ADMIN LAW Administrative decision making

K Mellifont, 10 March 2016, McInnes Wilson, CLE

WHAT IS YOUR DECISION-MAKING POWER

• Go to your legislation • Go to the provision • Dissect out the elements

Are there jurisdictional facts?

• That is, things which must be found before a decision can be made to do, or not do, something?

Example of a provision : immediate action power

• THE HEALTH PRACTITIONER REGULATION NATIONAL LAW ACT 2009:

• An important objective of the national Law is to provide for the protection of the public: s3(2)(a); Bernadt v Medical Board of Australia [2013] WASCA 259, 50]

• Section 156 National Law

• Section 156(1) provides:

• (1) A National Respondent may take immediate action in relation to a registered health practitioner or student registered by the Respondent if –

• (a) the National Respondent reasonably believes that –

• (i) because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risks to persons; and

• (ii) it is necessary to take immediate action to protect public health or safety or …

Know the case law on the section

• The adverse impact of immediate action on the applicant is an important consideration but protection of the public is regarded as paramount. See MLNO v Medical Board of Australia [2012] VCAT 123 at [5] cited in Pearse v Medical Board of Australia [2013] QCAT 392 at [19].

• Note that the considerations under s 156 are not the same as substantive disciplinary proceedings considerations.

• BRIEF YOUR EXPERT WITH THE RIGHT QUESTIONS

• The existence of a reasonable belief is a jurisdictional fact that enlivens the power to take immediate action: Bernadt,

[64].

To what level must the facts be found?

• Reasonably suspect • Reasonably believe • Reasonably satisfied

Reasonable suspicion

• George v Rockett (1990) 170 CLR 104– the High Court considered the meaning of reasonable suspicion. At 115, the Court stated:

• , “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’.” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay [its] debts as they became due” as that phrase was used in s95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said (65):

• A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which “reason to suspect” expresses in sub-s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the pay an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes – a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payments would have as between the payee and the other creditors.

Reasonable belief

• Newnes JA in Bernadt, [173]

• A ‘reasonable belief.. requires the existence of facts which are sufficient to induce the belief in a reasonable person.

• Belief requires something more than suspicion

WHAT ARE RELEVANT CONSIDERATIONS? WHAT ARE

IRRELEVANT CONSIDERATIONS? • Look to provision • Look at legislative regime • Look at objects • Look at specifics in the legislation – ie. List of things to be taken into

account – and does the list say must / may; and does the list say include – or is it exhaustive

PIECING IT ALTOGETHER

• Facts found [ basis for them ] • How those facts are relevant to the decision-making • What are the things taken into account • How is the decision reasoned

DOCUMENT TRAILS Disciplined document trails important to good decision making,

and to upholding decisions

DOCUMENT TRAILS

• Affidavits

DECISION-MAKER

• Who can make the decision? • Who has the delegation ? • Proof of the delegation ?

STEPS IN THE PROCESS

• Show cause • Natural justice content

DANGERS OF THE CUT AND PASTE FROM THE SHOW CAUSE INTO THE

DECISION DOCUMENT • Often looks to a court as though the decision-maker hasn’t given the

submission by the respondent much thought

• Often refer back to the reasons in the show cause letter and incorporate – where to do so incorporates reasoning no longer valid or logical given new information provided in the show cause process

DETAILED DECISIONS OR WAIT FOR THE STATEMENT OF REASONS

REQUEST? • Legislation will sometimes dictate what you have to advise in your decision • But beyond that ? How much detail? • Statement of reasons after the event ???

HOW DO TO STATEMENT OF REASONS?

• Administrative Review council produced Practical Guidelines for Preparing Statements of Reasons, November 2002 revised version, in Australian Administrative Law, Butterworths Looseleaf, at page 6001 et seq

Is there an obligation to provide reasons?

• 1. Do I have an obligation to provide a statement of reasons ? • 2. Look to the statute: aggrieved person; time limits (do you strictly

enforce); legislative requirement; legislative exception; legislative prohibition

• 3. If not required, would it be a good idea anyway?

If you are required…

• Ascertain and stick to the time limits to provide

Can I refuse to provide a statement of reasons

FACED WITH JUDICIAL REVIEW?

• Decision maker affidavit • Annexe delegation • Annexe material • Don’t depose to reasonableness of the state of mind

GETTING CROSS-EXAMINED TODAY?

• Preparation - legislation; material before the decision-maker; decisions • Conference – with Counsel – in advance of the hearing date

REVOCATION OF DECISIONS?

• Okay to do this

FACED WITH JUDICIAL REVIEW?

• Decision maker affidavit • Annexe delegation • Annexe material

ADMIN LAWWHAT IS YOUR DECISION-MAKING POWERAre there jurisdictional facts? Example of a provision : immediate action powerSlide Number 5Know the case law on the section Slide Number 7Slide Number 8To what level must the facts be found? Reasonable suspicionReasonable belief Slide Number 12WHAT ARE RELEVANT CONSIDERATIONS? WHAT ARE IRRELEVANT CONSIDERATIONS?PIECING IT ALTOGETHER DOCUMENT TRAILS DOCUMENT TRAILS DECISION-MAKER STEPS IN THE PROCESSDANGERS OF THE CUT AND PASTE FROM THE SHOW CAUSE INTO THE DECISION DOCUMENT DETAILED DECISIONS OR WAIT FOR THE STATEMENT OF REASONS REQUEST? HOW DO TO STATEMENT OF REASONS? Is there an obligation to provide reasons? If you are required…Can I refuse to provide a statement of reasons FACED WITH JUDICIAL REVIEW? �GETTING CROSS-EXAMINED TODAY? REVOCATION OF DECISIONS? FACED WITH JUDICIAL REVIEW? �