Administrative Law 09 University of Sydney Law Extension Committee

Administrative Law 09 University of Sydney Law Extension Committee
Summer – 2017

Read: LEC Subject Guide Weeks 7 - 8
Ian Harvey Read: LEC Subject Guide Weeks 7 - 8

Administrative Law Guidebook
The Little Red Book Administrative Law Guidebook F Esparraga & I Ellis-Jones Chapters 6, 7 & 8 Esparraga and Jones

The Blue Book Control of Government Action Text, Cases & Commentary
Creyke McMillan and Smyth Chapters 9,12,14,16

What is Administrative Law?
That law which controls and supervises the decisions and actions of the executive arm of government in the exercise of power. It is within the arena of ‘public law’ because it deals with relations between government and citizen Fundamentally about accountability within or as an aspect of the rule of law the overarching principle of which provides for citizens to be governed by laws made by their elected representatives being laws that are to be administered justly and fairly. In certain circumstances it can also extend to non-government or domestic bodies.

Key elements of the system
Judicial review by the courts Merits review by administrative tribunals Investigation of administrative action by Ombudsmen & human rights agencies Conferral of rights of access to information under FOI legislation (variously called*) Creation of privacy rights under privacy leg All involving or impacting the citizen, Executive and the courts * eg Government Information (Public Access) Act 2009 (NSW); Information Act (NT), Right to Information Act 2009 (Qld); Right to Information Act 2009 (Tas)

Who are the decision-makers
Government departments, agencies Ministers Tribunals Commissions of Inquiry Local Councils Ombudsman Auditor-General Other domestic bodies that exercise disciplinary or other ‘public’ powers? Mitchell v Royal New South Wales Canine Council Ltd 52 NSWLR 242; [2001] NSWCA 162, [34] ff What about service corporations and contractors? Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277

Content of Administrative law
Includes : Review of government decisions Access to information Other mechanisms to enhance accountability and propriety: Royal Commissions, ICAC, human rights agencies, ombudsmen public participation eg environmental and planning decisions; rule-making processes

Review of government decision-making
Courts Legality of decisions and actions Administrators must not act ultra vires ie in excess of their power Procedures must be fair Legal reasonableness* is an essential element in the lawfulness of decision-making: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28

Review of government decision-making (cont)
Review tribunals merits & legality correct and preferable decisions Ombudsman maladministration

Access to Information Provided by: Freedom of information legislation
access to documents Reasons for decisions affecting individuals Protecting privacy of personal information

The purpose of administrative law
Two views As an aspect of the rule of law: to protect the rights and interests of the individual and prevent abuses of power To uphold standards of good administration: openness, fairness, accountability, consistency, rationality Two theories: red light – stop the State from interfering with private rights and freedoms; green light – facilitate the provision of State services and regulation

The rise of the administrative state
19th/20th C – vast expansion of fields of activity regulated by the state Rapid increase in bureaucratic power and discretion Use of government policy and ‘soft law’ Administrators make policy and choices involving value judgments Individual justice may be subordinated to policy or other objectives

The rise of the administrative state
Federation brought constitutional entrenchment of: the separation of powers judicial review of Commonwealth administrative action, s 75(v) – prerogative writs & injunction Duty of the judiciary to declare and enforce the law Unresolved procedural vagaries meant that the scope of s 75(v) jurisdiction lay largely unexplored for most of last century Enter the 1970s and the advent of the ‘new administrative law’ – the Kerr Committee Report (1971), the Bland Committee Reports (1973) & the Ellicott Committee Report (1973) led to ADJR, AAT, Ombudsman. Further supplementary initiatives led to enactment in early 1980s of FOI Act and s39B Judiciary Act s75(v) - In all matters ….in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction; semble s 39B Judiciary Act re Federal Court

Administrators’ concerns with external review
Accountability mechanisms impede efficiency Such review interferes with policy decisions Procedures are resource-intensive Grounds of judicial review are vague Different or inconsistent interpretation of legislation problematic The tension between policy or political objectives of government and development of judicial review principles has arguably been played out most publicly in two areas – immigration control & refugees AND anti-terrorism measures – case studies illustrate

Changes in the way government is delivered
Privatisation: sale of some government functions to the private sector (Cth Bank, Qantas, Telstra) Impose on statutory authorities private-sector business structure (Aust Post, HIC, CAA) Outsourcing contracting out (detention centres, prisons) require consumers to purchase services from external private sector providers Implications for accountability – Blue * What administrative law mechanisms and remedies will apply to private sector bodies?

The public/private distinction
Administrative law rests on a distinction between public (governmental) and private bodies and decision-makers Public law remedies are generally only available in the public sphere But the distinction has been blurring ASE, Law Societies, Racing Clubs have legislative backing for aspects of their regulatory role What is the province of administrative law in respect of the activities of such (private) bodies?

Public/Private distinction cont’d
The reach of judicial review is uncertain – Forbes v NSW Trotting Club (Blue Book 2.5.7C); Neat Domestic Trading P/L v AWB Ltd (Blue C) Does it depend on: sourcing the power to statute? a functional understanding of “public power”? High Court has not yet followed the UK Court of Appeal reasoning in Datafin plc (Blue 2.5.8C) – governmental nature of the power exercised.

Discretionary power to intervene in the affairs of a voluntary or private tribunal
Long recognized that a superior court has power at common law to intervene in a limited way albeit that there is no definitive authority as to the basis for that jurisdiction; Mitchell v Royal NSW Canine Council Ltd [2001] NSWCA [34] –[39] where necessary for the attainment of justice Often enlivened where the rules of a club have been breached and disciplinary proceedings provided for by the rules ensue. MITCHELL v ROYAL NEW SOUTH WALES CANINE COUNCIL LTD Facts: The appellant was a breeder and judge of Papillon dogs. She was also a member and director of the respondent, a voluntary association. The appellant was charged with an offence of "misconduct" arising from false statements made by her during various campaigns for her election as a director of the respondent. A disciplinary committee of the respondent found the appellant guilty of misconduct and ordered that she retract the false statements or pay a $2,500 fine. The appellant appealed this decision to the respondent's appeal committee and while initially refused, an appeal did take place. The appeal was allowed in part with a fine of $100 substituted as the penalty, but during the appeal process the appellant commenced an action in the Supreme Court for orders setting aside the decision of the original committee of inquiry. The summons to set aside the original decision was heard by Simpson J and dismissed. The appellant appealed this decision. The following grounds of appeal were raised in the Court of Appeal: (a) The Committee of Inquiry failed to make essential findings of fact, and (b) The findings of the Committee of Inquiry were ambiguous, resulting in gross unfairness to the appellant. HELD Per Ipp AJA, Mason P and Stein JA agreeing The respondent, by virtue of its articles of association, had power to convene a committee to carry out inquiries and investigations in relation to misconduct or breach of its rules. These articles, rules and provisions provided a structure for the conduct of any inquiry or investigation and definitions of misconduct and dishonest or prejudicial conduct. Although the respondent had in place its own internal disciplinary procedures the courts have a discretionary power to intervene in the internal affairs of voluntary tribunals. The power is usually regarded as being derived from the presence of a contract or consensus among members of voluntary organizations but may also be based on broad principles of justice. (Scandrett v Dowling (1992) 27 NSWLR 483 and Australian Football League v Carlton Football Club Limited [1998] 2 VR 546 discussed) The two grounds raised by the appellant are best understood by reference to the specific charge of misconduct which she faced. The charge itself was duplicitous in that while it identified a single charge of "misconduct” that charge in fact contained elements of at least two separate charges. The rule against duplicitous charges is a matter of elementary fairness, to protect against the injustice that arises where a person charged does not know what exactly they have been charged with or found guilty of. (Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, Walsh v Tattersall (1996) 188 CLR 77, Vrisakis v Australian Securities Commission (1993) 9 WAR 395, Duncan v Medical Disciplinary Committee [1986] 1 NZLR 537, R v General Medical Council, Ex parte Gee [1986] 1 WLR 226, Gee v General Medical Council [1987] 1 WLR 564 discussed) Ground 1 In relation to the first ground of appeal the Committee of Inquiry failed to make reference to any mental element involved in the misconduct, such that there was no finding that the false statements were made dishonestly, recklessly or negligently. From the failure to refer to this necessary mental element the findings of the Committee of Inquiry are materially ambiguous or defective and are incapable of grounding the misconduct charge. Ground 2 In relation to the second ground of appeal the duplicitous nature of the charge resulted in the findings of the Committee of Inquiry being contrary to the principles of common justice, unfair in a material respect necessitating the intervention of the Court.

Bases for the extension
“the authority of such proceedings over members has its juridical foundation in contract”: Tsoukaris v Royal Motor Yacht Club of NSW Ltd [2012] NSWSC 1190 per McCallum J at [10]. The derivative or overarching common law principle is natural justice or procedural fairness but the variable content or scope of its application in a given case may take shape from the rules of the club ‘resting on a consensual basis’.

Public participation Rise of the administrative state  increased areas of regulation and discretion in the hands of administrators Now many regulatory processes make provision for input into decision-making processes Environmental and planning law set out prescribed procedures for such input Notices of proposed rule-making by agencies eg CASA, Air Services Australia Directed at ensuring accountability and reasonableness of administrative rule making How effective are these processes? Can public participation adequately complement the more structured elements of the administrative state?

Theoretical bases of participation
Interest group pluralism Decisions may result from ‘deals’ struck with competing interests; query transparency of process? How has participation been facilitated? Are all interests sufficiently represented and by what means? How are better outcomes assessed? Pressure from powerful industry groups may remain. Are broader political inputs/interests to be accommodated? Civic republicanism Values public participation in decision-making. Based on empirical data or assumptions? Relies on active citizen participation – civic duty Consistency/problematic? Apathy, unequal capacities to participate, cultural constraints etc.

Rule Making Administrators are significant law makers & ‘quasi-law’ makers They make subordinate legislation, aka ‘delegated legislation’ A rule made by an executive body pursuant to an authority delegated to it by the legislature Concerned here with delegated legislation/rules that have the force of statute and are BINDING cf policies, guidelines, rulings or other instruments that are not binding

Subordinate legislation includes…
Regulations , by laws, statutory rules or ordinances made by the Governor (State) or Governor General (in Council) (Cth) Legislative instruments (Cth) must be legislative in character, made in the exercise of subordinate power But unlike primary legislation, delegated legislation is not passed by Parliament, but usually required to be tabled in Parliament

Quasi legislation Includes principles, guidelines, schemes, management plans etc Instruments not binding but may set out standards, procedures, methods etc to be observed  a “quasi” form of law-making Contrasting policy and less formal ‘advisory’ instruments  uncertain legal consequences

Rule making & separation of powers
Primary legislation made by elected representatives accountable to parliament Inconsistency with separation of powers doctrine such that administrators may have a combined role of law-making and law-enforcing But borne of practical necessity to allow for the promulgation of detail or procedural matters needed for the efficacy of the primary legislative scheme or regulation

Commonwealth delegated legislation
Historically drafted by Office of Legislative Drafting within AG’s Department (OLD) on the instructions of officers from the relevant sponsoring Minister’s department Regulations/ Stat rules were subject to procedural requirements of Part XII Acts Interpretation Act 1901 Notified in gazette Take effect from date of notification unless otherwise specified Cannot prejudice existing rights Void if made in contravention of these requirements Tabled in each House of parliament within 15 days of being made and open to disallowance within further 15 days if its enabling legislation declared it to be a statutory rule or otherwise disallowable

Not all rules subject to these formal procedures
Many new types of instruments began to emerge from the 1970s onwards Significant body of law developed that was not published or subject to parliamentary scrutiny The result? People could be held responsible for failure to comply with laws to which they did not have access Problems exposed in ARC report 1992 “Rule Making by Commonwealth Agencies”

First sea change Legislation Act established a comprehensive regime for the making, publication and review of legislation and related material To be read with Legislative Instruments Act 2003 and Legislative Instruments Regulations 2003 Substantially re-enacted Pt XII of the AIA Act and extended operation to all legislative instruments Established the Federal Register of Legislative Instruments But not all instruments made under law are ‘legislative instruments’.

LIA Act 2003 Created a concept of legislative instrument based on what an instrument did rather than what is was called Required the registration of all new legislative instruments made on or after 1 January 2005 Repealed any older legislative instrument that was not lodged for registration before 1 January 2008, under what was known as ‘backcapture’ required the online publication of every type of instrument to improve public access and facilitate parliamentary scrutiny of leg instruments

Legislative instruments
Particular characteristics relate to the effect they have on rights and entitlements S 5 LIA definition Instrument taken to be of a legislative character if it determines the law or alters the content of the law rather than applying it in a particular case; and If it has the direct/indirect effect of affecting a privilege or interest, imposing an obligation, creating a right or varying or removing an obligation/right

Second sea change – 2008 - 2016 Review of LIA in 2008/9
identified need for greater consultation before making legislative instruments higher standards of drafting for legal effectiveness, clarity and intelligibility mechanisms to ensure periodic review and repeal where no longer serving intended purpose

Recent changes Enter – the Acts and Instruments (Framework Reform) Act 2015 - provides a single framework for registration, publishing and management of all Commonwealth Acts and instruments: Federal Register of Legislation incorporates the requirement for publishing into the LIA ( repeals Acts Publication Act 1905) renamed LIA as the Legislation Act 2003

Legislation Act 2003 extends to Commonwealth Acts, the publication of which was previously governed by a separate Act establishes a new category of “notifiable instrument”, for notices of a legal nature that are not legislative but still of long -term public interest; does not change existing requirements relating to the development and scrutiny of legislative instruments (e.g. disallowance and sunsetting).

Accountability No common law duty to consult
Legislation may provide for consultation Notice of Proposed rule making procedures may be in place in some agencies Scrutiny by parliamentary committees if required to be tabled Regulatory Impact Statements - introduced to improve government decision-making through a disciplined or sequential process as a feature of the evolving development of policy underpinning regulation The key elements to that process include an element of consultation

Regulatory Impact Statement
A RIS is required for all Bills and Regulations unless an exemption is granted by the Office of Best Practice Regulation (OBPR) When needed they are included as part of the Explanatory Memoranda for Bills. EMs for each Bill can be found on the Federal Register of Legislation. EMs for Regulations don’t necessarily contain the RIS but include the RIS number Each piece of legislation must also contain a “Statement of Compatibility with Human Rights” This is also included in the EM usually after the RIS.

To find a RIS Use the web site. Find the Bill you want , then click the” Explanatory Memorandum tab” and it will bring up the EM for the Bill, which will include the RIS as well. An example is the Narcotic Drugs Amendment Bill 2016 to amend the Narcotic Drugs Act 1967 to ensure that any therapeutic product, including medicinal cannabis, meets Australia’s strict international safe-guards concerning production, manufacture and distribution of drugs for medical and scientific purposes only. See the link below. You can download the EM (with RIS) from the link. Here’s a very good link from the OBPR which contains lots of RISs

What you need to know Federal Register of Legislation - one stop shop being a single authorative data base for Acts and and all instruments New category of ‘notifiable instruments’ which are not legislative in nature ie not subject to parliamentary scrutiny or sun-setting machinery instruments commence, repeal, amend approved forms become notifiable by (i) registration; (ii) being prescribed under the LA (iii) declared in enabling law

What you need to know (cont)
The need for consultation before an instrument is made - the rule maker decides what is ‘appropriate’ and ‘reasonably practicable’ – but failure to consult does not mean invalidity or unenforceability Allows for retrospective operation only in beneficial circumstances or where express provision is made in the enabling Act Bottom line – always go to the primary or enabling legislation to see if it affects the meaning or operation of any subordinate legislation made under it

Parliamentary scrutiny
LA establishes, with some exceptions, a single regime for parliamentary scrutiny and disallowance of legislative instruments all legislative instruments that are registered must be tabled in each House of Parliament unless an exemption applies, they may be disallowed by either House

Disallowance If notice of motion to disallow is given but is not dealt with within 15 sitting days of tabling, the legislative instrument is automatically disallowed. If a legislative instrument is disallowed, or is not tabled within 6 sitting days of registration, it ceases immediately and any amendment or repeal made by it is undone. A legislative instrument that is open to disallowance, or that has been disallowed in the last 6 months, generally cannot be remade This requires an assessment whether it has “the same effect” as an earlier instrument: Perrett v Attorney-General of the Commonwealth of Australia [2015] FCA 834

Senate standing Committee on Regulation and Ordinances
assesses delegated legislation against a set of principles that focus on individual rights and liberties and standards of parliamentary propriety SO 23 - The committee examines each legislative instrument tabled in the Parliament to ensure that: it is in accordance with the enabling statute; it does not trespass unduly on personal rights and liberties; it does not make the rights and liberties of citizens unduly dependent on administrative decisions which are not subject to merits or judicial review; and it does not contain matter more appropriate for parliamentary enactment

Justiciability Judicial review is not available for challenging ALL governmental decisions or actions. Blue Book – pp The concept of justiciability seeks to define the circumstances in which judicial review is available. It may be equated “in its primary sense” with judicial power – per Sir Anthony Mason

Justiciability (cont)
Involves looking at: Nature of the issue Standing of party to commence proceedings Ground of legal error asserted Nature of relief claimed Procedural limitations eg time, alternative avenues of review Exercise of federal judicial power must involve a ‘matter’ as defined in ss 75, 76 Constitution Some immediate right duty or liability to be determined by the Court Original jurisdiction of HC includes any matter: (i) arising under this Constitution, or involving its interpretation; (ii) arising under any laws made by the Parliament; (s 76) ‘Matter’ requires existence of a real controversy – not a request for a judicial opinion on a hypothetical question A person with a theoretical or ‘political’ interest in the subject matter about rights, duties or liabilities of others will not have ‘standing’ and no ‘matter’ will be enlivened by any such interest. A person who was not a party to litigation does not have standing to appeal a decision involving the parties to that litigation or have a judicial decision reviewed and quashed because it is considered erroneous: Re McBain at Blue Book 78-79

Justiciability (cont)
There are no settled categories of justiciability. Many executive activities are shielded from judicial review by principles of non-justiciability. Beyond broad doctrinal issues as to the restriction of jurisdiction to ‘matters’ and the exclusion of hypothetical issues or where the decision in question relies on political or other considerations rather than legal standards, the courts have considered whether various administrative decisions are justiciable: A government decision involving the exercise of a prerogative power. A cabinet decision. A decision with a close relationship to national security. A decision made in the conduct of international relations. See CCSU, Peko, Hicks – Blue Book pp Council of Civil Service Unions v Minister for the Civil Service – Blue book pp

Appeals cf Judicial Review
An application for Judicial Review, although seeking reconsideration of a lower court or tribunal decision, is not part of the appellate process. Judicial review is undertaken by a court exercising its original and supervisory jurisdiction makes orders in the nature of prerogative remedies or as provided for by statute eg ADJR Act remedies

Types of Appeal 1 First, an appeal “strictly so called” is where the question is whether the judgment complained about was right when given and there is no issue of introducing fresh evidence in the appeal court. All that is decided upon an appeal stricto sensu is whether the court below came to the right decision on the material that was before it. The High Court has held that applications to the appellate jurisdiction of the Court pursuant to s73 Constitution are strict appeals for which special leave must first be granted by the Court

Types of appeal 2 Generally an appeal from a single judge to a Full Court or Court of Appeal will be by way of ‘rehearing’. (S 24 Fed Court of Aust Act 1977) This means appeal judges will consider for themselves the issues raised below and the effect of the evidence that was adduced below and, exceptionally, any further evidence allowed and will consider the law as it is at the time of appeal not as it was at the time of trial. Significant errors of fact may be corrected by the appeal court. The appeal proceeds essentially on the basis of the record (transcript) before the trial judge.

Types of appeal 3 A hearing ‘de novo’ may arise where a right of appeal to a court from an administrative body is given under statute. This essentially means that the appeal is conducted as an original cause with the evidence given afresh but with the Court exercising a broad discretion as to the procedure to be followed eg as to receiving fresh evidence: Portal Software v Bodsworth [2005] NSWSC 1115 at [17] The appellant does not have to demonstrate error on the part of the administrator

Which type of appeal? Which of these three kinds of appeal is designated by a statutory provision will depend upon the legislative intention as disclosed by an examination of the legislation as a whole: see Westmite Pty Ltd v Law Society of South Australia (1999) 73 SASR 454 at 455. Which type of appeal is given by a particular Act will depend upon its construction.

Special Leave to the High Court
Parties wishing to appeal from a judgment of the Federal Court or Supreme Court of a State/Territory to the High Court are required to file a special leave application with the High Court. This is within the appellate NOT original jurisdiction of the High Court (ie it is NOT a procedure that relates to applications for constitutional writ or other relief under s 75 Constitution ) The criteria for granting special leave to appeal is set out in s 35A Judiciary Act 1903

AAT Appeals In respect of appeals from administrative authorities, the type of appeal may be affected by the legislation under which the appeal is granted or which governs the administrative decision-making process below AAT appeals to the Federal Court are constrained by the terms of s 44 of the AAT Act These appeals are, peculiarly, within the original jurisdiction of the Federal Court and are more akin to judicial review on a question of law

Sec 44 – question of law An appeal from the AAT may only be brought on a pure question of law: s 44. S 44 defines the jurisdiction of the Court such that It is the question of law which is the subject matter of the appeal: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at [19]–[21]. Absent a question of law, the appeal is incompetent. An applicant must identify a question of law in the Notice of Appeal. A mixed question of fact and law is not a question of law within the meaning of s 44: Comcare v Etheridge (2006) 149 FCR 522 at [16]. A finding of fact cannot be reviewed on appeal unless that finding is vitiated by an error of law: Waterford v Commonwealth (1987) 163 CLR 54 at 77 (Brennan J).

What is a question of law?
Asserting that the Tribunal erred in law in making a particular finding does not elevate a factual finding to a question of law : Secretary, Department of Education, Employment and Workplace Relation v Ergin (2010) 54 AAR 60 Further, an assertion that the findings are against the weight of the evidence is not a question of law Whether there is a s 44 question of law will mostly depend on the particular decision under challenge, and the issue a litigant seeks to agitate involving the interpretation and application of particular legislation

Judicial Review of AAT decisions
Even if a pure ‘question of law’ cannot be framed for the purpose of s 44, it may be open to seek judicial review of a decision of the AAT either under the ADJR Act or pursuant to s 39B of the Judiciary Act. However, an application for judicial review that is in truth an invitation to the Court to undertake a review of the merits of the claims made by the applicant in the Tribunal will not be entertained.

What constitutes a reviewable decision – ADJR Act
Ultimate or operative decision – ABT v Bond Does the outcome of the decision have an adverse impact on rights/interests or just a step along the way Of an administrative character Looks to the nature and characters of the decision itself rather than the person making it Under an enactment Authorised by an enactment Affecting legal rights or obligations Not otherwise excluded from ADJR Act review

Under an enactment If made in pursuance of an enactment or under the authority of an enactment The power under which the decision is made need not be precisely stated – it may be implied the characterisation is dependent on the principles applicable to statutory construction Is the decision in effect made under an enactment Is there a sufficient connection between the decision and the enactment?

Reviewable ‘conduct’ Administrative action preceding a reviewable decision that reveals a flawed administrative process Look at the way in which decision-making process has been conducted Procedural not substantive eg continuation of a hearing that involves denial of procedural fairness

Decisions excluded from ADJR review
Decisions of the Governor-General Decisions listed under Schedule 1 Generally those where establishing legislation already provides a review or appeal mechanism eg tax assessments, or decisions on specific sensitive matters eg national security or privative clause decisions under the Migration Act Where a statute specifically excludes ADJR review

Person Aggrieved Standing is granted to ‘persons aggrieved’ under the ADJR Act, s 5 Includes someone whose ‘grievance’ is beyond that which a general member of the public may have: Red p 181 A person whose interests are affected by the decision: s 3(4) Such a person may; request a statement of reasons for decision (s 13) apply for an order of review (ss 5,6) Evidence may be needed to show that an applicant is affected by the decision challenged

Existence of adequate alternative remedy
S 10(2)(b) ADJR Act – discretion to refuse to entertain an application for review if an adequate alternative remedy is available under another law and the applicant is “entitled” to seek review under that law. An applicant for review has the requisite entitlement where the decision challenged is AAT reviewable even if an extension of time would be required by the applicant to make that alternative application: Kimberley-Clark Ltd v Commissioner of Patents (1988) 83 ALR 714

Procedural Fairness Art 10 UN Universal Declaration of Human Rights
Everyone is entitled to a fair and public hearing by an independent and impartial tribunal in the determination of his/her rights and obligations…. Concept well recognized in treaties constitutions, statutes and codes elsewhere eg US‘due process’ Right to a hearing not constitutionally guaranteed but the common law has provided a level of safeguard by implying the requirement into legislation conferring decision-making power

Procedural fairness/natural justice
Interchangeable terms but PF preferred because it reflects a focus on all procedures attendant upon the exercise of public power not just the procedures followed in courts Encapsulates a duty to observe fair procedures when making decisions which affect a persons rights or interests in a direct and immediate way: Kioa v West (1985) 159 CLR 584

Variable content “chameleon” like concept – adapts to all of the circumstances of the case: Miah The nature of the inquiry The rules under which the decision-maker is acting The subject matter being dealt with Varies according to the statutory and factual contexts The degree of procedural safeguard varies with the significance of the private interest affected and the utility of the safeguard in a given circumstance*

Two rules Hearing rule – notice and opportunity to be heard
Rule against bias – ensure the objective appearance of impartiality and the absence of prejudgment The two standards have proved remarkably flexible in accommodating contemporary requirements of ‘fairness’ in a procedural sense Directed to avoiding “practical injustice” Condon v Pompano Pty Ltd (2013) 87 ALJR 458 WHAT IS MEANT BY AN OPPORTUNITY TO BE HEARD?

Implication principle
Duty to accord procedural fairness does not depend on express statutory provision The duty is implied as a matter of statutory construction or as a derivative aspect of the common law whenever power is exercised in a way likely to affect an individual’s rights, interest, status or legitimate expectations* But the duty can be excluded by express provision in legislation *Watershed case is Kioa v West – a deportation case. Beginning with Kioa (1985) the emphasis has shifted from the nature of the interest being affected to the nature of the power being exercised but is still firmly directed to the judicial function being directed toward protecting individual justice

An essential characteristic of judicial proceedings
An “immutable characteristic” of every (superior) court mandated by Chapter III of the Constitution - per Gageler J in Pompano (2013) 87 ALJR 458 at [177] But legislation can validly exclude or modify the rules even in relation to their application to a court (maj at [152])

Intention of Legislature governs
Annetts v McCann – it can now be taken as settled that when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power Kioa v West - Brennan J explained that all statutes are construed against a background of common law notions of justice and fairness. "[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that 'the justice of the common law will supply the omission of the legislature'. The true intention of the legislation is thus ascertained."

PF less likely to be implied in some contexts
Where a decision affects a person in his or her capacity as a member of the public generally or of a class of the public An aspect of individual justice rather than group justice eg environmental and planning decisions where the right to be consulted (to be ‘heard’) is usually dependent on the terms of the legislative scheme cf common law right

Limits on implication Powers exercised by reference to policy or political considerations are less likely to attract a duty of an administrator to observe PF than where the exercise of power is based on considerations of personal circumstances of an individual Again emphasis in the context of admin law principles on individualised justice cf participation in policy or political process

Qualifications to implication principle
Urgency Here PF may subsist but in truncated form the rules may be excluded because the power in question is of its nature one to be exercised in circumstances of urgency or emergency; BUT urgency cannot generally be allowed to exclude it it may in the circumstances reduce its content See McWilliam v Civil Aviation Safety Authority [2004] FCA 1701

Further qualifications to implication principle
National Security May displace a PF obligation But generally a question of the statutory context and what is ‘sufficient’ to accord PF Jaffarie v Director General of Security (2014) 226 FCR 505 – Blue book at pp 703/704

No duty to afford PF re exercise of discretionary power
Minister with non-delegable personal discretion under the Migration Act refuses to consider the exercise of that discretionary power in favour of unsuccessful visa applicants, no breach of PF – Plaintiff S10/2011 v Minister for Immigration (2102) 246 CLR 636 Cf Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 * * Minister had decided to consider exercising a discretionary power in favour of offshore entry persons – persons being detained pending the Minister’s decision were directly affected by that consideration and the assessment and review was thus required to be procedurally fair

Concept of legitimate expectation
Has facilitated the extension of PF to interests falling short of legal rights: Haoucher case qv Some undertaking or course of conduct or something about the nature of the benefit or privilege, the expectation that it will be continued may be engendered But the language generated a sense of “entitlement” to a substantive outcome rather than a procedural path HC has disavowed the concept and it should now be disregarded : S10/2011 (2012) 246 CLR 636 at [66] The correct approach is to look at “the character of the interests” which the power is “apt to affect”. “the phrase "legitimate expectation" when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded”: GUMMOW, HAYNE, CRENNAN AND BELL JJ. At [65] “The phrase, as Brennan J explained in South Australia v O'Shea, "tends to direct attention on the merits of the particular decision rather than on the character of the interests which any exercise of the power is apt to affect"

Stages at which PF required
Administrative decision-making can take place in stages. Requirements of PF are ordinarily satisfied if the process, viewed as a whole, accords PF. But the question in every case is what is required to avoid ‘practical injustice’; if PF is not accorded at a preliminary stage would such injustice result?: Red 84-86 The variable content of PF may result in PF applying to a preliminary stage eg an investigatory stage or to an advisory report: Ainsworth v CJC; Blue

Where statute provides a code of procedure or rights of appeal
The axiomatic principle is that legislation must disclose a positive, clear intention to exclude procedural fairness: “plain words of necessary intendment” are required: Jarrratt v Commissioner of Police (2005) 224 CLR 44 Statutory provision enabling Governor to dismiss Dep Com of Police “at any time” did not exclude PF* *HC held that the prerogative, which might have been used to create the Dep Com position as one ‘at pleasure’ was abrogated or displaced by the statute in question cf decision of a premier to advise the Lt Governor to dismiss a Minister who held office ‘at the Governor’s pleasure’ was inherently political and not subject to PF: Stewart v Ronalds (2009) 232 FLR 331

Codes The concept of a “code” in the Migration Act (as at 1990) relating to procedural fairness was not sufficient to exclude the common law principles of PF – Miah See Saeed v Minister for immigration (2010) 241 CLR 252 But if PF would defeat the purpose of the statutory power, it will be excluded: eg PF is inconsistent with power of arrest*

Major aspects of the hearing rule
What is required to avoid ‘practical injustice’ in a given circumstance? Again , the statutory framework or basis upon which an administrator exercises statutory power is critically important Giving of notice is a “cardinal” principle of justice Sufficient time to prepare Put on notice as to possible adverse findings

Hearing rule Procedures must be fashioned having regard to the nature of the inquiry Look at The nature of the inquiry Its subject matter The rules under which the decision-maker is acting The institutional setting or framework

Hearing rule Take into account
The interests of the individual The purposes, whether public or private, which the statute seeks to advance/protect or permits/requires to be taken into account as legitimate or ‘relevant’ considerations Ask: What constitutes a fair hearing in these circumstances rather than when should a fair hearing be given

Presumption that PF must be observed
The question now most often is not whether the rules of PF apply; rather the relevant question to ask is ‘what does PF require in all the circumstances of THIS particular case’? Hearing rule does not provide a standard set of procedures Look at: Legislative framework Subject matter Nature and potential consequences of decision

Decision maker indicates process that will be followed
Unfair departures from tendering processes the rules of procedural fairness may provide a guide to the content of the contractual duty Migration decision processes Applicant NAFF of 2002 v Minister for Immigration (2004) 211 ALR 660 cf Re Minister for Immigration; Ex parte Lam [2003] HCA 6

Opportunity to respond to adverse information
Adverse material that is ‘credible, relevant and significant to the decision’ must be disclosed to affected party – Kioa (subject to terms of legislation) Not every adverse piece of information regardless of credibility or significance must be disclosed Must be addressed by the decision-maker BEFORE the final decision is reached - VEAL of 2002 v Minister for Immigration (2005) 222 ALR 411 critical issue or factor on which adverse finding or decision may be made – eg sentencing magistrate with a view of sentencing facts or principles Cf Commissions of inquiry -

Waiver of PF A person can waive the right to full observance of the hearing rule if this is done voluntarily and with knowledge of the rights waived: SZAYW v Minister for Immigration (2006) 230 CLR 486 Absence on insistence on procedural rights will not constitute waiver Duty is to ensure party has a fair opportunity to be heard not that he/she took best advantage of that opportunity

Consequence of breaches of hearing rule
Court is looking to see if ‘practical injustice’ ensues If so, decision will be set aside Jarratt v Commissioner of Police for NSW (2005) 79 ALJR 1581 cf Barratt v Howard [2000] FCA 190 SZBEL v Minister for Immigration (2006) 231 ALR 592* Minister for Immigration v Li [2013]HCA 18

Rule against Bias Obligation to observe PF includes a duty to decide without bias or the appearance of bias Implied in the same way as the hearing rule Flexible/variable content Unwaived bias is an error going to jurisdiction rendering decision void (but questionable if bias cf hearing can ever be ‘waived’ so as to preclude PF as a ground of appeal)

Bias Concerned with what a reasonable or fair-minded lay observer or informed bystander might perceive Real not remote possibility of bias Two questions: What is alleged to lead a decision-maker to decide a case otherwise than on the merits What is the logical connection between that matter and the apprehended deviation from deciding the case fairly

Bias Findings of actual bias are rarely made
Apprehended bias is sufficient Actual bias under the Briginshaw sliding scale of proof would require an actual persuasion of the existence of bias The test: Webb v The Queen (1994) 181 CLR 41; Ebner

Bias Financial and non-financial associations Prior association
Religious bias Gender bias Bias toward a party/counsel Use of language, conduct may indicate bias “give you as much rope as you like to hang your client with” ; “go to hell on your own bicycle”

Commissioner Heydon’s ruling*
*NB. This is a ‘ruling’ by a Commissioner NOT a ‘judgment’ by a judicial officer

What should a decision-maker do?
Prior to making decision consider if any potential basis for bias Assess whether there is a logical connection between the ground and the decision to be made Excuse if there is - Self-disqualification Otherwise give notice of any issue/connection and invite parties’ submissions on any question of bias Look at Commissioner Heydon’s recusal ruling

Case to consider XY held a private pilot’s licence since He had more than 425 flying hours of experience. He was diagnosed with Type 1 diabetes in 1960 when he was 12 years old. He had been insulin dependent and since 2008 has used an insulin pump to monitor his blood sugar levels. The CAA imposed a condition on his medical certificate enabling him to fly with a safety pilot. He sought a medical certificate without that condition. The removal of that condition was refused. Since then the CAA issued a Protocol for Type 1 Diabetic Pilot Applicants (Authority’s Protocol), which contained specific requirements for the issue of a medical certificate for ID pilots who were included in a group deemed suitable to trial unaccompanied flying by adopting stringent measures regarding blood glucose monitoring and insulin uptake. The Protocol was based on an equivalent protocol issued by the US Federal Aviation Authority (FAA Protocol) but that protocol was arguably more flexible than the Australian protocol.

Case problem XY was not considered suitable by CAA for the protocol group. XY considered that he did not come within that policy but did come within the FAA policy when he challenged the CAA decision refusing to remove the condition. He wanted the FAA policy to be applied to him. XY sought AAT review. A final version of the CAA’s Protocol was issued during the course of the Tribunal proceedings. It made some allowance for persons using an insulin pump to be included. It was not clear whether XY would have met all criteria of the cohort with diabetes under the Protocol. The Tribunal member asked XY’s legal representative whether he wished to say anything further about the new version of the protocol that had been published during the hearing. The lawyer said he relied on the FAA protocol.

Tribunal decision Tribunal accepted that the CAA's Protocol should be accepted as applying in Australia and, therefore, to XY’s application. Found that since the Authority has issued its Protocol, it would be inappropriate for the Tribunal, to devise a specific protocol for XY given that the CAA’s Protocol has been published followed extensive consultation with experts. Recommended that XY be considered favourably for inclusion in the cohort of those who should trial the Protocol but otherwise affirmed the decision to retain the safety pilot condition.

Appeal XY appealed on a question of law – denial of procedural fairness. What element of the rules of PF involved here? Did the Tribunal have an obligation to draw attention to specific aspects of the policy to be considered? Should the Tribunal have adjourned the hearing to enable XY to consider those aspects? See: Civil Aviation Safety Authority v Ovens [2011] FCAFC 75 appeal from Ovens v Civil Aviation Safety Authority [2010] FCA 1354

Consequence of breach of PF
Was the Tribunal’s decision infected with jurisdictional error? The effect of a breach of the hearing rule by an administrative decision-maker – invalid or ‘contingently void’? Blue What if the decision-maker discovers an (inadvertent) denial of PF after purporting to make the decision? Is the decision-maker functus officio? See Minister for Immigration v Bhardwaj (2002) 209 CLR 597

Bhardwaj implications
Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. See Blue pp

Consequence of failure to accord PF
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at the plenary said: `An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.'

98 Judicial Review – legislative scope & purpose and grounds of review
An aspect of the rule of law which is an assumption against which the Constitution was framed The duty and jurisdiction of the courts is to exercise a supervisory role over the Executive: Kerr Committee referred to federal judicial review as a general “supervisory” jurisdiction over administrative action Justified by the role of the judiciary in the declaration and enforcement of legal rules which determine the limits and govern the exercise of a repository’s powers

Church of Scientology v Woodward(1982) 154 CLR 25 at 70 per Brennan J
Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individuals are protected accordingly.

100 Aim of Judicial Review Not to go beyond “the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power”: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at per Brennan J The Courts provide remedies “to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise” : City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at [56] per Gaudron J The purpose of judicial review in Australia is not necessarily to cure administrative injustice, but to enforce the legal limits of power.

101 Scope of Judicial Review
The legitimate scope is fixed but its content is ultimately determinable by the legislature in formulating the law setting the limits of power* Content is determinable by the legislature in formulating the law which sets the limits and governs the exercise of an administrator’s powers. It is the formulation of that law eg in the migration context that has given rise to much debate and litigation *Gageler article p 2 – 3-4

Judicial review cf Appeals
An application for Judicial Review, although seeking reconsideration of a lower court or tribunal or administrator’s decision, is not part of the appellate process. Judicial review is undertaken by a court exercising its original and supervisory jurisdiction Court makes orders in the nature of prerogative remedies or as provided for by statute eg ADJR Act remedies

Judicial review/appeal overlap
In considering whether relief should be granted the court hearing a judicial review application will consider principles of legal error: jurisdictional error or error of law But many of the grounds of judicial review may resemble grounds raised in an appeal

104 Overview of the JR framework
It is for the legislature to set the limits of any jurisdiction it confers The underlying justification for judicial review is in identifying the law which determines the limits and governs the exercise of an administrator’s power – to search for and declare the limits of that power. A breach of such a law results in a purported exercise of power being without jurisdiction and thus without legal effect ….subject to some qualifications! The courts in granting relief do no more than recognise and enforce the jurisdictional limits of the power.

Overview (cont) The traditional grounds of review are linked by a common strand as to the limits that govern the exercise of an administrator’s power; they serve to identify the scope of that power and the conditions of its valid exercise. The ADJR Act provided procedural reform by replicating with some modifications the traditional grounds of judicial review, making those grounds applicable to most Commonwealth statutory decisions of an administrative character. The jurisdiction of the Federal Court under ss 39B & 39B (1A) enables review of decisions according to common law principles that are reflected in the ADJR Act but which is more dependent on the type of relief sought and the class of decision-maker against whom that relief is sought.

Judicial review is concerned with lawfulness of administrative action
Has its origins in common law – at the State level in NSW still very much influenced by the common law. At the Commonwealth level the High Court has a specific ‘original’ jurisdiction to undertake review and Federal Courts have statutory regimes for undertaking review – Judiciary Act 1903, ADJR Act 1977

Prerogative/Constitutional writs
Administrative system and Judicial Review must be viewed in its legal and constitutional context Constitution enables administrative acts of the Executive Government to be reviewed by the High Court Original jursidiction of HC extended to the Federal Court by s39B, Judiciary Act 1903 in terms similar to s 75(v) S 44 JA – HC may remit a matter that has been commenced in the original jurisdiction of the HC

Constitutional writs in Original Jurisdiction of High Court
In the 1990s High Court referred to writs mentioned in s 75(v) as “constitutional writs” Limited to prohibition, mandamus or injunction where sought against “an officer of the Commonwealth” Chapt III implies jurisdiction to grant remedies for “the effective exercise of that jurisdiction”: Ex parte Aala (2000). That includes certiorari.

Procedure for prerogative relief
Historically prerogative proceedings were characterised by an “order nisi” process Application is made for an order nisi for the prerogative/constitutional writ sought Process designed filter out unmeritorious or frivolous proceedings Technically a court order that does not have any force unless a particular condition is met. Once met, the remedy granted is an order absolute for the writ, and is binding

All remedies are discretionary
Where want or excess of jurisdiction is made out, a constitutional writ will issue “almost as of right” although the court retains the discretion to refuse if that is “proper”: Aala Certiorari may be declined Eg Ct refuses to quash an unconstitutional order where third parties may have acted on the faith of the order; but may issue prohibition and declaration instead

When Granted Certiorari lies for jurisdictional error or non-jurisdictional error on face of the record Prohibition is a negative or restraining order (like injunction) but does not quash anything and is not available for non-jurisdictional error of law on the face of the record Mandamus lies to compel the performance of an unfulfilled public duty

112 S 75(v) Where s 75(v) invoked, the respondent must be an “officer of the Commonwealth” Concept includes persons appointed by the Commonwealth to carry out Commonwealth functions May be thought to include Cth administrative tribunals on the basis that powers are exercised by individual members* authorities favour the view that a body corporate cannot be `an officer of the Commonwealth’** * * Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 ** McGowan v Migration Agents Registration Authority [2003] FCA 482 per Branson J Essentially now refers to government entities, not other classes of litigant.

S 75(iii) Original jurisdiction in all matters in which the Commonwealth, or person suing/being sued on behalf of the Commonwealth, is a party Commonwealth in this context has a wide meaning , essentially the central government Instrumentalities and incorporated authorities HC asks: is the Commonwealth “in substance” or “in reality” before the Court? But most federal tribunals do not fall under sect 75(iii) but under s75(v)

Avenues of Review Highest avenue of judicial review is the constitutional writ jurisdiction under s 75(v)or for prerogative remedies under s 75(iii) Under s 39B of the Judiciary Act – FC substantially the same s 75(v) jurisdiction as the HC with respect to any “matter” in which constitutional writs are sought against an officer of the Cth Expanded by s 39B (1A) – ‘arising under any laws made by the Parliament’.

Federal Court of Australia Act 1976
The constitutional and prerogative writs are less important in FC applications because of the FCA Act and the ADJR Act Once FC has jurisdiction, the powers under the FCA Act are available, subject to any statutory restriction eg under the Judiciary Act Section 22: The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined..... Accrued jurisdiction

FC orders Section 23: The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. Section 21: (1) The Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. (2) A suit is not open to objection on the ground that a declaratory order only is sought.

The third avenue for judicial review is ADJR
117 ADJR Act The third avenue for judicial review is ADJR The advantage of ADJR relate to both the grounds and the remedies which allow greater flexibility; application is for an order of review The Federal Court Rules allow for claims under both ADJR and s 39B This may be prudent if there is doubt as to whether a decision is reviewable under ADJR When may such a doubt arise?*

Grounds of Review As judicial review is not review on the merits, the bases for review are limited to particular recognised grounds What do we mean by “grounds” of review and where do we look to identify specific or available grounds?

Grounds of Review The grounds may be linked to remedies by which a court will force an administrator to stop a process, or set aside a decision and look again at a matter or declare rights or duties or make some other order in relation to the impugned decision Think of grounds of review as a shorthand description of the ways in which an administrator may breach a grant of power or exceed the grant of power by: Failing to comply with the legislation Acting irrationally or unreasonably Failing to follow prescribed or other ‘proper’ procedures In essence, this is linked to a search for legal error

120 Constitutional review
Grounds of constitutional judicial review centre on the basic principle of legality – decision-makers need legal authority to support action they undertake Associated with this principle is a presumption* that a statute that affects civil rights will not be construed to overthrow fundamental principles, infringe rights or depart from the general system of law without expressing its intention with irresistible clarity. This principle has led to the unalterable role of the HC reviewing decisions to see: if the decision was authorised by law; and was made in accordance with law In turn, the presumption has led to error of law going to jurisdiction, or jurisdictional error, becoming the bedrock of constitutional writ review *The presumption of legality is a “working hypothesis” that is an aspect of the rule of law: Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 329 [21].

The UK position The position historically in the UK is that judicial review has long been dominated by the doctrine of ultra vires, under which a decision of a public authority can only be set aside if it exceeds the powers granted to it by Parliament. In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, (Blue book pp 80-83) Lord Diplock summarised the grounds for challenging an administrative decision by way of judicial review as: Illegality Irrationality (Unreasonableness) Procedural impropriety Legitimate expectation

UK position (cont) The first two grounds (illegality & irrationality) are viewed as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it is aimed at the decision-making procedure rather than the content or substance of the decision itself. In the application of these grounds in the UK the approach is not to determine whether there has been a jurisdictional or non-jurisdictional error. If any of these grounds disclose that a decision-maker has made an error of law on which the decision of the case depends, the ground will be established and relief granted

The Australian position
Australia has maintained a distinction – at least formally – between jurisdictional error and non-jurisdictional error. Jurisdictional error occurs where, for example, the decision-maker has exceeded his or her power (substantive ultra vires) or has made a procedural error such as breaching the rules of procedural fairness (procedural ultra vires) in a way that effects the exercise of power.

Ultra Vires= beyond power
Ultra vires and statutory construction are inextricably linked Putting aside decisions made under prerogative, all administrative decisions must be made within the confines of authority conferred by statute There is a real link between ultra vires and ‘jurisdiction’ (the authority to decide) and thus between ultra vires and jurisdictional errors In general terms substantive ultra vires = jurisdictional error = invalidity but this may not be so with procedural ultra vires

Procedural Ultra Vires
involves procedures that were required by law to be observed in connection with the making of the decision were not observed whether the power can be said to be “conditioned” upon the happening of a certain event or the doing of a particular thing If the step breached must be properly regarded as a necessary condition precedent to the valid exercise of statutory power = invalidity

126 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
Before 2005, s 424A of the Migration Act required the RRT to give an applicant for a protection visa particulars in writing of any information that the RRT considered would be a reason for affirming a refusal decision and to invite the applicant to comment. The RRT failed to comply with that requirement Held: 3:2 The section set out mandatory steps to accord procedural fairness breach of which constituted jurisdictional error More generally on the question of procedural ultra vires SAAP supports the principle that, in particular circumstances, breach of a mandatory statutory procedure may lead to invalidity of any resulting decision. See also Blue Book at par p 705

The following may fall within the SAAP principle
1. A statutory scheme an essential part of which is a strict procedure that must be followed before any relevant finding or determination can lawfully arise; 2. The language of the provision is such that it is mandatory/essential that the decision-maker must take a particular step before an adverse finding can be made (akin to a jurisdictional fact in some cases); or 3. The provision provides for a fair procedure or is part of Parliament according a fair procedure that must be observed before the decision or any material adverse finding may lawfully be made.

Breach of ‘associated statutory requirements’ Blue Book pp1024 ff
Did Parliament intend that the validity of a particular outcome would depend upon strict compliance with each and every statutory criterion eg under a development application? Procedural errors are often treated as “irregularities” or errors within jurisdiction so if only constitutional writ review available – no remedy ADJR s 5(1)(b) does not depend on the jurisdictional/non-jurisdictional error distinction

129 Enter – Project Blue Sky BB 1027ff
ABA has statutory role to develop and monitor codes of practice and program standards The Broadcasting Services Act required the ABA to perform its functions consistently with leg objects and regulatory policies PBS a New Zealand company challenged the validity of a local content standard which it said was in breach of CER obligations Issue: whether an act done in breach of a legislative provision is invalid. Held: The test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In determining the purpose of the legislation, the principles of statutory interpretation apply and regard has to be had to “the language of the relevant provision and the scope and object of the whole statute”. Other consequences may result. Blue book pp

ADJR Act grounds of review s 5
(1) A person who is aggrieved by a decision to which this Act applies...may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds: Thereafter 9 specific grounds of review are set out one of which, s 5 (1)(e), “an improper exercise of a power” is expanded in s 5(2) to include reference to 9 further elements

Natural Justice S 5(1) (a) - that a breach of the rules of natural justice occurred in connection with the making of the decision Earlier lecture – week 4 – two rules that essentially comprise the duty to accord natural justice or procedural fairness

Two Rules Hearing rule – notice and opportunity to be heard
Rule against bias – ensure the objective appearance of impartiality and the absence of prejudgment The two standards have proved remarkably flexible in accommodating contemporary requirements of ‘fairness’ in a procedural sense Directed to avoiding “practical injustice” Condon v Pompano Pty Ltd (2013) 87 ALJR 458

Bias Concerned with what a reasonable or fair-minded lay observer or informed bystander might perceive Real not remote possibility of bias Two questions: What is alleged to lead a decision-maker to decide a case otherwise than on the merits What is the logical connection between that matter and the apprehended deviation from deciding the case fairly

Kinds of Bias Financial and non-financial associations
Prior association Religious bias Gender bias Bias toward a party/counsel Use of language, conduct may indicate bias “give you as much rope as you like to hang your client with” ; “go to hell on your own bicycle”

Commissioner Heydon’s ruling

136Kaldas v Barbour (No.2) [2016] NSWSC 1886 (16 December 2016)
The NSW Ombudsman’s office in association with the Police commenced an investigation in into police conduct in 2012 called Operation Prospect. The office and home and phones of former Dep Commissioner of Police Kaldas had been bugged as part of a criminal investigation. Former Ombudsman Barbour and a/g Ombudsman McMillan continued the investigation intending to release a final report. By way of Summons Kaldas sought judicial review of certain decisions and actions of the Ombudsman in relation to Operation Prospect

Kaldas v Barbour The judge hearing the matter Garling J had said in a speech that he had once enjoyed a good relationship with the Ombudsman who had briefed him as a barrister prior to his judicial appointment in 2010. Kaldas made an application that Garling J recuse himself. That application was dismissed.

Kaldas v Barbour[2016] NSWSC 1880 (20 December 2016)
Garling J dismissed the application for an interlocutory injunction McMillan presented and published the report on 20 December 2016. The two judgments of Garling J present examples of on the one hand an application of the recusal test and on the other hand an application of principles on which interlocutory relief may be granted or refused

S 5(1)(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed There is no requirement that the procedural failure or the error of law envisaged by this ground of review must go to the jurisdiction of the decision-maker. As noted above, whether the ground is made out will depend on a construction of the statute under which the relevant procedures are said to be ‘required by law to be observed’ in the consideration of the facts of each case – a Project Blue Sky exercise.

S 5(1)(c) ‘the person who purported to make the decision did not have jurisdiction to make the decision’ This ground reflects the common law ground of lack or want of jurisdiction or authority to decide It “permits a person whose interests are adversely affected by a purported decision of an administrative character, made outside the subject-matter, scope or purposes of the enactment under which it was purported to be made, to seek an order setting it aside or declaring it invalid”: Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394 at [79] per Gageler J

141Want of Jurisdiction Encompasses common law ground of lack of jurisdiction in the narrow original sense of absence of power to enter upon inquiry Concerns jurisdictional fact doctrine* and whether a purported delegate of decision-maker had the power ** *Jurisdictional fact – a criterion the satisfaction of which enlivens the exercise of power ** - holder of a discretionary power pf required to exercise it personally by the person in whom the statute reposes the power – delegatus non potest delegare cf the Carltona principle

S 5(1)(d) The decision was not authorized by the enactment in pursuance of which it was purported to be made In effect a limb of the substantive ultra vires doctrine If a decision purports to be made under an enactment which did not authorise that decision the administrator will not be able to rely on or enforce that decision Now largely folded into the category of errors considered “jurisdictional”

5(1)(e)Improper exercise of power
S 5(2) says that s 5(1)(e) shall be construed as including a reference to: (a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power; (c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith; (e) an exercise of a personal discretionary power at the direction or behest of another person; (f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and (j) any other exercise of a power in a way that constitutes abuse of the power. (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to the matters enumerated in s 5(2).

144 Relevant/Irrelevant Considerations
A consideration is only irrelevant if upon a proper construction of the statute it must not be taken into account That is, factors extraneous to the proper exercise of power A consideration is only relevant and must be taken into account if the administrator is legally bound to take it into account: Peko-Wallsend : see Blue Book at

145 Factors The statutory obligation to take into account relevant considerations is affected by: The source of the authority to make the decision The class of decision-maker eg Minister The subject matter of the decision and its consequences eg deportation decisions or decisions affected by human rights considerations How do you know whether a consideration has or has not been taken into account by a decision-maker?

146Factors to consider Invariably to be determined by construction of the statute conferring discretion Consideration of a relevant factor requires an “active intellectual process” or engagement with the facts and circumstances that are at the heart of the particular matter: Tickner v Chapman (1995) 57 FCR 451 at 462* *My notes

147 Improper Purpose S 5(2) (c) ADJR Act The common law position in Australia is that the improper purpose must be or have been a substantial purpose in the sense that the decision complained of would not have occurred but for the improper purpose Again, consider the scope and purpose of the legislation in question to see whether it expressly or impliedly permits such an exercise of power The purpose for which a power can be exercised gives rise to a question of law; cf purpose for which the power was actually exercised = question of fact. A mixed issue of fact and law can arise when a power is exercised for a multiplicity of purposes; some authorized, others not. Commonly a statute will define the purpose for which a power can be exercised. Absent an express purpose, it will usually be possible to imply a purpose, by techniques of statutory interpretation looking at the terms of the power in question, the structure and text of the enactment, and the nature of the power that is being exercised. A question may arise whether a special category of power devoid of a clear public purpose can be discerned eg where the decision is being made to achieve a number of policy objectives or a political objective. These may be termed “polycentric” decisions because the constating legislation is complex and involves broad or multiple policy considerations that make it difficult to identify a range of permissible purposes. Issues of justiciability may arise in relation to polycentric considerations of this kind. Generally an unauthorised purpose will not be lightly inferred by a court and will only be inferred if the evidence at hand cannot be reconciled with the exercise of the power. There are few reported cases based on this ground of review,

149 Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719
Facts: A warrant had been issued for Mr Schlieske’s arrest by a West German court in relation to drug offences. Extradition proceedings had twice failed but the Minister signed a deportation order under the Migration Act. Held: The particular steps that had been taken amounted, improperly, to a disguised extradition. The Minister could not use the Migration Act for the purpose of extradition but could use it for its authorised purpose of deportation. Mr Schlieske could be properly deported to West Germany, provided that Australian officials did not take steps to ensure his delivery into the custody of West German officials. A pyrrhic victory for Mr Schlieske! Blue Book pp

This ground relates to discretionay powers of a decision-maker
149 Bad Faith This ground relates to discretionay powers of a decision-maker This ground and s 5(1)(g) (fraud) operate very much like their common law counterparts A finding of bad faith (or fraud) involved in or affecting the making of a decision will vitiate the decision See SZFDE v Minister for Immigration (2007) 232 CLR 189 where RRT was held to have made a decision affected by third party fraud in that the refugee applicant’s former migration advisor had fraudulently advised the applicants not to appear at the hearing The two cases of SBBS and SBAN referred to in the outline are noted in the Blue Book at pp – emphasise difficulty of making out this ground – illogical findings, procedural blunders or incompetence does not evidence bad faith. Bad faith may manifest itself in the form of actual bias – also difficult to establish.

Acting under dictation
S 5(2)(e) – this ground may be enlivened when an administrator has personal statutory decision-making power. The administrator must not be dictated to (by a politician, superior officer or other person) as to the decision that he/she must make. Blind adherence to a government policy might well provide evidence of dictation. However, it may be a ‘relevant consideration’ to take into account the views/policies of others. Again this is a matter involving stat interpretation

Dictation The FFC says that this statutory ground involves: “the decision-maker (giving) no real independent attention to the discretion which is conferred upon him or her, so that the exercise of discretion is really the exercise of that discretion by some other person”: Telstra Corp Ltd v Kendall (1955) 55 FCR 221 at 231

S 5(2)(f) Duty not to apply policy inflexibly
The acknowledged authority for this principle in the context of AAT merits review is Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. There is nothing improper about a Minister or public official seeking to persuade a decision maker to act in accord with government policy Lawful Ministerial policy should be followed by an administrative decision-maker unless there are cogent reasons not to do so. But the decision-maker, absent legislation to the contrary, is not bound to apply it.

153 S 5(2)(g)-Unreasonableness
Wednesbury unreasonableness – named after Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB (Red Book p ) Decision so unreasonable that no reasonable authority/person could have exercised the power that way May be linked to ‘proportionality’: SA v Tanner (1989) 166 CLR 161 Applies to the decision but may also apply to the decision-maker’s reasons – this opens to scrutiny the reasons why a discretion was exercised in a particular manner, not just the reasonableness of the outcome of the process itself: Re Minister for Immigration; Ex parte Applicant S20/2002

154 Li unreasonableness (2013) 249 CLR 332
Blue Book pp926 – 931 qv The “protean” concept should not be limited to a decision so unreasonable that no reasonable person could have arrived at it . In the absence of “an evident and intelligible justification” for a decision even where some reasons have been given a court may infer from the facts and matters to be considered by the decision-maker that a discretionary decision is unreasonable.

Does Li herald an expansion of principle and grounds of review?
Li principles are summarised at Blue Book p 931 Emphasis is placed on the legal presumption that the legislature intends that a statutory discretionary power will be exercised reasonably Statutory construction is the key But there is an area within which a decision-maker may act being: “within the authority of the decision-maker to make” (Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 and Eden [2016] FCAFC 28

Present position As a ground of judicial review, legal unreasonableness is no longer a ground which would only be successful in exceptional circs. The recent cases demonstrate that courts have been more willing to find legal unreasonableness in discretionary decisions of a procedural nature, rather than a substantive decision. Gageler J held in Li warns: "[l]ike procedural fairness, to which it is closely linked, reasonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context of that power or duty.” However, like procedural fairness, even if the decision-maker complies with the statutory framework, there is scope for the court to find error on the ground of legal unreasonableness where the decision lacks “an evident and intelligible justification”.

157 Reasonableness review
Two contexts: As a conclusion reached after a court determines the existence of a jurisdictional error such as the decision-maker misdirecting itself as to the operation of a statute, taking into account irrelevant considerations etc, giving disproportionate weight to a consideration and reasoning illogically or ‘irrationally’ etc In a review concentrating on the outcome rather than the process involved in the exercise of power irrespective of identifying an underlying jurisdictional error.* But how would the second context fit with constitutional or Judiciary Act review? Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 See suggested list of ‘unreasonableness’ contexts in East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605 – a prescient pre-Li catalogue or just a wish-list?

Ss 5(2) (h), (j) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and any other exercise of a power in a way that constitutes abuse of the power.

S 5(1)(f) – error of law Defined primarily by common law concepts but it is immaterial whether error appears on face of record or not which at common law was important where error was non-jurisdictional and certiorari was sought Here the distinction is only as between an error of law and an error of fact

Errors of Fact Generally a court will not review an administrator’s findings of fact unless within one of the following categories: The finding is based on ‘no evidence’ The finding is tainted by illogicality or unreasonableness of the kind identified in cases such as Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; or The fact is a jurisdictional fact

Section 198A, Migration Act
An officer may take an offshore entry person from Australia to a country in respect of which a Ministerial declaration is in force. The Minister declared that Malaysia met the 4* prescribed characteristics (including relevant human rights standards) Was the making of the declaration itself sufficient or did the prescribed criteria need to exist as ‘jurisdictional facts’. Held: the criteria in s 198A are jurisdictional facts; each criterion was a JF in an ‘objective sense’ (means?) OR (per French CJ) the ‘mental state’ implicitly required the Minister’s satisfaction of the existence of those facts (subjectively), based on a proper construction of those matters, absence of which gave rise to jurisdictional error. The DFAT advice to the Minister demonstrated that none of the criteria could be met in relation to Malaysia *Blue Book p 862 sets out s 198A.

S 5(1)(h) read with s 5(3) Two situations:
164No evidence S 5(1)(h) read with s 5(3) Two situations: Non-existence of an essential fact as per s 5(3) Whether particular inferences of fact are available Decisions based on findings of fact must be founded on logically probative evidence and not mere suspicion or speculation: ABT v Bond. There must be “some” evidence of the fact The process of drawing inferences from primary facts may be infected with error if the primary facts do not exist Difficult to succeed on ‘no evidence’ ground where an evaluative judgment of conflicting factors is required ie contrast establishing the existence of evidence and the evaluation of evidence

S 5(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the decision maker was required by law to reach that decision only if a particular matter was established and there was no evidence or other material from which he or she could reasonably be satisfied that the matter was established; or (b) the decision maker based the decision on the existence of a particular fact, which did not exist.

Review the Blue Book and Red Book references
Next week – the riddle of jurisdictional error

Under ADJR it is subsumed within s 5(1)(c)
166 Jurisdictional error Under ADJR it is subsumed within s 5(1)(c) The distinction between jurisdictional and non-jurisdictional errors largely becomes important under constitutional writ review where the issue is whether a court or other decision-maker has exceeded the authority or power conferred. In essence the distinction is between an error that goes to the existence of jurisdiction cf an error made in the exercise of jurisdiction

The criterion may be a ‘complex of elements’.
167 Jurisdictional fact A criterion, satisfaction of which enlivens the exercise of statutory power or discretion of the decision-maker. A criterion, satisfaction of which mandates a particular outcome as a matter of jurisdiction: Corporation of the City of Enfield v DAA (2000) If the criterion is not satisfied then the decision purportedly made will lack the necessary statutory authority: Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR120 [43] The criterion may be a ‘complex of elements’. A state of satisfaction provision – a species of a “mental state” provision - may be understood as a statutory provision imposing a duty or conferring a power that is conditioned (positively or negatively) on a person being satisfied or not satisfied of a specified fact or thing. It is a condition precedent to the valid exercise of power. Where a statutory provision states that a decision-maker must be satisfied of the existence of a fact or form an opinion about the existence of the fact, before exercising a given power to make a decision, that mental state is itself a jurisdictional fact. Whether a particular finding of fact will be reviewed judicially on the basis that it constitutes a jurisdictional fact will depend on the circumstances of the case and whether the court considers it appropriate to undertake that review.

168 Malaysia Solution Case
Whether a fact is “jurisdictional” depends on the statutory construction process: Plaintiff M70/2011, M106/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 Facts: Two asylum seekers on Christmas Island were visa-less “off-shore entry” persons. The Minister proposed to move them to Malaysia pursuant to an impending agreement with Malaysia. Following the agreement being made, the Minister declared that Malaysia satisfied the 4 criteria under the MA (s 198A(3)(a). In this case the plaintiffs sought an injunction and prohibition in the High Court’s original jurisdiction to restrain the Minister from transporting them to Malaysia. As a jurisdictional error was found could the plaintiffs have sought JR under the ADJR Act (assuming decisions made under s 198A, since repealed, where not exempted privative clause decisions under the ADJR schedule 1)?

Concept of legitimate expectation
Has facilitated the extension of proc fairness to interests falling short of legal rights: Haoucher case Some undertaking or course of conduct or something about the nature of the benefit or privilege, the expectation that it will be continued may be engendered But the language generated a sense of “entitlement” to a substantive outcome rather than a procedural path HC has disavowed the concept and it should now be disregarded : S10/2011 (2012) 246 CLR 636 at [66] The correct approach is to look at “the character of the interests” which the power is “apt to affect”.

But Federal Court is still applying it
WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137 “Although caution has been directed at the use of the term “legitimate” (e.g., Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 20 per McHugh and Gummow JJ), it remains a useful concept when considering “what must be done to give procedural fairness to a person whose interests might be affected by an exercise of power”: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 39 per Brennan J”. Legitimate expectations have been held to arise in a variety of contexts eg by reason of statements made: Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648 a legitimate expectation had been created by reason of a published statement of government policy as to how a discretionary power would be exercised. “So, too, may a legitimate expectation arise by reason of conduct. An applicant for the renewal of approval to carry on the business of insurance may thus have a legitimate expectation that a renewal will be approved, unless some good reason exists for refusing to renew it: FAI Insurances Ltd v Winneke (1982) 151 CLR 342.”

171 Review for Jurisdictional Error
Judicial review in Australia is now, after the decision in Kirk v Industrial Relations Commission (NSW) entrenched at both the Federal and State levels by reason of Ch III of the Constitution. But it is only judicial review for jurisdictional error that is constitutionally protected at every level of government An important question is the extent to which legislatures can stipulate that certain errors are not jurisdictional.

172 Why the distinction between jurisdictional/non-jurisdictional errors
The constitutional context based on the separation of powers where it is the judiciary’s function to quash or declare invalid executive decisions that are not authorised by law. This requires an appreciation of a distinction between acts that are not authorised by law and acts that are authorised. Such a distinction is “inherent in any analysis based upon separation of powers principles”: MIC v SZMDS (2010) 240 CLR 611 at [16] per Gummow ACJ & Kiefel J

Errors going to jurisdiction
What that means essentially relates to the origins of constitutional jurisdiction based upon the role or function of the English courts in preventing administrative authorities exceeding their authority or neglecting their duties. That is to say the basis of judicial review was to ensure that a decision-maker did not exceed the authority/power conferred on that person or did not fail to exercise that authority/power when required to do so.

Attorney-General (NSW) v Quin
But the court has no jurisdiction “simply to cure administrative injustice or error” Incorrectly deciding something that the decision-maker is authorised to decide is not, in itself, a jurisdictional matter There are a number of areas administrative law in which the concept of jurisdictional error and the distinction between j.e. and non-jurisdictional error of law can arise

Under ADJR The net is cast wider than that which is concerned with excess of jurisdiction Courts have a jurisdiction to make errors within jurisdiction ie an authority “to go wrong” such as incorrectly deciding something that the decision-maker is authorised to decide – that is an error within jurisdiction Jurisdictional error concerns “departures from limits upon the exercise of power” (Aala). A non-jurisdictional error does not involve such a departure; the latter can still be ADJR reviewable

S 5(1)(c) ADJR Act Order of review can be made if the person who purported to make the decision did not have the authority – jurisdiction- to do so In this sense the ADJR avenue of review can be used to expose a ‘jurisdictional’ error but in reality the grounds of statutory review will provide an applicant with far greater flexibility to challenge an administrative decision without any need to identify a juris error

Jurisdictional error The notion of ‘jurisdiction’ is a broad one when applied to an administrator An error can be made within jurisdiction or beyond jurisdiction A jurisdictional error is a breach of the legal rules that mark out a repository’s power or which constitute a condition of its valid exercise The breach results in a purported exercise of power being without legal effect with the court granting relief to confirm or recognise that underlying invalidity

178Errors that are “jurisdictional”
Errors that go to the very existence of jurisdiction But also errors that are regarded as jurisdictional because they are perceived as fundamentally undermining a decision-making process in a way that is incompatible with the administrator’s powers and functions – a failure to accord procedural fairness being in some respects an example of this kind of error

179Enter Kirk v Industrial Court of NSW
Three examples of an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of that court’s functions: Absence of a jurisdictional fact Disregard of a matter that the relevant statute requires to be taken into account as a condition of jurisdiction (or taking account of a matter required to be ignored) Misconstruction of the relevant statute thereby misconceiving the nature of the function the court is required to perform But these are but “examples” of JE – the HC has deliberately left it for the superior courts in both federal and State jurisdictions to determine on a case by case basis the limits of judicial review to correct “errors” by inferior courts, tribunals and administrators. Does the word “jurisdictional” act only as a descriptor of a concept to express the “gravity” or “seriousness” of an error? Or is it a “functional post hoc classification” as C Finn suggests requiring “intuitive assessments” to be made as to the “extent to which a decision-making body is straying from its statutorily assigned functions or beyond its associated powers”? – see (2010) 21 PLR 92

Distinction between jurisdictional and 180 non-jurisdictional error maintained
Craig v South Australia (1995) 184 CLR 163 Rejected Anisminic v Foreign Compensation Commission [1969] 2 AC 147 at 171 per Lord Reid Constitutional writs available to correct jurisdictional error: prohibition where there has been a wrongful excess of jurisdiction; mandamus where a wrongful failure to exercise jurisdiction; certiorari only available as ancillary relief to clear away that which is already a nullity

The Craig formula 11. An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

181The Craig formula An administrative tribunal falls into legal error that is jurisdictional by exceeding its authority or power when: It identifies the wrong issue Asks itself a wrong question Ignores relevant material or relies on irrelevant material Makes an erroneous finding or reaches a mistaken conclusion BY WHICH THE TRIBUNAL’S EXERCISE OF POWER IS THEREBY AFFECTED. THIS IS JURISDICTIONAL ERROR WHICH WILL INVALIDATE ANY DECISION WHICH REFLECTS IT.

Impact of Kirk Basis of the distinction drawn in Craig between jurisdictional errors nade by courts and those made by tribunals was questioned by the joint majority But HC has not expressly rejected the proposition that the full range of common law grounds of review may, in effect, relate to “jurisdictional” matters in the context of tribunals & executive May be best to look at the type of error made by an admin tribunal as has been effectively done in England

The non-exhaustive list of jurisdictional errors
JE embraces a number of different kinds of error, the list of which in Craig is not exhaustive: Minister for Immigration v Yusuf (2001) 206 CLR 323; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 It is the focus on jurisdictional error as a basis for judicial review that has determined underlying principles that require a close analysis of the terms in which a statutory power is conferred.

185 Consequences of error An error within jurisdiction does not cause a decision to be void or a nullity Remedy is appeal (if available); ADJR (if available)or certiorari for error of law on the face of the record which if common law based will be subject to the Craig doctrine and if under State law may be wider as to that which constitutes the “record” A jurisdictional error causes the proceeding or decision tainted with error to be invalid – subject to Project Blue Sky doctrine where applicable. In conventional terms a decision infected with jurisdictional error is, as a matter of law, no decision at all: Minister for Immigration v Bhardwaj (2002) 209 CLR 597

Is there a universal proposition of invalidity for jurisdictional error?
The legal and practical consequences of jurisdictional error will depend upon the particular statute Jadwan Pty Ltd v Secretary, Department of Health & Aged Care [2003] FCAFC 288 Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function. “Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever”

Principles In Plaintiff S157/2002 v Commonwealth of Australia (2002) 195 ALR 24 at [76], the High Court laid down the correct approach to be taken to the application of the privative clause in s 474 of the Migration Act 1958 (Cth). It held that jurisdictional error affecting a decision is sufficient to take that decision outside the protection of the privative clause, because a decision affected by jurisdictional error cannot be regarded as `a decision ... made ... under this Act'. Although HC has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all“ it is still necessary to read the relevant legislation as a whole, including having regard to any privative clause, in order to determine whether a particular error is to be regarded as a jurisdictional error with invalidity as the consequence for this purpose.

Error of Law on the face of the record
At common law non-jurisdictional errors of law can be quashed (by certiorari or stat equivalent) if the error is apparent on the face of the record. Narrow view of record at c/law – formal sealed order of the court below and the initiating process Reasons not part of the record unless expressly incorporated as part of the ‘record’ State law broadens the record to include reasons: s 69 SCA (NSW) The requirement that a non-juris error be ‘apparent’ on the face of the record is satisfied by express errors; it is less certain that such errors can be inferred from ‘gaps’ in the record (see remedies)

Generally Where decision-maker
Exceeds jurisdiction by flouting a stat limitation, breaching procedural fairness or otherwise committing a ‘Craig error’ – decision INVALID But still may have some legal or factual consequences which depend on statutory interpretation in the Jadwan and Blue Sky sense Jurisdictional error may be proved by evidence outside formal record of the court cf error on face of the record

Remedies Prohibition to prevent excess of jurisdiction
Mandamus to compel perform of public duty Certiorari to quash Declaration that the order/decision or proceeding is a nullity or that rights or duties are as declared

Summarise For tribunals and the executive errors of law which constitute jurisdictional errors include Identifying wrong issue Ask wrong question Ignoring relevant material Relying on irrelevant material Failing to observe a jurisdictional fact Otherwise reaching a mistaken conclusion due to unreasonableness etc in the Li sense.

Administrative Law 09 University of Sydney Law Extension Committee

Similar presentations

Presentation on theme: "Administrative Law 09 University of Sydney Law Extension Committee"— Presentation transcript:

Similar presentations

About project

Feedback

Log in

Auth with social network:

Administrative Law 09 University of Sydney Law Extension Committee

Similar presentations

Presentation on theme: "Administrative Law 09 University of Sydney Law Extension Committee"— Presentation transcript:

Similar presentations

About project

Feedback