LAW EXTENSION COMMITTEE UNIVERSITY OF SYDNEY
09 ADMINISTRATIVE LAW SUBJECT GUIDE SUMMER SESSION 2007-08
Course Description and Objectives 1 Teacher 1 Assessment 1 March 2008 Examination 2 Lecture Program 2 Weekend Schools 1 and 2 3 Texts and Materials 4 Assignment 4 Assignment Questions 5 Prescribed Topics and Course Outline 6 1
LAW EXTENSION COMMITTEE SUMMER 2007-08 09 ADMINISTRATIVE LAW
COURSE DESCRIPTION AND OBJECTIVES
Administrative Law is a branch of public law that is concerned with the legal control of decisions and actions of governmental agencies and officials, and those of non-governmental bodies which affect the public.
In Australia today, governmental and non-governmental regulation - at federal, state and local government levels - impinges on most areas of life. Notable examples include social security, education, immigration, broadcasting and television, public sector employment, industry and commerce, exploration and mining, ownership and use of property, occupational licensing, town planning and the environment.
The emphasis of the course is on the principles and procedures of administrative law relating to the review of such governmental and non-governmental administrative action.
At state and local government levels, these principles and procedures are to be found mainly in the common law of judicial review. This includes the grounds of judicial review - denial of natural justice, ultra vires, jurisdictional error and error of law - and the judicial remedies - prohibition, certiorari, mandamus, injunction and declaration. Administrative review is by the Ombudsman and the Administrative Decisions Tribunal. Freedom of Information legislation has also been enacted.
At federal level, a comprehensive system of review is provided by statute. This involves judicial review by the Federal Court of Australia and administrative review by the Commonwealth Ombudsman and the Administrative Appeals Tribunal. Freedom of Information legislation has also been enacted.
The fundamental objective of the course is to give students an understanding of the various principles and procedures and their practical application.
This will be achieved primarily by means of an analysis of the relevant decided cases, legislation, and academic writings.
TEACHER
Mr Frank Esparraga, BJuris LLB (UNSW), LLM (Syd)
Frank is a lawyer who has worked in Sydney and Canberra in both State and Federal Government Departments, including the NSW Attorney-General's Department and the Independent Commission Against Corruption. He has also been a part-time member of the Consumer, Trader and Tenancy Tribunal and been in private practice. He is a committee member of the Australian Institute of Administrative Law. His speciality is Administrative Law but he also teaches Contracts, Torts, Evidence and Litigation at the University of Notre Dame, UTS and University of Sydney.
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.
Then, students must achieve a satisfactory result (at least 50%) in each subject where a compulsory component is prescribed.
To register with the LEC, go to www.usyd.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus. 2
MARCH 2008 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics. Candidates will be expected to have made a study of the prescribed materials in relation to those topics and to have analysed cases referred to in the Law Extension Committee's course outline.
All enquiries in relation to examinations should be directed to the Legal Profession Admission Board.
Examination Prize A cash prize is awarded each session to the student with the best examination result in Administrative Law. The prize is named the H L and W G Spencer Prize for Administrative Law.
LECTURE PROGRAM
Lectures will be held on Wednesdays commencing at 6.00pm in Law School - Lecture Theatre 2 (LSLT2) at the Sydney University Law School, which is on the corner of Phillip, King and Elizabeth Streets. Lectures commence on 14 November 2007.
This program may be varied according to need. Readings are suggested to introduce you to the material to be covered in the lecture, to enhance your understanding of the topic, and to encourage further reading. You should not rely on lectures alone.
WEEK TOPIC KEY READING 1 Introduction to Administrative Law Creyke & McMillan Ch 1 & 5 14 Nov
2 Rule Making Creyke & McMillan Ch 6 21 Nov 3 Decision-Making in Tribunals Creyke & McMillan Ch 8 28 Nov 4 Judicial Review: Procedural Fairness Creyke & McMillan Ch 10 5 Dec Aronson, Dyer & Groves Ch 7,8,9
5 Merits Review & Administrative Tribunals Creyke & McMillan Ch 3 12 Dec 6 Judicial Review: The Framework Creyke & McMillan Ch 2 19 Dec Aronson, Dyer & Groves Ch 2
Study Break: Saturday 22 December 2007 – Sunday 13 January 2008
7 Legislative Scope & Purpose and Grounds of Creyke & McMillan 9 & 14 16 Jan Judicial Review Aronson Dyer & Groves Ch 5.6,7
8 Jurisdictional Error and Invalidity Creyke & McMillan Ch 15 23 Jan Aronson Dyer & Groves Ch 3 9 Reasons for Decision and Freedom of Information Creyke & McMillan Ch 18 30 Jan Aronson Dyer & Groves Ch 8 10 Ombudsmen and Privacy Creyke & McMillan Ch 4 & 18 6 Feb Aronson Dyer & Groves Ch 8
11 Standing and Privative Clauses Creyke & McMillan 17 & 15 13 Feb Aronson Dyer & Groves Ch 11, 17
12 Judicial Review Remedies Creyke & McMillan Ch 16 20 Feb Aronson Dyer Groves Ch 12-16 3
WEEKEND SCHOOLS 1 AND 2
There are two Weekend Schools primarily for external students. Lecture students may attend on the understanding that weekend schools are primarily for the assistance of external students.
Weekend Schools focus on solving problems from past examination papers within the scope of the given major topics. Special emphasis will be given to problems set in the class assignment.
It may not be possible to cover the entire course at the weekend schools. These programs are a general guide, and may be varied according to need. Readings are suggested to introduce you to the material to be covered in the class, to enhance your understanding of the topic, and to encourage further reading. You should not rely on lectures alone.
Weekend School 1
TIME MAJOR TOPICS KEY READING Saturday 1 December 2007 - in Carslaw Lecture Theatre 159 (CLT 159) 4.10pm-5.20pm Introduction to Administrative Law Creyke & McMillan Ch 1 & 5
5.30pm-6.35pm Rule Making Creyke & McMillan Ch 6
6.45pm-8.00pm Decision-Making in Tribunals Creyke & McMillan Ch 8
Sunday 2 December 2007 - in Carslaw Lecture Theatre 159 (CLT 159) 12.15pm-1.25pm Judicial Review: Procedural Fairness Creyke & McMillan Ch 10 Aronson, Dyer & Groves Ch 7,8,9
1.30pm-2.40pm Merits Review & Administrative Tribunals Creyke & McMillan Ch 3
2.45pm-3.55pm Judicial Review: The Framework Creyke & McMillan Ch 2 Aronson, Dyer & Groves Ch 2
Weekend School 2
TIME MAJOR TOPICS KEY READING Saturday 2 February 2008 - in Carslaw Lecture Theatre 159 (CLT 159) 4.10pm-5.20pm Legislative Scope & Purpose and Grounds of Creyke & McMillan 9 & 14 Judicial Review Aronson Dyer & Groves Ch 5.6,7 5.30pm-6.35pm Jurisdictional Error and Invalidity Creyke & McMillan Ch 15 Aronson Dyer & Groves Ch 3 6.45pm-8.00pm Reasons for Decision and Freedom of Information Creyke & McMillan Ch 18 Aronson Dyer & Groves Ch 8 Sunday 3 February 2008 - in Carslaw Lecture Theatre 157 (CLT 157) 12.15pm-1.25pm Ombudsmen and Privacy Creyke & McMillan Ch 4 & 18 Aronson Dyer & Groves Ch 8 1.30pm-2.40pm Standing and Privative Clauses Creyke & McMillan 17 & 15 Aronson Dyer & Groves Ch 11, 17 2.45pm-3.55pm Standing and Privative Clauses Creyke & McMillan 17 & 15 Aronson Dyer & Groves Ch 11, 17 4
TEXTS AND MATERIALS
Course Materials
Supplementary Materials in Administrative Law (available via the link to Law Library on the Course Materials section of the LEC Webcampus) Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Prescribed Materials
Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) Freedom of Information Act 1982 (Cth) Ombudsman Act 1976 (Cth) Freedom of Information Act 1989 (NSW) Interpretation Act 1987 (NSW) Ombudsman Act 1974 (NSW) Subordinate Legislation Act 1989 (NSW) Administrative Decisions Tribunal Act 1997 (NSW)
Recommended Text
Creyke, R & McMillan, J Control of Government Action, Text, Cases and Commentary, LexisNexis Butterworths, 2005
Reference Materials
Aronson, Dyer & Groves, Judicial Review of Admin Action, 3rd ed. Thomson Lawbook, 2004 Roger Douglas, Douglas and Jones’s: Administrative Law, 5th ed. The Federation Press, 2006 Pearce and Argument, Delegated Legislation in Australia, 3rd ed. LexisNexis Butterworths, 1999 Allars, Administrative Law: Cases and Commentary, LexisNexis Butterworths, 1997
LEC Webcampus
Once you have registered online with the LEC, you will have full access to all the facilities on the LEC Webcampus including links to Administrative Law cases and legislation on the Course Materials section.
ASSIGNMENT
In Administrative Law, there is only ONE ASSIGNMENT. This assignment is compulsory and must be submitted by all students. Students must submit the assignment by the due date (no extensions will be granted), and achieve a grade of at least 50%. The maximum word limit for the assignment is 2000 words (inclusive of all footnotes but not bibliography).
The rules regarding the presentation of assignments and instructions on how to submit an assignment are set out in the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting an assignment.
If you do not achieve 50% or more in the compulsory assignment, you will be contacted by the LEC regarding your eligibility to sit the examination.
The completed assignment should be lodged through the LEC Webcampus by 9.00am on the following date: 5
Compulsory Assignment Wednesday 16 January 2008 (Week 7)
ASSIGNMENT QUESTIONS
To obtain the Administrative Law assignment questions for the Summer Session 2007-08, please follow the instructions below:
1. Register online with the LEC (see page 27 of the Course Information Handbook for detailed instructions). Once you have registered, you will have full access to all the facilities on the LEC Webcampus.
2. Then go into the Webcampus, select the Course Materials section and click on the link to the Assignment questions for this subject. 6
PRESCRIBED TOPICS AND COURSE OUTLINE
A summary of the key features of these sub Topics is set out in the Topic Notes (see the Administrative Law Course Materials section on the LEC Webcampus).
Week 1 Introduction to Administrative Law
INTRODUCTION TO ADMINISTRATIVE LAW
Texts: Creyke & McMillan Ch 1 & 5
Accountability
The section traces the historical foundations of Australian administrative law and introduces a theme of increasing significance – accountability across the public/private divide. From one perspective, the purpose of administrative law is to safeguard the rights and interests of individuals and corporations in their dealings with government agencies. Another perspective is to define the values or principles that administrative law is designed to uphold, often described as “openness, fairness, participation, accountability, consistency, rationality, accessibility of judicial and non-judicial grievance procedures, legality and impartiality”.
The aim is to provide an understanding of key concepts and issues, aimed at an awareness of non-judicial accountability processes through: The growth of administrative law;
The creation of specialist tribunals and ombudsmen;
The impact of giving reasons for decisions, privacy and freedom of information;
The impact of the growth of information technology on decision-making; and
The concept of outsourcing of government services. The values referred to above have underpinned the growth of administrative law, particularly since the 1970s. Over the same period, however, public administration has undergone profound changes, adopting the discourse, methods and commercial imperatives of private sector corporate management. The first wave of change in public administration is often referred to as the “new managerialism” and the second wave (associated with the Hilmer reforms) “market bureaucracy”. These changes have given rise to tensions between public administration and administrative law.
The traditional view of administrative law is that it should aim to bolster the rule of law, and ensure the accountability of Executive government to the will of Parliament and, at least indirectly, of the people. In practice, the courts sometimes thwart the will of Parliament while professing to uphold it. The trend of judicial activism in immigration law cases during the late 1980s and early 1990s exemplifies a liberal view by the courts of the rights of refugees and other visa applicants which was clearly at odds with the bipartisan view of Federal Parliament that a more restrictive approach was required. Every time the courts handed down a pro-rights decision, Parliament effectively nullified it by amending the Migration Act. 7
NON-JUDICIAL ACCOUNTABILITY AND ADMINISTRATIVE LAW – WHAT IS IT ABOUT? ADMINISTRATIVE LAW IS CONCERNED WITH THE DELIVERY OF ADMINISTRATIVE JUSTICE ACCORDING TO LAW. THE CORE ELEMENTS OF ADMINISTRATIVE JUSTICE ARE LAWFULNESS, FAIRNESS AND RATIONALITY IN THE EXERCISE OF PUBLIC POWER. THEY ARE NOT MUTUALLY EXCLUSIVE. THEY BLEND INTO EACH OTHER. THEY ARE CENTRAL TO ANY JUST PROCESS OF OFFICIAL DECISION-MAKING. THERE ARE TWO MAIN GOALS OF ADMINISTRATIVE LAW: TO REDRESS INDIVIDUAL COMPLAINTS; AND TO IMPROVE THE QUALITY OF DECISION- MAKING, TO THE ADVANTAGE OF THE MANY WHO SEEK REDRESS FROM GOVERNMENT.
For some people, administrative law relates to the control of government power with the main object being to protect individual rights. Others place greater emphasis upon rules designed to ensure that administrators effectively perform their tasks. Others see accountability as the principal objective of administrative law and a sufficient end in itself. For many who hold the latter view, a key sub-goal is to foster participation by interested parties in the decision-making process. For many, resort to administrative law, especially by groups of citizens is as much a form of public protest as a means of obtaining redress. As Geoffrey Robertson once said, “the most fundamental right of all is the right to challenge the State, under a legal system which allows the possibility of winning.” Growth of Administrative Law The growth of administrative law in Australia has been a theme of the present age. The institutions that embody the Commonwealth Government's commitment to administrative law - the Ombudsman, the Administrative Appeals Tribunal, the Federal Court, and numerous other review bodies, were established by Parliament mostly in the 1970s, at a time of concern about the development of big government in Australia and its impact on the citizen. Two innovations stood out: the antiquated procedures and concepts of the past, with their prerogative writ origins, were largely being submerged; and the dominant focus of administrative law on judicial review was being downplayed as alternative methods of review by tribunals and Ombudsman were established. The parliamentary reform agenda broadened quickly in the 1980s to incorporate an additional premise for government accountability to the citizen, public disclosure of government documents and the control of government information handling. That broader theme was implemented by the enactment of the Freedom of Information Act 1982 (Cwlth) and the Privacy Act 1988 (Cwlth). In the 1990s there was a different reform emphasis but with similar objectives, best reflected in the development by government agencies of customer service charters and complaint procedures. These developments have given rise to a system of administrative law that on any world comparison is comprehensive, advanced and often, but not always, effective. It is a system that is now underpinned by three broad principles:
administrative justice, which at its core is a philosophy that in administrative decision-making the rights and interests of individuals should be properly safeguarded
executive accountability, which is the aim of ensuring that those who exercise the executive (and coercive) powers of the state can be called on to explain and to justify the way in which they have gone about that task, and
good administration, which is the principle that administrative decision-making should conform to universally accepted standards, such as rationality, fairness, consistency, and transparency. 8
The essence of administrative law is that it falls to courts, tribunals and independent review bodies to adjudicate disputes between individuals and corporate entities (as plaintiffs) and government agencies and officials (as defendants). Viewed in that sense, the review bodies play a neutral and disinterested role, of resolving each individual dispute according to law. The structural dynamic, however, is that the review bodies and the government face each other every time an action is commenced. Their relationship, accordingly, is ongoing and lively. There is tension inherent in the relationship and, in nearly every age, that tension has given rise to conflict. Creating the Legislative Framework A pivotal stage in the development of Commonwealth administrative law was the tabling in Parliament in 1971 of the Report of the Commonwealth Administrative Review Committee, commonly known as the Kerr Committee after its Chairman, Sir John Kerr, then a judge of the Commonwealth Industrial Court. The Kerr Committee had been appointed in 1968 by the Gorton Government with restricted terms of reference that envisaged a limited and catch-up phase of law reform. Three years later the Committee presented a plan for an entirely new system of administrative law that rested upon a fresh vision of the role that external review agencies should play in safeguarding the rights of the public in relation to executive decision- making. The aspiration of the Committee was “the evolution of an Australian system of administrative law”. The Kerr vision was subsequently endorsed in a modified form by two committees appointed by the McMahon Government in 1971, and which reported in 1973. The elements of the scheme proposed in the Kerr report were then largely implemented by Parliament in three Acts. The Administrative Appeals Tribunal Act 1975 (Cwlth) (AAT Act) established two bodies - an Administrative Appeals Tribunal to undertake merit review of a general range of Commonwealth decisions, and an Administrative Review Council to perform a research, advisory and coordination function. The Ombudsman Act 1976 (Cwlth) established an Ombudsman to investigate complaints of maladministration by Commonwealth government agencies. The Administrative Decisions (Judicial Review) Act 1977 (Cwlth) conferred upon the newly- created Federal Court a reformed jurisdiction to undertake judicial review of Commonwealth decision-making. Each of those Acts also affirmed the existence of a new legal right, that a person aggrieved by a government decision should be entitled upon request to be given a written statement of the reasons for the decision. Administrative Law Development The interaction of legislative followed by judicial change can best be illustrated by two examples from the period. Those to be discussed are the judicial review of immigration decision-making (the dominant field of administrative law activity in recent times), and judicial implementation of international human rights norms (probably the most talked-about aspect of contemporary administrative law). The role that legislative changes may have played in instigating the transformation of judicial attitudes cannot be overlooked. Three changes stand out. One was the creation in the ADJR Act of a statutory right to the reasons for a decision. In Kioa v West, the first decision of the High Court to decide unequivocally that natural justice applied to immigration decision- making, a majority of judges referred to this change as the most important development that 9 warranted a change to the common law principles as to when natural justice applies. The second legislative initiative was the substantial rewrite in 1989 of the Migration Act 1958 (Cwlth), most particularly to replace the Minister's unfettered discretionary powers of immigration control with a specific and detailed code of criteria to be met by those making decisions under the Act. The third change to underpin the developments was the creation by Parliament of the Immigration Review Tribunal and the Refugee Review Tribunal. The recognition in that way by Parliament that an administrative law process should be followed in immigration decision-making has coincided with an intensification by the judiciary as to what that process entails. Reasons for a Decision A contentious topic, that encapsulates some of the issues in this debate but which goes to the core of non-judicial accountability, has been the scope of the administrative obligation to provide a written statement of the reasons for a decision. In origin this was a statutory obligation, one of the important reforms introduced by the ADJR Act and the AAT Act. It was not long before there was a serious judicial attempt to extend the reform, and to formulate a broader common law obligation upon administrators to provide written reasons. ADMINISTRATIVE LAW IMPACT ON THE PUBLIC SERVICE ADMINISTRATIVE LAW HAS IMPACTED ON THE EXECUTIVE ARM OF GOVERNMENT. THERE HAS BEEN A TRANSFORMATION OF THE AUSTRALIAN PUBLIC SERVICE IN THE LAST GENERATION. MANAGEMENT REFORMS HAVE PLACED A MUCH GREATER EMPHASIS ON RESULTS. THE LAST DECADE HAS SEEN MUCH STRONGER FOCUS PLACED ON VALUE-FOR-MONEY IN SERVICE PROVISION; EXPLICIT REPORTING ON OUTPUTS AND OUTCOMES RATHER THAN INPUT AND PROCESS; THE ADOPTION OF NEW INFORMATION TECHNOLOGY; IMPROVED CLIENT FOCUS; AND THE INTRODUCTION OF SYSTEMIC MEASUREMENT AND EVALUATION OF CORPORATE AND INDIVIDUAL PERFORMANCE. THE CHANGES HAVE LED TO A MORE PRODUCTIVE APS. IT HAS BEEN ARGUED OFTEN THAT THEY HAVE MARKEDLY IMPROVED THE EFFICIENCY WITH WHICH WE MANAGE PUBLIC RESOURCES AND THE EFFECTIVENESS WITH WHICH WE APPLY THEM TO ACHIEVE OUTCOMES IN THE PUBLIC GOOD.
OUTSOURCING OF GOVERNMENT SERVICES Reference was made earlier to the growth of the outsourcing of Government services. One of the main challenges for administrative law is to maintain accountability, including transparency of process and review of decision-making, in the new world of competitive delivery of government services. Information Technology and Administrative Law This modern development has had a major impact on administrative law. Information technology has in different ways both simplified and complicated public service life. New technologies have been employed to save time and improve the quality and consistency of our outputs. However, the sheer quantity of information available through new technologies, most obviously the Internet, has bombarded public servants. Technology has also sped up the delivery of advice and services. In a world of real-time policy development, electronic transactions and service delivery by telephone and e-mail, the need to keep file notes and retain records has become more, not less, important. 10
We must be wary of allowing the use of expert systems to diminish the skills of decision- makers. There is a danger of turning our decision-makers into data processors or electronic clerks. Corporate knowledge may be lost if there is an over-reliance on experts systems in decision-making. National Security Legislation Issues
Australia’s Military Justice System
Selected Readings Legal Research – General
Australian Law Online
AustLII databases
Australasian Government Publications Guide GovPubs
Australasian Legal Information Institute AustLII
Legislation
Acts Interpretation Act 1901
Administrative Appeals Act 1975
Administrative Decisions (Judicial Review) Act 1977
Administrative Decisions (Judicial Review) Regulations 1985
Administrative Decisions Tribunal Act (NSW) 1997
Auditor-General Act 1997
Australian Courts Act 1828
Border Protection (Validation and Enforcement Powers) Act 2001
Commonwealth Authorities and Companies Act 1997
Federal Court of Australia Act 1976
Federal Court of Australia Regulations 1978
Federal Magistrates Act 1999
Financial Management and Accountability Act 1997
Freedom of Information Act 1982
Freedom of Information Act (NSW) 1989
Human Rights and Equal Opportunities Commission Act 1986
Independent Commission Against Corruption Act (NSW) 1988
Ombudsman Act 1976
Ombudsman Act (NSW) 1974
Privacy Act 1988
Privacy and Personal Information Protection Act (NSW) 1998 11
Royal Commissions Act 1902
Selected Texts
Administrative Law Bulletin – LexisNexis, Published Monthly
Administrative Law Decisions – LexisNexis, Looseleaf Service
Anderson, A & Ross, K – “Administrative Appeals Reports”, Law Book Co., 1989
Ardagh, A – “Butterworths Student Companions – Administrative Law”, LexisNexis, 2004
Aronson, Mark & Dyer, B & Groves, M – “Judicial Review of Administrative Action”, Law Book Co., 2004
Cremean, D – “Australian Journal of Administrative Law”, Law Book Co., 1993
Creyke, R & McMillan, J – “Control of Government Action: Text, Cases and Commentary”, LexisNexis, 2005
Douglas, R – “Butterworths Tutorial Series – Administrative Law”, LexisNexis, 2004
Enright, C – “Federal Administrative Law”, Federation Press, 2001
Flick, G – “Federal Administrative Law”, Law Book Co., 1989
Head, M – “Administrative Law: Context and Critique”, Federation Press, 2005
Robinson, Mark – “NSW Administrative Law”, Law Book Co., Looseleaf Service
Selected Articles
Bayne, P 'The Commonwealth system of non-judicial review', (1989) 58 Canberra Bulletin of Public Administration 43
Brennan, T 'The hidden dimension of administrative law: first tier and internal review. Part 2', (1989) 58 Canberra Bulletin of Public Administration 41
Cane P, Merits Review and Judicial Review: The AAT as Trojan Horse - Federal Law Review Vol 28 No 2 (2000)
Coghlan, A 'Can review bodies lead to better decision-making? Part 3', (1991) 66 Canberra Bulletin of Public Administration 128
Coghill K, 'Ministers in Office: Preparation and Performance' - Parliament and the Public Interest. Lectures in the Senate Occasional Lecture Series, 2000 (June 2001)
Creyke R, The Criteria and Standards for Merit Review by Administrative Tribunals - (1998) National Law Review 9
Harris A, 'Auditors-General: Policies and Politics' - Parliament and the Public Interest. Lectures in the Senate Occasional Lecture Series, 2000 (June 2001)
Harris T, Auditors-General: Policies and Politics - Australian Senate - Papers on Parliament Series - Parliament and the Public Interest Lectures in the Senate Occasional Lecture Series (2000)
McMillan J, Review of Government Policy by Administrative Tribunals - (1998) National Law Review 10
Mitchell, M 'Internal review and alternative dispute resolution: the hidden face of administrative law: 1', (1996) 79 Canberra Bulletin of Public Administration 159 12
Mulgan R, 'Public Servants and the Public Interest' - Parliament and the Public Interest. Lectures in the Senate Occasional Lecture Series, 2000 (June 2001)
O'Neil, P 'Can review bodies lead to better decision-making? Part 2', (1991) 66 Canberra Bulletin of Public Administration 123
Raff, M 'Reviewing government decisions: courts and tribunals', (1992) 17 Alternative Law Journal 85
Taylor, J 'What Should be the Role of the Auditor-General in the Context of Managerialist Government and New Public Management?', (1996) 55 Australian Journal of Public Administration 147
Monographs
AIAL Forum - The AIAL Quarterly Journal (Nos. 23-28)
Bottomley S, Government Business Enterprises and Public Accountability through Parliament - Cth Parliamentary Library Research Paper 18 1999-2000 (11 April 2000)
McMillan J, Parliament and Administrative Law - Cth Parliamentary Library Research Paper 13 2000-01 (7 November 2000)
Mulgan R, Politicising the Australian Public Service? - Cth Parliamentary Library Research Paper 3 1998-99 (10 November 1998) Papers presented at a Parliamentary Workshop, October 1989: Session 1 - An Overview of the Scrutiny System by Watchers and Watched - Uhr J, Estimates Committee Scrutiny of Government Appropriations and Expenditure: Nature, Purpose and Effects; Keating M, The Standpoint of Finance: More than a Watching Brief - Australian Senate - Papers on Parliament Series McMullan R, A Government Senator's Standpoint: Value for Money or Watching Ministerial Backs?; Coates J, A Finance and Public Administration Perspective: Complementing the Estimates Scrutiny Process
Session 2 - Questions and Answers Session: 'Are There Too Many Watchers and Not Enough Managers?' - A panel of the Speakers, chaired by Peter O'Keeffe
Session 3 - The Theory and Practice of Public Accountability - the Views of Key Practitioners - Taylor J, Auditing public expenditure and the estimates process: the role of the Auditor- General; Tickner R, Parliament, the Public Service and Accountable Management'
Pearce D, The Commonwealth Ombudsman: Present Operation and Future Developments - Australian Senate - Papers on Parliament Series - Unchaining the Watch-Dogs, Parliament House, Canberra (March 1990) Proceedings of the 'National Administrative Law Forum' - The Annual AIAL Conferences
Saunders C, The Role of the Administrative Review Council - Australian Senate - Papers on Parliament Series - Unchaining the Watch-Dogs, Parliament House, Canberra (March 1990)
Smith P, Red Tape and the Ombudsman - Australian Senate - Papers on Parliament Series - The Senate and Good Government, and Other Lectures in the Senate Occasional Lecture Series (May 1999) Spry M, Procedural Fairness and the Right to Dismiss a Senior Public Servant - Parliamentary Library Research Note 3 1999-2000 (24 August 1999)
Taylor J, Parliament and the Auditor- General - Australian Senate - Papers on Parliament Series - Republicanism, Responsible Government and Human Rights (August 1995)
Taylor J, Auditing Public Expenditure and the Estimates Process The Role of the Auditor-General - Australian Senate - Papers on Parliament Series (October 1989) 13
Taylor J, The Auditor-General - Ally of the People, the Parliament and the Executive - Australian Senate - Papers on Parliament Series - Unchaining the Watch-Dogs, Parliament House, Canberra (March 1990) 14
Week 2 Rule Making
RULE MAKING
Texts: Creyke & McMillan Ch 6
Sources of Law
The topic of rule- and policy-making invites discussion of public participation – an important value underpinning administrative law. But what is its rationale? At what stage should the public be invited to participate – before or after the agenda is set? Who does, can and should participate? What mechanisms should be put in place to facilitate participation?
Legislation made by the administration exercising power delegated by Parliament is generally called delegated or subordinate legislation, but there is a wide variety of labels to describe particular legislative instruments. In NSW, the term “statutory rule” is used to describe regulations, by-laws, rules or ordinances made, approved or confirmed by the Governor, and subject to the rule-making requirements in the Subordinate Legislation Act 1989 (NSW), Interpretation Act 1987 (NSW) and Legislation Review Act 1987 (NSW). In the Commonwealth, the rule-making requirements in the Legislative Instruments Act 2003 (Cth) apply to “legislative instruments”, defined as an instrument “of a legislative character” made in the exercise of a power delegated by Parliament. An instrument is said to be of a “legislative character” if: (see s 5)
• it determines the law or alters the content of the law, rather than applying the law in a particular case; and • it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.
An important concern is the accountability of administrators for the rules, quasi-legislation and policies that they make. Primary legislation is made in Parliament by our elected representatives. Delegated legislation is not. This requires us to explore theories of democracy that may legitimise administrative rule-making and to examine existing accountability mechanisms in the light of these theories.
Legislation and Delegated Legislation
Statutes Subordinate or Delegated Legislation
Regulations Statutory Rules Disallowable Instruments Ordinances Local laws Proclamations By-laws Declarations General Orders Directions Operational Plans Policy Directions Program Standards Instructions Codes of Practice Guidelines
Making Delegated Legislation – Procedural Controls
Antecedent publicity Drafting 15
Consultation Regulatory Impact Statements Notification and Publication Sunsetting
Parliamentary Scrutiny of Delegated Legislation
Tabling before Parliament Scrutiny Committees Other Parliamentary Committees The Need for Parliamentary Scrutiny
Statutory Interpretation
The Role of Tribunals in Interpreting Statutes General Approaches to Interpretation Use of Extrinsic Materials The Role of Legal Presumptions A method for interpreting a statute
Selected Readings
Hall, AN – “Judicial Power, the Duality of Functions and the AAT”, (1994) 22 Federal Law Review 13
Orr, R & Briese, R – “Don’t Think Twice? Can Administrative Decision Makers Change Their Minds?” (2002) 35 AIAL 11
Pearce, DC & Argument, S – Delegated Legislation in Australia, 1999, Butterworths, Sydney
Pearce, DC & Argument, S – Statutory Interpretation in Australia, 5th ed, 2001, Butterworths, Sydney
Legislation
Acts Interpretation Act 1901 (Cth) Subordinate Legislation Act 1989 (NSW) Interpretation Act 1987 (NSW) Legislation Review Act 1987 (NSW) Legislative Instruments Act 2003 (Cth) 16
Week 3 Decision-Making in Tribunals
DECISION-MAKING IN TRIBUNALS
Texts: Creyke & McMillan Ch 8
Decision-making Processes
Determination of Preliminary Questions
Decisions by Majority
Timing Issues
Formal Requirements of a Decision
Delays in Handing Down Decisions
Burden and Standard of Proof
Using Tribunal Knowledge
Structuring Decision-making
Making Findings of Fact
Assessing Credibility
Evaluating Expert Information
Weighing Evidence
Reasons
Costs
Orders
Finality
Selected Readings
Books
Forbes, JRS – Justice in Tribunals (2002) Federation Press, Sydney
Vrij, A – Detecting Lies and Deceit: The Psychology of Lying and the Implications for Professional Practice (2000) John Wiley, Chichester, New York
Guides
Administrative Review Council – Practical Guidelines for Preparing Statements of Reasons, 2000 Revised 2002
Administrative Review Council – Commentary on the Practical Guidelines for Preparing Statements of Reasons, 2000 Revised 2002 17
Articles
Goldberg, Justice A – “When are Reasons for Decisions Considered Inadequate?”, (2000) 24 AIAL Forum 1
Kirby, Justice M – “Ex Tempore Judgments – Reasons on the Run”, (1995) 25 Western Australian Law Review 213
Kirby, Justice M – “On the Writing of Judgments”, (1990) 64 Australian Law Journal 691
Kitto, Sir Frank – “Why Write Judgments?”, (1992) 66 Australian Law Journal 787
Raymond, JC – “The Architecture of Argument”, (2004) 7 The Judicial Review 39
Young, Justice P – “Fact Finding”, (1998) 72 Australian Law Journal 21 18
Week 4 Judicial Review: Procedural Fairness
JUDICIAL REVIEW: PROCEDURAL FAIRNESS
Texts: Creyke & McMillan Ch 10 Aronson, Dyer & Groves Ch 7,8,9
Grounds of Judicial Review:
1. THE IMPLICATION PRINCIPLE
Cooper v Board of Works for the Wandsworth District (1963) 143 ER 414 Ridge v Baldwin [1964] AC 40 * Kioa v West (1985) 159 CLR 550 * State of South Australia v O’Shea (1987) 163 CLR 378 * Annetts v McCann (1990) 170 CLR 596 * Re Minister for Immigration and Multicultural Affairs; Ex p Miah (2001) 206 CLR 57 Jarratt v Commissioner of Police for New South Wales [2005] HCA 50 (8 September 2005)
2. THE CONCEPT OF LEGITIMATE EXPECTATION
Attorney-General for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 * Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 (For the sequel, see: Haoucher v Minister for Immigration, Local Government and Ethnic Affairs (1992) 29 ALD 487; aff’d (1993) 120 ALR 362 (Full Fed Ct) * Attorney-General (NSW) v Quin (1990) 170 CLR 1 * Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 * Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 (12 February 2003)
3. STAGES AT WHICH PROCEDURAL FAIRNESS SHOULD BE AFFORDED
3.1 Advisory reports and recommendations * Annetts v McCann (1990) 170 CLR * Ainsworth v Criminal Justice Commission (1992) 66 ALJR 271
3.2 Where Statute Provides a Hearing, Code of Procedure or Right of Appeal Twist v Randwick Municipal Council (1976) 136 CLR 106 Marine Hull & Liability Co Ltd v Hurford (1985) 62 ALR 253, aff’d (1985) 67 ALR 77 * State of South Australia v O’Shea (1987) 163 CLR 378 * Re Minister for Immigration and Multicultural Affairs; Ex p Miah (2001) 75 ALJR 889 Calvin v Carr [1980] AC 574
4. POSSIBLE QUALIFICATIONS TO THE IMPLICATION PRINCIPLE
4.1 National Security Council of Civil Service Unions v Minister for the Civil Service 19
[1985] AC 374
4.2 Urgency South Australia v Slipper [2004] FCAFC 164 Marine Hull & Liability Co Ltd v Hurford (1985) 62 ALR 253, aff’d (1985) 67 ALR 77
5. CONTENT OF THE HEARING RULE
5.1 Must the Person who Decides Hear? White v Ryde Municipal Council [1977] 2 NSWLR 909 FAI Insurances Ltd v Winneke (1982) 151 CLR 342
5.2 Notice & Disclosure Bond v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646 * Kioa v West (1985) 159 CLR 550 * Re Minister for Immigration and Multicultural Affairs; Ex p Miah (2001) 75 ALJR 889 * Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 (6 December 2005) * SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (15 December 2006)
5.4 THE HEARING * Sullivan v Department of Transport (1978) 20 ALR 323 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 * NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (14 December 2005)
5.5 REPRESENTATION Cains v Jenkins (1979) 28 ALR 219
5.6 RULES OF EVIDENCE AND CROSS-EXAMINATION O’Rourke v Miller (1985) 156 CLR 342 Bond v Australian Broadcasting Tribunal (No 2) (1988) 84 ALR 646
6. REASONS FOR A DECISION * Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; reversing [1984] 3 NSWLR 447
7. PROBATIVE EVIDENCE Mahon v Air New Zealand Ltd [1984] AC 808 Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 See also: * Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 * Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 (12 February 2003) * Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 (17 June 2003)
8. THE RULE AGAINST BIAS Administrative Law 2007 41
8.1 Pecuniary Interest * Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 * Hot Holdings v Creasey [2002] HCA 51 (14 Nov 2002)
8.2 Reasonable Apprehension of Bias 20
* Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 Re Macquarie University; ex parte Ong (1989) 17 NSWLR 113 * Vakauta v Kelly (1989) 167 CLR 568 Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310
8.3 Actual Bias - Domestic Bodies Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Dale v New South Wales Trotting Club Ltd [1978] 1 NSWLR 551
8.4 The common law principle of necessity and statutory exclusion * Builders’ Registration Board of Queensland v Rauber (1983) 47 ALR 55 * Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
8.5 Waiver * Vakauta v Kelly (1989) 167 CLR 568
9. EFFECT OF BREACH OF PROCEDURAL FAIRNESS & DISCRETION OF COURT Kioa v West (1985) 159 CLR 550 Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (4 February 2003) Re Refugee Review Tribunal; Ex parte Aala (2001) 75 ALJR 52 21
Week 5 Merits Review & Administrative Tribunals
MERITS REVIEW & ADMINISTRATIVE TRIBUNALS
Text Book: Creyke & McMillan Ch 3
1. THE ROLE OF TRIBUNALS Overview of merits review – informal, internal, external
2. SPECIALIST AND GENERALIST TRIBUNALS Statutory Framework Nature of Decisions Physical Setting Culture and Practices Legal Representation Agency Representation Types of Applicants Formal/Informal Adversarial/Inquisitorial
3. COMMONWEALTH ADMINISTRATIVE APPEALS TRIBUNAL Administrative Appeals Tribunal Act 1975 (Cth) [AAT Act]
3.1 POWERS OF THE AAT IN RELATION TO APPLICATION FOR REVIEW * AAT Act ss 41, 42A, 42B, 42C, 43 * Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 * Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1980) 2 ALD 634
3.2 JURISDICTION * AAT Act ss 3(3), 25 Ombudsman Act 1976 s 10 Re Adams and Tax Agents’ Board (1976) 1 ALD 251 (AAT) * Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 Advisory opinions: AAT Act s 59
3.3 MEMBERSHIP AND ORGANISATION OF THE TRIBUNAL AAT Act ss 6-8, Part III
3.4 WHO MAY APPLY FOR REVIEW OF A DECISION? * AAT Act s 27 * AAT Act s 30(1A) (joinder) * Re Control Investment and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74 Re Gay Solidarity Group and Minister for Immigration and Ethnic Affairs (1983) 5 ALD 289
3.5 RIGHT TO OBTAIN REASONS FOR DECISION THAT IS REVIEWABLE AAT Act s 28
3.6 TRIBUNAL’S ACCESS TO INFORMATION * AAT Act ss 36, 36A, 37, 38
3.7 PRE-HEARING PROCEDURE 22
AAT Act s 27A (notice of reviewable decision) AAT Act s 29 (lodging application for review) AAT Act s 33(1A) (directions hearing) AAT Act ss 37, 38 (T documents) AAT Act s 34 (preliminary conferences) AAT Act s 34A (mediation) AAT Act s 35A (telephone hearings)
3.8 HEARINGS BEFORE THE TRIBUNAL * Representation: AAT Act s 32 Legal or financial assistance: AAT Act s 69 * Public hearings & restrictions on disclosure of evidence: AAT Act ss 35, 36, 36A * Opportunity to present case: AAT Act ss 33, 35, 39, 40 * Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 * Sullivan v Department of Transport (1978) 1 ALD 383, 402-403 * Australian Postal Commission v Hayes (1989) 87 ALR 283
3.9 REVIEW BY THE FEDERAL COURT * AAT Act s 44 Director-General of Social Services v Chaney (1980) 31 ALR 571 Judiciary Act s 39B, ADJR Act Australian Postal Commission v Hayes (1989) 87 ALR 283 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
4. NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL Administrative Decisions Tribunal Act 1997 (NSW) Administrative Decisions Legislation Amendment Act 1997 (NSW) 23
Week 6 Judicial Review: The Framework
JUDICIAL REVIEW: THE FRAMEWORK
Texts: Creyke & McMillan Ch 2 Aronson, Dyer & Groves Ch 2
1. JURISDICTION OF THE COURTS
1.1 High Court: “Constitutional writs” * Commonwealth Constitution 1900 s 75(iii) & (v) * Judiciary Act 1903 (Cth) s 44
1.2 Federal Court * ADJR Act * Judiciary Act 1903 (Cth) ss 39B, 44 Federal Court of Australia Act 1976 (Cth) s 32 Federal Court Rules O 54A
1.2.1 ADJR Act: Decisions Subject to Review * ADJR Act s 3(1) and Schedule 1 Migration Act 1958 (Cth) Part 8
1.2.2 What is a Decision? * ADJR Act s 3(2), (3), (5) and ss 5, 6, & 7 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Right to Life Association (NSW) Inc v Secretary, Commonwealth Department of Human Services and Health (1995) 128 ALR 238 Kelson v Forward (1995) 60 FCR 39 Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230 Edelsten v Health Insurance Commission (1990) 27 FCR 56
1.2.3 Of an “Administrative Character”? Evans v Friemann (1983) 35 ALR 428
1.2.4 “Under an enactment”? ADJR Act s 3(1) (“enactment”)
Australian National University v Burns (1982) 43 ALR 25 * General Newspapers Pty Ltd v Telstra (1993) 117 ALR 629 * Neat Domestic Trading Pty Limited v AWB Limited [2003] HCA 35 (19 June 2003) * Griffith v Tang [2005] HCA 7 (3 March 2005)
1.3 STATE AND TERRITORY COURTS Supreme Court Act 1970 (NSW) ADJR Act ss 8, 9; Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth); Re Wakim; Ex parte McNally (1999) 163 ALR 270
Administrative Law Act 1978 (Vic) Administrative Decisions (Judicial Review) Act 1989 (ACT) Judicial Review Act 1991 (Qld) Judicial Review Act 2000 (Tas)
2. JUSTICIABILITY: DECISIONS THAT A COURT MAY DECLINE TO REVIEW
R v Toohey (Aboriginal Land Commissioner); Ex p Northern Land Council (1981) 151 CLR 170 at 219-221 (Mason J) and 282-283 (Wilson J) 24
* Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 Council of Civil Service Unions v Minister for the Civil Service (“GCHQ”) [1985] AC 374 * Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 State of South Australia v O’Shea (1987) 163 CLR 378 * Griffith v Tang [2005] HCA 7 (3 March 2005)
3. JUSTICIABILITY: PUBLIC/PRIVATE
* Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 R v Panel on Take-overs and Mergers; Ex parte Datafin plc [1987] 1 QB 815 * Neat Domestic Trading Pty Limited v AWB Limited [2003] HCA 35 (19 June 2003) * Griffith v Tang [2005] HCA 7 (3 March 2005) Sydney Training Depot Snapper Island Ltd v Brown (1987) 14 ALD 464
Selected Readings
Bayne, P 'The common law basis of judicial review', (1993) 67 Australian Law Journal 781
Bayne, P 'Justiciability: the Report of the Administrative Review Council (ARC)', (1989) 63 Australian Law Journal 767
Black, The Hon. Justice M 1995, ‘The courts and the individual’, Paper presented to the Australian Institute of Judicial Administration conference ‘Courts in a Representative Democracy’, Melbourne
Blackshield, T 'The Constitution and judicial review', (1999) 74 Reform 40
Brennan, Sir Gerard 'The Purpose and Scope of Judicial Review' in Michael Taggart (ed), Judicial Review of Administrative Action in the 1980s: Problems and Prospects (1986) 19
Campbell, C 'An examination of the provisions of the Migration Legislation Amendment Bill (No. 4) purporting to limit judicial review', (1998) 5 Australian Journal of Administrative Law 135
Crock, M 'Judicial review and Part 8 of the Migration Act: necessary reform or overkill?', (1996) 18 Sydney Law Review 267
Mason, Sir Anthony 1994, ‘The importance of judicial review of administrative action as a safeguard of individual rights’, Australian Journal of Human Rights, vol. 1, no. 1, p. 8.
McMillan, J ‘Judicial Review of the Work of Administrative Tribunals – How Much is Too Much?’, Address by the Commonwealth Ombudsman, 13th Commonwealth Law Conference, Melbourne, 14 April 2003
Walker, C 'Review of the Prerogative: The Remaining Issues' [1987] Public Law 62
Wheeler, F 'Judicial Review of Prerogative Power In Australia: Issues and Prospects' (1992) 14 Sydney Law Review 432, 433–5 25
Zines, L 'Constitutional aspects of judicial review of administrative action', (1998) 1 Constitutional Law and Policy Review 50 26
Week 7 Legislative Scope & Purpose and Grounds of Judicial Review
LEGISLATIVE SCOPE & PURPOSE and GROUNDS of JUDICIAL REVIEW
Texts: Creyke & McMillan Ch 9 & 14 Aronson, Dyer & Groves Ch 5, 6 & 7
Introduction to the Topic
Legislation can never adequately address all the situations to which it will be applied. To decide whether a situation comes within the scope of an Act, it is often necessary to look beyond the language of the Act, at the context and purpose of the Act and often, at the legal setting in which the Act is to operate. One can then begin to examine the major possible grounds of judicial review.
Statutory Interpretation
Commonwealth: s 15AA of the Acts Interpretation Act 1901 New South Wales: s 33 of the Interpretation Act 1987 Victoria: s 35(a) of the Interpretation of Legislation Act 1984 Queensland: s 14A of the Acts Interpretation Act 1954 Tasmania: s 8A of the Acts Interpretation Act 1931 South Australia: s 22 of the Acts Interpretation Act 1915 Western Australia: s 18 of the Interpretation Act 1984 Australian Capital Territory: s 11A of the Interpretation Act 1967
Grounds of Review
Creyke & McMillan emphasise three major grounds of review:
• The requirement that statutory powers be exercised for an authorised or “proper” purpose
• The requirement that irrelevant matters are not taken into account
• The requirement that relevant matters are taken into account.
With regards to the ground of improper purpose, the reviewing court will imply what the proper and improper purposes are: see R v Toohey (Aboriginal Land Commissioner); Ex p. Northern Land Council. The ground is made out if it is established objectively that the decision achieves a purpose extraneous to the enabling legislation.
Bad faith is a separate ground of review that requires proof of personal fault or dishonesty (e.g. personal wrongdoing, dishonesty, malice, corruption, fraud, including fraud of a third person) but it is very difficult to prove and thus bad faith is a rarely used ground of review.
Where multiple purposes are achieved, the ground of improper purpose can become complex. The High Court has chosen to apply the so-called “motivating purpose” test. That is, the question to be asked is whether the power would have been exercised but for the improper purpose: see Thompson v Randwick Municipal Council and Samrein Pty Ltd v Metropolitan Water, Sewerage & Drainage Board. Only the power which has been conferred for that purpose can be used: see Schlieske v Minister for Immigration & Ethnic Affairs.
Relevant and irrelevant considerations for a decision-maker may be multi-faceted with any combination of legal issues, factual material, or policies. Like the improper purpose ground of review, review on grounds of relevant and irrelevant considerations does not depend on relevancy being expressly addressed in the empowering legislation. 27
If the empowering legislation does expressly address the issue, the reviewing court will still need to decide whether the legislation is exhaustive or only inclusive. Even if the empowering Act is unclear or even silent, the reviewing court will imply which considerations must be taken into account, which considerations must not be taken into account, and which matters may be taken into account or disregarded without the administrator being wrong in law: see especially Mason J’s judgment in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.
Wednesbury Unreasonableness
The unreasonableness ground of review, commonly referred to as “Wednesbury unreasonableness”, see Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 needs to be dealt with care because it may lure the reviewing court into evaluating the factual basis or the “merits” of an exercise of discretion. This is something which a reviewing court must not do.
Unreasonableness can have any number of meanings. It is, however, an independent ground of review. Difficult questions are likely to be examined. Is the court making a judgment about the reasonableness of the substantive decision or the rationality of the decision-maker? Is the court weighing the various options available to the administrator?
The High Court in a series of recent decisions has signalled that review on grounds of unreasonableness (“Wednesbury unreasonableness”) is confined to the substantive decision – the outcome of an exercise of discretion. The decision may, for example, be unreasonable because it violates accepted moral or community standards or results in unequal or inconsistent treatment of similar cases. However, the High Court has indicated that Wednesbury unreasonableness should not be used where the complaint is that the decision-maker was irrational or illogical. At the same time, the High Court appears to be recognising a separate ground of review for extreme irrationality; see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002. Many a commentator has concluded that the scope of review for unreasonableness is very sensitive to shifts between judicial activism and restraint.
The issue of proportionality may also need to be examined, in that the decision lacked reasonable proportionality. In South Australia v Tanner, the High Court was willing to ask whether delegated legislation was disproportionate to the end to be achieved and thus invalid.
Subsequently however the High Court has emphasised that proportionality is not an independent ground of review and the High Court has confined the reasoning in Tanner to judicial review of delegated legislation, and then only to legislative powers that are “purposive” (i.e. operates for a particular purpose) rather than legislative powers which operate on a particular subject matter; see Cunliffe v Commonwealth (1994) 124 ALR 120 at 176- 8.
It may also be necessary to consider whether a decision can be set aside as invalid where the decision-maker has failed to seek out relevant material. If so, it is not an independent ground of review but a type of unreasonableness, or a failure to have regard to relevant material.
Normally, the reviewing court will confine its consideration to the material that was actually or constructively before the decision-maker (with respect to constructive knowledge, see Minister for Aboriginal Affairs v Peko- Wallsend). However, reviewing courts have been prepared to receive evidence that there was material readily available and centrally relevant which a reasonable decision-maker would have inquired into – for example, information which up-dates the facts or information not within the knowledge of the applicant; see Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 561-563.
Unreasonableness
This ground rests on the premise that:
“…when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised.”
Kruger v The Commonwealth (1997) 190 CLR 1, 36 per Brennan J. Adopted also by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 650 28
Categories of unreasonableness include:
that the decision was devoid of plausible justification
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
the giving of excessive or inadequate weight to a consideration
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
making an erroneous finding of fact on a point of importance
GTE (Australia) v Brown (1986) 14 FLR 309
failure to have proper regard to departmental policy or representation
Nikac v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65
the unnecessarily harsh effect of the decision
Edelsten v Wilcox and FCT (1988) 83 ALR 99
failure to give genuine, proper and realistic consideration to a matter including making adequate inquiry as to facts
Although according to Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550, 570, ‘[t]he circumstances in which a decision will be invalid for failure to inquire are…strictly limited’
demonstrable inconsistency with other decisions;
Kruse v Johnston [1898] 2 QB 91; Fares Rural Meat and Livestock Co Pty Ltd (1990) 96 ALR 153
discrimination without a rational distinction.
The Council of the City of Parramatta v Pestell (1972) 128 CLR 305
‘Unreasonableness’ is, accordingly, a broad head of judicial review, with the potential to stem executive excess by filling gaps not covered by more specifically stated grounds. Empirical research suggests that this ground is one of the most frequently relied on by applicants, and that it is upheld in the courts in 21.1% of cases.
Acting for an Unauthorised (or Improper) Purpose
The common law position has been entrenched in paragraphs 5(2)(c) and 6(2)(c) of the AD(JR) Act.
Bad Faith and Fraud
The common law position has been entrenched in paragraphs 5(2)(d) and 6(2)(d) of the AD(JR) Act.
Considering Irrelevant Matters and Failing to Consider Relevant Matters 29
The common law position has been entrenched in paragraphs 5(2)(a) and 6(2)(a) of the AD(JR) Act.
No Evidence
The common law position has been entrenched in paragraphs 5(1)(h) and 5(3); 6(1)(h) and 6(3))of the AD(JR) Act.
Proportionality
Attempts have been made to move away from the language of unreasonableness in an effort to provide greater clarity and consistency in reviewing administrative discretion. Proportionality, for example, has been suggested as a ground of reviewing administrative action.
Grounds of Judicial Review:
1. ACTING FOR AN UNAUTHORISED (OR IMPROPER) PURPOSE
Municipal Council of Sydney v Campbell [1925] AC 338
* R v Toohey (Aboriginal Land Commissioner); Ex p. Northern Land Council (1981) 151 CLR 170
* Thompson v Randwick Municipal Council (1950) 81 CLR
* Samrein Pty Ltd v Metropolitan Water, Sewerage & Drainage Board (1982) 41 ALR 467
* Schlieske v Minister for Immigration & Ethnic Affairs (1988) 79 ALR 554; aff’d (1988) 84 ALR 719
2. BAD FAITH & FRAUD
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
Minister for Immigration and Multicultural Affairs v SBAN [2002] FCAFC 431
3. CONSIDERING IRRELEVANT MATTERS
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Roberts v Hopwood [1925] AC 578
* Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997
Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1
Ex parte S F Bowser & Co; Re Municipal Council of Randwick (1927) 27 SR(NSW) 209
4. FAILING TO CONSIDER RELEVANT MATTERS
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363
Tickner v Chapman (1995) 57 FCR 451
* Hindi v Minister for Immigration & Ethnic Affairs (1988) 16 ALD 526 30
* Prasad v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550 5. WEDNESBURY UNREASONABLENESS & IRRATIONALITY
* Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (“Wednesbury”) [1948] 1 KB 223
* Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 (17 June 2003)
5.1. Examples
Parramatta CC v Pestell [1972] 128 CLR 305
Edelsten v Wilcox (1988) 83 ALR 99
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 112 ALR 211
* Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549
Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121
5.2 Unreasonableness and the Duty of Inquiry
* Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 esp at 561-563
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
* Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Luu v Renevier (1989) 91 ALR 39
5.3 Proportionality
State of South Australia v Tanner (1988) 166 CLR 161
Cunliffe v Commonwealth (1994) 124 ALR 120 at 176-8
Selected Readings
Statutory Interpretation
Bayne, P 'Judicial review of questions of fact', (1992) 66 Australian Law Journal 96
Brennan, G 'The role of the judge', (1997) 3 Judicial Review 65
Le Sueur, A P 'The judges and the intention of Parliament: is judicial review undemocratic?', (1991) 44 Parliamentary Affairs 283
Pearce, DC & Geddes, RS – Statutory Interpretation In Australia, 5th ed, 2001, Butterworths, Sydney, Ch 3
Woolf, H 'Judicial review: the tensions between the executive and the judiciary', (1998) 114 Law Quarterly Review 579
Grounds of Review Airo-Farulla, G, "Rationality and Judicial Review of Administrative Action" - [2000] MULR 23; (2000) 24 Melbourne University Law Review 543 31
Creyke, R and Hill, G, "A Wavy Line in the Sand: Bond and Jurisdictional Issues in Judicial and Administrative Review" - Federal Law Review Vol 26 No 1 (1998) Gageler, Stephen ‘The Legitimate Scope of Judicial Review’ (November 2001) 21(3) Australian Bar Review 279
Mason, Sir Anthony, Judicial Review: A View from Constitutional and Other Perspectives - Federal Law Review Vol 28 No 2 (2000)
McMillan, J 'Developments under the ADJR Act: the grounds of review', (1992) 20 Federal Law Review 50
McMillan J, 'The Foundations and Limitations of Judicial Review' - Gilbert and Tobin Centre of Public Law - Constitutional Law Conference (15 February 2002)
Morabito, V and Barkoczy, S 'Restricting the judicial review of income tax assessments: the scope and purpose of Schedule 1(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)', (1999) 21 Sydney Law Review 36 Sidebotham, N, "Judicial Review: Is There Still a Role for Unreasonableness?" - E Law - Murdoch University Electronic Journal of Law, Vol 8, No 1 (March 2001)
Willheim, E 'Ten years of the ADJR Act: from a government perspective', (1992) 20 Federal Law Review 111 Unreasonableness
Allars M, Australian Administrative Law, Cases & Materials, Butterworths 1997
Blake, C and Sunkin, M 'Immigration: appeals and judicial review', [1998] Public Law 583
Crock, M 'The impact of the new administrative law on migrants', (1989) 58 Canberra Bulletin of Public Administration 150
McEvoy, T 'New flesh on old bones: recent developments in jurisprudence relating to Wednesbury unreasonableness', (1995) 3 Australian Journal of Administrative Law 36
Panetta, Rossana ‘Wednesbury Unreasonableness: Judicial or Merits Review?’ (2002) 9(4) Australian Journal of Administrative Law 191
Tongue, S 'Fairness in administrative decision-making: the Immigration Review Tribunal model', (1996) 9 AIAL Forum 44
No Evidence
Bowman, B 'Judicial review - "no evidence"', (1984) 14 Manitoba Law Journal 195
Keith, K J 'The Erebus case in the Privy Council', [1984] New Zealand Law Journal 35 Proportionality Jowell, J. & Lester, A. "Proportionality: Neither Novel Nor Dangerous" in Jowell, J & Oliver, D New Directions in Judicial Review (Stevens, London, 1988) 32
Week 8 – Jurisdictional Error and Invalidity
JURISDICTIONAL ERROR and INVALIDITY
Texts: Creyke & McMillan Ch 15 Aronson, Dyer & Groves Ch 3
Introduction to the Topic Judicially reviewable errors committed by administrative decision-makers (including Ministers and public servants) are traditionally categorised as "ultra vires". Judicially reviewable errors committed by lower courts and tribunals are usually referred to as "jurisdictional errors".
Jurisdictional errors may be either jurisdictional errors of law or errors in finding a fact whose existence is a condition precedent to jurisdiction. These latter types of factual errors are usually referred to as the "jurisdictional fact" doctrine.
In addition, non-jurisdictional errors of law may be judicially reviewable in exceptional circumstances, where the error appears on the face of the record of the court or tribunal. Such errors are usually referred to as "errors of law on the face of the record". After many efforts by various judges to expand the scope of error of law on the face of the record (mostly by expanding the definition of "the record"), the High Court has now drastically curtailed the scope for review of non-jurisdictional errors of law.
We will also examine the "jurisdictional fact" doctrine and "errors of law on the face of the record". We will also look at the (often confusing and unclear) distinction between questions of law and questions of fact. Since the fact/law distinction delimits the boundaries of judicial review (as opposed to merits review), we necessarily have to be able to distinguish questions of fact from questions of law. We will now focus on jurisdictional error. Traditional Doctrine *Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47
R v Gray; Ex parte Marsh (1985) 157 CLR 351
Dickinson v Perrignon [1973] 1 NSWLR 72
*Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Non-jurisdictional Errors of Law The Anisminic Doctrine The practical effect of the decision of the House of Lords in Anisminic was to abolish the distinction between jurisdictional error and error of law for administrative tribunals in England. *Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C.147
*Ridge v Baldwin [1963] 2 WLR 935
Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222
Pearlman v Keepers and Governors of Harrow School [1979] QB 56
Re Racal Communications Ltd [1981] AC 374
O'Reilly v Mackman [1982] 3 WLR 1096
R v Hull University Visitor; Ex parte Page [1993] AC 682
Boddington v British Transport Police [1998] 2 All ER 203 33
The Australian Approach to Anisminic R v Liquor Commission of the Northern Territory; Ex parte Pitjantjatjara Council Inc (1984) 31 NTR 13
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
*Craig v South Australia (1995) 184 CLR 163
R v Gray; Ex parte Marsh (1985) 157 CLR 351
*Abebe v Commonwealth (1999) 162 ALR 1
*Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
*Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Error of Law under the ADJR Act
The debate and confusion surrounding jurisdictional and non-jurisdictional errors of law, errors of law on the face of the record etc., has no application at all to judicial review under the Administrative Decision (Judicial Review) Act 1977 (Cth). Section 5(1)(f) provides for review on the ground "that the decision involved an error of law, whether or not the error appears on the record of the decision". Section 6(1)(f) provides an effectively identical review ground where administrative conduct (rather than the decision itself) is being challenged. Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238,
*Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Selected Readings
Airo-Farulla G, Rationality and Judicial Review of Administrative Action - [2000] MULR 23
Bath, V 'The judicial libertine - jurisdictional and non-jurisdictional error of law in Australia', (1982-83) 13 Federal Law Review 13 807
Beaton-Wells C, 'Judicial Review of Migration Decisions: Life after S157', (2005) 33 Federal Law Review 141
Crock, M, ‘Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?’ (1996) 18 Syd LR 267
Crock, M, "Abebe v Commonwealth; Minister for Immigration and Multicultural Affairs v Eshetu" - [2000] MULR 6
Gageler, S, "The Legitimate Scope of Judicial Review" - Australian Bar Review (3) November 2001 : 279-291
Leigh, L H 'Time limit clauses and jurisdictional error', [1980] Public Law 34 808
Markson, H E 'Jurisdictional error', (1980) 130 New Law Journal 1137
Mason Sir Anthony, The High Court as Gatekeeper - [2000] MULR 31 34
Week 9 Reasons for Decisions and Freedom of Information
REASONS FOR DECISIONS and FREEDOM OF INFORMATION
Texts: Creyke & McMillan Ch 18 Aronson, Dyer & Groves Ch 8
General Introduction
The Report of the Senate Select Committee on a Certain Maritime Incident, extracted in Creyke & McMillan Ch1, emphasises that a critical ingredient of effective accountability and public participation is the securing of sound information.
In this topic we examine both the legal avenues for obtaining information about government decisions and policies, and more generally about the information government holds. We also examine the notion of administrators giving reasons for decisions in light of the fact that there is no duty at common law for administrators to give reasons for decisions.
It is stating the obvious that it is difficult if not near impossible, to bring an action for judicial review if an applicant does not know how or why a decision was reached. Hence, the importance of reasons for decisions and mechanisms for obtaining information held by government.
The High Court in Osmond’s case refused to create a common law duty and left it to Parliaments to create a duty to give reasons. There will be an examination of two general statutory duties – s13 of the ADJR Act (Cth) and s 28 of the AAT Act (Cth).
There will also be an examination of accessing information through Freedom of Information (FOI) legislation, which has been enacted in all jurisdictions in Australia.
Such legislation provides access to documents, as distinct from reasons or government information more generally, as well as policies which impact on the public to be disclosed. FOI legislation reverses the presumption in favour of secrecy by creating a legal right of access to documents in the possession of government. This right however is subject to a range of exemptions and exclusions. A large body of case law has developed around these exemptions, particularly as governments have been slow to embrace openness.
1. REASONS FOR DECISIONS
1.1 COMMON LAW * Public Service Board of New South Wales v Osmond (1986) 159 CLR 656: reversing [1984] 3 NSWLR 447
1.2 ADJR ACT ADJR Act, ss 13, 13A, 14 and Schedule 2
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
* Minister for Immigration and Multicultural Affairs v Yusuf (2001) 74 ALJR 1105
1.3 OTHER STATUTORY DUTIES Administrative Appeals Tribunal Act 1975 (Cth) ss 28, 37, 38, 43(2), (2B)
Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183
Acts Interpretation Act 1901 (Cth) s 25D 35
AAT Act Statement of Reasons
Under s.28 of the AAT Act a person who is entitled to apply to the AAT for a review of a decision may request the decision maker to provide a:
statement
in writing
setting out findings on material questions of fact
referring to the evidence or other material on which those findings were based, and
giving the reasons for the decisions. A request for a statement of reasons must be made within 28 days of the receipt of the decision in writing. The decision maker has 28 days to provide the statement of reasons.
The applicant has a further 28 days from the sending of a request for a statement of reasons in which to lodge an AAT application for review of the decision.
ADJR Act Statement of Reasons
Under s.13 of the ADJR Act certain persons are entitled to apply to the decision maker for a statement of reasons similar to a s.28 statement under the AAT Act.
A request for a statement of reasons must be made within 28 days of the receipt of the decision.
The decision maker has 28 days from receiving the request to provide a statement of reasons.
The applicant has a further 28 days from the making of the request for a statement of reasons to commence Federal Court proceedings under the ADJR Act.
A person cannot apply for a statement of reasons when:
the person could have applied for a statement of reasons under the AAT Act;
the decision complained of contained or was accompanied by a statement of reasons; or
the decision is included in the classes of decisions in Schedule 2 of the ADJR Act. Exclusions in Schedule 2 of the ADJR Act include decisions: relating to the administration of criminal justice, including:
o the investigation or prosecution of persons for any offence against a law of the Commonwealth;
o requiring the production of documents, the giving of information or the summoning of persons as witnesses;
o decisions in connection with the institution or conduct of proceedings in a civil court, including decisions that relate to or may result in the bringing of such proceedings for the recovery of pecuniary penalties arising from contraventions of Commonwealth law. Rationale for the Giving of Reasons
At common law courts are required to give reasons for their decision. Reasons are necessary on at least two grounds - to enable the parties to understand the basis of the decision and to enable any right of appeal to be exercised.
In the executive sphere, however, there is no such obligation - there is no general common law right to reasons. Public Service Board v Osmond (1986) 159 CLR 656. Hence, any provisions for reasons have to be introduced by statutory provisions. There are, in fact, four sets of such provisions. The two major ones, which we discuss as noted above, are the Judicial Review Act 1977 and the AAT Act 1975. 36
*Public Service Board v Osmond (1986) 159 CLR 656 Re Palmer and Minister for ACT (1978) 23 ALR 196
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Collins v Repatriation Commission (1980) 48 FLR 198
Australian Telecommunications Corporation v Davis (1991) 30 FCR 467
*Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500
*Wu Shan Liang v Minister for Immigration (1995) 57 FCR 432
*Collector of Customs v Pozzolanic (1993) 43 FCR 280
Benefits for the Giving of Reasons
First, the practice of providing statements of reasons has the potential to improve the quality of primary decision- making.
Secondly, providing statements of reasons can be seen as part of a general due process requirement.
Thirdly, statements of reasons assist applicants in their consideration of whether to exercise their rights of review or appeal.
Fourthly, statements of reasons assist tribunals and courts in providing merits and judicial review.
Finally, the practice of providing statements of reasons may promote public confidence in the administrative process by disclosing the reasoning process of decision-makers to the public.
What are Adequate Reasons?
There is no succinct answer to this question. It is a matter of degree. Judges differ on this issue.
Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635
Politis v Federal Commissioner of Taxation (1988) 2 ATC 5029
Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233
Dornan v Riordan (1990) 24 FCR 564
Kermanioun v Comcare [1998] 1529 FCA
Kandiah v Minister for Immigration and Multicultural Affairs [1998] 1145 FCA
What are the Essential Requirements?
Once again, there is no definitive answer to this question, although as mentioned earlier, where the obligation is imposed by statute, ‘substantial compliance’ is sufficient.
Dodds v Comcare Australia (1993) 31 ALD 690
*Kermanioun v Comcare [1998] 1529 FCA 37
The ARC Guidelines for Preparing Statements of Reasons
This 2002 booklet aims to provide a succinct, user-friendly set of guidelines on preparing appropriate statements of reasons, based not only on what the Council considers to be the desirable policies, but also on the terms of relevant Commonwealth legislation, and taking account of court and tribunal decisions.
Eight questions or checkpoints are asked as follows:
• One, does the decision-maker have an obligation to provide a statement of reasons?
• Two, even if an obligation exists, can the decision-maker refuse to provide a statement of reasons?
• Three, assuming an obligation, what does the decision-maker need to show in the statement of reasons?
• Four, what should the decision-maker do if other or better reasons are identified after the decision is made?
• Five, how should a statement of reasons be prepared?
• Six, what should the decision-maker do where recommendations or reports are used, and where submissions are made, in coming to the decision?
• Seven, how does the decision-maker deal with instances where confidential information has been used?
• Eight, is the statement the decision-maker prepared an adequate statement?
Introduction – Freedom of Information The Freedom of Information Act 1982 ('FOI Act') was the subject of report by two inter-departmental committees and by the Senate Standing Committee on Constitutional and Legal Affairs in 1979, was a focus of vigorous public debate, and was enacted in 1982.
Prior to the commencement of the FOI Act, access to information held by the Commonwealth Government or its agencies was, generally speaking, a matter of discretion. It would appear that in many areas the norm was for people to be refused access. The FOI Act was a response to that situation.
This section will introduce you to Commonwealth Freedom of Information obligations which allow a person access to government documents. It also requires that government agencies publish information about their operations and powers as they affect members of the public. They are also required to make public their manuals and other documents used in making decisions and recommendations affecting the public. Further, unless a document comes within an excepted or exempted category under some legislation, agencies must permit access to documents in their possession. Firstly, the Freedom of Information Act 1982 (Cth) (“the Act”) will be evaluated at the practical level on whether applicants in fact do obtain access to the documents they request. Secondly, the Act will be assessed on whether it achieves its stated objectives or how functional it really is.
We will initially examine the objectives of the Act in order to provide perspective. Next, we will examine the limitations which impinge on access. These will be found in the definitions of key terms, exemption provisions, diversion of resources provisions and the provisions which provide agency discretion.
We will also identify structural and cultural obstacles to access. As such, we will also examine the complex application procedures; the costly mechanisms and lack of quality control procedures and the endemic culture of secrecy. With this background, we will examine recent case law, statistical analysis and reform proposals.
Objectives of Freedom of Information (FOI) The objectives of FOI are to provide an understanding of key concepts and issues aimed at expanding citizens’ rights in accessing government information through:
The imposition of a duty on government agencies to publish or make available, certain relevant information about the operations of departments and public authorities;
the creation of a general right of access to agency-held documents; and 38
the ability of a person’s right to annotate or amend personal records relating to that person, which are held by government agencies. Arnold v Queensland (1987) 13 ALD 195
Searle Australia v Public Interest Advocacy Centre (1992) 36 FCR 111
News Corp, News Corporation v National Companies and Securities Commission (1984) 6 ALD 83
Bodies Covered by the Act
An agency is defined (Freedom of Information (Miscellaneous Provisions) Regulations 1982 (Cth), Schedule 2; and Re Brennan and Australian Capital Territory Law Society (1984) 6 ALD 428) to mean a department or prescribed authority. A department is further defined and embraces all the Public Service departments except those concerned with the administration of the Parliament. Whereas the concept of prescribed authority is more complicated and has four major elements, as follows:
A body is a prescribed authority if it is an un-incorporated body, established for a public purpose pursuant to an Act. However, certain bodies which would fall within the definitions are specifically excluded (Sch 2 Pt 1).
A prescribed authority may be a body established by the Governor General, a Minister or a government controlled body.
A person is a prescribed authority if they hold or perform duties of an office established by an enactment. Certain such persons are specifically excluded pursuant to Sch 2 Pt 1 of the Act.
A person is a prescribed authority if they hold or perform the duties of a Governor General or ministerial appointment declared by the regulations to be a prescribed authority.
Documents Exempt from Access
The Act exempts certain types of documents from access. Sections 33 – 47 cover most of these exemptions. Statement of Reasons
Reverse FOI A Right to Access
Obtaining Access
Refusal of Access
Rights of Appeal
Recent Case Law
*Shergold v Tanner (2002) 76 ALJR 808
Secretary, Department of Workplace Relations & Small Business v Staff Developments & Training Centre Pty Ltd (2002) 76 ALJR 808
*Michael McKinnon v Secretary, Department of Treasury [2006] HCA 45
FOI Access Requests 2002-03 2003-04 2004-05 Requests 41,481 42,627 39,265 Between 1 December 1982 (the date of commencement of the FOI Act) and 30 June 2005, Commonwealth agencies received a total of 724,650 access requests. Chart 1 shows the total 39 number of access requests made for each year since the commencement of the FOI Act. It should be noted that in 1982-83 the FOI Act operated for seven months only.
Details of requests received Centrelink, the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and the Department of Veterans' Affairs (DVA) continue to receive the majority of requests. Commonly, requests made to these agencies are from clients seeking access to documents containing their own personal information. Chart 3 shows these agencies' share of the total number of requests received by all agencies this year.
Previous Major Reviews of the Freedom of Information Act 1982
ALRC Report No 77/ARC Report No 40—December 1995
Commonwealth Ombudsman Report—Needs to Know—June 1999
Senate Legal and Constitutional Legislation Committee—Inquiry into FOI (Open Government) Bill 2000 —April 2001
2003-2004 ANAO Report 57 Administration of Freedom of Information Requests 40
Commonwealth Ombudsman – Administration of the Freedom of Information Act 1982 in Australian Government Agencies, March 2006
State Ombudsman Reports and Inquiries
Selected Readings – Articles – Reasons for Decisions
Bayne, P 'Reasons, evidence and internal review', (1991) 65 Australian Law Journal 101
Bayne, P 'The inadequacy of reasons as an error of law', (1992) 66 Australian Law Journal 302
Bradley, A W 'Openness, discretion and judicial review', [1986] Public Law 508
Burnett, R 'The giving of reasons', (1983-84) 14 Federal Law Review 157 see also Gyles, R 'Commentaries', (1983-84) 14 Federal Law Review 182 see also Volker, D 'Commentaries', (1983-84) 14 Federal Law Review 178 Goldring, J 'Reasons for decisions: does Nanny know best?', (1986) 11 Legal Service Bulletin 165
Katzen, H 'Inadequacy of reasons as a ground of appeal', (1993) 1 Australian Journal of Administrative Law 33
Kelly, D St L 'The Osmond case: common law and statute law', (1986) 60 Australian Law Journal 513
O'Brien, D 'Statements of reasons for administrative decisions: ex post facto or pars rei gestae', (1990) 1 Public Law Review 217
Richardson, G 'The duty to give reasons: potential and practice', [1986] Public Law 437
Thawley, T 'An adequate statement of reasons for an administrative decision', (1996) 3 Australian Journal of Administrative Law 189
Zipser, B 'Revisiting Osmond: In search of a duty to give reasons', (1998) 9 Public Law Review 3
Selected Readings – Reports/Monographs – Reasons for Decisions
Administrative Review Council 1991 - Review of the Administrative Decisions (Judicial Review) Act: Statements of Reasons for Decisions, ARC, Canberra
Administrative Review Council 2002 - Practical Guidelines for Preparing Statements of Reasons, ARC, Canberra; Administrative Review Council 2002, Commentary on the Practical Guidelines for Preparing Statements of Reasons, ARC, Canberra
Selected Readings – Articles – Freedom of Information
Allars, M - 'Interim results of a study of the impact of the NSW FOI Act' - (1995) 56 Freedom of Information Review 18
Ardagh, A - 'Freedom of information: what does it mean for Australians?' - (1991) 8 Australian Library Review 371
Batskos, M – Putting the “O” Back Into FOI – (2000) 25 AIAL Forum 10
Bayne, P - 'Freedom of information and access for privacy purposes' - (1990) 64 Australian Law Journal 142
Bishop, K - 'Openness in public administration: can the Government keep a secret?' - (1997) 5 Australian Journal of Administrative Law 35
Brown, S – Freedom of Information - (2000) 25 AIAL Forum 6
Caldwell, I - 'Compelling public interest vs public curiosity' - (1996) 61 Freedom of Information Review 5 41
Coppel, P – The FOI Act 1982 and the FOI Act 2000 (UK): Are There Lessons We Can Learn From Each Other? – (2006) 49 AIAL Forum 1
Finn, C - 'Getting the good oil: freedom of information and contracting out' - (1998) 5 Australian Journal of Administrative Law 113
Green, A – Vexatious Applications Under FOI – (2004) 41 AIAL Forum 41
Harpur, P – FOI Disclosure of Private Sector Tender Information – 2004 National Administrative Law Forum 130
McKinnon, M – FOI, Conclusive Certificates, Public Interest and Security - 2004 National Administrative Law Forum 159
McLeod, R – Freedom of Information – (2000) 25 AIAL Forum 1
Pizer, J - 'Refusal to process a freedom of information request: a practitioner's guide' - (1998) 87 Canberra Bulletin of Public Administration 116
Smith, B - 'The demise of FOI in New South Wales' – (1994) 49 Freedom of Information Review 2
Smith, B - 'The further demise of FOI in NSW' - (1994) 52 Freedom of Information Review 45
Smith, M – Recent Developments in Freedom of Information Law – (2003) 38 AIAL Forum 43 Recent Media Articles
Costello, Peter "Economic reform Directions and the Role of The Public Service", Speech for the Australian Public Service Commission Ministerial Conversations, Parliament House, 2 November, 2005.
O'Keefe,Brendan, "ABC appeals FOI decision", Australian, November 16, 2005.
McKinnon, Michael "Treasury blocks FOI bid for tax reform files", The Australian, March 11-12, 2006.
McKinnon, Michael "Mandarins stall FOI requests", The Australian, March 14, 2006.
Moore, Matthew "High cost of freedom", Sydney Morning Herald, March 18 2006. Selected Readings – Reports/Monographs – Freedom of Information Freedom of Information Bill 1981 - Second Reading, Senator Durack Attorney-General, LP, WA, Government- 2 April 1981- Parliament of Australia
Open Government: A Review of the Federal Freedom of Information Act 1982 - The Australian Law Reform Commission
Scrutinising Government: Administration of the Freedom of Information Act 1982 in Australian Government Agencies - Commonwealth Ombudsman FOI Guidelines - Fundamental principles and procedures: Guidelines for those involved in processing FOI requests.
FOI Guidelines - Exemptions sections in the FOI Act (31 December 2005) Outline of exemptions in the FOI Act
FOI Guidelines - FOI Section 26 notices: Statements of reasons
FOI Guidelines - Reporting and disclosure obligations of agencies
FOI Guidelines - Review of FOI decisions
Annual Report on the Operation of the Freedom of Information Act 1982 for the year 2005 to 2006 Annual Report on the Operation of the Freedom of Information Act 1982 for the period 1 December 1982 to 30 June 1983 (Canberra, AGPS, 1983) 42
Victorian Ombudsman, Review of the Freedom of Information Act – Discussion Paper, May 2005.
Other reviews of the FOI Act and state based FOI include:
• Australian Capital Territory Auditor-General Report—The Freedom of Information Act, - Report No.12 2001; • Committee on the Office of the Ombudsman and the Police Integrity Commission (NSW)—First report on the inquiry into access to information, December 2002; and
• New South Wales Auditor-General Report—Performance Audit, Freedom of Information, August 2003.
Related reports
Scrutinising government: administration of the Freedom of Information Act 1982 in Australian Government agencies Commonwealth Ombudsman (2006)
Administration of freedom of information requests Australian National Audit Office (2004)
Inquiry into the Freedom of Information Amendment (Open Government) Bill 2000 The Parliament of the Commonwealth of Australia, Senate Legal and Constitutional Legislation Committee (2001)
Needs to know: own motion investigation into the administration of the Freedom of Information Act 1982 in Commonwealth agencies Commonwealth Ombudsman (1999)
The contracting out of government services Administrative Review Council (1998)
Open government: a review of the federal Freedom of Information Act 1982 Australian Law Reform Commission, Administrative Review Council (1995)
Legislation
*Freedom of Information Act 1989 (NSW)
Freedom of Information Regulation 2005 (NSW)
*Freedom of Information Act 1982 (Cth)
Freedom of Information (Fees and Charges) Regulations (Cth)
*Freedom of Information (Miscellaneous Provisions) Regulations 1982 (Cth) FOI Act (Australian Capital Territory, 1989) FOI ACT (Queensland, 1992) FOI Act (South Australia, 1991) FOI Act (Victoria, 1982) FOI Act (Western Australia, 1992) FOI Act (Tasmania, 1991) Information Act (Northern Territory, 2002) Office of the Information Commissioner (Queensland) Office of the Information Commissioner (Western Australia) 43
Freedom of Information User's Guide, Tasmanian State Government
Related Websites:
QLD - Department of Justice and Attorney-General
QLD - Office of the Information Commissioner
WA - Office of the Information Commissioner
NSW - Attorney General's Department
VIC - Department of Justice
SA - State Records of South Australia
TAS - Department of Justice
ACT - Chief Minister's Department
ACT - Department of Justice and Community Safety
NT - Office of the Information Commissioner (Northern Territory) 44
Week 10 Ombudsmen and Privacy
OMBUDSMEN and PRIVACY
Texts: Creyke & McMillan Ch 18 Aronson, Dyer & Groves Ch 8
Ombudsman Ombudsman Act 1976 (Cth)
Privacy Privacy Act 1988 (Cth)
1. OBJECT OF AN OMBUDSMAN INVESTIGATION AND GROUNDS WHICH MAY BE RELIED ON IN REPORT
Ombudsman Act 1976 (Cth) s 15
Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 134 ALR 238
2. JURISDICTION: DEPARTMENT, “PRESCRIBED AUTHORITY” AND “MATTER OF ADMINISTRATION”
Ombudsman Act 1976 (Cth) ss 3(1), 3AB, 5(1) Ombudsman Regulations Complaints (Australian Federal Police) Act 1981 (Cth)
Other Jurisdictions for noting:
Ombudsman Act 1974 (NSW) Police Regulation (Allegations of Misconduct) Act 1978 (NSW)
3. DISCRETION NOT TO INVESTIGATE A COMPLAINT
Ombudsman Act 1976 (Cth) s 6 Administrative Arrangements between Ombudsman and President of AAT
4. LODGING OF COMPLAINTS
Ombudsman Act 1976 (Cth) s 7
5. INVESTIGATIVE POWERS
Ombudsman Act 1976 (Cth) ss 9, 13, 14
6. SANCTIONS AVAILABLE TO THE OMBUDSMAN
Ombudsman Act 1976 (Cth) ss 8(10), 15, 16, 17 and 19
* Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 134 ALR 238
7. REPORT TO COMPLAINANT
Ombudsman Act 1976 (Cth) s 12
8. REFERENCE OF QUESTIONS TO THE AAT OR FEDERAL COURT, AND JUDICIAL REVIEW 45
Ombudsman Act 1976 (Cth) ss 10A, 11 and 11A Freedom of Information Act 1982 (Cth) s 56
* Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 134 ALR 238
9. PRIVACY
Privacy Act 1988 (Cth) Telecommunications (Interception) Act 1979 (Cth)
Privacy and Personal Information Protection Act 1998 (NSW) Health Records and Information Privacy Act 2002 (NSW) Workplace Surveillance Act 2005 (NSW) Listening Devices Act 1984 (NSW)
*Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199
Victoria Park Racing and Recreation Grounds Company Ltd v Taylor & Others (1937) 58 CLR 479
Grosse v Purvis [2003] QDC 151
Giller v Procopets [2004] VSC 113
Kalaba v Commonwealth of Australia [2004] FCAFC 326 Introduction to the Topic - Ombudsmen The term ‘ombudsman’ is widely used to describe any form of complaint-handler. In this sense, there is a wide array of ombudsman schemes in existence, in both the public and private sectors. From the financial sector to local government and from the removals industry to the prisons and probation service, ombudsman-type institutions have sprung up in a great many spheres in many countries. We will concentrate on the Commonwealth Ombudsman under the Ombudsman Act 1976 (Cth) and touch upon the NSW Ombudsman under the Ombudsman Act 1974 (NSW). Ombudsmen investigate ‘defective administration’, or ‘maladministration’, which gives them a very wide brief to report on a range of defects which both overlap and go beyond the matters which can be remedied in courts and appellate tribunals. Maladministration can be defined as an open-ended concept describing a situation where a public body fails to act in accordance with a rule or principle that is binding on it, extends beyond legality and also encompasses the assumption that, in their daily dealings with the public, public administrations need to observe norms and rules of behaviour designed to ensure that citizens (and, more generally, users) are properly treated and enjoy their rights fully. Ombudsmen can also initiate their own investigation – for example where systemic problems become apparent. As will be seen, other values of ombudsman review include the independence of the office; that it is easily accessible, very inexpensive and potentially speedy; that the complainant is not required to establish standing; and very importantly, that the ombudsman has extensive investigative powers.
In contrast with tribunals such as the AAT, ombudsmen investigations are generally informal and private. Ultimately the ombudsman can only make recommendations. The Ombudsman has no determinative powers, unlike courts and appellate tribunals. Ombudsmen do however have the “power of embarrassment” in their ability to make public reports to Parliament. 46
Institutional Acceptance of Ombudsmen
Across Australia, the public sector Ombudsmen receive in excess of 60,000 complaints each year against government.
That total is important in its own right, as an indication of the frequency with which people turn to the Ombudsman for assistance and the number of queries and grievances against government that are addressed each year. In jurisprudential terms the total is significant in another way. It signifies that, through the mechanism of the Ombudsman, the notion is now embedded in Australia that people have a right to complain against government, to an independent agency, without hindrance or reprisal, and to have their complaint resolved on its merits according to the applicable rules and the evidence. Acceptance of this notion permeates both popular thinking and the practice of government.
Another sign of institutional acceptance of the right to complain in Australia is the spread of the Ombudsman model in the private sector. Examination of the Ombudsman Act 1976
Background Action Subject to Review Decision to Investigate Grounds for Intervention Intervention Procedure Investigation
Commonwealth jurisdiction Defence Force Ombudsman Immigration Ombudsman Postal Industry Ombudsman Telecommunications interception The NSW Ombudsman
Essential Qualities of an Ombudsman
Selected Readings – Articles – Ombudsmen
Bakewell, R D 'The Ombudsman and politics', (1986) 45 Australian Journal of Public Administration 47
Bradley, A W 'The role of the Ombudsman in relation to the protection of citizens' rights', (1980) 39 Cambridge Law Journal 304
Del Villar, Katrine – “Who Guards the Guardians? Recent Developments Concerning the Jurisdiction and Accountability of Ombudsmen”; AIAL Forum No. 36
Evans, R 'Ombudsman under fire', (1996) 31 Australian Lawyer 8
Jones, M 'The local ombudsmen and judicial review', [1988] Public Law 608
McLeod, Ron – “Twenty Five Years of the Commonwealth Ombudsman”; ANU Public Law Weekend, Canberra, 2 November, 2002
McMillan, John – “The Ombudsman and the Rule of Law”; ANU Public Law Weekend, Canberra, 6 November, 2004 47
McMillan, John – “Accountability of Government”; ANU Forum, Canberra, 12 May 2007
Pearce, D 'The Ombudsman: neglected aid to better management', (1989) 48 Australian Journal of Public Administration 359
Sheridan, H and Snell, R 'Freedom of Information and the Tasmanian Ombudsman, 1993-1996' (1997) 16 University of Tasmania Law Review 107
Stuhmcke, Anita – “The Commonwealth Ombudsman: 25 Years On and No Longer Alone”; AIAL Forum No. 36
Stuhmcke, A 'Privatising administrative law: the Telecommunications Industry Ombudsman scheme', (1998) 6 Australian Journal of Administrative Law 15
Wentworth, E 'Australian Banking Ombudsman: consideration of Family Court matters', (1997) 38 Victorian Family Lawyer 26
Related Websites: Industry-sponsored ombudsman schemes Banking and Financial Services Ombudsman Credit Ombudsman Employee Ombudsman (SA) Energy and Water Ombudsman NSW (EWON) Energy and Water Ombudsman Victoria (EWOV) Energy Consumer Protection Office (QLD) Energy Industry Ombudsman SA Energy Ombudsman TAS Energy Ombudsman WA Private Health Insurance Industry Ombudsman Produce and Grocery Industry Ombudsman Public Transport Ombudsman VIC Superannuation Complaints Tribunal Telecommunications Industry Ombudsman REGIONAL OMBUDSMAN AND OMBUDSMAN ASSOCIATIONS European Ombudsman OmbudsNet - Integrated Information and Communication System for Ombudsman Offices in Latin America and the Caribbean The Asian Ombudsman Association The British and Irish Ombudsman Association The European Ombudsman Institute The Forum of Canadian Ombudsmen The International Ombudsman Institute The United States Ombudsman Association SELECTED NATIONAL OMBUDSMAN Argentina Belgium 48
Bulgaria Canada Chile Costa Rica Czech Republic Denmark Finland France Gibraltar Hong Kong Ireland Israel Korea Malta Mexico The Netherlands New Zealand Norway Panama Papua New Guinea Peru The Philippines Portugal Romania Republic of China/ Taiwan/ Chinese Taipei Republic of Ukraine Slovenia South Africa Spain Sweden (Parliamentary Ombudsman) 49
Uganda The United Kingdom
Selected Readings – Reports/Monographs – Ombudsmen
8 November 2006–Fighting corruption while safeguarding human rights Text of address by Prof. John McMillan to United Nations High Commission on Human Rights Conference, ‘Anti-Corruption Measures, Good Governance and Human Rights’, Poland, 8–9 November 2006. October 2006—The FOI landscape after McKinnon Text of an address by Prof. John McMillan, Commonwealth Ombudsman, to a seminar of the Australian Institute of Administrative Law, Canberra, October 2006 21 July 2006–The role of the Ombudsman in protecting human rights Address by Prof John McMillan, Commonwealth Ombudsman, to conference on ‘Legislatures and the Protection of Human Rights’, University of Melbourne, Faculty of Law. 10 July 2006–Launch of Postal Industry Ombudsman Address by Professor John McMillan, Commonwealth and Postal Industry Ombudsman 15 June 2006–Open Government - Reality or Rhetoric? Notes of a talk by Professor John McMillan to an IPAA seminar, Canberra April 2006–Administrative Tribunals in Australia - Future Directions Paper delivered by Professor John McMillan to the International Tribunals Workshop, Australian National University, Canberra 28 February 2006–Opening statement to workshop on complaint handling in Australian airports Address by Professor John McMillan to workshop on complaint handling in Australian airports
Introduction to the Topic – Privacy Do Australians Have a Legal Right to Privacy?
Legislation
Common law
Conclusion Background to the Privacy Act 1988 (Cth)
Government Sector Private Sector Other Additions to the Privacy Commissioner's Jurisdiction 50
Functions of Privacy Commissioner Investigations National Privacy Principles (Extracted from the Privacy Amendment (Private Sector) Act 2000) Principle 1 - Collection
Principle 2 - Use and disclosure
Principle 3 - Data quality
Principle 4 - Data security
Principle 5 - Openness
Principle 6 - Access and correction
Principle 7 - Identifiers
Principle 8 - Anonymity
Principle 9 - Transborder data flows
Principle 10 - Sensitive information Information Privacy Principles under the Privacy Act 1988 Principle 1 - Manner and purpose of collection of personal information
Principle 2 - Solicitation of personal information from individual concerned
Principle 3 - Solicitation of personal information generally
Principle 4 - Storage and security of personal information
Principle 5 - Information relating to records kept by record-keeper
Principle 6 - Access to records containing personal information
Principle 7 - Alteration of records containing personal information
Principle 8 - Record-keeper to check accuracy etc of personal information before use
Principle 9 - Personal information to be used only for relevant purposes
Principle 10 - Limits on use of personal information
Principle 11 - Limits on disclosure of personal information Selected Readings – Articles – Privacy
Dean, R - “A right to privacy”, (2004) 78 ALJ 114.
Greenleaf, G - “Tabula Rasa’: ten reasons why Australian privacy law does not exist” (2001) 24 UNSWLJ 262
Greenleaf, G, - “Privacy at Common Law – Not Quite a Dead Possum” (2002) 8(7) Privacy Law and Policy Reporter 129
Greenleaf, G - “Private sector Privacy Act passed (at last).” (2000) 7(7) Privacy Law and Policy Reporter 125
Hughes, Aneurin, - “A Question of Adequacy? The European Union's Approach to Assessing the Privacy Amendment (Private Sector) Act 2000 (Cth)” (2001) 24 UNSWLJ 270. 51
Narracott, M – “How Has the Private Sector reacted to the Privacy Act? – A Practitioner’s Perspective”, ANU Public Law Weekend, Canberra, 2 November 2002
Singh, Rabinder and Strachan, James, - “The Right to Privacy in English Law” [2002] 2 European Human Rights L Rev 129
Stewart, Daniel – “Protecting privacy, property, and possums: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd” (2002) 30 Fed L Rev 177
Weatherall, Kimberlee – “A Very Dynamic Issue: International Developments in Privacy in the Last 12 Months”, ANU Public Law Weekend, Canberra, 2 November 2002
Forum 2001 UNSWLJ - Volume 7, Number 1 - Valuing Privacy: Legal Protections and Exceptions
Foreword - [2001] UNSWLJ 25 Davis, Rachel
Valuing Privacy: An Overview and Introduction - [2001] UNSWLJ 1 Dixon, Tim
Privacy - in the Courts - [2001] UNSWLJ 2 Kirby, The Hon Justice Michael
The Federal Privacy Commissioner: Pursuing a Systemic Approach - [2001] UNSWLJ 3 O'Connor, Judge Kevin
'Tabula Rasa': Ten Reasons Why Australian Privacy Law Does Not Exist - [2001] UNSWLJ 4 Greenleaf, Graham
A Question of Adequacy? The European Union's Approach to Assessing the Privacy Amendment (Private Sector) Act 2000 (Cth) - [2001] UNSWLJ 5 Hughes, Aneurin
The Place of Privacy in Data Protection Law - [2001] UNSWLJ 6 Bygrave, Lee
Unprincipled Privacy: Why the Foundations of Data Protection are Failing us - [2001] UNSWLJ 7 Davies, Simon
Privacy as a Means of Engendering Trust in Cyberspace Commerce - [2001] UNSWLJ 8 Clarke, Roger 52
Week 11 Standing and Privative Clauses
STANDING and PRIVATIVE CLAUSES
Texts: Creyke & McMillan Ch 17 & 15 Aronson, Dyer & Groves Ch 11 & 17
Standing - ADJR ACT ADJR Act ss 3(4), 5, 6, 7
Standing - ADMINISTRATIVE APPEAL TRIBUNAL AAT Act s 27 AAT Act s 30(1A) (joinder)
Introduction - Standing Standing to sue - the right to commence legal proceedings - is fundamental to access our legal system. Participation in proceedings that have commenced, either as an intervenor or as a friend of the court, can be important in protecting rights or interests or in contributing to the quality of the resolution of the dispute. An applicant for review must have sufficient interest in the decision to seek review of it. In formal language, they must have standing or locus standi.
Public interest litigation has increased in the last twenty years. This increase is closely related to the growth in administrative and judicial review of government decisions and to an increase in the number of statutory 'public rights'. The increase in public interest litigation also reflects the fact that while litigation is primarily used as a means of resolving disputes between two parties, it is also an important mechanism for clarifying legal issues or enforcing laws to the benefit of the general community. For example, litigation may determine, enforce or clarify an important right or obligation affecting the community or a significant sector of the community or it may develop the law generally so as to reduce the need for further litigation. This is often the case in proceedings testing the validity of particular government actions or legislation. There are also laws creating public rights, such as those in relation to the environment and consumer protection, which rely on private enforcement as an integral part of ensuring compliance. In these types of proceedings the courts and the legislature have developed rules of standing to allow persons other than those whose immediate rights or interests are at stake to bring the matter to court. The history of standing has been one of gradual extension or liberalisation of the scope for private individuals to enforce public interest rights. There is an obvious tension here with the doctrine of separation of powers. Traditionally, as we will see, only the Attorney-General had standing to invoke the Royal prerogative and challenge the legality of a government decision, unless a person's private rights were affected. The trend by courts, both in England and Australia, towards liberalisation of standing rules certainly enhances government accountability, but may also undermine legitimate and necessary executive powers. 53
Common Law
Historically, there appeared to be a number of different standing requirements because the formula for standing varied from remedy to remedy. But the terms were fuzzy and the interests and interferences that they describe were not clearly marked out. So, while the words varied, in a practical sense there was not much difference between most of these formulas. Phrases such as “person affected” and “person aggrieved” use different words but scarcely conjure up radically different positions for an applicant. Even if there was any difference in principle, it would be overtaken by the flexibility of the formula in practice. Consequently, despite different formulas for standing for the various remedies, in practice in most cases there was little, if any, discernible difference in standing from one remedy to another. For the most part the variation was more semantic than substantive.
Prerogative Remedies
A person has standing to seek prohibition if that person was a party to the proceedings before the tribunal or inferior court against which prohibition is sought. However, a 'stranger', who is not a party to the proceedings, has standing only at the discretion of the court.
Prior to recent changes to the procedure and standing test for gaining judicial review in the United Kingdom the test of standing to seek prohibition and certiorari had already undergone liberalisation by the courts. Provided the person was not a 'mere busybody', any member of the public whose interests were affected had standing to seek these remedies in a case of a flagrant and serious breach of the law by a government authority which was continuing unchecked. See, for example, R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Assn [1972] 2 QB 299; R v Greater London Council; Ex parte Blackburn [1976] 3 All ER 184.
However, tests applying in the United Kingdom are no longer safely relied upon in Australia (see Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 73). Australian courts have not adopted the English test and tend instead to use the test of whether the applicant has a 'special interest in the subject-matter of the action', which is strictly a test of standing to seek an injunction or declaration (see later).
A person aggrieved has standing as of right to seek certiorari (see Cheatley v R (1972) 127 CLR 291). A person aggrieved is a person who has suffered damage greater than that suffered by ordinary members of the public. However, a stranger, who comes forward as a member of the general public with no particular interest in the matter, has standing only at the discretion of the court. Nevertheless, where there is a manifest want of jurisdiction, a stranger generally has standing. As in the case of prohibition, the more liberal standing test developed in the United Kingdom is not clearly applicable in Australia, and there is a tendency to have resort to the liberalised test of standing to seek an injunction or declaration, namely whether the applicant has a 'special interest in the subject-matter of the action'.
A person whose 'legal specific right' is affected has standing to seek mandamus to compel the administrator to decide, or decide again, according to law. This test of standing appears to be narrower than that for prohibition and certiorari. However, as in the case of those remedies, the standing test for mandamus underwent liberalisation in the United Kingdom through the development of the notion that only a person who was a 'busybody' in relation to the action should be excluded from seeking judicial review. A person who exercises a legal right to participate in a tribunal hearing has standing to seek mandamus in respect of the tribunal's proceedings. See Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473.
Standing of others Persons other than the Attorney-General have standing to seek an injunction or declaration in two situations. The starting point of most discussions is the decision in Boyce v Paddington Borough Council [1903] 1 Ch 109.
Special interest in subject matter of action
A second limb in Boyce's case was modified and liberalised as a result of the decision of the High Court in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 ('ACF case'). A special interest was distinguished from a 'mere intellectual belief or concern', which did not found standing. Although a special interest need not amount to a legal right, it was not established by the Australian Conservation Foundation in the ACF case. The foundation was simply a group of people sharing a common concern for the environment. 54
In Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, the High Court held that an interest of a spiritual or emotional nature may ground standing to seek an injunction. However, the special position of the aboriginals, who were the plaintiffs in Onus, in terms of aboriginal customary law, gave them standing where perhaps general environmental groups who seek standing to restrain development in breach of environmental and planning legislation may in some cases have more difficulty in establishing a 'special interest'.
Judicial Review Act
For proceedings under the Judicial Review Act there are three parties whose standing must be considered. First, there is the plaintiff. To obtain review under ss5, 6 and 7, and to obtain reasons under s13, the plaintiff must be a person who is aggrieved, that is, aggrieved by the decision, (s5) conduct (s6) or failure to make a decision. (s7)
Second, under s12 a person may join an application for review once the application is made. To do this they have to be a person interested. (s12)
Third, the Attorney General can also intervene, (s18) although the Attorney General intervenes as of right. Hence, the only standing required is to be the Attorney General.
Definition: Person Aggrieved
There is an inclusive definition of “person aggrieved” in s3(4). It defines the phrases “aggrieved by a decision,” “aggrieved by conduct,” and “aggrieved by a failure to make a decision.” In each case, a person is aggrieved when their interests are “adversely affected” by the decision, conduct or failure to decide.
Since this definition is merely inclusive and not exhaustive, there are two tests for standing, (i) a person whose interests are “adversely affected,” or a (ii) person “aggrieved” in its natural sense. Standing may be approached through either of the two phrases. As it turns out, the cases have largely ignored the definition and focused on person aggrieved itself.
The reason for this probably lies in the similarity of the two phrases – “person whose interests are adversely affected” semantically differs little from “person aggrieved.” Nevertheless the definition reveals something important. The phrase “person whose interests are aggrieved” reveals clearly that standing has two requirements, the stake or interest which the applicant has (“interest”) and a threatened interference with it (“adversely affected”), whereas in the formula in the ss 5. 6 and 7, both of these concepts are wrapped up in “aggrieved.”
Much of this has now been overtaken by the High Court’s action in translating just about all standing requirements as entailing that a plaintiff seeking judicial review must have a special interest. This is discussed below.
Decision, Conduct or Failure to Decide
While much of the attention given to standing focuses on the meaning of “aggrieved,” it is important not to overlook that under ss5, 6 and 7 respectively an applicant for review must be aggrieved by the relevant decision, conduct or failure to decide. As such, standing under the ADJR Act depends upon the applicant establishing that he or she is a 'person aggrieved'. To reiterate, the ADJR Act defines a 'person aggrieved' as a person whose interests are adversely affected by a decision or determination to which the ADJR Act applies. The test of standing therefore depends upon the decision being justiciable under the ADJR Act. See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. There is also a standing test for joinder as a party to proceedings under the ADJR Act. This is a test of 'person interested' (ADJR Act section 12). 55
Introduction – Privative Clauses A ‘PRIVATIVE CLAUSE’ IS A PROVISION IN LEGISLATION THAT PURPORTS TO EXCLUDE OR LIMIT JUDICIAL REVIEW OF DECISIONS MADE UNDER THAT LEGISLATION. Examples include clauses which:
CONFER WIDE DISCRETIONARY POWERS ON THE DECISION-MAKER
RESTRICT THE KINDS OF INQUIRY A COURT CAN ENGAGE IN
PREVENTING REMEDIES BEING GRANTED BY THE COURTS
RESTRICT THE GROUNDS FOR REVIEW
IMPOSE TIME LIMITS ON WHEN AN APPLICATION FOR REVIEW CAN BE SOUGHT
OUST THE JUDICIARY’S ABILITY TO REVIEW DECISIONS IN A PARTICULAR JURISDICTION. Hickman The High Court appeared to reconcile conflicting principles in this area in the 1945 case of R v Hickman, ex parte Fox and Clinton ("Hickman"). In a statement that came to be described as "classical", Dixon J (as he then was) set out this interpretive approach: “ The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of reg 17 is well established. They are not interpreted as meaning to set at large courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority, provided always that the decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.”
WHAT IS THE HICKMAN PRINCIPLE? There is sometimes confusion about how many "limbs" of the Hickman principle there actually are. The most common version of the Hickman principle contains only 3 limbs. A privative clause will successfully oust judicial review only if:
1. The tribunal's decision was a bona fide attempt to exercise its power.
2. The decision relates to the subject matter of the legislation.
3. The decision is reasonably capable of reference to the power given to the tribunal. However, some texts (e.g. Aronson & Dyer) add a 4th and 5th limb:
4. The decision does not display a jurisdictional error on its face;
5. The decision is not in breach of a specific statutory limitation on the tribunal's power which it is reasonable to suppose Parliament intended to be supreme (i.e. the breach is not intended to be protected by operation of the clause). 56
Limited privative clauses "FINALITY" AND "NO APPEAL" CLAUSES "NO CERTIORARI" CLAUSES (AND SIMILAR) "CONCLUSIVE EVIDENCE" CLAUSES "TIME LIMIT" CLAUSES LIMITING REVIEW GROUNDS PLAINTIFF S157 OF 2002 V THE COMMONWEALTH OF AUSTRALIA [2003] HCA 2 The Migration Act Privative Clause Section 474 of the Migration Act was inserted by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and came into effect on 2 October 2001. It contains the following privative clause: (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
Selected Readings - Standing
* ALRC Beyond the door-keeper: Standing to sue for Public Remedies Report No 78 (1996 AGPS)
Allars, M 'Standing: the role and evolution of the test', (1992) 20 Federal Law Review 83
Barker, M L 'Standing to sue in public interest environmental litigation: from ACF v Commonwealth to Tasmanian Conservation Trust v Minister for Resources', (1996) 13 Environmental and Planning Law Journal 186
Barnes, J 'Standing: environmental groups get the green light', (1990) 18 Australian Business Law Review 338
Burmester, H 'Standing to Sue for Public Remedies', (1997) 8 Public Law Review 3
Caldwell, J L 'Locus standi in administrative law', [1982] New Zealand Law Journal 21
Campbell, L 'Who should right the public wrong? The ALRC's proposal for a test for standing', (1997) 5 Australian Journal of Administrative Law 48
Cane, P 'The function of standing rules in administrative law', [1980] Public Law 303
Coyle, K A 'Standing of third parties to challenge administrative agency actions', (1988) 76 California Law Review 1061
Duns, J 'Winding up: standing and abuse of process', (1996) 4 Insolvency Law Journal 100
Enderbury, J 'Equity and public law in the law of standing: Bateman's Bay Local Aboriginal Council v the Aboriginal Community Benefit Fund Pty Ltd', (1999) 21 Sydney Law Review 129
Fisher, E and Kirk, J 'Still Standing: An Argument for Open Standing in Australia and England', (1997) 71 Australian Law Journal 370
Glindemann, R 'Standing to sue for environment protection: a look at recent changes', (1996) 24 Australian Business Law Review 246 57
Lane, P D 'Standing to sue for a declaration and injunction in the public interest', (1988) 18 Queensland Law Society Journal 115
Lynch, P 'Representative actions in the Federal Court of Australia', (1994) 12 Australian Bar Review 159
Mack, K M 'Standing to sue under Federal administrative law', (1986-87) 16 Federal Law Review 319
Naughton, T F M 'The limits of jurisdiction and locus standi in the Land and Environment Court of New South Wales', (1991) 65 Australian Law Journal 149
Nott, S 'The use of the relator action in present-day administrative law', [1984] Public Law 22 O'Connor, K 'Rights to appear before tribunals', (1981) 6 Legal Service Bulletin 225
Peiris, G L 'The doctrine of locus standi in Commonwealth administrative law', [1983] Public Law 52
Rose, A 'Standing to sue for public law remedies', (1996) 11 AIAL Forum 25
Ryland, M 'Beyond the door-keeper: standing to sue for public remedies', (1996) 69 Reform 35
Spry, M 'A "Person Aggrieved" under the ADJR Act: three recent cases on standing', (1996) 3 Australian Journal of Administrative Law 120
Taylor, G D S 'Individual standing and the public interest: Australian developments', [1983] Civil Justice Quarterly 353
Tokar, J J 'Administrative law: locus standi in judicial review proceedings', (1984) 14 Manitoba Law Journal 209
Selected Caselaw - Standing
Allan v Transurban City Link Limited [2001] HCA 58
* Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124
* Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247
Douglas v Minister for Aboriginal Affairs (1994) 34 ALD 192.
Minister for Immigration and Multicultural Affairs v Vadarlis (2001) 110 FCR 491
* North Coast Environment Council Incorp v Minister for Resources (No 2) (1994) 127 ALR 617 (See further: Tasmanian Conservation TrustInc v Minister for Resources (1995) 127 ALR 580)
* Ogle v Strickland (1987) 71 ALR 41
* Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
R v Justices of Surrey (1870) LR 5 QB 466
* Re Control Investment and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74
Re Gay Solidarity Group and Minister for Immigration and Ethnic Affairs (1983) 5 ALD 289 Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372
Right to Life Association (NSW) Inc v Secretary, Commonwealth Department of Human Services and Health (1995) 128 ALR 238 58
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
Transurban City Link Ltd v Allan [1999] FCA 1723
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 74 ALJR 604
United States Tobacco Co v Minister for Consumer Affairs (1988) 82 ALR 509; rev’d (1988) 83 ALR 79
Selected Readings – Privative Clauses
Craig, P ‘Competing Models of Judicial Review’ [1999] Public Law 428
Crock, M ‘Privative Clauses and the Rule of Law: The Place of Judicial Review within the Construct of Australian Democracy’ in Susan Kneebone (ed) Administrative Law and the Rule of Law: Still Part of the Same Package? (1999) AIAL 78.
Evans, S ‘Protection Visas and Privative Clause Decisions: Hickman and The Migration Act 1958 (Cth), (2002) 9 Aust Admin L Jo 49
Kneebone, S ‘Removing Judicial Review of Migration (Refugee) Decisions: A System in Crisis in Need of a Holistic Approach’ (2000) 11 Pub L Rev 87
Loughton, G "Privative Clauses and the Commonwealth Constitution: A Primer", unpublished paper delivered to the Australian Government Solicitor's Constitutional Law Forum at Old Parliament House in Canberra on 23 October 2002.
Sackville, R ‘Judicial Review of Migration Decisions: An Institution in Peril?’ (2000) 23 UNSW L Jo 190
Selected Caselaw – Privative Clauses
Bignell v New South Wales Casino Control Authority (2000) 48 NSWLR 462
Darling Casino Ltd v NSW Casino Control Authority (1997) 143 ALR 55
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168
Houssein v Department of Industrial Relations and Technology (1982) 148 CLR 88
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
NAAV v Minister for Immigration and Multicultural Affairs and others [2002] FCFCA 228
Osmond v Public Service Board of NSW [1984] 3 NSWLR 447
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (4 February 2003)
Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132
The Queen v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415
R v Hickman; Ex p Fox and Clinton (1945) 70 CLR 598
Shergold v Tanner (2000) 179 ALR 150
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 59
Woolworths Limited v Pallas Newco Pty Limited [2004] NSWCA 422 (19 November 2004) 60
Selected Readings – Privative Clauses
Craig, P ‘Competing Models of Judicial Review’ [1999] Public Law 428
Crock, M ‘Privative Clauses and the Rule of Law: The Place of Judicial Review within the Construct of Australian Democracy’ in Susan Kneebone (ed) Administrative Law and the Rule of Law: Still Part of the Same Package? (1999) AIAL 78.
Evans, S ‘Protection Visas and Privative Clause Decisions: Hickman and The Migration Act 1958 (Cth), (2002) 9 Aust Admin L Jo 49
Kneebone, S ‘Removing Judicial Review of Migration (Refugee) Decisions: A System in Crisis in Need of a Holistic Approach’ (2000) 11 Pub L Rev 87
Loughton, G "Privative Clauses and the Commonwealth Constitution: A Primer", unpublished paper delivered to the Australian Government Solicitor's Constitutional Law Forum at Old Parliament House in Canberra on 23 October 2002.
Sackville, R ‘Judicial Review of Migration Decisions: An Institution in Peril?’ (2000) 23 UNSW L Jo 190
Selected Caselaw – Privative Clauses
Bignell v New South Wales Casino Control Authority (2000) 48 NSWLR 462
Darling Casino Ltd v NSW Casino Control Authority (1997) 143 ALR 55
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168
Houssein v Department of Industrial Relations and Technology (1982) 148 CLR 88
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
NAAV v Minister for Immigration and Multicultural Affairs and others [2002] FCFCA 228
Osmond v Public Service Board of NSW [1984] 3 NSWLR 447
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (4 February 2003)
Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132
The Queen v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415
R v Hickman; Ex p Fox and Clinton (1945) 70 CLR 598
Shergold v Tanner (2000) 179 ALR 150
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
Woolworths Limited v Pallas Newco Pty Limited [2004] NSWCA 422 (19 November 2004) 61
Week 12 Judicial Review Remedies
JUDICIAL REVIEW REMEDIES
Texts: Creyke & McMillan Ch 16 Aronson, Dyer & Groves Ch 12-16
Introduction to the Topic
Judicial review remedies are of three types:
• The prerogative writs or orders – principally certiorari, prohibition, mandamus and habeas corpus
• The equitable remedies of declaration and injunction
• Statutory remedies, such as those available under the ADJR Act
In addition, the “constitutional writs” are available in the original jurisdiction of the High Court under s 75(v) of the Constitution: see Re Refugee Review Tribunal; Ex parte Aala. Section 75(v) gives the High Court original jurisdiction to grant prohibition, mandamus or an injunction against Commonwealth officers.
There is a limited nature to these remedies in the sense that the courts must stop short of re-exercising the administrator’s discretion. The remedies are also limited in the sense that compensation is not available on judicial review. To obtain compensation or damages for unlawful administrative action, the complaint must be framed within tort or contract. Further, all the remedies are discretionary – they may be refused even though unlawfulness has been established.
Types of Judicial Remedies
1. THE CONSTITUTIONAL WRITS
* Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
2. CERTIORARI
R v Northumberland Compensation Appeal Tribunal; Ex p Shaw [1952] 1 KB 338 R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864 Craig v State of South Australia (1995) 184 CLR 163 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 * Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
3. PROHIBITION
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
4. MANDAMUS
Randall v Northcote Corporation (1910) 11 CLR 100 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 Commissioner of State Revenue (Vic) v Royal Insurance Aust Ltd (1994) 182 CLR 51
5. HABEAS CORPUS
Minister for Immigration and Multicultural Affairs v Vadarlis (2001) 110 FCR 491
6. INJUNCTION 62
Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582 * Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247
7. DECLARATION
Dyson v Attorney-General [1911] 1 KB 410 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 * Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
8 ADJR ACT
ADJR Act ss 15, 16
Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637
9. DISCRETION OF COURT TO REFUSE RELIEF
Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (2001) 53 NSWLR 559 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 (14 July 2006) ADJR Act Probably the most important aspect of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (apart from creating a statutory right to reasons for decision) is the fact that it creates a single, all-embracing and extremely flexible remedy, the "order of review", for a breach in respect of any of the decisions or conduct covered by the Act. See ADJR Act section 16.
GENERAL LAW 1. CERTIORARI AND PROHIBITION Certiorari and prohibition probably remain the two most important remedies in judicial review, although the simplicity and flexibility of the declaration certainly makes that remedy a very attractive one. Of course, for most federal decisions the choice will be ADJR review where there is a single flexible remedy: the "order of review". However, at State level (at least in States other than Victoria and New South Wales ADJR-like statutes are available) and for review in the High Court's original judicial review jurisdiction under section 75 (v) of the Constitution, the common law prerogative writs (or orders in the nature thereof) remain critically important. 2. The nature of certiorari and prohibition Certiorari is in essence a two part remedy. The first part is an order removing the official record of the impugned decision-maker into the superior court issuing the certiorari order. The second part is an order quashing the impugned decision, and the record thereof. That is, certiorari is used to wipe the slate clean. Prohibition, on the other hand has a largely negative aspect. It prohibits the impugned decision-maker and those relying on the decision from doing something illegal which they are about to do, or from continuing on an illegal course of action already commenced. Accordingly, the main difference between certiorari and prohibition is in the timing of the application to the court. Certiorari lies for any jurisdictional error, and also for non-jurisdictional errors of law appearing on the face of the record. Prohibition, on the other hand, lies only for actual or threatened excess of power, but is not available in respect of non-jurisdictional error of law 63 on the face of the record. The reason why the writs are so confined was explained by Hayne J in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 (at para 159). 3. The decision-maker must exercise public power It is clear that public law remedies, including certiorari and prohibition, will only lie against bodies or persons exercising public power (as opposed to private power). Thus, Ministers or departments exercising powers of functions in relation to contractual matters were generally not be subject to correction by prerogative writ. Similarly, the distinction between public and private power has been critical in some dismissal or disciplinary decisions against public sector staff. A public or statutory body might have mixed functions, some private and some public. 4. Discretionary criteria for refusing certiorari and prohibition The court usually has a discretion to refuse certiorari and prohibition, even though a substantive review ground has been established. However there has long been a debate as to whether the discretion always exists. There are many judgments saying that there is no discretion where the vitiating error is "manifest" (or apparent on the face of the record), and the applicant for the remedy is a person directly aggrieved. At least in the High Court's original jurisdiction, that question appears to have been resolved by Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 , where the court approved the following statement by Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185: "If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right [my emphasis - KAP], although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course." 5. MANDAMUS -- ORDERS TO PERFORM DUTIES The prerogative writ of mandamus is a judicial command addressed to and compelling the respondent to perform a public duty. The remedy is ancient and retains significant technicalities, so that other remedies especially declaration are usually more attractive. However, mandamus is still frequently granted in the High Court's original jurisdiction, pursuant to section 75 (v) of the Constitution (it is a remedy expressly granted to the High Court). Mandamus may be expected to become even more popular having regard to the High Court's decision in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 (16 November 2000), which significantly liberalised the criteria for grant of what are now to be referred to as "constitutional writs" (rather than "prerogative writs" where one is seeking relief under section 75 (v)). 6. Bodies or people to whom mandamus lies Although one generally refers to the mandamus respondent as an "official, even a private person can be a respondent to the extent that they bear a public duty -- see e.g. Re O'Rourke (1986) 7 NSWR 64. Unlike certiorari and prohibition, mandamus has never generally been regarded as limited to cases where the respondent's powers can be classified as "judicial" or "quasi-judicial". Thus, it seems that mandamus is available in respect of a magistrate's decision on whether to commit a defendant to stand trial, even though that decision might be immune from certiorari or prohibition. 7. The nature of the duties enforced by mandamus 64
Mandamus lies to compel performance of a public duty which is justiciable and unperformed. A power (discretion) is not a duty, and a statute which says "may" usually grants only a power. Mandamus is nevertheless frequently issued in context where the statute has said "may". Whilst "may" indicates a discretion, the repository of the discretionary power is usually under a duty at least to consider its exercise, where an appropriate request is made and may sometimes even be under a duty to exercise it in a particular way if there is no permissible reason indicating why should not do so. In the latter situation the discretion has effectively run out: the repository of a discretionary power cannot exercise or declined to exercise it on arbitrary or otherwise impermissible grounds. 8. The effect of mandamus Generally speaking, mandamus consists of an order to do a positive act, rather than to desist from doing something (for which prohibition or injunction would be appropriate). Generally also, the relevant duty should not be of a continuing nature. Mandamus has no quashing effect -- if you need to quash a decision you should seek certiorari or exercise a statutory appeal right (if available). 9. ADJR's equivalent of mandamus Section 7 of the ADJR act provides: "7. (1) Where -- (a) a person has a duty to make a decision to which this Act applies; (b) there is no law that prescribes a period within which the person is required to make that decision; and (c) the person has failed to make that decision, a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Court for an order of review in respect of the failure to make a decision on the ground that there has been unreasonable delay in making the decision." Section 3 (1) defines "failure" to include "a refusal to make a decision". Query therefore whether the ADJR Act imports the common law mandamus requirement for a refusal to make a decision (as opposed to a mere "failure"). 10. DECLARATIONS A declaratory order or judgment is simply a court's declaration or statement resolving a dispute as to the meaning or application of the law applicable to a situation in which the applicant has a sufficient interest. In a strictly technical sense, the order or judgment has almost no mandatory or restraining effect at all. The orthodox view is that whilst declarations are often accompanied by consequential relief ordering or restraining certain conduct, a mere declaration cannot be executed or enforced. Theoretically, a declaration neither commands nor restrains action. It is the only remedy applicable to virtually all challenges to the legality of government decisions and conduct. Kirby J. said that the declaration's development "is one of the most important and beneficial adventures in the administration of justice during this century" -- see Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 at paragraph 89. 11. The discretion to refuse declaratory relief 65
Lockhart J. summarised the factors governing the discretion to refuse declaratory relief in Aussie Airlines Pty Ltd v Australian Airlines Limited (1996) 139 ALR 663 at 670-671: "For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows: (a) The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies. The answer to the question must produce some real consequences for the parties. (b) The applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen'; or if the Court's declaration will produce no foreseeable consequences for the parties. (c) The party seeking declaratory relief must have a real interest to raise it. (d) Generally there must be a proper contradictor. These other rules should in general be satisfied before the Court's discretion is exercised in favour of granting declaratory relief." 12. INJUNCTIONS The courts will generally only grant an injunction in public law where a statute can be characterised as evincing an intention to grant private statutory rights. Courts are reluctant to grant an injunction to a private person to enforce purely public rights. Moreover, some recent High Court dicta suggest that at least some Justices see a considerably broader and more flexible role for the injunction in public law. See, for example, Gaudron J. in Abebe v Commonwealth (1999) 197 CLR 510 at paras 104-105: "As appears from Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd, equitable remedies have a continuing role in public and administrative law. And in those areas, 'equity has proceeded on the footing of the inadequacy (in particular the technicalities hedging the prerogative remedies) of the legal remedies otherwise available to vindicate the public interest in the maintenance of due administration.' Given the potential for administrative decisions to impact on existing rights and interests, and, also, on important and valuable statutory rights to which the individual might otherwise be entitled, it may well be that an injunction will lie to prevent an officer of the Commonwealth from giving effect to an administrative decision based on error, even if that error is not jurisdictional error. ..." Statements by various Justices in Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 also suggest an emerging broader and more flexible view as to the availability of injunction in public law. Assuming that it is available, the remedy of injunction offers numerous advantages over other remedies. First, being an equitable remedy it can, like declaration, be fashioned very flexibly to fit the justice of the situation: it is not hidebound by any of the technical restrictions of the 66 prerogative writs. Secondly, it can be granted on an interim or interlocutory basis to restrain conduct pending the determination of the substantive issues in the proceedings.
Selected Readings
Beatson, J 'The discretionary nature of public law remedies', [1991] New Zealand Recent Law Review 81 839.
Caldwell, J L 'Discretionary remedies in administrative law', (1986) 6 Otago Law Review 245 840.
Howell, R H 'An historical account of the rise and fall of mandamus', (1985) 15 Victoria University of Wellington Law Review 127
Jenks, E ‘The Prerogative Writs in English Law’ (1923) 32 Yale Law Journal 523
McMillan, J 'Developments under the ADJR Act-the Grounds of Review', Federal Law Review, vol. 20 no. 1, 1991
Selected Caselaw
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247
Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31
Commissioner of State Revenue (Vic) v Royal Insurance Aust Ltd (1994) 182 CLR 51
Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Craig v State of South Australia (1995) 184 CLR 163
Dyson v Attorney-General [1911] 1 KB 410
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 (14 July 2006)
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Minister for Immigration & Ethnic Affairs v Conyngham (The Platters Case) (1986) 68 ALR 441
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Vadarlis (2001) 110 FCR 491
NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (2001) 53 NSWLR 559
Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637
Randall v Northcote Corporation (1910) 11 CLR 100
* Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864
R v Northumberland Compensation Appeal Tribunal; Ex p Shaw [1952] 1 KB 338 67
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228