by majority – no– Kirby’s dissent: imputed bias made out

Type 2. REASONING PROCESS GROUNDS – CTRL OF ADMINISTRATIVE CHOICE (DISCRETION)

Considerations groundsConsiderations grounds Improper or unauthorised purposeImproper or unauthorised purpose Inflexible application of a rule or policyInflexible application of a rule or policy Acting under dictationActing under dictation Unauthorised delegationUnauthorised delegation

CONSIDERATION GROUNDS OF REVIEW 1. Was an irrelevant matter taken into account?2. Were relevant matters ignored?– ADJRA s 5(2)(a) & (b);

(a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power;

How to decide what must be considered by the decision maker:1. Does the statute contain an obligation on the decision maker?

If it yes - was this obligation breached? i.e Did they take in other matter s?

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Supplement 246–259) Ground of failure to take account of a relevant consideration only succeeds if decision maker is

bound to consider it. To decide what a decision maker is bound to consider (& what will be an irrelevant matter) you

must look at statute– Expressly stated– Implied by subject matter scope and purpose of the act

Not every failure will result in the decision being set aside – may be irrelevant or minor Crts must allow for decision maker’s discretion & not simply substitute their own decision

If multiple matters to consider then weight to be given to each generally at discretion of decision maker unless ‘manifestly

unreasonable’ consideration is given or not given to a particular mattero See ADJRA s 5(2)(g) & 6(2)(g)o an exercise of a power that is so unreasonable that no reasonable person could have

so exercised the power;A minister of the crown must be given scope for broader policy considerations– Tickner v Chapman (1995) 57 FCR 451 (Supplement, 260–269) o The Act required publication of a notice seeking submissions & consideration of these

submissionso Minister considered a report which included over 400 submissionso Held: Minister’s consideration was not adequate – it did not involve “an active intellectual

process directed at the material he was obliged to consider”

IMPROPER OR UNAUTHORISED PURPOSES Decision maker acted for a purpose which is extraneous to (unauthorised) the statutory scheme See ADJRA s 5(1)(e) s 6(1)(e) and s 5(2)(c) & 6 (2)(c)

– 5(1)(e) s 6(1)(e)



o that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

– s 5(2)(c) & 6 (2)(c)– an exercise of a power for a purpose other than a purpose for which the power is

conferred;

INFLEXIBLE APPLICATION OF A RULE OR POLICY Green v Daniels (1977) 13 ALR 1

– Policy did not accord with the Act

Failure to apply policy? – May be failure to consider a relevant matter– Fair hearing rule may apply before a published policy or a representation is ignored

ACTING UNDER DICTATION Decision makers own reasoning power must not be overwhelmed by the views of another ADJRA s 5(2)(e) & s 6(2)(e)

o an exercise of a personal discretionary power at the direction or behest of another person;

Rendell v Release on Licence Board (1987) 10 NSWLR 499 (Supplement 273–280) – Board failed to exercise its discretion as set down by parliament

Unauthorised delegation Powers legally conferred on a particular decision maker must be exercised personally – not by some

other body or person Not specifically mentioned in ADJRA but will come under s 5(1)(c) & (d) & s 6(1)(c) & (d)

– s 5(1)(c) & (d)

o (c)that the person who purported to make the decision did not have jurisdiction to make the decision;

o (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

– s 6(1)(c) & (d)

o (d) that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision;

o (e) that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;

Decision makers can rely on administrative assistance but must still make the decision personally Tickner v Chapman (1995) 57 FCR 451

Type 3. DECISIONAL GROUNDS



http://www.austlii.edu.au/au/legis/cth/consol_act/adra1977396/s3.html#enactment




Jurisdictional error jurisdictional v non-jurisdictional error errors of law errors of fact

Wednesbury unreasonableness (next week)

• Jurisdictional errors: - relate to the scope of the decision makers power to decide (i.e. establishing their

jurisdiction)- all writs available to remedy - certiorari is retrospective

• Non-jurisdictional errors:- relate to decisions made in course of exercising established jurisdiction - only certiorari available to remedy a non-jurisdictional error of law but only if the error

appeared ‘on the face of the record’- certiorari is prospective -

• This distinction no longer applies in England But applies in In Australia - - Constitutional remedies only available for jurisdictional errors - therefore the distinction remains

• Remember - the purpose of JR is to keep administrative decision makers within jurisdiction

JURISDICTIONAL ERROR

Craig v South Australia (1995) 184 CLR 163, Supplement, 299-310. Distinction btw judicial (courts) & administrative decision makers in deciding what will be

a jurisdictional error Narrow approach for judicial decision makers

- they have authority to decide Q’s law Broad approach for administrative decision makers

- they do not have authority to decide Q’s of law

Kirk v Industrial Court of New South Wales [2010] HCA 1, [60-77] o To observe that inferior crts generally have authority to decide Q’s of law

"authoritatively" is not to conclude that the determination of any particular Q is not open to review by a superior crt… The "authoritative" decisions of inferior crts are those decisions which are not attended by jurisdictional error. That directs attention to what is meant in this context by "jurisdiction" & "jurisdictional". It suggests that the observation that inferior crts have authority to decide Q’s of law "authoritatively" is at least unhelpful. ‘

– Inferior courts will be outside of jurisdiction by:o ‘misconstruction of the relevant statute thereby misconceiving the nature

of the function which the inferior crt is performing or the extent of its powers in the circumstances of the particular case.’



– Parties are constitutionally entitled to seek review where jurisdictional errors can be made out:

‘Legislation which would take from a State Supreme Crt power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.’

Broad approach to jurisdictional error: Whenever the law to be applied is misconstrued jurisdictional error is likely to result Jurisdiction is exceeded by an administrator:

- ‘an error which causes it to identify a wrong issue, to ask itself a wrong Q, to ignore relevant material, to rely on irrelevant material, or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion’ – Craig p. 179 – and this includes:

o Breaches of procedural fairnesso Breaches of reasoning process grounds

Errors of Law v Errors of FactGeneral rule:

Fact finding is the job of administrative decision makers – not the crts as this may involve judges in the merits of administrative decisions

- i.e Only error of law is reviewable not errors of fact.Exceptions:1. Review of jurisdictional facts 2. No evidence rule

1. Jurisdictional facts The decision makers power is dependant upon the existence of a particular

facto Enfield v Development Assessment Commission (2000) 199 CLR 135,

- Distinction btw ‘general’ & ‘special’ industry- Applications relating to special industries ‘must not’ be granted

unless further conditions were fulfilled - Decision of classification of the industry was a jurisdictional fact &

open to review- Q is one of statutory interpretation

2. No evidence rule Ground is made out if ‘there is no evidence to support’ a finding which is a

critical step in the ultimate conclusion – see text p 173 ADJRA s 5(1)(h)

o ‘there was no evidence or other material to justify the making of the decision’ – but note s 5(3) ‘this ground shall nor be made out unless’…

WEDNESBURY UNREASONABLENESS - Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 – A decision maker may not make a decision which is so unreasonable that no reasonable

decision maker acting according to law could have made it.– ADJRA ss 5(1)(e), 5(2)(g), 6(1)(e), 6(2)(g)– JRA (Qld) ss20(2)(e), 21(2)(e), 23(g)

Categories of cases for unreasonableness:Unjustified unequal treatment



Council of the City of Parramatta v Pestell (1972) 128 CLR 305

Failure to enquire Luu v Renevier (1989) 91 ALR 39

Capricious use of power (arbritary – on a whim, upredictable) Edelsten v Wilcox (1988) 83 ALR 99

Irrationality Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993)

40 FCR 381

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

– Wednesbury unreasonableness is restricted to discretionary decisions– Doesn’t apply to fact finding errors or when decision maker is under a duty to

exercise a power

Judicial Review & Human Rights – JR may protect basic human rights– Australia – no charter of rights– Parlt can only legislate according to constitutional limits and HC has interpreted basic rights

& principles as embedded in the Constitution as well as specifically stated– e.g.: right to JR of certain decisions, separation of powers

Grounds of review & Procedual FairnessGrounds of review & Procedual FairnessModule 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5

JUDICIAL REVIEW REGIMESConstitutional Common Law Statutory


Gives the HCrt original jurisdiction

Judiciary Act s39B(1) & s39B(1A)(c) gives Fed Crt original jurisdiction

Inherent com. law jurisdiction

Gives superior crts of record, i.e. SCrts of the States original jurisdiction

Commonwealth: ADJRA – gives Fed. Crt &

Fed. Mag Crt original jurisdiction

State – e.g. QLD JRA – gives SCrt original

statutory jurisdiction



In both cases the HCrt & Fed Crt apply com.law remedies, norms, rules & principles as modified by the Constitutional or statutory origins of the crt’s power; e.g. certiorari not stated as a remedy in 75(v) and s39B(1)




– Rule of law• Note the intersection of the rules of statutory interpretation & judicial review principles

• Common law – jurisdictional error / non jurisdictional error – what remedy is available?• ADJRA – no consideration of jurisdictional error / non-jurisdictional error but must be a

decision to which the act applies – “under an enactment”

Categories Of Grounds Of Review – 3 Types4. Procedural grounds – conduct of decision maker5. Reasoning process grounds6. Grounds to do with the decision itself

– ADJRA s 5(1)(a) & s 6(1)(a)



TYPE 1 - BREACH OF THE RULES OF PROCEDURAL FAIRNESS (NATURAL JUSTICE)TYPE 1 - BREACH OF THE RULES OF PROCEDURAL FAIRNESS (NATURAL JUSTICE)2 Types of breach2 Types of breach3. The fair hearing rule4. The rule against bias

Breach Of The Fair Hearing Rule2 issues to determine:3. When does the rule apply? (when is someone entitled to a fair hearing)4. What does the rule require in the particular circumstances of the case? (content of the hearing)

Issue 1. SCOPE OF THE RULE -When Does The Rule Apply: – Kioa v West (1985) 159 CLR 550, Supplement, 156-176

• A decision which affects an individual’s rights, interests or legitimate expectations – attracts a com. law duty to afford procedural fairness


• Unless:– a clear statutory intention to the contrary– The person is not affected in a meaningful & direct way



• Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1, Supplement, 205-222. – The rules of procedural fairness are presumptively applicable to administrative

decisions – McHugh & Gummow JJ in Lam quoting McHugh J dissenting in Teoh

Judges in Lam criticised decision in Teoh : • The mere fact that a legitimate expectation is disappointed will not breach

the hearing rule if no unfairness or practical injustice is occasioned• In Lam the mere fact that that the department did not keep its promise to

contact the children's carers did not breach the rule bc on the facts of the case it did not deprive the applicant of the opportunity to advance his case


Statutory exclusion of the rule: Must be a direct & clear intention There is a general rule against decreasing citizens rights & freedoms in

interpreting legislation Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001)

206 CLR 57, Supplement, 176-190



– Argued that the code of statutory procedures excluded the fair hearing rule – majority said no

– Further amendments to Migration Act 1958 (Cth) to overturn the decision

Issue 2. Content Of The Hearing Rule- What Does It Require • Look at the statute to decide if the person has had a fair opportunity to put their

case - the overriding requirement - Lam• Includes:

• Adequate notice that an adverse decision may be made;• Disclosure of prejudicial allegations with sufficient details to enable a

meaningful hearing on the critical issues arising for that decision (Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, Supplement, 190-198);


--Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6--

THE RULE AGAINST BIAS • Actual bias (harder to prove)

o Must establish that decision maker had a closed mind and was not open to persuasion Apparent bias (less harder to prove)

o Would an informed and fair minded lay observer reasonably apprehend that the decision maker might not bring an impartial mind to the decision to be made– Derogatory or insulting comments– Personal connections with interested persons– Prior involvement with the issue– Personal pecuniary interest

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Supplement 222–241)

– Issue: did Minister’s specific comments about Mr Jia’s case show bias?– Held: by majority – no– Kirby’s dissent: imputed bias made out

Type 2. REASONING PROCESS GROUNDS – CTRL OF ADMINISTRATIVE CHOICE (DISCRETION)

Consideration Grounds Of Review 3. Was an irrelevant matter taken into account?4. Were relevant matters ignored?– ADJRA s 5(2)(a) & (b);

(a) taking an irrelevant consideration into account in the exercise of a power;



(b) failing to take a relevant consideration into account in the exercise of a power;

How to decide what must be considered by the decision maker:2. Does the statute contain an obligation on the decision maker?

If it yes - was this obligation breached? i.e Did they take in other matter s?

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Supplement

246–259) Ground of failure to take account of a relevant consideration only succeeds if

decision maker is bound to consider it. To decide what a decision maker is bound to consider (& what will be an irrelevant

matter) you must look at statute– Expressly stated– Implied by subject matter scope and purpose of the act

Not every failure will result in the decision being set aside – may be irrelevant or minor

Crts must allow for decision maker’s discretion & not simply substitute their own decision

If multiple matters to consider then weight to be given to each generally at discretion of decision maker unless ‘manifestly unreasonable’ consideration is given or not given to a particular matter

See ADJRA s 5(2)(g) & 6(2)(g)o an exercise of a power that is so unreasonable that no reasonable person

could have so exercised the power; A minister of the crown must be given scope for broader policy considerations

– Tickner v Chapman (1995) 57 FCR 451 (Supplement, 260–269) o The Act required publication of a notice seeking submissions & consideration of

these submissionso Minister considered a report which included over 400 submissionso Held: Minister’s consideration was not adequate – it did not involve “an active

intellectual process directed at the material he was obliged to consider”

Improper or unauthorised purposes Decision maker acted for a purpose which is extraneous to (unauthorised) the statutory

scheme See ADJRA s 5(1)(e) s 6(1)(e) and s 5(2)(c) & 6 (2)(c)

– 5(1)(e) s 6(1)(e) o that the making of the decision was an improper exercise of the power

conferred by the enactment in pursuance of which it was purported to be made;

– s 5(2)(c) & 6 (2)(c)




– an exercise of a power for a purpose other than a purpose for which the power is conferred;

Inflexible application of a rule or policy Green v Daniels (1977) 13 ALR 1

– Policy did not accord with the Act

Failure to apply policy? – May be failure to consider a relevant matter– Fair hearing rule may apply before a published policy or a representation is ignored

Acting under dictation Decision makers own reasoning power must not be overwhelmed by the views of

another ADJRA s 5(2)(e) & s 6(2)(e)

o an exercise of a personal discretionary power at the direction or behest of another person;

Rendell v Release on Licence Board (1987) 10 NSWLR 499 (Supplement 273–280) – Board failed to exercise its discretion as set down by parliament

Unauthorised delegation Powers legally conferred on a particular decision maker must be exercised personally –

not by some other body or person Not specifically mentioned in ADJRA but will come under s 5(1)(c) & (d) & s 6(1)(c) & (d)

– s 5(1)(c) & (d)

o (c)that the person who purported to make the decision did not have jurisdiction to make the decision;

o (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

– s 6(1)(c) & (d)

o (d) that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision;

o (e) that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;

Decision makers can rely on administrative assistance but must still make the decision personally

Tickner v Chapman (1995) 57 FCR 451






Grounds of review & Procedual FairnessGrounds of review & Procedual FairnessModule 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5 Module 5

JUDICIAL REVIEW REGIMESConstitutional Common Law Statutory


Gives the HCrt original jurisdiction

Judiciary Act s39B(1) & s39B(1A)(c) gives Fed Crt original jurisdiction

Inherent com. law jurisdiction

Gives superior crts of record, i.e. SCrts of the States original jurisdiction

Commonwealth: ADJRA – gives Fed. Crt &

Fed. Mag Crt original jurisdiction

State – e.g. QLD JRA – gives SCrt original

statutory jurisdiction

In both cases the HCrt & Fed Crt apply com.law remedies, norms, rules & principles as modified by the Constitutional or statutory origins of the crt’s power; e.g. certiorari





not stated as a remedy in 75(v) and s39B(1)


– Rule of law• Note the intersection of the rules of statutory interpretation & judicial review

principles

Grounds Of judicial Review• Common law – jurisdictional error / non jurisdictional error – what remedy is

available?• ADJRA – no consideration of jurisdictional error / non-jurisdictional error but must

be a decision to which the act applies – “under an enactment”

CATEGORIES OF GROUNDS OF REVIEW 3 types:7. Procedural grounds – conduct of decision maker8. Reasoning process grounds9. Grounds to do with the decision itself

– ADJRA s 5(1)(a) & s 6(1)(a)

1.1. BREACH OF THE RULES OF PROCEDURAL FAIRNESS (NATURAL JUSTICE)BREACH OF THE RULES OF PROCEDURAL FAIRNESS (NATURAL JUSTICE) 2 Types of breach2 Types of breach1. The fair hearing rule2. The rule against bias



BREACH OF THE FAIR HEARING RULE2 issues to determine:

5. When does the rule apply? (when is someone entitled to a fair hearing)6. What does the rule require in the particular circumstances of the case? (content of

the hearing)

1. scope of the rule -WHEN DOES THE RULE APPLY: – Kioa v West (1985) 159 CLR 550, Supplement, 156-176

• A decision which affects an individuals rights, interests or legitimate expectations – attracts a com. law duty to afford procedural fairness


• Unless:– a clear statutory intention to the contrary– The person is not affected in a meaningful & direct way



• Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1, Supplement, 205-222.

– The rules of procedural fairness are presumptively applicable to administrative decisions – McHugh & Gummow JJ in Lam quoting McHugh J dissenting in Teoh

Judges in Lam criticised decision in Teoh : • The mere fact that a legitimate expectation is disappointed will not breach

the hearing rule if no unfairness or practical injustice is occasioned• In Lam the mere fact that that the department did not keep its promise to

contact the children's carers did not breach the rule bc on the facts of the case it did not deprive the applicant of the opportunity to advance his case


Statutory exclusion of the rule: Must be a direct & clear intention There is a general rule against decreasing citizens rights & freedoms in

interpreting legislation Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001)

206 CLR 57, Supplement, 176-190– Argued that the code of statutory procedures excluded the fair

hearing rule – majority said no



– Further amendments to Migration Act 1958 (Cth) to overturn the decision

2. CONTENT OF THE HEARING RULE- what does it require• Look at the statute to decide if the person has had a fair opportunity to put their

case - the overriding requirement - Lam• Includes:

• Adequate notice that an adverse decision may be made;• Disclosure of prejudicial allegations with sufficient details to enable a meaningful

hearing on the critical issues arising for that decision (Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, Supplement, 190-198);


--Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6 Mod 6--

2. THE RULE AGAINST BIAS • Actual bias (harder to prove)

• Must establish that decision maker had a closed mind and was not open to persuasion

• Apparent bias (less harder to prove)• Would an informed and fair minded lay observer reasonably apprehend that

the decision maker might not bring an impartial mind to the decision to be made

– Derogatory or insulting comments– Personal connections with interested persons– Prior involvement with the issue– Personal pecuniary interest

• Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Supplement 222–241)

– Issue: did Minister’s specific comments about Mr Jia’s case show bias?– Held: by majority – no– Kirby’s dissent: imputed bias made out

3. REASONING PROCESS GROUNDS – CTRL OF ADMINISTRATIVE CHOICE (DISCRETION)

Consideration Grounds Of Review 5. Was an irrelevant matter taken into account?6. Were relevant matters ignored?– ADJRA s 5(2)(a) & (b); s 6(2)(a) & (b)

• How to decide what must be considered by the decision maker:3. Does the statute contain an obligation on the decision maker?



• If it does was this obligation breached? i.e Did they take in other matter s?

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Supplement 246–

259) Ground of failure to take account of a relevant consideration only succeeds if decision

maker is bound to consider it. To decide what a decision maker is bound to consider (& what will be an irrelevant

matter) you must look at statute– Expressly stated– Implied by subject matter scope and purpose of the act

Not every failure will result in the decision being set aside – may be irrelevant or minor Crts must allow for decision maker’s discretion & not simply substitute their own

decision

If multiple matters to consider then weight to be given to each generally at discretion of decision maker unless ‘manifestly unreasonable’ consideration is given or not given to a particular matter

• See ADJRA s 5(2)(g) & 6(2)(g)– A minister of the crown must be given scope for broader policy considerations

Tickner v Chapman (1995) 57 FCR 451 (Supplement, 260–269) – The Act required publication of a notice seeking submissions & consideration of these

submissions– Minister considered a report which included over 400 submissions– Held: Minister’s consideration was not adequate – it did not involve “an active

intellectual process directed at the material he was obliged to consider”

Improper or unauthorised purposes – Decision maker acted for a purpose which is extraneous to (unauthorised) the statutory

scheme– See ADJRA s 5(1)(e) s 6(1)(e) and s 5(2)(c) & 6 (2)(c)

Inflexible application of a rule or policy – Green v Daniels (1977) 13 ALR 1

• Policy did not accord with the Act

– Failure to apply policy? • May be failure to consider a relevant matter• Fair hearing rule may apply before a published policy or a representation is ignored

Acting under dictation – Decision makers own reasoning power must not be overwhelmed by the views of

another– ADJRA s 5(2)(e) & s 6(2)(e)



– Rendell v Release on Licence Board (1987) 10 NSWLR 499 (Supplement 273–280) • Board failed to exercise its discretion as set down by parliament

Unauthorised delegation – Powers legally conferred on a particular decision maker must be exercised personally –

not by some other body or person– Not specifically mentioned in ADJRA but will come under s 5(1)(c) & (d) & s 6(1)(c) & (d)– Decision makers can rely on administrative assistance but must still make the decision

personally– Tickner v Chapman (1995) 57 FCR 451

Statutes that are limiting availability of Judicial Review

“Ouster or privative clauses”What Are Limites On Judicial Review?• Clauses in legislation that purport to exclude the crt’s judicial review jurisdiction are called ‘privative’ or

‘ouster’ clauses

1 st state that : o s75(v) of the Constitution entrenches the HCrt’s jurisdiction to issue prohibition, mandamus &

injunctions against ‘officers of the Commonwealth’

2 nd What is the Issue?

o Q is there inconsistency btw the privative clause & s 75 of the Constitution?

If the decision is made under Commonwealth legislation:o Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476– Privative clause only applied to decisions made ‘under the Act’

o Therefore a decision infected by jurisdictional error was not covered by the privative clause bc it was ‘no decision at all’

i.e. outside of the jurisdiction given by the Act Therefore jurisdictional error was not protected by the clause

& there was no conflict with s 75 If jurisdictional error was protected then there would be a

direct conflict with s 75 & the clause would be constitutionally invalid

Alleged error was denial of procedural fairness – therefore a jurisdictional error & not protected by the clause – non-jurisdictional error may be protected if wording clear &

unambiguous

If the decisions is made under State legislation:o Kirk v Industrial Court of New South Wales [2010] HCA 1, [60-77]:

Inferior crts will be outside of jurisdiction by: ‘misconstruction of the relevant statute thereby misconceiving the nature of the

function which the inferior crt is performing or the extent of its powers in the circumstances of the particular case.’



– In this case there were 2 jurisdictional errors identified

The Qs for the HCrt were: (a) whether the Industrial Crt’s decision was affected by jurisdictional error; &, if so, (b) whether the privative clause operated to prevent the Crt of Appeal from issuing

relief by way of certiorari

HCrt held that State Parlt’s cannot, through privative clauses, oust judicial review for jurisdictional error

– This places the treatment of State privative clauses on the same footing as that set out in Plaintiff S157 for Cth privative clauses

Parties are constitutionally entitled to seek review where jurisdictional errors can be made out:

– ‘Legislation which would take from a State SCrt power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.’

Facts– Convictions in the Industrial Court of NSW for offences against the

Occupational Health and Safety Act 1983 (NSW) – Application to the NSW Crt of Appeal for relief in the nature of certiorari to

quash the convictions on the basis that the Industrial Crt had fallen into jurisdictional error

– A privative clause provided that a decision of the Industrial Crt is ‘final & may not be appealed against, reviewed, quashed or called into Q by any crt or tribunal’

The Crt of Appeal held – that there was no jurisdictional error affecting the Industrial Crt’s decision &

thus Q’s concerning the operation of the privative clause did not arise.



Statutes that are limiting availability of Judicial Review

“Ouster or privative clauses”What Are Limites On Judicial Review?

• Clauses in legislation that purport to exclude the crt’s judicial review jurisdiction are called ‘privative’ or ‘ouster’ clauses

Issue:o s75(v) of the Constitution entrenches the High Court’s jurisdiction to

issue prohibition, mandamus & injunctions against ‘officers of the Commonwealth’

Issue: o How does s 75 affect Cth & State ouster clauses?

Decisions under Commonwealth legislation:– Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

• Privative clause only applied to decisions made ‘under the Act’• Therefore a decision infected by jurisdictional error was not covered by the

privative clause bc it was ‘no decision at all’ – i.e. outside of the jurisdiction given by the Act

– Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (continued):• Therefore jurisdictional error was not protected by the clause & there was no

conflict with s 75 • If jurisdictional error was protected then there would be a direct conflict with

s 75 & the clause would be constitutionally invalid



• Alleged error was denial of procedural fairness – therefore a jurisdictional error & not protected by the clause – non-jurisdictional error may be protected if wording clear & unambiguous

Decisions under State legislation:– Kirk v Industrial Court of New South Wales [2010] HCA 1, [60-77]:

– Convictions in the Industrial Court of NSW for offences against the Occupational Health and Safety Act 1983 (NSW)

– Application to the NSW Crt of Appeal for relief in the nature of certiorari to quash the convictions on the basis that the Industrial Crt had fallen into jurisdictional error

– A privative clause provided that a decision of the Industrial Crt is ‘final & may not be appealed against, reviewed, quashed or called into Q by any crt or tribunal’

– The Crt of Appeal held that there was no jurisdictional error affecting the Industrial Crt’s decision & thus Q’s concerning the operation of the privative clause did not arise.

• Inferior crts will be outside of jurisdiction by: ‘misconstruction of the relevant statute thereby misconceiving

the nature of the function which the inferior crt is performing or the extent of its powers in the circumstances of the particular case.’

• In this case there were 2 jurisdictional errors identified

• Kirk v Industrial Court of New South Wales [2010] HCA 1, [60-77] (continued):– The Q’s for the HCrt were: (a) whether the Industrial Crt’s decision was affected by

jurisdictional error; &, if so, (b) whether the privative clause operated to prevent the Crt of Appeal from issuing relief by way of certiorari

– HCrt held that State Parlt’s cannot, through privative clauses, oust judicial review for jurisdictional error

– This places the treatment of State privative clauses on the same footing as that set out in Plaintiff S157 for Cth privative clauses

– Parties are constitutionally entitled to seek review where jurisdictional errors can be made out:

• ‘Legislation which would take from a State SCrt power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.’



INTERNAL REVIEWInternal review of a decision must be distinguished from reconsideration of a decision.

What is Internal review? A form of merits review 1st required level of review bf any external review is permitted Must be authorised by the statute under which the decision is made may be by the Minister, a review board or committee or more snr department

officer – E.g. Freedom of Information Act 1982 (Cth)

o s54(1) Internal review by dept. (application plus fee) then external review by AAT - s55(1)

INTERNAL REVIEW – Reconsideration of a decisionINTERNAL REVIEW – Reconsideration of a decision

Issue: is it lawful to reconsider a decision?Issue: is it lawful to reconsider a decision?•• The default position: The default position:

once a lawful decision has been made it stands unless & until it is once a lawful decision has been made it stands unless & until it is reversed on appeal, quashed by a judicial review or set aside, reversed on appeal, quashed by a judicial review or set aside, varied or replaced with a substitute decision by merits reviewvaried or replaced with a substitute decision by merits review

But – this only applies to But – this only applies to intraintra vires decisions (within power) vires decisions (within power) An ultra vires decision is not really a decision at all – only An ultra vires decision is not really a decision at all – only

a purported decisiona purported decision–– See See Minister for Immigration and Multicultural and Minister for Immigration and Multicultural and

Indigenous Affairs v BhardwajIndigenous Affairs v Bhardwaj (2002) 209 CL 597 (see text (2002) 209 CL 597 (see text p 117-118) p 117-118)

Any breach of the rules of procedural fairness is a very serious matter. It is described as a “jurisdictional error”. If procedural fairness is denied, the decision can be said to be a decision not lawfully made, and there is not a decision in law or in fact (eg: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598). It will be as if the decision was never made.



In that case, the Immigration Review Tribunal cancelled Mr Bhardwaj’s student visa. At the time of making the decision, bc of an administrative oversight by the Tribunal, it was not aware that Mr Bhardwaj had requested an adjournment of the hearing bc of illness. Could it remake the decision when it discovered this fact? The HCrt found that the initial failure to provide a hearing breached the procedural fairness requirements of the Migration Act 1958, constituting a failure to properly exercise the decision-making power. As a result of this jurisdictional error, the first decision could be ignored. The second decision was validly made.

Q – can an administrator remake a decision that they believe has been decided incorrectly?Q – can an administrator remake a decision that they believe has been decided incorrectly?• Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209

CLR 597 (Supplement 116–130) – If jurisdictional error then there is no decision at all & it can be

remade– Unless the statute contradicts this – eg decision is binding until

overturned by crt

OMBUDSMAN

What is the history of estab. of ombudsman• Origins:

– Sweden 1809, – NZ 1962, – England 1967, – WA 1971, – QLD: Ombudsman Act 2001 (Qld)

• Cth Ombudsman (CO)– established by the Ombudsman Act 1976

• Kerr Committee 1971 – recommended a ‘Gen. Counsel for Grievances’ for complaints against

administration ‘within the system of administrative review rather than in the parlt-executive context’

• Bland Committee 1973 – recommended an adjudicator neutral btw the complainant & the agency



• A statutory creation – no constitutional recognition at Cth level

State What the functions & Jurisdiction of the Ombudsman are Ombudsman Act 1976 - Sect 5 (1) Subject to this Act, the Ombudsman:

(a) shall investigate action, being action that relates to a matter of administration, taken either bf or af the commencement of this Act by a Dept, or by a prescribed authority, & in respect of which a complaint has been made to the Ombudsman; &

(b) may, of his or her own motion, investigate any action, being action that relates to a matter of administration, taken either bf or after the commencement of this Act by a Dept. or by a prescribed authority;…

What Ombudsman Can not Investigate? • Exclusions – s 5(2) – action which the ombudsman is not authorised to investigate

– Includes: Action taken by a Minister, a judge, or in relation to proceedings in parlt or employment in the public service (promotions etc..)

What Is The Ombudsman jurisdiction is Limited To?Jurisdiction is limited to:

• Investigation of action• Which relates to a matter of administration• Taken by a dept. or a prescribed authority• Received as a complaint or initiated by the Ombudsman

What are the meaning of these words?• Action: s 3(7) – includes:

– the making of or a refusal or failure to make a decision & the formulation of a proposal

• Matter of administration: – not defined in act but likely to have the same meaning as under the

ADJRA • i.e. a decision which applies the law as opposed to a decision which

creates the law • note the term ‘relates’ which broadens the scope of this provision

beyond that of the ADJRA • Dept. or prescribed authority:

– broadly defined - includes a body corporate estab. for a public purpose in accordance with the provisions of an enactment (s 3), including a govt ctrld company (unless specifically excluded) (s 3A)

• Complaints or initiated by ombudsman – useful but not common for ombudsman to initiate investigations



Note – need not be done under an enactment: The action need not be done ‘under an enactment’ may have been an exercise

of non-statutory power or an action merely incidental to the exercise of a statutory or non-statutory power

Making Complaints to ombudsman

Service is free to the complainant No standing requirements but ombudsman has wide discretion not to

investigate, e.g. frivolous complaints, complainant does not have a sufficient

interest, there is a more suitable means of review available such as an internal complaints procedure or merits review

Ombudsman Investigation & Action Inquisitional rather than adversarial Wide powers of investigation including compulsion to give evidence &

produce documents (same as Royal Commissions)• Typically unrestricted access to agency files• Basic function is to investigate & resolve complaints • Many complaints resolved by negotiation & compromise• Cannot make coercive orders nor make determinations of legal rights &

obligations• Can only report & make recommendations to the agency against which the

complaint relates• If formal recommendations are not followed then ombudsman can make a

special report to the relevant minister (the Prime Minister for CO)• Publicity may exert pressure on relevant agency to comply• Wide ranging powers to make recommendations allow for solutions not

available to crts & tribunals – e.g. an apology

• Informality & inability to coerce may actually strengthen the ombudsman’s ability to negotiate settlements?

Conclusion• Part of as system of political accountability centred on parlt. • A type of gen. govt complaints dept.• Bolsters the notion that govt is bound by rules• upholding the rule of law?

– Do we need an ‘Integrity Branch of Govt’? • See John McMillan, ‘The Ombudsman and the Rule of Law’ (2005) 44

Australian Institute of Administrative Law Forum 1. (Supplement 491–506) – Does the Ombudsman need constitutional recognition or does it work ok

as it is?



EXAMINATIONEXAMINATION•• The exam will consist of 4 questions in allThe exam will consist of 4 questions in all•• There are 3 short answer questions worth 10 marks each and 1 hypothetical question There are 3 short answer questions worth 10 marks each and 1 hypothetical question

worth 30 marksworth 30 marks•• You must answer You must answer everyevery question question•• The exam is 2 hours longThe exam is 2 hours long•• The exam is open bookThe exam is open book•• See the ‘Guide to answering a hypothetical question’ posted on studydesk on See the ‘Guide to answering a hypothetical question’ posted on studydesk on

Wednesday 18 October.Wednesday 18 October.•• Intended to assist students to develop a method to answer hypothetical Qs on judicial Intended to assist students to develop a method to answer hypothetical Qs on judicial

review.review.•• The guide is not complete, for example the rules & tests for standing are not included The guide is not complete, for example the rules & tests for standing are not included

in the guide, but the guide does offer a framework to answer a question. in the guide, but the guide does offer a framework to answer a question. •• Only a few cases have been included (in Only a few cases have been included (in italicsitalics) and students ) and students must must add relevant cases add relevant cases

to all sections of this guide in order to properly answer any question. to all sections of this guide in order to properly answer any question. •• Cases and/or relevant sections of statutes must be used as authority for any law, rule Cases and/or relevant sections of statutes must be used as authority for any law, rule

or legal principle applicable to a particular hypothetical question. or legal principle applicable to a particular hypothetical question. •• Use of the guide is Use of the guide is not compulsorynot compulsory and students may use their own method to answer and students may use their own method to answer

a question. a question.

What is Administrative Law?What is Administrative Law?•• Concerns the legal rules & institutions directed at keeping the ‘governors’ Concerns the legal rules & institutions directed at keeping the ‘governors’

(principally, decision-makers in the executive arm of govt) ‘accountable’ (principally, decision-makers in the executive arm of govt) ‘accountable’ •• Executive arm = ‘the administration’ of gov’t Executive arm = ‘the administration’ of gov’t •• focus of administrative law is on the legal regulation of the exercise of power focus of administrative law is on the legal regulation of the exercise of power

by the by the executiveexecutive branch of govt. (Legal ctrl of the legislative branch is the core branch of govt. (Legal ctrl of the legislative branch is the core concern of constitutional law.) concern of constitutional law.)

Separation of PowersSeparation of Powers•• 3 arms of government 3 arms of government

–– Legislature (makes law); Legislature (makes law); –– Executive (administers law ); andExecutive (administers law ); and–– Judiciary (Courts & Judges - interpret & apply the law)Judiciary (Courts & Judges - interpret & apply the law)

•• Why keep them separate? –Why keep them separate? ––– Prevent concentration of powerPrevent concentration of power–– An external check on powerAn external check on power



Rule of Law Rule of Law •• The law binds both govt’s & citizens.The law binds both govt’s & citizens.•• No ruler is above the lawNo ruler is above the law•• Laws should be written & public, enforced with due processLaws should be written & public, enforced with due process•• Its core principles are:Its core principles are:

–– Clear separation of powers & independence of the crts & judiciaryClear separation of powers & independence of the crts & judiciary–– Legal certaintyLegal certainty–– Principle of legitimate expectationPrinciple of legitimate expectation–– Equality before the lawEquality before the law

•• A fair, equal application of powerA fair, equal application of power

Judicial modes of accountability Judicial modes of accountability JudicialJudicial

•• by Judicial Review – a supervisory function – not to usurp powers of by Judicial Review – a supervisory function – not to usurp powers of administration but to supervise the exercise of it (separation of powers) administration but to supervise the exercise of it (separation of powers)

•• Some of the grounds for review are that:Some of the grounds for review are that:–– The decision-maker breached the rules of natural justice; The decision-maker breached the rules of natural justice; –– The decision-maker did not observe the correct legal procedures; The decision-maker did not observe the correct legal procedures; –– The decision-maker did not have the authority to make the decision. The decision-maker did not have the authority to make the decision.

non-judicial modes of accountability non-judicial modes of accountability

–– Non Judicial:Non Judicial:•• eg administrative tribunals eg administrative tribunals

–– merits review - review of an administrative decision involves merits review - review of an administrative decision involves considering afresh the facts & law relating to that decision considering afresh the facts & law relating to that decision

•• OmbudsmenOmbudsmen•• Legislation allowing access to informationLegislation allowing access to information•• Legislation limiting the purposes for which govt can use information Legislation limiting the purposes for which govt can use information

Public Law v Private LawPublic Law v Private Law–– Relations btw citizens = privateRelations btw citizens = private–– Relations btw governors & the governed = publicRelations btw governors & the governed = public

Institutional v Functional concept of Administrative LawInstitutional v Functional concept of Administrative Law= Govt functions v Public functions= Govt functions v Public functions

A Regulatory ApproachA Regulatory Approach•• Focus on the future - influencing human behaviour & its outcomesFocus on the future - influencing human behaviour & its outcomes•• Components:Components:

–– Set of standards that tell people how they should behave Set of standards that tell people how they should behave –– System for monitoring complianceSystem for monitoring compliance



–– System for promoting future compliance System for promoting future compliance

•• Admin law = a set of rules & principles about how decisions ought to be made, eg:Admin law = a set of rules & principles about how decisions ought to be made, eg:–– Procedural fairnessProcedural fairness–– ConsistencyConsistency–– Etc..Etc..

FREEDOM OF INFORMATION•• Freedom of Information Act 1982Freedom of Information Act 1982 (Cth) (Cth)

Object Object •• s 3s 3 (1) (1) The object of this Act is to extend as far as possible the right of the The object of this Act is to extend as far as possible the right of the

Australian community to access to information in the possession of the Australian community to access to information in the possession of the Government of the Commonwealth by: Government of the Commonwealth by:

–– (a)(a) making avail to the public info about the operations of making avail to the public info about the operations of dept’sdept’s & public authorities &, in particular, ensuring that rules and & public authorities &, in particular, ensuring that rules and practices affecting members of the public in their dealings with practices affecting members of the public in their dealings with deptsdepts & public authorities are readily available to persons affected by those & public authorities are readily available to persons affected by those rules and practices; and rules and practices; and

–– (b) (b) creating a gen. right of access to info in creating a gen. right of access to info in documentarydocumentary form in the possession of Ministers, form in the possession of Ministers, deptsdepts & public authorities, limited & public authorities, limited only by exceptions & exemptions necessary for the protection of only by exceptions & exemptions necessary for the protection of essential public interests & the private & business affairs of persons in essential public interests & the private & business affairs of persons in respect of whom information is collected & held by respect of whom information is collected & held by deptsdepts & public & public authorities; &authorities; &

–– (c) (c) creating a right to bring about the amendment of creating a right to bring about the amendment of records containing records containing personal infopersonal info that is incomplete, incorrect, out of that is incomplete, incorrect, out of date or misleading. date or misleading.

–– (2) (2) It is the intention of the Parlt that the provisions of this It is the intention of the Parlt that the provisions of this Act shall be interpreted so as to further the object set out in Act shall be interpreted so as to further the object set out in subsectionsubsection (1) & that any discretions conferred by this Act shall be (1) & that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate & promote, promptly & exercised as far as possible so as to facilitate & promote, promptly & at the lowest reasonable cost, the disclosure of info. at the lowest reasonable cost, the disclosure of info.

Who can request documents? Who can request documents? •• Anyone – s 11(2)Anyone – s 11(2)

Right of accessRight of access

–– (2)(2) Subject to this Act, a person's right of access is not affected by: Subject to this Act, a person's right of access is not affected by: –– (a)(a) any reasons the person gives for seeking access; or any reasons the person gives for seeking access; or –– (b)(b) the the agencyagency's or Minister's belief as to what are his or her reasons for 's or Minister's belief as to what are his or her reasons for

seeking access. seeking access.



What can be requestedWhat can be requested ? ? •• S 11(1), s 4(1)S 11(1), s 4(1)

11(1)11(1)

(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document; or

(b) an official document of a Minister, other than an exempt document.

4(1)4(1)

"document" includes:

(a) any of, or any part of any of, the following things:

(i) any paper or other material on which there is writing;

(ii) a map, plan, drawing or photograph;

(iii) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

(iv) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device;

(v) any article on which information has been stored or recorded, either mechanically or electronically;

(vi) any other record of information; or

(b) any copy, reproduction or duplicate of such a thing; or

(c) any part of such a copy, reproduction or duplicate;

but does not incl::

(d) library material maintained for reference purposes; or



http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s4.html#exempt_document


http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s4.html#document


http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s4.html#agency


(e) Cabinet notebooks.

‘‘ Of an agency’ Of an agency’ •• includes a govt dept. or body corporate created by statuteincludes a govt dept. or body corporate created by statute•• Pt 11 of Sch 2 Pt 11 of Sch 2

oo exempt agencies for certain types of content exempt agencies for certain types of content oo ss7(2) & 7(2AA) e.g. docs held by medicare that relate to ss7(2) & 7(2AA) e.g. docs held by medicare that relate to

commercial activitiescommercial activities

(2) The persons, bodies & Depts specified in Part II of Schedule 2 are exempt from the operation of this Act in relation to the docs referred to in that Schedule in relation to them.

(2AA) A body corp estab by or under an Act specified in Pt III of Sch 2 is exempt from the operation of this Act in relation to docs in respect of the commercial activities of the body corp.

•• Docs from intelligence or defence agencies (s 7(2A)Docs from intelligence or defence agencies (s 7(2A)•• Official doc. of a Minister Official doc. of a Minister

–– exempt if originated from an intelligence or defence agency (s 7(2B)exempt if originated from an intelligence or defence agency (s 7(2B)

Procedure for making a requestProcedure for making a request–– S 15(2)S 15(2)

(2) The request must:

(a) be in writing; &

(b) provide such info. concerning the doc. as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; &

(c) specify an address in Aust. at which notices under this Act may be sent to the applicant; &

(d) be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of any central or regional office of the agency or Minister specified in a current telephone directory; &

(e) be accompanied by the fee payable under the regulations in respect of the request.



http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s4.html#request



http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s4.html#officer


http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s4.html#applicant


http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s4.html#officer


http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s4.html#request



http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s4.html#department

http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/s4.html#cabinet_notebook

Exempt documents – Part IVExempt documents – Part IV•• ‘Public Interest’ – e.g. s 33(a)‘Public Interest’ – e.g. s 33(a)

Documents affecting national security, defence or international relations

A doc is an exempt doc if disclosure of the doc under this Act:

(a) would, or could reasonably be expected to, cause damage to:

(i) the security of the Cthh;

(ii) the defence of the Cth; or

(iii) the international relations of the Cth; or

PART IV--EXEMPT DOCUMENTS

– 32. Interpretation – 33. Docs affecting national security, defence or

international relations – 33A. Docs affecting relations with States – 34. Cabinet docs – 35. Executive Council docs – 36. Internal working docs – 37. Docs affecting enforcement of law &

protection of public safety – 38. Docs to which secrecy provisions of

enactments apply – 39. Docs affecting financial or property

interests of the Cth – 40. Docs concerning certain operations of

agencies – 41. Docs affecting personal privacy – 42. Docs subject to legal professional privilege – 43. Docs relating to business affairs etc. – 43A. Docs relating to research – 44. Docs affecting national economy – 45. Docs containing material obtained in

confidence – 46. Docs disclosure of which would be contempt

of Parlt or contempt of crt



– 47. Certain docs arising out of companies & securities legislation

– 47A. Electoral rolls and related docs

Review Review –– Internal review Internal review

oo s 54(1) within 30 dayss 54(1) within 30 days–– AAT AAT

oo further 60 days - s 55(1)further 60 days - s 55(1)–– Appeal to Federal Crt Appeal to Federal Crt

oo Q of lawQ of law–– Also review by Ombudsman Also review by Ombudsman

oo s 57(1) s 57(1)

QueenslandQueensland•• Information Privacy Act 2009Information Privacy Act 2009

Object: Object: –– the fair collection & handling in the public sector environment of personalthe fair collection & handling in the public sector environment of personal

information & a right of access to, & amendment of, personal information in theinformation & a right of access to, & amendment of, personal information in the govt’s possession or under the govt’s ctrl govt’s possession or under the govt’s ctrl

•• Freedom of Information - From 1 July 2009, the Freedom of Information - From 1 July 2009, the Right to Information Act 2009Right to Information Act 2009 replaced the replaced the Freedom of Information Act 1992Freedom of Information Act 1992

