Admin Template Final

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ACCESS TO REASONS STEP 1: NO common law right

There is no common law right to reasons (Osmond) Osmond: A wanted to know why he did not get a promotion. HCA: there is no duty to give reasons Value of reasons

! A safeguard to sound administration – departments know that they are going to have to provide reasons, therefore going to ensure process if upheld

! Benefit to parties: access to reasons is important ! if they see the reasons they might be able to see why that has happened. If justify, the matter might not go forward (democracy)

! Facilitates review (in CT or AAT) ! Benefits the wider community ! general trend of government department providing reasons

early which ultimately benefits the community

STEP 2: Jurisdiction under AAT Act (NO general power of review) – s 28

Step 1: Request for statement of reasons s 28(1) (AAT Act) 1. If a person makes a DECISION 2. Any person ENTITLED to apply for a review of that decision (s27) MAY

! By notice in writing ! Given to the person who made the decision

3. Request person give applicant a statement in writing setting out the findings on ! Material question of fact ! Referring to the evidence/material which findings were based; and ! Giving reasons for the decisions

AND – person who made decision shall – as soon as PRACTICABLE, but in any case, w/in 28 days give the statement of reasons Step 2: ‘Entitled to review decision’s 27 (AAT Act)

1. 27(1) where an enactment provides an application be made to AAT (see s 25) 2. 27(1) An application may be made by person whose interests are affected by the

decision ! If in organisations objects/purposed = standing (s 27(2))

Step 3: Enactment may provide for applications of review – s25 1. Enactment may allow for review of decisions made in exercise of powers conferred

by that enactment; or 25(1)(a) 2. Review conferred by another enactment 25(1)(b)

Step 4: Inadequate statement of reasons s28(5) Tribunal upon application may make declaration if it considers statement does not contain adequate particulars of findings on:

1. Material questions of act 2. Reference to evidence/material which findings/reasons based on

Additional statement with better particulars shall be given w/in 28 days. Step 5: Public interest refusal if the disclosure of reasons would prejudice the public interest 28(2)

-‐ Prejudice security/international relations -‐ Involve disclosure of deliberations/decisions of cabinet -‐ Any other reason that could for basis

Step 6: not entitled to reasons if the decision reasons have already been given to A or it has been given in writing setting out material Q’s of Fact, evidence/material which findings based etc 28(4) Right to correct personal information Part V right to correct personal information ! S48: May apply for amendment of personal records, either incomplete, incorrect, out of

date or misleading AND has been used/available for use by agency/min for administrative purposes

! S49: requirements for application ! writing, and specify why ! S50: may make amendment

STEP 3: Jurisdiction under ADJR s 13

Step 1: s13 reasons – jurisdictional hurdles ! Harder to satisfy than AAT. Step 2: s 3 for act to apply:

1. Decision – must have an element of finality 2. Of administrative character – must be made by the executive 3. Made under an enactment – ex: does not include private companies, prerogative

powers Step 3: Must also be a ‘person aggrieved’ – as per section 5 (s13) Step 4: Must be w/in 28 days after request 13(2) Step 5: inadequate statement of reasons 13 (7) statement does not contain adequate particulars of findings on:

1. Material questions of act

2. Reference to evidence/material which findings/reasons based on Step 6: Public interest refusal if the disclosure of reasons would be contrary to the public interest s14

-‐ Prejudice security/international relations -‐ Involve disclosure of deliberations/decisions of cabinet -‐ Any other reason that could for basis

FREEDOM OF INFORMATION -‐ DOCUMENTS LAWYERS ARE OBSESSED WITH FACTS ! THIS IS OUR TOOL TO GET THEM

STEP 1: NO common law right

There is no general right of access at common law ! HOWEVER, NEW ADMIN SCHEME -‐ This is further limited by the ‘public interest immunity from disclosure re

documents that would be prejudicial to the public interests (Sankey v Whitlam) -‐ Conflict b/w representative democracy (admin to justice, giving people access) and

the other side, the government needs some level of secrecy to function properly. Sankey v Whitlam: dealt with explanatory memorandum, went through cabinet, number of things sought, ultimately only thing entitled to was the minutes of the meeting. Everything else excluded under public interest immunity.

STEP 2: Right of Access

RIGHT: NEW ADMIN LAW SCHEMES Prima facie right in s 3 (pro-‐disclosure in pub interest for greater openness) – defined & limited in 11(1) giving a legal enforceable right to every person TO:

(a) A document of an agency OTHER THAN an exempt document (b) An official document, other than an exempt document

PROCEDURE: s 15: in writing, pay fee, duty on agency to acknowledge receipt of request w/in 14 days and notify decision w/in 30 days. EXEMPTIONS 11A = mandatory access unless exemptions established. ‘DOCUMENT’ s 4 Paper, material in writing, map, plan, drawing, photograph, marks, figures, symbols with meanings, articles – with sounds, images, writing capable of being reproduced, information stored mechanically/electronically. Any other record of information, any copy, reproduction, duplicate or any part of such ‘AGENCY’ s 4 Definition ! s4: department or prescribed authority ‘DOCUMENT OF AN AGENCY ‘ s 4 Element 1: Defined ! s 4: A document of an agency if:

(a) Document in possession of agency, whether created in agency or received in agency; or (b) In order to comply with section 6C the agency has taken contractual measures to ensure

that it receives the document Element 2: outsourcing issue? Section 6C: where a federal agency has contracted with private CO in connection with its government functions/services, agency must put in contract that docs relating to the performance of the K MUST be received by Fed agency. This applies to contractors & sub-‐contractors. PROBLEM: creates onus on actually taking contractual measure, if they fail – argue common law notion of constructive possession = b/c really fulfilling function of the govt services, all docs really property of the govt, thus quasi ownership entails right of agency to retrieve (difficult argument) ‘OFFICIAL DOC OF MINISTER’ Definition – document in possession of MIN, that relates to his affaires of an agency/ dept. Min deemed to be in possession of Doc that has passed from his her possession if he/she entitled to access to DOC. EXEMPT DOCUMENTS/PERSONS/BODIES Cannot obtain access to docs in section 12 -‐ Archives Act (unless deceased) (a) -‐ Are open to public access in public register/otherwise subject to fee (b)

Cannot obtain docs from certain institutions: section 13 -‐ Memorial collection Aus War Memorial Act 1980 (a) -‐ National library of AUS (b) -‐ Historical material from Museum of Aus (c) -‐ National archives of Aus (d) -‐ National Film & Sound Archive AUS (e)

Certain persons or bodies section 7 -‐ Department of Defence is not an agency (1) (1A) -‐ Intelligence docs that come from (2A)

o Aust Secret Intelligence services (ASIO) o Aus security intelligence org o Office of National Assessments o Defence of Imagery & Geospatial Org o Defence of Intelligence Org o Defence of Signals directorate

-‐ Minister exempt re intelligence agency docs, defence docs (2B) -‐ Agency exempt docs from defence intelligence (2C)

Section 31A: Access to exempt and conditionally exempt documents How the Act applies – exempt & conditionally exempt Item If… Then… Because of… 1 Document exempt under Div 2,

OR under definition of exempt doc.

Access to the document is not required to be given

Subsection 11A(4)

2 A document is an conditionally exempt document under Div 3 (PI conditional exemptions)

Access to document is not required, unless it would be contrary to the public interest

Subsection 11A(5) – NB 11B public interest factors

3 A document is an exempt document & also a conditionally exempt document under Div 3.

Access to the document is not required to be given

Subsections 11A(4) & (6) and section 32

4 Access to document is refused because it contains exempt matter & exempt can be deleted

(a) An edited copy deleting the exempt matter must be prepared (if practicable)

Section 22

5 A doc is exempt document b/c of any provision of this act

Access to doc may be given apart from under this act

Section 3A (objects –pro disclosure

STEP 3: EXEMPT IF EXEMPT: agency minister not required to give access (s11A(4)) Documents affecting NATIONAL SECURITY, DEFENCE OR INTERNATIONAL RELATIONS s 33 Section 33: Document is exempt if disclosure: (a) Would reasonably be expected to, cause damage to;

(i) Security of Cth; or (ii) defence of Cth; or (iii) international relations of Cth

(b) Would divulge any info/matter communicated in confidence by/behalf of foreign govt/ their authority or international org of the Cth. CABINET DOCUMENTS s 34 Exemptions s 34 (1) Is exempt if:

(a) BOTH satisfied: (i) Submitted to Cabinet for consideration or is/was proposed by Min to be

submitted (ii) Brought into existence for the dominant purpose of submission for consideration by cabinet

(b) It is an official record of cabinet (c) Brought into existence for DOMINANT PURPOSE of submission for consideration by cabinet (d) it is a DRAFT of (a), (b) or (c)

(2) Doc is exempt to exent that cop/part contains an extract where sub (1) applies (3) Doc is exempt to extent it contains info that disclosure would reveal Cabinent deliberation/decision (unless officially disclosed) EXCEPTION to exemption docs (4) Doc not exempt ONLY B/C it is attached to a doc which (1)-‐(3) applies (5) Docc which decision of Cabinet officially published is not exempt (6) Info in doc is not exempt if info only purely factual material Docs affecting ENFORCEMENT OF LAW & PROTECTION OF PUBLIC SAFTEY s 37 S 37 (1) Doc is exempt IF disclosure would/could REASONABLY be expected to:

(a) Prejudice conduct of investigation of a breach/possible breach of law/possible failure to comply with law RE taxation OR prejudice enforcement or proper administration of law. (b) Disclose, or enable person to ascertain existence/identify confidential SOURCE of info, or non-‐existence of confidential info RE the ENFOREMENT/ADMINISTRATION of the law. (c) Endanger the life or physical safety of any person

(2) A document is exempt if disclosure would/could reasonably be expected to: (a) Prejudice the fair trial of a person or impartial adjudication of the case (b) Disclose lawful methods for preventing, detecting, investigation or dealing with matters arising out of breaches/evasions of the law & disclosure of which would/or would reasonably likely to, prejudice the effectiveness of those methods of procedures; or (c) Prejudice the maintenance or enforcement of lawful methods for the protection of public safety

(2A) purposes of (1)(b) confidential source ! if person receiving/has received protection under program conducted by AUS Fed Police or state/territory.

(a) Witness

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(b) People who need such protection b/c witness (c) anyone else in need of such protection

Documents to which SECRECY PROVISIONS of enactments apply s 38 S 38 (1) Doc is exempt IF

(a) disclosure of doc PROHIBITED under an enactment; AND (b) EITHER

(i) Provision is specific in SCH 3 (ii) this section expressly applied to the doc by that provision or another provision of another enactment.

(1A) persons right of access to DOC under s 11 or 22 -‐ not affected MERELY b/c document is exempt under (1) if disclosure of doc/information -‐ is not prohibited by an enactment. (2) Subject to (3) section DOES NOT apply to personal info about the applicant (3) Section APPLIES to personal info IF:

(a) Person requests access & doc is prohibited under migration act. Documents subject to LEGAL PROFESSIONAL PRIVILEGE s 42 S 42 (1) Document is exempt if would be privileged in legal proceedings under legal professional privilege (2) Document NOT exempt – if person has waived it (3) Document NOT exempt by reason only that

(a) & (b) document contains info that would be exempt AND information is operational information

In Osland, Mrs O was convicted of murder of her husband. She made a petition for mercy to the former A-‐G and then was refused. A-‐G had sought advice from the best QCs which they made recommendation for the refusal. Due to the pressure from the public, A-‐G made a public announcement in this regard. She sought a review and access to that advice amongst other information at the AAT. The AAT upheld the LLP exemption. Q was whether the A-‐G had inadvertently waived his LPP when he communicated the advice to the public. The case went to the HCA where it was rules that A-‐G LPP was not waived. Documents containing material OBTAINED IN CONFIDENCE – s45 S 45 (1) Document is EXEMPT if disclosure would found action by a person for a breach of confidence (2) sub (1) does not apply to doc under 47C(1) – deliberative processes THAT IS prepared by Minister, his staff, an officer/employee of agency, in course of their duties or by a prescribed authority or Dept of state unless disclosure of doc would constitute breach of confidence owed to another person/body OTHER THAN

(a) person in capacity of minister/member of staff/officer/agency (b) An agency, the Cth

Re Kamminga & Aust National Uni Access sought to referees reports & CV’s which related to unsuccessful applications for positions at UNI. ANU refused – 36, 40 & 45

-‐ Fell into 40 (deliberative process – but not against PI) WAS EXEMPT: under 45, only the referee reports though (breach of confidence) because it contained personal information which was attaches to the applications. Parliamentary Budget Office Documents – 45A Section 45A; Exempt IF (a) Do from parliamentary budget officer/office OR in response to confidential request AND (b) Dominant purpose of providing info re confidential request. Documents disclosure which would be CONTEMPT OF PARLIAMENT or CONTEMPT OF CT Section 46: Document exempt if disclosure would

(a) be in contempt of court (b) Contrary to order/direction by Royal Commission or by a TRIBUNAL or other

person/body having power to take evidence on oath (c) Infringe privileges of parliament.

TRADE SECRETS & COMMERCIALLY VALUABLE INFORMATION – s 47 Section 47 (1) A document is exempt if disclosure would disclose;

(a) trade secrets; or (b) Any other info having commercial value that would be, or could reasonably be expected to be destroyed, or diminished if the information was disclosed.

(2) – Sub (1) does not apply to request of access to document which: (a) by reason only of inclusion of the info concerning that person in respect of their business/professional affairs (b) By reason only of the inclusion in doc of information concerning business, commercial or financial affairs of an undertaking where person making request IS proprietor of the undertaking/behalf of the proprietor

(c) By reason of inclusion of doc of info concerning business/commercial/financial affairs of ORG where person making request is the ORG/behalf of ORG

ELECTORAL ROLLS & RELATED DOCUMENTS Section 47A (2) doc is an exempt doc if it is:

(a) an electoral roll; or print, or copy of a print or copy on tape or disk (c) microfiche of an electoral roll; or (e) doc that sets out particulars of only one elector; & used to prepare roll; or (f) doc that:

(i) copy of a doc referred in para (e); or (ii) contains only copies of docs referred to in para (e); or

(g) doc (incl habitation index w/in meaning of Electoral Act) that: (i) set out particulars of electors; and (ii) was derived from an electoral roll

(3) Part of an electoral roll that sets out the particulars of an elector is not an exempt doc in relation to the elector. (4) Any print, copy of a print, microfiche, tape or disk that sets out or reproduces only the particulars entered on an electoral roll in respect of an elector is not an exempt doc in relation to the elector. (5) Doc that sets out only the particulars of one elector and:

(a) copy of a doc referred to in para (2)(e); or (b) copy, with deletions, of a doc referred to in para (2)(e), (f) or (g);

is not an exempt doc in relation to elector.

FOI – inadvertent disclosure: government accidently giving exempt material and what you have to do ! Contact the provider of the information immediately, explain that it was inadvertent, ensure all copies are destroyed

STEP 4: CONDITIONALLY EXEMPT TWO STEP TEST:

Step 1; Identify the exemption that may be relied upon Step 2: MUST GIVE ACCESS to document if conditionally exempt UNLESS on balance, contrary to public interest s 11A (5)

STEP 1: CONDITIONAL PI EXEMPTIONS CTH & STATE RELATIONS Section 47B: Document conditionally exempt if disclosure: (a) Would/could reasonably be expected to, cause damage to relations b/w Cth & State (b) Divulge information/matter communicated in confidence b/w Cth & State DELIBERATIVE PROCESS Section 47C: Document conditionally exempt (public interest test is now relevant) if disclosure would disclose matter (deliberative matter) in nature of opinion/advice/recommendation/record/consultation/deliberation taken place in course of deliberative processes involved in the functions of: (a) Agency… (b) Minister… (c) Cth… (d) Norfolk Is. Exceptions (2) Deliberative matter does not include either

(a) Operational information (section 8A) (b) purely factual material **(no judicial consideration) NB: agency must public its operational information ! s 8

(3) Section does not apply to (a) reports/studies/surveys/tests of scientific or technical experts, whether employed w/in agency

or not – including reports expression opinions of such experts on scientific or technical matters (b) reports of, or formal statement of reasons for, final decisions re exercise of adjudicative

function. ! NB: see 24AA & s7A in conjunction

FINANCIAL/PROPERTY INTERESTS OF CTH & NORFOLK IS. Section 47D Conditionally exempt if disclosure would have substantial/adverse affect on the financial/property interests. CERTAIN OPERATIONS OF AGENCIES Section 47E: Document is cond. Exempt if disclosure would/could reasonably be expected TO: (a) prejudice effectiveness of procedures or methods of the conduct of tests, examinations or audits by

an agency (b) Prejudice attainment of objects of particular tests/examinations or audits conducted/to be

conducted by an agency (c) Have substantial adverse effect on the management/assessment of personal by Cth o NI or by

Agency (d) Have substantial adverse effect on proper & efficient conduct of the operations of an agency. PERSONAL PRIVACY General rule Section 47F (1) Document conditionally exempt if disclosure involves unreasonable disclosure of PERSONAL INFO

about any person (incl deceased)

(2) In determining unreasonable disclosure – consider: (a) Extent to which info is well known (b) Whether person to whom info relates is known/associated with matters dealt in the doc (c) Availability of information in public accessible sources (d) Any other matters min/agency considers relevant

(3) Subject to sub (5) ! sub 1(1) HAS NO EFFECT re a request by a person, by reason only of the inclusion in the document matters relating to that person

ACCESS given to QUALIFIED person instead (4) Sub (5) applies IF:

(a) Request made – contains info re applicant & information provided to a QUALIFIED PERSON; AND

(b) Appears that disclose of info to applicant might be detrimental to applicants physical/mental health or well-‐being

(5) Officer/minister MAY if access to document would otherwise be given ! direct access (so far as contains info) is NOT GIVEN to applicant ! BUT GIVEN TO QUALIFIED PERSON who:

(a) Carries on occupation in sub (7); AND (b) Is nominated by applicant

(6) Powers/functions of principle officer of agency – may be exercised by officer w/in scope of authority in accordance with arrangements in 23

(7) Qualified person: person in occupation, provision of car for physical or mental heal or persons well-‐being w/o limiting generally includes (doctor, psychiatrist, psychologist, counsellor, social worker

NB ! S 27A for request re document containing personal info ! allow other party to make submissions. Re Dyki: unsuccessful promotion, sought access to docs re 3 other applications, 2 of which were successful. Comm said, exempt under 38,40,41,43,45 HELD: exemption did not apply to the SUCECSSFUL APPLICATIONS (balance) -‐ minus cover sheet containing personal details (person got access to successful application – minus cover sheet b/c of personal info exemption). Other information ex: work experience was NOT exempt. Unsuccessful applicant document exempt – under personal info – unreasonable disclosure of personal info about any person. Re Kamminga & ANU: Access was sought to referees reports & CV’s which related to unsuccessful applicants for positions of research fellow. ANU refused access. Fell in class of docs (deliberative process doc – BUT disclosure not contrary to the public interest) HOWEVER – material WAS exempt under breach of confidence – b/c referee reports attached. BUSINESS AFFAIRS Section 47G: Business affairs (1) Doc, cond exempt if disclosure of info concerning a person – in re of business/professional affairs OR concerning business, commercial or financial affairs of org/undertaking – AND DISCLOSURE:

(a) would/reasonably expected to – unreasonably affect that person/organisation with lawful business/professional affairs/ undertaking lawful business, commercial or financial affairs. (b) Could reasonably expected to prejudice future supply of information to the Cth, NI or agency – for purposes of administration of the laws by that agency.

(2) sub (1) does not apply to trade secrets or section 47 information (3) sub (1) does not have an effect re a request for access to document;

(a) by reason only of inclusion in doc of info concerning that person in respect of his or her business or professional affairs. (b) by reason of inclusion in doc of info concerning business/commercial/financial affairs of undertaking where person making request is proprietor of undertaking

(4) A reference to undertaking – includes carried on by authority of Cth, State etc (5) Purpose of ss(1) info not taken to concern a person in respect of persons professional affairs b/c info concerning status as member of the profession. RESEARCH 47H: doc is conditionally exempt if:

(a) It contains information re research that is/to be undertaken by an officer of an AGENCY specified in SCH 4; and

(b) Disclosure of th info before completion of the research would be likely unreasonably to expose the agency or officer to disadvantage

SCH 4: Research institutions -‐ Commonwealth Scientific and Industrial Research Organisation -‐ The Australian National University

THE ECONOMY 47J: (1) The document is conditionally exempt if disclosure would/reasonably be expected to have a substantial effect on Australia’s economy; BY

(a) Influencing a decision or action of a person/entity; OR (b) Giving a person (or a class of persons) an undue benefit or detriment, in relation to

business carried on by the person/class of persons, by proving premature knowledge of proposed action/inaction.

(2) for sub (1) substantial adverse effect on AU economy included as substantial adverse effect on: (a) A particular SECTOR of the economy; or (b) Economy of particular region of Australia

(3) Documents which (1) applies includes – no limited to: (a) currency/exchange rates (b) interest rates

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(c) taxes, including duties of customs & excise (d) Regulation/supervision of banking, insurance and other financial institutions (e) proposals for expenditure (f) Foreign investment in Australia (g) Borrowings by CTH.

STEP 2: PUBLIC INTEREST BALANCE – s 11B ELEMENT 1: Cond. Exempt docs -‐ MUST DISCLOSURE – UNLESS, on balance, contrary to public interest 11A(5) ! IS DISCLOSURE CONTRARY TO PUBLIC INTEREST? ELEMENT 2: Section 11B – public interest test FACTORS Scope: (1) Balance whether contrary to public interest under 11A(5) Factors favouring access (3) includes

(a) Promote the objects of the Act (s 3 & 3A) (b) Inform debate on matter of public importance (c) promote effective oversight of public expenditure (d) allow a person to access his/her own personal information

Irrelevant factors (4) must not take into account the following in the PI test

(a) Access to the document could result in embarrassment to the CTH Government, or cause a loss of confidence in Cth GOvt or Norfolk is govt (b) Access to the doc could result in any person misinterpreting or misunderstanding the doc (c) Author of the doc is of high seniority in the agency to which the request for access to the document was made (d) Access to doc could result in confusion or unnecessary debate

(5) Must have regard to the GUIDELINES issued by the information commissioner (5) & section 93A

STEP 5: EDITED COPIES/ DELETIONS

Section 22: if document contains exempt material ! where reasonably possible to modify/edit the doc to ensure non-‐disclosure of that info & reasonably practicable to prepare copy MUST prepare & give to applicant with notice of the grounds for deletion ***NB: reasons for refusal required ** next page. ! section 26

STEP 6: OTHER REASONS FOR REFUSAL

ONE Documents cannot be found/do not exist Section 24A: Agency/min can refuse request if documents cannot be found, do not exist or have not been received. TWO: Diversion of resources 1. May refuse request if a practical refusal reason exists (s24) 2. Practical refusal reason includes 24AA(1)

! Work involved in request would substantially & unreasonably divert the resources of the agency from its other operations s24AA(1)(a)(i)

! Work involved would substantially and unreasonably interfere with the performance of the ministers functions 24AA(1)(a)(ii)

3. Have regard to the resources use for 24AA(2) ! Identifying, locating, collating docs w/in system of agency/min 24AA (2)(a) ! Resources used for examining the document or consulting with another body

24AA(2)(b) ! Making a copy/edited copy of it 24AA (2)(c) ! Notifying interim/ final decision re the request 24AA (2)(d)

4. MUST NOT have regard to 24AA(3) ! Reasons that A gives for the request ! Agency/ministers belief as to applicants reasons ! Any maximum amount specified in regulations, payable as a charge for processes of

using request of that kind THREE: Deferment of access May defer access IF (nb: must inform applicant of reasons and indicate as far as practicable period for deferment) s 21 -‐ Required by law -‐ Document is prepared for presentation to parliament for the purpose of being made

available

OMBUDSMAN Quick, cheap & informal – has broad jurisdiction over various types of complaints & compulsory powers of investigation Aim is to resolve complaints impartially, informally and quickly ! it is independent and impartial from the government. Promotes an open government, and the adverse impacts government administration can have on individuals Serves: Investigates complaints by people who believe they have been treated unfairly. It is an essential accountability measure in democratic societies. Defined: An office provided for by the constitution or byy action of the parliament and headed by an independent, high level public official, who is responsibility to Parliament, who receives complaints from aggrieved persons against governmental agencies, officials and employees, or who acts on his or her own motion, and who has the power to investigate, recommend corrective action and issue reports (Ombudsman Committee of the International Bar Association) Write: The role of the Ombudsman is to investigate either of his own motion or on the occasion of a compliant allegation of maladministration in government departments (s 4(2), s 5). Complainants pay no fee. Depending on the stages of the application the Ombudsman has a discretionary power to decide whether or not to talk upon a case (exercise his or her discretionary in the circumstance). IF the IC or the Commissioner is still reviewing it, then it is unlikely that the Ombudsman will get involve. Even if the decision is on its way to the AAT the Ombudsman might still hesitate. The ombudsman’s advice would be to let the investigations its course. However, there are still positives about contacting the Ombudsman, in substance the Ombudsman may be interested in this sort of case file (fact inserted). As mentioned, the Ombuds have an investigatory powers, he has the power to obtain information and documents (s 9); issue a certificate in relation to a complaint that actions or decisions have been taking an unreasonable time and there is unreasonable delay with questions to the AAT (ss 10A and 11); examine witnesses (s 13); enter premises (s 14) etc. The Ombudsman is required to make reports in certain circumstances to the relevant Department or prescribed authority, if he or she is in the opinion that department or agency action has been:

-‐ contrary to law -‐ unreasonable, unjust, oppressive or improperly discriminatory -‐ in accordance with a rule of law a statutory provision or a practice that is

unreasonable etc. However, the Ombudsman is unpopular because (see below) Apply whether if the Ombudsman would take on this case file what are the benefits of his or her powers.

Unpopular because:

1. NO determinative powers ! so unsuitable for highly significant, strongly disputed or very complex disputes.

2. Clients of lawyers may require definitive remedies 3. Budget issues – underfunded 4. Little media attention is given to the omb 5. Don’t give attention to INDIVIDUAL clients ! just trying to fix a broad problem.

However -‐ Still growing: complaints are increasing

Departments in the Federal Omb: Defence force, Taxation, Immigration and Social Security

Useful in situations WITH

-‐ Systemic issues – identification & investigation -‐ Capacity to influence policy by going to parliament: recommendations by the OMB are

highly regarded -‐ No money -‐ Trivial matters -‐ Non legal matters -‐ Seeks redress beyond legislative frame work -‐ Identifies initial maladministration -‐ Prisons (v. useful b/c they don’t listen to lawyers), child protection, work place health and

safety, workplace issues, schooling, public housing, immigration, social security

Functions

1. Resolution of complaints by individuals re government agencies 2. Improve overall standard of administration by stimulating debate and recommending

changes to law or an agencies policies/procedures.

3. Identification of systemic problems due to individual complains – ex: you have a number of complaints about the same thing

4. Monitoring the implementation of decisions made by external review bodies 5. Monitoring the implementation and systemic impact of its own decisions 6. ABLE TO ACCESS HIGH LEVEL PERSONNEL AND INFORMATION

Effectiveness

-‐ Has the capacity to go to parliament and influence policy ! b/c of their reputation & ability to access high-‐level personnel and information

-‐ Reliability of their opinions -‐ Powers of persuasion -‐ Preparedness to use their wide powers -‐ Often the level of media attention a particular matter receives -‐ Departments take Omb investigations very seriously because they may expose or

embarrass the department -‐ Decisions of the omb are subject to judicial review b/c they are ultimately doing an

administrative decision

Should OMB have determinative powers?

GENERALLY: Probably not because the Omb would not be as effective. Although reference may be made to the Omb being ‘toothless,’ it is an important part of their roe. If they did have power it would endanger the relationship with the agency. Would be much more adversarial & the issues which they seek to address may not lead to, or require, a specific decision (such as reform) IN EXAM: Look at clients situation in a context of the problem question and then able to ascertain with good justification why or why not the ombudsman would be appropriate.

JURISDICTIONAL THRESHOLD BENEFITS

1. Available as a right, subject to satisfaction of broadly-‐expressed base requirements and specific exclusions (ie: exclusion of ministerial actions)

2. Does not need to be action that is final or operative for there to be a complaint about it 3. Finality or irrevocability of a decision is also not a bar 4. Extends more readily than other admin law mechanisms to purely executive decision

making regimes

PROCESS BENEFITS

1. Informal process (but has discretion – very significant investigative powers) 2. More likely to produce results faster than other formal avenues (often w/in 1 month) 3. Minimal costs, subject to professional, legal or other advice required to support complaints 4. Less demands on complaints than other types of review – easy to bypass lack of info &

complexity of proceedings

WHY IT MAY NOT BE USEFUL?

-‐ NOT IF STILL IN THE PROCESS OF BEING DECIDED ! was about to get a process through the

committee, no point in having omb intervene before a decision has been made in such a scenario.

-‐ If circumstances were different? -‐ they systemic stuff o Evidential basis for saying he has been targeted unfairly in the

evidence o A number of other people o Reverse of that – systemic: b/c lots of people aren’t and they are all

getting targets on faulty systemic evidence -‐ Systemic: affects a number of people

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MERITS REVIEW ADMIN APPEALS TRIBUNAL (AAT)

AAT ACT (Cth) ! most important merits review body at Cth level REVIEW W/IN EXECUTIVE ARM Tier 1: internal review (first option) Letter, internal process, FOI, specialist tribunal Tier 2: Specialist tribunal (optional)

-‐ ex; social security tribunal Tier 3: AAT (LAST tier of review w/in executive arm) MERITS VS. COURT

Merits Review Judicial Review -‐ Remakes the decision (subrogation) -‐ Decision substitutes the original decision -‐ Can consider fact & law -‐ Not subject to precedent (but conscious

of consistency) -‐ Can consider new evidence not brought

before original decision maker -‐ Quicker, faster informal (maybe w/o

need of representation -‐ Retrospectively – applies new laws AT

TIME OF HEARING

-‐ Expensive form of review -‐ Only questions of law (MUST have

unlawfulness) ! if you want facts reviewed, go to merits

-‐ Remedies may not resolve the dispute -‐ Cannot remake the decision! will the

department change the decision? -‐ Not all decisions are reviewable -‐ Cost orders – the loser pays -‐ Need representation -‐ Expensive -‐ Subject to doctrine of precedent

STEP 1: STATUTORY OBJECTIVES

Power of review: Section 2A: objective of AAT as mechanism for review that is fair, just economical and quick AAT proceedings: Section 33 ! proceedings conducted with as little formality & technicality, with as much expedition and

proper consideration of matters before the tribunal permits (1)(a)-‐(b) ! Person who made decision must use best endeavours to assist tribunal re the proceedings

(1AA) ! AAT not bound by rules of evidence but may inform itself on any matter it thinks appropriate

(1)(d) Retrospectivity ! General rule: AAT applies new laws at the time of hearing retrospectively (Harris v Caldin) ! Exception: can be overridden by the presumption against retrospectivity (protection of

fundamental rights) Membership Section 19 AAT is divided into a number of divisions: general administration, medical appeals, taxation and many other areas (2) -‐ President: Is always a federal court judge (Persona Designata appointment) s 6 (2) & 7(1) -‐ Deputy president: a lawyer with more than 5 yrs exp s 6(3) & 7(1AA) -‐ Senior members: lawyer + five years OR special knowledge s 6(4) & s 7(1B) -‐ Members s 6(4) Lawyer OR 5 + years exp in different area, OR has degree 7(2)

STEP 2: STANDING s 27 SECTION 25: conferred power by the legislation may vary standing INDIVIDUALS Section 27 (1) any person whose interests are affected by a decision

-‐ (an application may also be made on behalf of a person. Ex: cannot speak English).

-‐ Deportee partner (Re Vincent & Immigration) -‐ Representative of deceased applicant (Re Loschiavo)

Test; Davies J Re Control Investments; a person has other than as a member of the general public and other than as a person merely holding a particular type of conduct should be prevented or a particular law observed

-‐ NB: the normal test is more than mere intellectual concern + over & above general community.

Type of interest: Does not need to be pecuniary, or even specific legal rights but can be family-‐related but can be family-‐related, personal or other non-‐material interests (McHatten) McHatten: ! NO STANDING Outcome of successful application might affect a negligence action his client was bringing against him. Custom agents interests too indirect & remote to enable him to seek review of decision adverse to client. HELD: Interest not enough, custom agent refused standing Re Driver & Moore: ! STANDING (very wide interpretation of standing)

D deported, could not apply to AAT b/c of provision of the Migration Act. M close personal friend, D adopted father of M’s child. She was able to obtain standing b/c interests were affected in that D was adopted father. Section 31: AAT determination is conclusive in determining whose interests are affected (subject to 44(2) Section 44(2) If AAT says your interests are not affected by the decision ! appeal to federal court w/in 28 days (2A) ORGANISATIONS/ASSOCIATIONS/INTEREST GROUPS STEP 1: General rule: Section 27(2) organisations taken to have interests affected ! IF decision relates to a matter included in objects or purposes of the organisations

! Exception: 27(3) – sub (2) does not apply if -‐ decision given BEFORE the organization or association was formed OR -‐ before the objects or purposes of the organisation included the matter

concerned. STEP 2: Characterise the purpose/objects of the group ! does it relate to the specific matter being reviewed (Re Control) Re Control Investments & ABT ! Appeal from AB tribunal to AAT of decision re transactions by Newsgroup for TV licence. ! Other organisations wanted to take part in proceedings ! Important issue ! decision under review must relate directly to a matter included in groups

objects & purposes 1. ALP (labour party) allowed because of the media effect on the political process

! STANDING 2. Members of ALP NOT allowed (only the party itself) ! NO STANDING 3. Australian Journalists Association: allowed b/c stated in their objectives in

relation to news & current affairs ! STANDING 4. Rupert Public Interest Movement Inc: not allowed – no connection b/w

organizations stated purpose and the particular matter of review ! NO STANDING

Re Gay Solidarity Group ! NO STANDING; re only general crim offences not discrimination GSG sought review of criminal deportation decision against gay man convicted of offences of indecency with another man, buggery, publishing indecent article. HELD: refused standing WHY: objects included ending all forms of prejudice & discrimination against homosexual in all fields. The Minister claimed that the man – had not been discriminated against on grounds homosexual. The deportation was based on the conviction for a number of offences Group did not have a close enough connection

STEP 3: JURISDICTION s27

STEP 1: MUST BE AN ‘ENACTMENT’ CONFERRING JURISDICTION Element 1: s27(1) & s25 must have an ENABLING ACT, the AAT does not have general jurisdiction – Element 2: defined – s 3(1)

! Section 3(1) ‘enactment’ Defined to Cth Act of parliament or instrument, ordinance of external commonwealth territory (NB: ACT & NT laws not included)

Element 3: Jurisdiction can be modified by the enabling Act s 25(3)(c) NOTE: The AAT is a creature of statute, ONLY if the (‘Act’) gives the AAT jurisdiction to review and to what extent. MUST read the Act very carefully. Element 4: OUTSOURCING issue ! limited to under an enactment

o Under employment contract, not enough o Section 25 (3A) – extends jurisdiction to delegates & authorised persons

exercising statutory powers. ‘any other person’ exercising powers= private body

Ex: must not be under a contract or general law etc. STEP 2: THERE MUST BE A ‘DECISION Element 1: ‘Decision’ defined in s 3(3)

(a) Making, suspending, revoking or refusing to make an order or determination (b) Giving, suspending, revoking or refusing to give a certificate, direction, approval, consent

or permission (c) Issuing, suspending, revoking or refusing to issue a licence, authority or other instrument (d) Imposing a condition or restriction (e) Makin a declaration, demand or requirement (f) Retaining or refusing to deliver up and article (g) Doing or refusing to do any other act or thing

Issue 1: is preliminary or recommendatory action a decision? **not entirely clear in this issue** BOND Case: A ‘decision’ requires a substantive, final and operative decision, consistent with the interpretation of the term under the ADJR Act by HCA

! Ex: Multi-‐tier decision, Doc having sex with patient, losing his/her licence. Investigation at first – you don’t want getting out in media. Something that would have a real practical effect, but no legal effect. If doctor not afforded procedural fairness in that investigation, then you would want to get in early and seek review of that

Hales (1983) OLD CASE: ! YES ‘real practical affect’ although not altering rights or liabilities (FLEXIBLE) Pronouncement which alters rights or imposes liabilities is readily classified as a ‘decision’ but the word has wider scope. MAY include ! a declaration or statement which has real practical effect although not altering rights or liabilities Issue 2: Advisory opinion is not reviewable Re Rennie: ! not reviewable Given advice on the likely effect of his pension rights if he took a transfer ! not a decision, not reviewable Issue 3: Refusal to Act a decision? YES 25(5): deemed to have made a decision when failed to do an act or thing in the time allowed to do it D-‐G Patents v Michigan Uni ! DECISION (refusal to act) P failed to apply w/in prescribed time for the restoration of a lapsed patent. P applied under 160 of patent act for commissioner to extend that time. The Commissioner decided he didn’t have power -‐ & refused. HELD: this was a reviewable decision even though it was on the basis he did not have the power in question. IE: AAT can made an ORIGINAL DECISION when original decision has refused to act

STEP 4: APPLICATION PROCEDURE 1. Prescribed from 1, writing, statement of non-‐binding reasons for application (s29) (Re

Greenham) ! $ fee 29A (waiver for financial hardship 2. Time limit: 28 days after receipt of decision in writing w/reasons & findings on Q’s of

Fact. 3. Parties to proceeding: Applicant, decision-‐maker (potentially A-‐G), any other person

whose interests affected ! s30. May be represented by another person s32. 4. Joinder: AAT has the power to join parties in s 30(1A) – discretionary

! Re Marine World: 8 separate groups, applied to join. PERMITTED, as long as agreed to be represented jointly (for fair hearing, carry out review expeditiously)

! Re Boyd: Refused reserve banks application to join b/c of its interest, shared by Comcare, could be adequately represented by Comcare.

STEP 5: PRELIMINARY PROCEDURE STAY ORDERS – s 41 Ex: deportation case, expedited hearing 1. Application does not automatically affect the operation of the decision or prevent the

taking of steps to implement: s 41(1) 2. BUT AAT has power to order a ‘stay’ to halt the implementation of the decision or any part

therefore: s 41(2) 3. THREE FACTORS (Re Repatriation Commission)

a. Hardship b. The likely recoverability of money paid pursuant to the decision sought to be

stayed c. Prospects of success of application

TC: where a stay is refused – AAT may recommend an expedited hearing (Re Wang & Migration) CONFERENCES & ADR – 34, 34A SCOPE: Does not apply to Security Appeals Division proceeding (section 34) 34A: Referral of proceedings for alternative dispute resolution process (1) If Application for review by AAT, president may: direct a holding of a conference, or refer them to a particular ADR process

! Conference call held b/w parties; or ! ADR process

(5) each party must act in good faith in relation to the duct of the ADR process The practice & procedure of conferences ! set out in 34B-‐34H Conferences held in private & nothing that is said or done at them can be used at a subsequent hearing unless the parties agree – 34(3) AAT’s General Practice Direction requires parties to: -‐ Lodge a statement setting out the issues in dispute -‐ Lodge and exchange copies of all relevant material they intend to rely on at any further

hearing -‐ Lodge a statement of facts upon which they intend to rely and any contentions to be drawn

from those fact ‘ADR process’ ! 3(1) mediation, neutral evaluation, case appraisal, conciliation & arbitration Advantages ! (1) General public interest in settlement proceedings, (2) saves time & money

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Disadvantages ! (1) Settlements deprive public of authorative statements of law, (2) negotiations may work in favour of the powerful at expense of the weak (3) settlements not subject to public scrutiny and accountability AAT DECISION W/O FORMAL HEARING Section 42C: power of tribunal if parties reach an agreement (1)

(a) Parties reach agreement that would be acceptable to the parties; AND (b) Terms of agreement in writing + signed + lodged with tribunal (c) Tribunal satisfied decision in those terms consistent with powers of tribunal may

(2) may make decision w/o hearing or completing the hearing POWER TO REVIEW DECISIONS ON THE PAPERS (w/o hearing at all) 34J Circumstances in which hearing may be dispensed with IF:

(a) It appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and

(b) The parties consent to the review w/o hearing Tribunal may review decision by considering the documents or other material lodged to tribunal w/o a hearing.

STEP 6: NATURE OF REVIEW Step 1: AAT stands in the shoes of the original decision maker & decision is treated as original s43(6) ! unless appealed (s44)

! AAT can adjudicate on both matters of law & fact (Lehtoyaara) Step 2: Drake (1979): The Q for determination of the tribunal is whether that decision was the CORRECT OR PREFERABLE one on the material before the tribunal (MUST CONSIDER POLICY to determine this question FACT, LAW & POLICY NB: enactment that empowers the AAT to review a decision made under that enactment may also modify the operation of certain sections in the AAT Act: s 25(6) & (6A) Step 2: WHAT AAT CAN DO 43(1) Tribunal decision on review:

(a) Affirm decision (b) Vary decision ! CONDITIONS on the decision (c) Set aside decision and (i) substitute decision or (ii) remit matter for reconsideration

Section 42D: Power to remit the matter to the decision maker at any time to reconsider & if they vary, affirm or set it aside they must do so within 28 days. Timing: decision comes into operation right when decision is given UNLESS otherwise specified in the decision 42A: Can dismiss, discontinue or reinstate 42B: if frivolous or vexatious – can dismiss and if appropriate make sure the applicant does not make a subsequent application w/o leave of the tribunal

Rulings by original decision maker on invalidity: can still be review by AAT Can rule on the legal validity of decision PROCEDURAL: Where decision maker fails to comply with procedures, the tribunal may review the decision even though it may be a legal nullity (Re Lear) NO POWER: Similarly, where a primary decision maker lacks the power to make the relevant decision, the tribunal may review the merits of the decision and set the decision aside but it may not affirm the decision (Re Barran) LAWLOR: !PRINCIPLE: AAT has jurisdiction even if original DM did not have power. C of C revoked BLA’s warehouse licence, that decision taken to AAT. AAT found C of C did not have power to revoke the licence and ordered that the cancellation be set aside. FED CT: held AAT still had jurisdiction to deal with the matter even though the CoC did not. Difficulty ! interpreting words ‘made in the exercise of powers conferred by that enactment in s 25. RULE: AAT has jurisdiction if there is in fact a decision & it is ‘INTENDED OR PURPORTS’ to have been made in the exercise of powers conferred by an enactment – even though they did not have the power

Alvaro ! AAT had power to review even where original DM did not have power. A, charged with social security fraud. Pleaded guilty, agreed to pay. D of SS proceeding to recover debt. Demand made by officer of debt who signed as ‘delegate of the secretary’ of the dept. Matter went on internal review & was upheld. AAT said they had no jurisdiction to do so b/c the officer was not duly authorised delegate. HELD: AAT DID have jurisdiction on the lawlor principle. Principle: AAT does not loose jurisdiction if person concerned did not have power to make decision ! rationale to limit cases going to FC. CONSTITUTIONAL VALIDITY CANNOT REVIEW: on constitutional validity (Re Adams) – such matters should be brought before the court s 45

STEP 7: ROLE OF POLICY How the tribunal should deal with govt policy; either

! Addressed in statute establishing tribunal (ex: must apply lawful policy); OR ! Addressed in legislation conferring jurisdiction – statute gives policy legislative force; OR ! There is no legislative guidance – no specific provision in AAT Act re policy.

GENERAL RULE: In determining whether decision was the correct or preferable decision, AAT must have regard to government policy as 1 of the factors in its determination of an application (Drake No 1)

-‐ Generally: if parliament has scrutinized policy, AAT adopts its practice. If government policy exists it is a relevant factor to be considered by the AAT

-‐ Parliamentary scrutiny -‐ Ministerial responsibility -‐ AAT not linked into the chain of responsibility -‐ AAT not qualified to revise all policy -‐ Consistency aided by policy

Weight: what weight is given to policy depends on AAT in each case ! the AAT’s main concern is weight not to review the policy itself (Drake 2) (Becker)

-‐ Re Aston: govt policy affected entire industry, had been resolved upon at a state & fed ministerial level (CABINET), developed in the political arena after consultation with industry ! AAT MUST GIVE SUCH POLICY GREAT WEIGHT

-‐ Re Lumsden: where departmental policy has not been settled/reviewed at ministerial level, then less weight will be attached to it (no consult with industry)

EXCEPTION: Unless the policy applied is UNLAWFUL or tends to produce and INJUSTICE in the individual case (Drake No 2)

LIMB 1: POLICY IS Unlawful 1. Must not be exercised for purpose other than that for which power granted 2. Must comply with statutory criteria, and directions re policy (if any)

LIMB 2: POLICY PRODUCED Injustice – must assess merits of the case FACTS of DRAKE: D granted permanent residence status in Australia. Brings son, marries Aussie. Possession of prohibited drug, 12 months prison, served 3. Minister signs to deport back to US. Appeals to ATT. AAT affirms, by applying ‘ministerial policy’. APPEAL, successful on 1 ground. Successful: AAT failed to exercise its independent discretion in the application of ministerial policy. COURT: AAT must stand in the shoes of the original decision maker.

-‐ AAT must Act w/in powers of the decision maker -‐ Where discretionary power – comply w/statute in so far as it restricts the

discretionary power Brennan J: the reason AAT should apply government policy is CONSISTENCY Why Not Review Policy? - AAT is outside of the executive chain of responsibility - Potential for such review to result in inconsistent precedent for future government decisions - AAT is ill-‐equipped to take on a role in the formulation of policy - Potential loss of public confidence in judicial members of the tribunal who enter into the policy-‐making arena Why Review Policy? - To protect against “blanket” application of policy which ignores the individual merits of a case Drake: was sent

to Fed Crt b/c applied blanket policy. Didn’t asses on merits. - If policy can’t be questioned or must be adhered to in the process of merits review, then the external

accountability of the executive must necessarily be diminished, the independence of the merits review bodies must necessarily be compromised, and the whole process will risk the taint of departmental capture

- Finally, it may be an unlawful policy which fails to take into account relevant considerations Ultimately, it is improper for the AAT to ignore government policy if it exists. Got to be a relevant factor and got to be considered by the tribunal. AAT does not have the power to review all policy. As Brennan J stated the reason AAT should apply government policy is consistency. A guiding policy is ordinarily useful aid to achieving consistency (an important aspect of executive decision-‐making).

Brennan J: “Inconsistency is not merely inelegant; it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice”. The VCAT Act (and to some extent the ADT Act) takes a slightly harder line approach than Drake. His Honour concluded that … where the Minister has adopted a general policy, the AAT will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case (at 646). In short, if there is an applicable statement of policy then the tribunal must apply it if: (1) it was within power; (2) referred to in decision-‐maker’s reasons; and (3) applicant was constructively aware of policy or it was published in Government Gazette. “They” are the legislator – they make the rules for the peace, order and good government. The way in which policy is applied comes down to the weight is given to policy demands on AAT in each case. The AAT’s main concern is weight not to review the policy itself (Drake No.2). Application of those rules: That changed in the burden of proof – Beyond Reasonable Doubt (BRD) where there is nothing in the legislation that really warrants strict burden of proof that is the criminal standard. There are potentially grounds to attack that policy on the basis of unlawfulness rather than that it leads to an injustice in that particular case. This policy seems rather extreme and there are argument (potentially) that it is inconsistent with the statute. The issue of unlawfulness is not what we have discussed but in judicial review that is our entire focus – characterising tribunal as unlawful. Have a crack here at the policy rather than the unlawfulness of the policy. NOTE: AAT is looking at the merits review of the policy – here you would use the Drake case. IF the question asks whether the Federal Court (or courts) is likely to review the Commissioner’s reliance on the Ministerial statement re: policy then it is a principle of legality. Is the Commissioner being lawful? Go to judicial review and apply the grounds. E.g. Inflexible application of policy C/ Green v Daniels under Failure to exercise discretionary power. Grounds in Narrow substantive UV – Exercise of power overrides fundamental common law rights (BRD).

STEP 8: HEARING PROCEDURE GENERAL Section 33: Little formality, expedition, not bound by rules of evidence – and normally public. PROCEDURAL FAIRNESS – s 39 Section 39: Duty on AAT to ensure every party to a proceeding is given a ‘reasonable opportunity to present his case and, in particular, to inspect any such documents to which the tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents

SCOPE: ‘REASONABLE OPPORTUNITY’

ADJOURNMENT? Generally – AAT members see a duty to an applicant has relevant evidence & advise of adjournment, or call one. Probably unlikely to rely on Sullivan now. Adamou v Dept: Fed CT was critical of the AAT for its failure to adjourn proceedings & obtain further evidence where such steps were required. Sullivan v Dept of Transport S sought review of decision refusing to renew commercial pilot licence on medical grounds. S represented himself, sought to call medical witness. Witness not present & w/o evidence S could not proceed. S did not request adjournment & AAT did not offer one. AAT – dismissed appeal. Full Fed CT: Failure of AAT to notify of adjournment did not amount to denial of PF. FAILED. AATs – obligation to afford PF is to give a party a reasonable opportunity to present a case, and not the ‘impossible ask o ensuring that a party takes the best advantage of the opportunity to which he is entitled’ (has not been overturned)

‘SURPRISE VIDEO EVIDENCE’ Surprising an applicant with video evidence in cross examination Australian Postal Commission v Hayes ! ALLOWED (surprise evidence – no prejudice) Video evidence collected by APC before giving evidence concerning the termination of workers compensation. AAT ruled applicant should have access – opportunity to explain. APPEAL FC: Wilcox – did not see any prejudice to the applicant being taken by surprise .Either credit would be enhanced or her falsehood would be exposed. Section 39 requires parties be given opportunity to inspect any docs to which tribunal proposes to have regard in reaching the decision, but it does not require that access be given at any particular point of time. Re Taxation Appeals ! CRITICIZED AUST POST although acknowledging that AAT is bound by the previous FC decision in Hays – that decision was criticized b/c times had changed and ‘openness in the litigation process’ was becoming increasingly important

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EVIDENCE – s 33(1)(c) General rule: AAT is not bound by rules of evidence s 33(1)(c) ! Tribunal ‘may inform itself on any matter in such manner as it thinks appropriate ! May admit hearsay or non-‐expert opinion evidence (Trkulia)

Threshold: Evidence must still be logically probative (Pochi) ! Pochi: recommended deportation order for drug conviction be revoked b/c not

enough probative evidence. (used flimsy hearsay evidences & suspicions) ! R v War Pensions: rules of evidence, evolved to prevent error & elicit truth. No

tribunal can w/o grave danger of injustice set them completely to 1 side. Although rules of evidence do not bind ! every attempt must be made to administer ‘substantial justice’

! Waterfore & D-‐G: where technically inadmissible evidence is admitted by the AAT it would usually be given less weight.

ONUS No provision in AAT re onus except where originating Act requires it (Childrens Wear) (ex: FOI s 61) SELF REPRESENTED CLIENTS – s 32 Rule: self representation is allowed (s32) Obligation: Tribunal under general obligation to provide reasonable assistance on request – although no specific statutory requirement Galea & Dept Social Security: AAT encourages unrepresented applicants to feel free to come before it and does what is can to assist. Realistically – may need a lawyer to boost changes of success. PUBLIC HEARING – s35 Rule: AAT hearing is public – maintaining public confidence & fairness in they system s 35(1) & (3) Exception: -‐ 35(2) AAT can make hearing private – where confidential info (identities, evidence documents) TEST (exception) – Re Pochi: (brennan J) exclusion of a party is essential to preserve confidentiality of the information needed to determine the application. It is necessary to sho that the information is of such importance and cogency that JUSTICE is more likely to be done by receiving the information in confidence, and denying the party access to it… must be a public interest in confidentiality. ! Significant fear of retribution if they were giving evidence against a guy who was a drug lord. AAT (Brennan J) recommended order for drug convict be revoked b/c not enough probative evidence.

STEP 9: REASONS – s 43(2) REASONS TO THE TRIBUNAL’S decision on review must be given either orally or in writing (2) - Can include findings on material facts, and reference to evidence and copies to each party to the

proceeding (2B) WHEN NO REASONS GIVEN: Applicant/party to proceeding may w/in 28 days of getting the decision request the tribunal to give them reasons and the tribunal shall w/in 28 days provide such a statement of reasons (2A)

STEP 10: APPEALS ONE: May appeal to the Federal Court s 44 MUST BE QUESTION OF LAW, but will just remit for new decision. Hamlin v Duffy: Question for the Court:

1. Is whether the action is lawful in the sense that it is within the power conferred on the relevant Minister, official or statutory body; or

2. That the prescribed procedures have been followed; or 3. The general rules of law, incl natural justice have been observed

! Procedural compliance ! narrow UV (outside power) ! Abuse of power (w/in procedure, but abused the power in some way)

Time limit s44(2A)-‐(2B) provides that no later than 28 days ! Extension ! MAY be allowed further time if in the interest of justice (written reasons are

different than oral reasons for decision by AAT s43AA) Appeals do not affect the tribunal decision !s 44A TWO: May refer Q of law during the tribunal proceeding to the Fed Ct (s45) (Chancey – right to appeal) Contemporaneous review. Obtain fresh evidence ss 38, 39A, 40 AAT Act (Cth).

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JUDICIAL REVIEW 1. Rule of law: that the courts have review jurisdiction (Plaintiff S157) (Church of Scientology

v Woodward – Brennan) 2. SOP: check and balance on the executive 3. Q of Law: Review – limited to legal errors (Applicant S20/2002) (Peko Wallsend). If CT

looked at merits! breach of SOP b/c that is the executives role.

JUSTICIABILITY: Can the CT adjudicate the dispute?

STATUTORY POWERS Generally no justifiability issues for decisions under statute

! R v Toohey: issues regarding vice-‐regal officials under statues (ministers) are reviewable.

! ADJR: excludes review of GG decisions Privative Clauses PREROGATIVE POWERS! no statutory basis/source Justicitaibility issues: STEP 1: Prerogative powers no longer beyond scope of JR (Peko-‐Wallsend) (Re Ditford) Examples -‐ ! Declarations of war ! International relations (signing treaties) ! Royal honours ! Decision by AG re: criminal prosecutions ! Entering into contracts ‘as a right’

STEP 2: Exercise of prerogative powers outside scope of JR (The issues are NOT justiciable where: 1. By nature ! naturally immune (treaties, declaring war)

2. Decision infused with complex high level of policy/political issues which are inherently

unsuitable for JR (‘JUSTICIABILITY’) (Peko-‐Wallsend) Peko-‐Wallsend: Listed area on world heritage list.

! Decision involved national policy + high level of national importance. Australia’s obligation under environment treaties, conservation and mining interests. (HIGHLY political)

! CABINT DECISIONS are reviewable, just not one of this nature (b/c involved justifiability issue)

South Australia v O’Shea Parole board recommended release of sex offender, Governor IC declined. Issue – was it reviewable? HELD: NO

! Infused with High level political/policy issues. (paedophile-‐ highly contentious in the community)

! Some decisions unsuitable b/c: political, social, economic concerns ! Where an cabinet makes decision re: individual ! CT implies duty to act fairly

REVIEWABILITY: Sources of Law

ADJR: Trapdoor (Jurisdiction) to review ! Meet the jurisdictional hurdles? ! No ! often justiciable under the common law 39B

Judiciary Act. See reviewability under the ADJR COMMON LAW 39B Judiciary Act – Fed CT jurisdiction – mirror image of section 175(5) STEP 1: Must have a ‘MATTER’! something giving rise to a justiciable issue or controversy (Abebe v Cth) immediate, right, duty liability (McBain) STEP 2: Must NOT be hypothetical/advisory/opinion -‐ Re Judiciary and Navigation: no power for advisory/opinions ! not justiciable

STEP 3: must be a legal matter NOT a political matter -‐ (Thorpe) & (CPSU v Woodward): international covenants not incorporated into Australia

law no jurisdiction BUT when incorporated n Aust law = legal matter OTHER non-‐justiciable issues: extremely narrow, not justiciable ! where foreign states seek to enforce public rights/interest in Australia ! CT being asked about validity of acts of foreign states performed outside of Australia

PRIVATIVE CLAUSES

GENERAL NOTES: ! Generally: Privative clauses (ouster clauses) ! statutory creation to exclude court’s

jurisdiction in relation to specific matters ! Problem: breach of SOP – essential for the courts to review government decision making in

a representative democracy ! Effect: clause relates to jurisdiction because they intend to oust the courts review

jurisdiction in relation to decisions and conduct under the relevant enactment.

COMMON LAW Jurisdictional errors: ! decision void [totally invalidates the decision b/c involves tribunal/inferior CT assuming powers which does not have] Step 1: Cannot oust jurisdiction of JR re a jurisdictional error Step 2: jurisdictional error consists of

1. Narrow UV 2. Procedural fairness (NB: exhaustive statements of procedural fairness are fine)

Non-‐jurisdictional errors ! (voidable) decision is voidable (stand with full legal force until overturned)

-‐ Broad UV -‐ Can be protected by ouster clauses in limited circumstances

CONSITUTIONAL LIMITS Principle: can never oust the jurisdiction of the HCA ! constitutionally entrenched (s75) + Plaintiff S157 Plaintiff S157: HC made it clear that s75(3) & (5) of the Commonwealth Constitution can never take away the jurisdiction of the HCA. You have the right to seek those remedies against the commonwealth government in the HCA. Only the HCA has the ultimate protection. FEDERAL & SUPREME COURTS Abebe v Cth: Not jurisdictionally protected because they are created by STATUTE and not by the constitution. It got really busy and overwhelmed so they passed an Act the Federal Court of Australia Act. Theoretically they could also abolish it. They gave it the same powers as the Constitution so they put it in a Judiciary Act section 35B. RESTRICTIVE INTERPRETATION GENERAL POSITION: CTs have given a very restrictive interpretation of privative clauses. Principle 1: Can never oust jurisdiction of HCA (s75 consti) (Plaintiff S157) Principle 2: can never oust jurisdiction to review narrow UV & procedural fairness Plaintiff S157: Privative Clause: tried to prevent review of denial of procedural fairness HELD: Procedural fairness is a jurisdictional error – and you can never oust a review of a jurisdictional error Plaintiff M63 (2010) Tried to evade procedural fairness b/c offshore Australian law does not apply (off-‐shore processing) HELD: cannot apply some Australian laws that are convenient & avoid others that are not (like PF) Principle 3: MUST NOT BE TOO BROAD R v Medical Appeal Tribunal ! TOO BROAD Privative Clause: ‘decision is ‘final’ or ‘not subject to review’ HELD: too broad, courts would never allow such clauses ! not specific/clear enough. Hockey v Yelland ! TOO BROAD Tribunal of Neurology board Privative clause: ‘conclusive and not subject to appeal’ HELD: too broad Houssein ! VALID B/C SPECIFIC & CLEAR Privative clause: ‘No writ of prohibition or certiorari shall lie in respect to any award, order or proceeding of the commission’ Only two remedies, still allowed for declaration, injunction and mandamus. UPHELD by HCA !Only applies to non-‐jurisdictional errors Principle 4: HICKMAN COMPROMISE ! Good policy underpinning it may justify it R v Hickman – Dixon J suggested interpreting ouster clauses in the following way -‐ Such a clause is interpreted as meaning that no decision which is given by body

concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceeding or the exercise or the exercise of its authority or has confined its acts within the limits laid down by the instrument giving it authority,

Provided always that the decision is a bona fide attempt to exercise its power, that is RELATES to the subject-‐matter of the legislation AND that it is reasonably capable of reference to the power given to the body

POLICY PRIVATIVE CLAUSES USUALLY BASED ON: FLOODGATES ARGUMENT!!!

OUSTING REVIEW TO A LIMITED EXTENT Houssein v Under-‐Secretary ‘no writ of prohibition or certiorari shall lie in respect of any away, order, proceeding of (i) the commission… relating to any industrial matter… which appears to relate to an industrial matter [w/in] jurisdiction ! UPHELD Jet 60 Minute Cleaners: Permitted review of denial of procedural fairness and only rule out unreasonableness and irrelevant considerations ! UPHELD Public service Association: Expressly permitted judicial review on the ground of excess of jurisdiction (jurisdictional error)

REVIEWABILITY: OF THE COURT (Jurisdiction of the Courts)

STATE SUPREME COURTS 1. SUPERIOR COURT OF RECORD: general jurisdiction to here all matters except those

expressly removed ! Inherent power: make order re: state administration.

2. Federal jurisdiction is limited: BY: constitution, Judiciary Act, ADJR & Cross Vesting Act ! must transfer matters to fed Ct ! UNLESS special circumstances –admin matter purely collateral to other matter

in SC. (not convenience) HIGH COURT 1. COURT OF LIMITED JURISDICTION: must be specifically conferred to the HCA 2. Constitution confers jurisdiction in all matters in which: 75 Original Jurisdiction of HCA

! Cth a party (75(iii)) consti ! Equitable remedy or prerogative writ sought against Cth (75(v)) consti

3. HCA May refer/remit matters to Fed Ct (44(2A) Judiciary Act) Much of the High Court’s judicial review work is on appeal from the FCA, and n occasion from the SCs, and in that sense the court has control of the principles in both the statutory and common law judicial review jurisdictions. FEDERAL COURT 1. COURT OF LIMITED JURISDICTION: must be specifically conferred to the Fed CT 2. 39B, extensive conferral of basically all federal matters (& appeals from administrative/

other tribunals). Under Section 39B, the Federal Court may judicially review delegated legislative as well as administrative decisions.

Section 39B – Judiciary Act: Original Jurisdiction of Fed CT Scope of original jurisdiction (1) Jurisdiction with respect to any MATTER in which writ of mandamus or prohibition or injunction is ought against CTH. (1A): Original Juris of Fed CT also includes any MATTER:

(a) Where CTH seeks an injunction or declaration (b) Arises under Consti or involves its interpretation (c) Rises under any laws of parliament (other than criminal)

Jurisdiction for criminal prosecutions (1B) Juris re: Criminal prosecution ! decision to prosecute for an offence made by officer of Cth & prosecution to commence:

(a) Fed CT no jurisdiction re any matter which person seeks mandamus/prohibition/injunction against officer re: that decision (b) SC of state – is invested with conferred jurisdiction re: that matter

(1C) subject to (1D) at any time when: (a) Prosecution for (or (b) appeal arising out of) offence against law of Cth/State is before CT of state

Then the following apply (c) Fed Ct Aus no jurisdiction re any matter where person seeks mandamus/prohibition against CTH officer re criminal justice process decision (d) SC of state, which hears prosecution/appeal before CT is invested with jurisdiction

(1D) UNLESS application is before commencement of prosecution for offence (1E) where (1D) applies – prosecutor may apply to Ct for permanent stay -‐ Ct may grant IF:

(a) Matters more appropriately dealt with in criminal justice process (b) stay will not substantially prejudice the person

(1EA) Jurisdiction for Certain Writs Re: Civil Proceedings – IF (a) a civil proceeding is (or (b) appeal arising out) before Family CT or Fed M Court, or CT of State: Following apply

(c) Fed Ct Aus has no jurisdiction (d) following Ct is vested with jurisdiction w/any such matter

(i) If civil proceeding before family CT of Aus – then that CT; OR (ii) If before FMC then that CT; OR (iii) If before CT of State ! then that SC

Jurisdictional rules apply despite any other law (1F): Jurisdictional Rules (1B-‐(1EA) to apply despite any other law, in particular –

(a) Jurisdiction of Courts (Cross-‐Vesting) Act (b) Section 9 ADJR

Because much of the Federal Court’s s39B jurisdiction is described in terms of remedies, some commentators have referred to it as a ‘common law jurisdiction’. However, the HC in dicta in Tang case strongly suggests that for the jurisdiction of any Chapter III court to be engaged, including the Federal Court’s ADJR jurisdiction, there must be a ‘matter’. FEDERAL MAGISTRATES COURT

1. Jurisdiction under ADJR to hear matters 2. EXCEPT – citizenship and migration 3. NO jurisdiction under Judiciary Act

Generally: apply to the FC! to get both ADJR & 39B STATE INFERIOR COURTS NO general jurisdiction to hear administrative law matter ! generally refer it to the FCA.

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STANDING Rationale

1. Filter out disputes not suitable for the courts 2. To ensure the litigants are genuine and present the best possible case 3. To prevent abuse of legal process

ADJR & COMMON LAW

TRADITIONALLY – public rights were the A-‐G’s Role THEN – came along Boyce v Paddington Borough council (UK) ‘special damage’ ! adopted in ACF v Cth (1980) ‘Special damage peculiar to himself’ STEP 1: Legislation

ADJR s 5,6,7 requires ! ‘person aggrieved’ s 3(4) ‘a person whose interests are adversely affected by a decision or determination’ ! special interest test

o Toohey v Min: ADJR, reflecting on policy – intended to simplify CL, ‘person aggrieved ‘ wider than CL.

39B: Special interest test ! Courts less strict on separate requirements for both equitable and prerogative remedies. (Helena Valley) (Kioa v West – Brennan) (ACF v Cth) Timing: Onus v Alcoa – can deal with standing as preliminary matter or when they deal with the merits of the case. Toohey: Q is one of mixed fact & law – sometimes better to determine at final hearing when facts are all before the court.

STEP 2: Special Interest test *** What information can you get P to bring to help establish standing****? Element 1: ‘Special interest’ introduced by (ACF 1980), reformulated and expanded in Onus v Alcoa HCA – special interest test is established IF: Element 1: PECURILAR INTEREST -‐ Person/group specifically affected re subject matter over public generally,Not mere

emotional or intellectual concern (ACF 1980) -‐ Person or group will suffer actual or apprehended injury/damage to non-‐material

interest ex: cultural, spiritual or historical interests (onus & Alcoa) Element 2: POXIMITY -‐ There is sufficient proximity between interest/subject matter and the person or group!

CT must assess 1. importance of plaintiffs concern 2. Closeness of the relationship of P with subject matter

Factors ! Peak organization in the region? NCEC; ACF (1989); Tas Conservation Trust ! Activities relating specifically to the areas affected by the decision? NCEC ! Significant role in the field? NCEC ! Cth and State funding provided? NCEC, Tas Conservation Trust ! Long history of coordination of projects and conferences? ! Opposed this type of issue in the past? NCEC ! Submissions? NCEC, Tasmanian Conservation Trust ! Are you operating on a national level?

Questions ! How long has the group been together? ! What does the Charter Say? ! How often do they meet? ! Who’s involved? Lawyers?

Environment Cases ACF (1980) ! NO STANDING Incorporated, objects of association: conservation of environment. Failed to comply with legislative requirements re: Environmental impact statement ! approval of tourist development. ACF sought declaration/injunction HELD: No standing to enforce a public right/duty. Objects concerned preservation of the environment – did not have a ‘special interest’ in the subject matter of the action’ Mason: ‘special interest’ – property, business or economic interest, perhaps social and political interests Gibbs: ‘A special interest in the subject matter of the action over and above that enjoyed by the public generally… NOT a mere emotional or intellectual concern.’ REJECTED:

1. Organisations charter COULD NOT establish a ‘special interest’ 2. Organisation attempt to participate foes not strengthen its position

ACF (1989) ! STANDING: established special interest Woodchips, community expectation that ACF would act in the public interest 1. NOT a mere busy body 2. Body capable of representing the public –LARGE NATIONAL BODY

3. Public perception to environment had increased (since 1980) 4. Receipt of government funding indicated it had a ;special interest in the particular forest

North Coast Case ! STANDING: established special interest NCEC sought reasons under ADJR 13 for decision to grant woodchip export licence. Held: had standing. Factors demonstrated specific concern with the forests & the closeness of its relationship with the subject matter 1. Peak environmental org. in the region 2. Its activities related to areas of the woodchip operations 3. Significant and responsible role recognised by GOVT via (1) financial support & (2)

participation in government decision-‐making. 4. Long history of coordinating projects and conferences on matters of environmental

concern ! including wood chip operations 5. Made submissions to DEPT on funded study of forests in the area 6. Although small organisation & regional (smaller than ACF) ! particular interest in subject

matter of the decision (smaller BUT closer proximity to the issue) 7. Was one of the CORE things the org was concerned with

Tasmanian Conservation Trust v Min Resources: ! STANDING: special interest established Similar to NCEC. Trust, right to standing 1. Peak environmental organisation in TAS 2. Recognised by Cth & State Govt funding 3. Research & advisory expertise 4. Made submissions 5. Large org.

Cultural/Spiritual Cases

Onus v Alcoa (1981) – STANDING ! special interest established Gave standing to 2 Aboriginal women re Alcoa’s breach of certain legislation affecting peoples land & relics. Had no individual rights. HAD: substantially greater interest in the subject-‐matter than other members of the public did – MORE than a mere emotional or intellectual concern. The importance of the subject matter & closeness of P’s relationship to subject matter different in both weight & proximity). Cultural & spiritual interest ADJR !WIDER THAN CL TEST? Ogle v Strickland: -‐ STANDING ! Special interest test established 2 priests, censor board decision to allow blasphemous film. HELD: doctrine of church analogous to cultural/spiritual significance of aboriginal relics. Persons aggrieved even though non-‐material interest ! b/c to repel blasphemy is necessary incident of their vocation.

Mere Emotional/intellectual concern Right to life Association ! NO STANDING: mere emotional/intellectual concern Decision: allowed importation of day after pill. Association challenged it. HELD: right to speak & influence opinion on a subject not equate to right to standing. Statute – quality & safety of drugs – Association, only intellectual, philosophical and emotional concern

Competitor cases Bateman’sBay (Leading Case)! STANDING (did not follow Alphapharm) Commercial interests WERE sufficient Funeral fund for NSW aboriginal community, Fund sought injunction to restrain council from establishing similar fund. UV, beyond power. Got STANDING – b/c practical economic impact which was immediate, significant and peculiar to the fund. ! all parties operating in limited market, HIGHLY probable P would suffer severe detriment to business if rival not restrained Alphaharm (overruled by Bateman bay) 2 pharma giants, HELD: corporations commercial interest did not satisfy ‘interest affected’ not an interest of kind act was to protect. Purpose/policy of Act – public safety & health. As interest was a narrow commercial interest to stop a rival. Joinders: The interest must be greater than the concern of a person who is a mere intermeddler or a busy body. BUT ‘interest’ is a broad technical term going beyond legal, proprietary, financial or other tangible interests, or interests necessarily peculiar to the person US Tobacco Co. v Minister for Consumer Affairs – per Davies, Wilcox and Gummow JJ.

ADJR s 12 confers discretion on the court to join a person as ‘a party to the application… subject to such condition as it thinks fit’. Possible remedy: declaration COMMON LAW JUDICIAL REVIEW STANDING (s 39B) TEST: ‘Special interest’ in the subject matter of the action Apply case law ADJR STANDING (‘person aggrieved’) Section 3(4) ‘a person whose interests are adversely affected by a decision or determination’ Similarly, in s 6, ‘a person aggrieved’ by conduct engaged in for the purpose of making such a decision may seek judicial review. Section 3(4)(a)(i) defines ‘a person aggrieved’ as a ‘person whose interests are adversely affected by the decision’. Tute: Would your answer differ depending on whether WAR made an application under the ADJR Act or the Judiciary Act? If they made an application under the Judiciary Act, the only remedy would be available IF they could establish a ground would be a declaration. The standing requirements for a declaration are really the same as the ADJR Act, that is, the ‘special interest’ test. Consequently, there is not any difference.

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REVIEWABILITY: ADJR ACT (CTH) 1. Must be a decision of admin character made under an enactment – Section 3 ADJR 2. If cannot pass the hurdles at ADJR level then go to s39B Judiciary Act. 3. Note Sch 1 Section 3: Decisions to which this Act does not apply.

Section 3: Must be a decision of administrative character, proposed to be made, or required to be made, under an enactment.

-‐ Section 5: a Decision -‐ Section 6: Conduct -‐ Section 7: failure to make a decision

HURDLE ONE: A ‘DECISION’ (section 5 application)

3(1) failure to make a decision includes a refusal 3(2) Decision includes:

(a) Making, suspending, revoking or refusing to make an order, award or determination

(b) Giving, suspending, revoking or refusing to make an order, award or determination (c) Issuing, suspending, revoking or refusing to issue a licence, authority or other

instrument (d) Imposing a condition or restriction (e) Making a declaration, demand or requirement (f) Retaining or refusing to deliver up, an article (g) Doing or refusing to do any other act or thing; and a reference to a failure to make

a decision = decision 3(3) Provision is made by an enactment for making a report or recommendation before decision is made under enactment ! making report/recommendation DEEMED decision.

STEP 1: ISSUE: Is it a reviewable ‘decision’ – what interim steps are reviewable? Or is it only the final decision?

! Soon after ADJR enacted, CT adopted narrow approach to ‘decision’ (Riordan: Parole board, 2-‐stage decision making process stage (1) made decision stage (2) gave prisoner opp to respond and then made final decision. (1) not a decision.

! Abandoned narrow approach in Lamb: where prima facie case, decision established ! this included interim rulings. (Bond overruled this)

STEP 2: BOND CASE: Current approach – less flexible (Back to Riordan) (1) Must be a substantive, not a procedural decision (2) Must have an element of finality ! final and determinative decision (rather than

interim to reaching a decision – unless expressly in statute) FACTS 1. Stage 1: Inquiry as to whether CO was fit & proper, inquiry as to whether Bond was fit and

proper for licence ! found Bond & CO not fit & proper for licence. 2. Stage 2: Revoking the licence (had not been done yet)! would be reviewable

HELD -‐ Decision CO not fit & proper was reviewable (in statute, had to be made before final

decision) -‐ Decision BOND not fit & proper – not reviewable (not substantive, but procedural, no

finality) STEP 3: Cases applying Bond ! ‘Real Practical Effect’ (Substantive) Salerno: ! DECISION: NCA raided/searched A’s

premises, investigation into his affairs. NCA argued – preliminary to overall process, no JR. HELD: different was a decision -‐! because had a ‘real practical effect’ (substantive element of finality) with direct & immediate impact on A’s right to quiet enjoyment.

! ‘Advisory/opinion NOT decision’ Pegasus Leasing ! NOT A DECISION– Comm, written advice re deductibility of certain transaction. Opinions not determinative b/c had not been applied in relation to formal assessment

HARASSMENT & DISCRIMINATION CASES

Kelson v Forward: ! DECISION (stage 2) (1) Stage 1: Minister referred case (re: workplace harassment) to agency to investigate. (2) Stage 2: Agency reports back to Minister after investigation with recommendation HELD: stage 2 was a decision, was sufficiently final & substantive b/c immediate career consequences for the relevant person

Harris v Bryce: ! NOT A DECISION Sex discrimination, complaint made, and agency made decision determining enough evidence to conduct investigation HELD; NOT reviewable ! not a decision, insufficiently substantive – it did not determine any rights. Von Stalleim v Anti-‐Discrimination Commissioner: ! NOT A DECISION Sex Discrimination. HELD; decisions in course of investigation NOT reviewable, simply conclusions reached in process of conducting investigation leading to final conclusion Cth HREOC: ! DECISION

Investigation, found Cth action making drugs more accessible to females was unlawful discrimination against males. In order to give parties orders for relief, Commissioner never made a final decision. HELD: findings did amount to final and operative decision, findings were on matters of substance for which legislation expressly provided (findings made = substance of decision)

CATEGORY: DEVELOPMENT CASES Resort Management Services v Noosa Shire Council: ! DECISION Steps for local council to amend strategic plant

1. Formally propose amendment to plan 2. Give adequate notice of proposal and allow for public submissions 3. Decide whether or not to proceed (sought review here) 4. Give decision to GIC for approval 5. If GIC approved – take effect when published in Gazette

HELD: reviewable ! was a final decision required of local council in process & specifically required by legislation Redland Shire Council ! NOT A DECISION Held this step 1 above was not reviewable; not substantive

Section 3(1) CANNOT REVIEW GOVERNER GENERAL DECISIONS R v Toohey (not under ADJR – but Common Law) ! when GG exercising STATUTORY POWER Political case, battle b/w NT govt & aboriginal people over land. Governor of NT – declaration under town planning act that land subject to claim needed for town planning purposes. HELD:

-‐ GOVERNER GENERAL DECISIONS: Judicial Review open to reps of the Queen ! only for statutory powers (not prerogatives). Cannot review decisions of the Governor General under ADJR ! Must go to Common Law. At CL, crown in no different position from any other official with statutory power entrusted. (ADJR 3(1) no review of GG decisions) ! Go to CL

-‐ (Includes Ministers) -‐ Toohey REPORT/RECOMMENDATION

Section 3(3): where a provision is made by an enactment or the making of a report or recommendation before a decision… making of report/recommendation = deemed decision Ross v Costigan (1982) (FC) and Magarula v Minister for Environment (1999): have generally outlines these conditions precedent to operation of s 3(3): 1. the power to make such a report or recommendation must be in the statute; 2. the statute must provide that making the report or recommendation is a condition

precedent to the making of the final decision; and 3. the statute must provide that a decision is to be made subsequent to the report or

recommendation. Edelsten v Health Insurance ! decisions (1) & (2) NOT ‘decision’ ! (3) was a DECISION Investigation of Dr Edelsten involved challenging 2 decisions

1. Health insurance Commission: (Dr N) investigated & referred matter to Minister with recommendation (decision 1) that it be referred to MSCI

2. Ministers delegate (Dr D) referred matter to MSCI (Decision 2) 3. MSCI decides whether practitioner MAY have rendered excessive services ! if so,

conducts hearing & reports to Minister the Committees opinion & recommendation (Decision 3). IF read this sub section literally then yes, but the court has restrict it.

HELD: (1) & (2) not decisions w/in bond test ! not a condition precedent to the making of a decision (restrictive interpretation of section 3(3)) (3) The report of MSCI is within section 3(3) THEREFORE ! stricter test under ADJR, usually better to bring report/recommendation under

39B JA

CONDUCT – IF ‘DECISION FAILS’ ! section 6 applications Section 6 review of “conduct [engaged in] for the purpose of making a decision to which this Act applies”. Section 3(5) ‘Conduct’ the doing of any act or thing preparatory to making a decision including…. Taking evidence 1. Must be for the PURPOSE OF making a decision 2. Conduct is procedural and NOT substantive in character (Bond)

Bond Case ! NOT CONDUCT Could the fit and proper findings be reviewed as conduct? ! NO Rule: Conduct is procedural and NOT substantive in character -‐ Word ‘conduct’ points to action taken, rather than decision made for purposes OF a

reviewable decision -‐ Looks at way proceedings have been conducted NOT decisions made along the way of a

final determination

-‐ ***fail on substantive in s5, get up on conduct. -‐ Since ADJR and s 39B applications can be made simultaneously in the Federal Court, and

since there is not statutory distinction in the s 39B jurisdiction between ‘decision’ and ‘conduct’ (subject to any confining of both ‘decision’ and ‘conduct’ by the Tang decision) it is likely that ADJR judicial review will concentrate rather on the alleged error or law, and the justiciability of the issue than on what constitutes ‘conduct’.

Courtney v Peters (1990) • Failure by tribunal to take evidence from a witness = Conduct • Denial of applicants request for an adjournment = Conduct

NOTE: Houghton ! request for adjournment before hearing actual commences too premature to be reviewable conduct Exam 123: the investigation was at a preliminary stage (investigation and a hearing). Gary could not be available at the time of the schedule hearing due to a clash with an important meeting. He requested an adjournment which was rejected. This would fail the ADJR reviewability (not a decision), as this is only the preliminary decision-‐making stage. The other option for the client is to make an application under section 39B Judiciary Act (common law). The Act was a Federal Law, no justiciability issue and he meets the requirements for standing. Apply the case of Courtney v Peters (see above) on conduct of the PAC. Section 7: Applications in respect of failures to make decisions: (1) Where

(a) A person has a DUTY to make a decision to which Act applies: (b) There is no law prescribing period w/in which person required to make that

decision; and (c) Person has failed to make that decision:

A person aggrieved by the failure of the first person may apply to the federal CT/ Fed magistrates – for order of review regarding failure to make decision: ON THE GROUND: there has been an unreasonable delay in making the decision (2) WHERE

(a) A person has a duty to make a decision to which this Act applies: (b) A law prescribes a period within which the person is required to make that

decision; and (c) The person failed to make that decision before the expiration of that period:

A aggrieved person from failure of first person to make decision within that period may apply to the federal court/ magistrates – for order of review in respect of the failure to make decision w/in period on ground that first person has a duty to make decision notwithstanding the expiration of the period

HURDLE 2: ‘ADMINISTRATIVE CHARACTER’

A court will NOT be influenced by the nature of the power itself, but by the office of the body that has that power. Delegate legislation would fail under this hurdle, any DL must state this reason then off to the common law route you go. ISSUE 1: ADMINISTRATIVE OR LEGISLATIVE? Example: Oyster farm, Govt implements new Legis (exec govt) new regulations for environment protection conservation & delegates power to local authorities who create bylaws. Legislation is general in character ! applying to every, albeit in a discriminatory way

! Delegated legislation, bylaws, rules, ordinance (legis enacted by municipal) LEGISLATIVE: GO to s39B Judiciary Act Grunseit (1943) ! LEGISLATIVE -‐ ‘Legislative’ pertains to the CONTENT of the law prescribing new rules of conduct, normally

of general application -‐ ‘Administrative’ pertains to the APPLICATION of these rules of conduct to particular cases Minister of army given power to make directions to aliens to work in slave labour HELD: Decision legislative not administrative TOOHEY: ! ADMINISTRATIVE -‐ Customs duty, power to make ‘by laws’ re: duties payable -‐ HELD: administrative, not general application -‐ Decision had been not to exercise power to make a determination in correspondence with

by laws

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SAT FM v Australia Broadcasting Authority: ! LEGISLATIVE 1. Procedures for making a broadcasting plan ! LEGISLATIVE: 2. BUT if failure to exercise the power to make the broadcasting plan then ! ADMIN FACTORS (Gummow)

(1) General application (2) Procedures for making it quiet involved (3) Affecting a broad number of people rather than an individual

Applied in RG Capital Radio Ltd v ABA (2001). Central Queensland Land Council: Indicators of ‘legislative’

1. Content-‐ ‘legislative’ 2. Parliamentary control -‐ ‘legislative’ 3. A requirement of public consultation -‐ ‘legislative’ 4. Decision reviewable by AAT – ‘administrative’ 5. Binding legal effect that affects other statutory provisions -‐ ‘legislative’

QLD Medical Laboratory v Blewett ! LEGISLATIVE -‐ Min for Health, determination under Health Insurance Act to substitute new table in SCH of

Health Act -‐ HELD: Legislative, it changed the content of the law. Decision had been to not exercise the

power (as opposed to general application test) Vietnam Veterans ! LEGISLATIVE -‐ Expert medical body given power to issue SOPs (Statements of Principle), bound decision

makers determining compensation (re military service) -‐ HELD: Legislative b/c were binding, also require to be laid before both houses of parliament

BEFORE implementation Resort management Services v Noosa: ! ADMINISTRATIVE planning process, amending a new scheme – administrative b/c simply one step in process in making formal decision by GG to make new scheme. ADMINISTRATIVE OR JUDICIAL A decision is not reviewable under ADJR if it is an exercise of judicial power Hamblin v Duffy: ! ADMIN Promotions appeal board ! administrative. Difference is judicial is the determination of existing rights, whereas administrative is the creation of new rights Lamb v Moss (1983) ! ADMIN NB It is well established that when conducting criminal committal proceedings, magistrates perform an administrative function: Lamb v Moss (1983). Legal Aid Commission (WA) v Edwards (1983) ! ADMIN A refusal by the Registrar of the WA Family Court to accept a notice disputing a bill of costs was held to be administrative. (in their role as a registrar ! administrative in nature – therefore reviewable. Letts v Cth (1985) !JUDICIAL Decision by Registrar of HC to seek direction from a judge as to whether lodgement of docs was an abuse of process was held to be judicial bc, in reality, he was exercising jurisdiction of HC to control frivolous or vexatious applications. (b/c judge involve). Little v Registrar of the High Court (1990) -‐ ADMIN Registrar’s decision to strike a person’s name from the register of practitioners of the High Court was administrative in character Test for administrative rather than legislative character Drawing upon a number of cases (above) Aronson, Dyer and Groves outline factors that the Federal Court will take into account in determining whether a decision is legislative or administrative. The factors are whether the challenged decision: • creates new rules of general application, rather than applying existing rules to particular

cases • must be publicly notified in the Gazatte or similar publication • cannot be made until there has first been wide public consultation • incorporates or has regard to wide policy considerations • can be varied or amended unilaterally by its maker, the analogy being to primary

legislation • cannot be varied or amended by the executive

• is not subject to merits review in a tribunal like the AAT • can be reviewed in Parliament (e.g. is it a disallowable instrument) • triggers the operation of other legislative provisions • has binding effect.

HURDLE 3: ‘UNDER AN ENACTMENT’

Section 3(1) ‘enactment’ ! Act of parliament

-‐ Any Federal Act of Parliament (except…) -‐ Any ordinance of a territory (but ACT s(3A) & NT laws excluded) -‐ Any instruments under Acts and ordinances

WHAT IS THE ‘IMMEDIATE’ AND ‘PROXIMATE’ SOURCE OF POWER

! Q of substance ! What was the Act/source that the decision was made PURSUANT to?

NOTE – not whether body CREATED by enactment – but whether the DECISION MAKING POWERS have a statutory source Current position: TANG ‘MADE UNDER’ an enactment Decision by GU to exclude Tang from PhD candidature for academic misconduct (falsifying laboratory results) HCA HELD: Not under an Enactment TEST:

1. The decision must be expressly or impliedly required or authorized by the enactment; AND

2. The decision itself must confer, alter or otherwise affect legal rights and obligations, and in that sense the decision must DERIVE from the enactment (Immediate/proximate source)

Tang failed second element. Termination occurred under general law & agreed terms/conditions of the candidature. Bring relationship to end, not under an Act. Although act empowered GU to formulate terms of candidate, did not give ‘legal force or effect’ to end relationship. CONTRACTS ANU v Burns ! NOT UNDER ENACTMENT -‐ University Council, power under s23 UNI Act to appoint lecturers. Had control &

management of the Uni. -‐ Council engaged B as lecturer – terms were K would be terminated if B fell ill. -‐ K terminated when became ill ! challenged under ADJR -‐ HELD: Not under an enactment ! pursuant to K of employment ! immediate or proximate

source of power was the K. PREROGATIVES -‐ Justiciability issue Not all decisions made by administrators have statutory source -‐ sometimes ministers can make decisions by their inherent power ! ex: cabinet decisions

are a prerogative power not under statute Hawker Pacific ! NOT UNDER AN ENACTMENT A argued decisions made by Govt Dept in accordance with statutory provisions which governed the tender PROCESS were made under an enactment HELD: provisions existed merely to regulate the exercise of governments inherent prerogative power to enter into K. Did not provide immediate & proximate source of power POLICY AND PROCEDURE ANU v Lewins ! NOT UNDER AN ENACTMENT Documents relied on by A as source of power for refusal of promotion application were simply policies and procedures generated within the university to govern such matters. The enabling University statute did not specifically provide for their creation. NOTE – Ainworth, the government can investigate whatever they like & don’t need authority from statute. The government conducts or commission reports all the time – this is part of their functions.

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JUDICIAL REVIEW REMEDIES DON’T order too many ! be wary of breach of SOP b/c Court cannot effectively force the decision maker (executive) to do something Nb: IN THE EVENT THAT SPECIAL INTEREST TEST AT CL IS LOWER THRESHOLD

INTERIM RELIF

Interim relief may be granted to restrain implementation of decision or continuation of proceedings if the case requires a stay STAY OF PROCEEDINGS Section 15 ADJR Stay of proceedings-‐-‐Federal Court (1) Making application to Fed CT under s 5 re a decision does not affect operation of the decision or prevent the taking of action to implement decision BUT:

(a) CT or Judge may order conditions to suspend the operation of the decision; AND (b) CT/Judge may order conditions ! a stay of all or any proceedings under the decision: AND

(2) The CT/Judge may make order under (1) under s5. INTERLOCUTORY ORDERS & WRITS Section 23 Federal Court of Australia Act Making orders & issue writs Ct has power, re matters w/in its jurisdiction to make orders including

1. interlocutory orders and 2. Issue/direct issue of writs as the CT thinks appropriate

PREROGATIVE REMEDIES ! prohibition, certiorari, and mandamus

CERTIORARI (s16(1)(a) & PROHIBITION Prohibition: directs body or decision maker to discontinue proceedings or action (applies to pending/incomplete proceedings

-‐ NB: STANDING TEST? ! ‘person aggrieved’ – beyond ordinary member of public Certiorari: QUASHES THE DECISION JURISDICTIONAL HURDLES ELEMENTS (R v Electricity Commissioner)

1. Body/person with LEGAL AUTHORITY 2. To determine questions AFFECTING RIGHTS; and 3. Having the DUTY TO ACT JUDICIALLY

Element 1: Body/person with LEGAL AUTHORITY (equity to ‘under enactment’) All public bodies and decision-‐makers

-‐ NOT: private bodies (clubs/associations – authority from contract) 1. Administrators 2. Tribunals 3. Inferior Courts **not as strict as ADJR made under an enactment** Forbes v NSW Trotting: (Obiter) if Body performing some public power, then may be subject to the writs. TEST: Where do they get their power & is it administrative in nature? R v British Broadcasting Corp: Certiorari not available to quash decision made by public body to dismiss employee

-‐ Decision to dismissed sourced in CONTRACT/ agree terms of employment. Element 2: Affecting rights of subjects ‘Rights, legitimate expectations & other interests’ (same meaning for PF) R v Criminal Compensation Board ! REVIEWABLE: (right affected) Board, determination re compensation for criminal damages. Whether person received $ determined by Minister. ARGUED – board’s decision, did not affect any legally enforceable rights/liabilities of A b/c any compensation awards it MIGHT grant were ex gratia by govt. REJECTED argument: board was operating within a SCHEME established by Govt to determine which compensation claims were lawful. Not answerable to GOVT but to those individuals directly affected by its ruling. ! HELD: REVIEWABLE, board was just signing off on the decision (classic case of a prelim decision that CT would hold is reviewable. Query Preliminary Determinations? Query preliminary determinations, advisory opinions, recommendations etc ! -‐Same sort of discussion as bond case.

! Less strict than ADJR for preliminary decisions – So go for common law prerogative writ under section 39B rather than ADJR (lower threshold)

Finding of a Royal Commission ! Writs NOT available R v Collins: Ex Parte: Royal commission issued findings EXTREMELY detrimental to applicant, but did not legal affect his rights, since the Minister had discretion to accept or reject the report. Fall foul of Jurisdictional Requirements under ADJR! certiorari under 39B (Ainsworth) & (Hot Holdings) Ainsworth FACTS: CJC, conducted inquiry into poker machines. Report, made recommendation that A never allow to use poker machines. A got declaration in HC b/c denied PF because never had right to be heard. SOUGHT: mandamus, certiorari, declaration. HC only gave declaration (B/C ‘business reputation’ of A) WHY -‐ Certiorari: No legal effect/consequences. Affect is to quash decision, report had no legal

affect so nothing to quash (already released) -‐ Prohibition: Too late, already come down with recommendation + released, prohibition

would have been available if they were not getting PF before recommendation was given EXAM: The current affairs ran a short story on Noah on television. The grounds for review would be a right to a hearing. The remedy sought and the only one that would apply is a declaration. Possibly an injunction to prevent the release of the longer documentary, an injunction now would be useless as the program was already screened. Hot Holdings (Liberalized the test) Legislation – discretionary power on Minister to grant mining exploration licence where recommendation made by mining warden. Statute said where 2 or more applicants had complied with initial application at same time, warden determined priority by ballot & made recommendation. QUESTION: whether certiorari law to quash mining wardens decision to conduct ballot (ground – bias) ISSUE: whether certiorari available against preliminary or advisory opinions HELD: 2 situation where legal effect is in issue:

1. Where decision under challenge is ultimate decision in the decision making process & Q whether ultimate decision to be made sufficiently ‘affects rights’ in legal sense

2. Where ultimate decision undoubtedly affects legal rights, BUT Q is whether decision made at preliminary or recommendatory stage of decision-‐making process sufficiently ‘determines’ or is ‘connected with’ that decision.’(IE: NECESSARY LEGAL AFFECT ON FINAL DECISION ! NB: Does not definitely have to be condition precedent! (less strict than ADJR)

On facts ! (2) applied, minister bound to consider/take into account mining wardens recommendation & in respect the RECOMMENDATION had the necessary legal effect on the Ministers exercise of discretion ! BROADER THAN ADJR Recent Case Carcione Nominees

-‐ Stage 1: Govt Dept recommended to Comm that certain planning amendments be approved &

-‐ Stage 2 comm then recommended approval to minister. (CONDITION PRECEDNT) -‐ Stage 3: Minister then made an ‘in principle’ decision to support proposed amendments

Comm decision to recommend amendments to minister! capable of attracting prerogative relief b/c it constituted a condition precedent to exercise of power to approve the amendment & therefore affected legal rights.

-‐ Ultimately ! failed on grounds. IMPORTANT: Although preliminary in nature ! still met requirements for remedy. Element 3: Duty to Act judicially ! not too important

-‐ When PF applies -‐ No longer required in UK -‐ Australians position unclear

Element 4: Grounds • Either prohibition or certiorari for: denial of PF, jurisdictional error • Only certiorari for: non-‐jurisdictional error on face of the record. • But in Australia broad UV not yet amenable to mandamus. Mandamus and declaration

probably sufficient remedies in practice.

MANDAMUS 16(1)(d) Mandamus: compels public authority to perform a public legal duty imposed upon it on application of person having sufficient interest in its performance Element 1: Have a public Authority Element 2: Establish ‘Public’ legal duty

-‐ Difficulty: Crown Servants (especially Ministers) as to whether they owe duty to crown or to public as persona designate

-‐ Cannot get mandamus against Crown -‐ Get around this by using persona designata situation involving a Minister or Public

official A non-‐discretionary power ! MUST NOT BE A DISCRETIONARY POWER

! Compels where statutory pre-‐conditions to exercise of decision making power but NO residual discretion

Ainsworth v CJC (1992): Held that the CJC was not under any “duty” to investigate poker machines, unless they thought it necessary i.e. a more discretionary power. Therefore, mandamus not available. Where there is discretion: court will not order to exercise discretion in a particular way (breach of SOP)

-‐ Discretion can be limited by the circumstances: Commissioner v Royal Insurance: HC held mandamus, to command refund of overpaid stamp duty. Act stated Commissioner MAY refund where overpaid. Although power to refund discretionary, could only be exercise upon considerations relevant to decision to reduce. HC found no relevant considerations on facts, so NO residual discretion remained. (limited to circs. )

-‐ Existence of power does not necessarily imply duty to exercise the power (WA Field & Game: Min had power to declare open seasons re any fauna. Had been tradition of declaring such seasons. In 1992, Min made no decision. P sought mandamus. HELD: Act created power – but not a duty.

Element 3: Grounds • Non-‐performance of a non-‐discretionary duty • Non-‐performance of a discretionary duty e.g.

! unlawfully declines to exercise jurisdiction ! jurisdictional error (Sinclair case) ! failure to exercise discretion

• Abuse of discretionary power • Denial of procedural fairness • HENCE: covers ultra vires, jurisdictional error and PF ! by administrators, tribunals and

inferior courts. Element 4 Standing • A specific legal right: Ainsworth v CJC i.e. must be a duty essentially owed to the applicant. Sinclair v Mining Warden at Maryborough Fraser IS, application for sand mining to occur on island, decision was made to be taken by mining wardon. Mining wardon part of statutory duties to grant permission for mining or refuse in public interest. Objection lodged by FIDO objecting to sandmining (enviro grounds). Wardon did not consider it & approved the mining. FIDO when to HCA HCA agreed with FIDO ! issued mandamus, order mining wardon to direct him to rehear the application and hear objection and give it consideration

EQUITABLE REMEDIES ! injunction, declaration INJUNCTION 1. Types " prohibitory ! stops you doing something " mandatory !forces you do something " permanent ! speaks for itself " interlocutory !immediate effect

2. Grounds: A flexible remedy (except for standing) as it is available for:

! denial of PF ! ultra vires (narrow & broad) ! jurisdictional error ! AND against public and private bodies.

3. Standing • Need to distinguish between private and public rights. An interference of a private right

personal to the plaintiff is sufficient for locus standii.

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• Discussion of ‘special interest’: ACF v Commonwealth (1980)

DECLARATION – Most flexible remedy A pronouncement by court of legal position of P vis-‐à-‐vis the D in relation to a matter in issue Case – (Ainsworth) 1 Requirement: Standing • Same as for injunction: Ainsworth v CJC (1980). Question must be real and not hypothetical

-‐ Declaration cannot establish substantive decision in favour of applicant -‐ Ainsworth: where report cannot be set aside, but may be important that flawed

nature of report be subject of an authorative order Limitations of Declarations: NB: ‘merits declaration’ ! cannot have CT breaching SOP ! JUST DECLARING IT IS ‘UNLAWFUL’ ! The power to make a declaration is limited to the power to make declarations about a

person’s legal position. Thus when a report is flawed bc of a denial of PF to a person named in the report, a court may make a declaration re the denial of PF, but not that the report was ‘wrong’: Ainsworth.

! Thus, the FC in Minister for Immigration v Guo (1997) erred when it made a declaration that a person was a refugee, this being a matter which ultimately turns on the Minister’s beliefs.

2. Grounds • (As for an injunction):

! ultra vires (narrow & broad) ! jurisdictional error ! denial of PF

• Also enables a body to seek clarification of the scope of its powers.

STATUTORY REMEDIES ! ADJR section 16

Powers of Federal Court SECTION 16 ADJR Decision ! Section 5 decision applications (1) On application for review ! Fed CT in its DISCRETION make all/any of following

(a) Order quashing/setting aside the decision or part of the decision (with effect from date as specified by CT) (b) Order referring matter to which decision relates to the person who made decision for further consideration ! subject to directions court thinks fit (c) Order declaring rights of parties in respect of the matter to which decision relates (d) Order directing the parties to do, or to refrain from doing, any act/thing of which the court considered necessary to do JUSTICE between the parties (SUBSTITUTION)

! Conyngham 16(1)(d) should not be construed narrowly or restrictively ‘justice between the parties’’ may require the court to direct a decision’(SUBSTITUION) of a particular kind. (Blurring SOP)

! WELL beyond common law remedies Q does it allow for ‘substitution’ of a decision? See Minister of Immigration v Conyngham visa, group of musicians. Q does it allow for damages? NO. See Park Oh Ho v Minister for Immigration (1988). But damages may be awarded if the unlawful administrative behavior is linked with some form of civil liability e.g. negligence. Conduct ! section 6 conduct applications (2) On application for an order of review RE Conduct: for purpose of making decision, CT MAY (discretion) Make either/both of following

(a) An order declaring the rights of the parties in respect of any matter to which the conduct relates

(b) An order directing any of parties to do, or refrain from doing, any act/thing which court considered necessary to do justice between the parties

Failure to make a decision ! section 7 failure to make a decision applications (3) Failure to make decision -‐

(a) Order directing the making of the decision (b) Order declaring rights of parties re decision

(c) Order directing parties to do or refrain from doing -‐ of which CT considers necessary to do justice between parties

FED CT (4) Fed CT ! may any time on application – revoke, vary, suspend operation of, any order under this section REMEDIES

1. 16(1)(d) compel to do something (mandamus) 2. 16(1)(a) quash the decision (certiorari) + (Ainsworth) 3. 16(1)(c) Declaration ! (interests/reputation – Ainsworth) 4. 16(1)(d) injunction

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GROUNDS: NARROW ULTRA VIRES (outside power) -‐ Tribunals may consider policy (Drakes Case) for merits review ! Courts – you Don’t get that

But SOP: Check and balance on the executive by the judiciary in preserving SOP

NARROW UV PROCEDURAL (does administrator HAVE power?)

This kind of error involves failure to comply with an essential conditional precedent to the jurisdiction’s coming into existence, rather than a fact with whose existence the jurisdiction is interdependent – it occurs sequentially before the jurisdiction coming into existence rather than simultaneously with it. STEP 1: A may apply under 5(1)(b) or 6(1)(b) where procedures which were required by law re decision were not observed.

! NB: ADJR may have wider application than general law ! b/c procedures ‘in connection with’ were not observed (just causal r’ship) (Our Town) (MIMA) (Muin)

STEP 2: Mandatory directory approach (‘May’ or ‘Shall’/ ‘must’) Scurr: Condition precedent? ! MANDATORY -‐ Invalid, failed legislative obligation requiring public notice of project. Was mandatory –

notice was condition precedent to any consideration of an application) Watson v Lee: ‘Required’ ! NOT MANDATORY -‐ notification of delegated legislation on Government Gazette was ‘required’ & a condition

to regulation making. HELD: not mandatory. WHY: substantial compliance sufficient (intention of leg (Stat interpretation), very notion citizens read govt gazette ludicrous)

Melville Leg, strict compliance ! MANDATORY -‐ mining legislation requiring mining tenement A’s to identify claims via pegs. Was

mandatory! strict compliance was required, there was fierce competition for tenements, without pegs, A’s could obtain unfair advantage

STEP 3: A QUESTION OF STATUTORY INTERPRETATION (current approach) Element 1: Must look at purpose/intention of legislation (Blue Sky) (AIA 15AA)

# [APPLY: Define the object purpose of the Act] Element 2: CAN OBJECT BE ACHIEVED IF PROCEDURE NOT FOLLOWED? Project Blue Sky: International treaty NOT A PRECONDITION – Act functions and purpose could still be achieved without compliance with the treaty. ABA New STANDARD, 50% Aus TV programs b/w 6pm & midnight. BUT Aus/NZ trade agreement required equal access rights to market. Statutory requirement obliged performance of functions with any international treaty. HELD: Failure to meet statutory requirement (through standards) NOT invalid. Provision obliging compliance with treaties – simply regulated function already conferred on ABA RATHER THAN establishing a condition precedent to valid exercise of decision + considered public inconvenience. Element 3: WHAT INJUSTICE WOULD FOLLOW IF PROCEDURE NOT FOLLOWED? Tweed Byron: ! CONDITION PRECEDENT (significant injustice-‐ land rights) NT claim over land. Minister issued Certificate 1 saying land not claimable. Cert 2 issued claiming land for public purpose. Procedural requirement: had to consult with Minister (failed to do so for 2nd cert) HELD: purpose Act ! important safeguard for land rights. Dire consequences for abo group, considered mandatory condition precedent. Tickner ! CONDITION PRECEDENT (‘potential gravity,’ b/c of heritage protection consequences) Procedural requirement: Min fails to read submissions (someone else read) AND meet requirements for notification & consultation (failed both) HELD: was a necessary step in the ministers power! gravity on aboriginals severe. Hunter resources: ! CONDITION PRECEDENT (unfair advantage) Unfair advantage re mining tenement pegs. Specifically trying to set limits for orderly system

VISA PROTECTION APP SAAP: ! CONDITION PRECEDENT (protect the refugee) Review by RRT, Migration Act, Procedural requirement; required to give A particulars of info it considered would be the reason for affirming decision under review. (failed to provide detained immigrant with written notification of particulars of evidence given orally at hearing by daughter. HELD: procedural narrow UV ! overall importance of the scheme

Element 4: IS SUBSTANTIAL COMPLIANCE ENOUGH? (BASED ON CIRCUMSTANCES) ! 2 certs both required consult with the minister. Failed on 1 = NOT ENOUGH (Tweed

Byron) ! Fierce competition, failure was UV (Hunter Resources) – NOT ENOUGH ! Someone else read submission when legis expressly authorised Minister to consider it

AND not met the requirements for notification and consultation in Aboriginal Heritage Act (Tickner) – NOT ENOUGH

! Orally notifying of evidence that tribunal was going to rely on & not giving written notice – NOT ENOUGH. (SAAP)

NARROW UV SUBSTANTIVE (does administrator HAVE power?)

Parliament may enact laws or may authorise another body to make legislation on its behalf – this usually takes the form of a section in the Act enabling the making of regulations. Usually regulations are made by the G-‐G or Governor, but delegated legislation (or subordinate legislation, as it is sometimes called) may also be made on authorisation by the statute by a Minister, an authority or a public servant. A delegated legislation has been described as ‘being necessary to the functioning of modern governance’ – Victorian Stevedoring case

RULES OF CONSTRUCTION – Any DL not within the authority conferred will usually be UV STEP 1: MAY APPLY UNDER: 1. Decision/conduct/failure (5(1)(d), 6(1)(d) & 7(1)(d) is reviewable where not authorised by

the enactment which it was purported to be made Or 5(1)(c)

2. Administrative act must be w/in express scope of Statutory power OR fairly incidental/consequential upon such power.

STEP 2: ASCERTAIN MEANING OF ACT [Name Act & Object clause] – s 15AA AIA, purpose/object of Act ! can/cannot be reasonably inferred that [Admin Action] was w/in scope or incidental/consequential of the power STEP 3: EXAMINE BREADTH OF THE REGULATION OR DECISION Category 1: ‘NECESSARY OR CONVENIENT’ !DELEGATED LEGISLATION Issue: power to make delegated legislation

-‐ Must be ‘NECESSARY OR CONVENIENT’ To carry out primary Act -‐ Must NOT go beyond purpose of the Act

Shanahan ! NARROW SUBSTANTIVE UV (Regs -‐ Wider purpose into another field) Primary Product Act (Vic) – authorised making of regs ‘necessary & expedient’ for giving effect to Act. Purpose of Act ! collective marketing scheme for eggs. Delegated regulation made: prohibited eggs in cold storage/preservative treatment w/o board consent. All eggs, even eggs in another state & eggs which board had nothing to do with HELD: Broad UV – Primary Act concerned with VIC eggs, not NSW eggs. ‘necessary & expedient’ ! meant ‘strictly ancillary’ to purposes of Act Widened purpose to another failed ! handling/disposal of eggs even after sold by board If the power conferred is to make by-‐laws or subordinate legislation ‘regulating and restraining’ something, the power cannot be used to prohibit the thing completely (Swann Hill Corps) Category 2: REGULATION V PROHIBITION !DELEGATED LEGISLATION Power to regulate may not allow prohibition (Melbourne Corp) Melbourne corp ! UV SUBSTANTIVE (power to regulation not to prohibit – the thing regulated must continue to exist) -‐ What they were allowed to do: regulate traffic & processions -‐ What they did: By law -‐ no processions allowed on street w/o prior council consent

(prohibit) -‐ HELD: Narrow UV Substantive

Swan Hill v Bradbury ! UV SUBSTANTIVE -‐ ‘regulate/restrain does not = prohibit -‐ What they were allowed to do: Vic by-‐laws for regulating & restraining construction of

buildings -‐ What they did: prohibited erection of any building unless council approval given -‐ HELD: invalid, beyond power to ‘regulate & restrain’ (re: subject matter & purpose of

legislation)

Paul v Munday – UV SUBSTANTIVE: SUBJECT MATTER OF PROHIBITION P operated private rubbish tip to dispose of 60% Adelaide’s waste Power to make regulations: ‘regulating and controlling and prohibiting AIR IMPURITIES from fuel burning equipment or any other source. Made reg: prohibiting LIGHTING FIRES using certain equipment & lighting open fires in certain places (leg in character ! 39B) HELD: Narrow UV (ex: power to make regs concerning car emissions does not mean you can prohibit cars). Not being able to light fires went too far. (maybe prohibiting emissions may have been ok) (maybe a different outcome now looking at the purpose of the legislation) Foley v Padley ! VAILD (not UV) ! WIDE DISCRETION -‐ What they were allowed to do: Council bylaws ‘regulating, controlling or prohibiting any

activity in mall’. If in councils opinion -‐ likely to affect use or enjoyment of Mall) -‐ What they did: no person shall give out/distribute anything in the Mall to any bystander

w/o permission from council HELD: Valid 3:2 [Gibbs CJ, Wilson and Dawson JJ: Brennan J, Murphy J dissenting]

WHY 1. Power to prohibit means absolutely or conditionally 2. Where power conditioned upon an OPINION, it is the existence of the opinion

which satisfied the condition (not whether it is correct) ! WIDE DISCRETION 3. Activity in mall prohibited likely to affect use & enjoyment (+ littering problem)

Strong dissent -‐ Using the Latham test, found the by –law to be unreasonable as it caught a passer-‐by

asking for a light for a cigarette; and Murphy J on the grounds that was effectively a super-‐discretionary prohibition that cut down drew of expression.

-‐ Strong Dissent: Freedom of speech! capacity to discriminate & censor on political & religious grounds Legislation & procedural safeguards must be strictly observed

-‐ Brennan – the by law could not give a wider discretionary power than authorised by the primary Act. ! Amounting to improper exercise of discretionary power.

NOTE: Where delegated legislative power is conditioned on the existence of an opinion, opinion must be a reasonable one.

Category 3: DELEGATION CL Administrator CANNOT delegate UNLESS Act allows for it expressly or impliedly Implied: by the Admin power/ the act…depends on the nature, scope and purpose of the power.

! Consider this practically (large volume of work, minister decision, necessary some delegation takes place) realities of public administration.

! Not enough information ! would need to look at the applications & the summaries to determine whether it was sufficient.

O’Reilly: ! NO DELEGATION Comm, tax, empowered to issue notices.

-‐ Comm of Tax authorised to delegate to Dept Commisisoner. -‐ Dpt commissioner authorised official to use fax signature of dept commissioner -‐ Express in Act -‐ the DC could NOT delegate -‐ Pratical administrative necessity

HELD: NO DELEGATION -‐ All he was doing was authorising them to sign name. -‐ Was ‘practical administrative necessity’ (would reduce tax laws to chaos, millions

of TPs – parliament & the Act could not have intended such a result -‐ Therefore – no delegation

Peko Walsend ! DELEGATION + NOT IMPLIED = NARROW UV

-‐ Minister delegated the consideration of certain mining reports -‐ Act: minster HAD to consider PERSONALLY (DID NOT CONSIDER AT ALL) -‐ HELD: Must be PERSONALLY CONSIDERED BY MINISTER (summaries may not even

be enough) ! personal consideration of each report it was the legislative intent. Tickner ! DELEGATION + NOT IMPLIED = NARROW UV Decision making re aboriginal heritage protection. Min had power to make declaration to preserve site against development Process:: Min ! appoint person to make report ! person appoint another person to prepare report ! preparer invite representations from public. Act required: minister to, before acting, consider the report and attached representations

-‐ Did not look at representations of (secret women’s business) never personally considered or red

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-‐ Also – 400 representations attached & Min made declaration after 2 days. HELD: INVALID, Narrow UV ! failed to consider reports & recommendations (delegated) Minister consideration of report HAD to be done personally.

a. Gravity of the matters in issue & policy of public involvement in legislation b. Minister consideration necessary step in exercise of power c. Entitled to rely on others to process & arrange material (SUMMARIES) (Implied

delegation?) d. Legislation specifically excluded delegation. Minister must consider & decide. (incl

– women’s business

Category 4: EXERCISE OF POWER OVERRIDES FUNDAMENTAL CL RIGHTS Must have express & unambiguous words to override fundamental CL rights Park Oh Ho ! UV NARROW -‐ Power to detain deportee under MI Act, did not include power to invade right to personal

liberty by oppressive delay in execution of order to deport. HELD: UV Narrow – outside power

Coco v R: ! UV NARROW decision, judge to issue police warrant re listening device – allowed them to install it on private property. HELD: Invalid, in absence of clear words, presumed parliament does not intend to curtail basic rights & freedoms (interference of private property) Plaintiff s157: HCA – clear, legislative powers affecting individuals are to be interpreted consistently with Australia’s obligations under international human rights law. EXAM: Look for a delegated legislation that increases the standard of proof to Beyond Reasonable Doubt (BRD). This is a higher threshold in criminal law and should not be applied because it overrides our common law rights.

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GROUNDS: BROAD ULTRA VIRES (ABUSE OF POWER) WITHIN POWER (JURISDICTIONALLY) BUT HAS BEEN AN ABUSE OF POWER BY THE WAY THE ADMIN HAS EXERCISED THE POWER S5(1)(e)

BAD FAITH (HOW has the administrator used their power?)

RARE/OFTEN UNSUCCESSFUL STEP 1: ‘Any Exercise of discretionary power in bad faith’ ADJR 5(2)(d), 6 (2)(d) STEP 2: Corruption/dishonesty/deliberate malice/fraudulent purpose in the exercise of the power STEP 3: very heavy onus of proof ! how do you prove malice? FOI? Unlikely.

-‐ Beyond mere error o fact or low, beyond illogical -‐ Requires: Lack of honest (crucial)/genuine attempt to perform the statutory

function. -‐ According to case law – Recklessness MAY be enough (not mere negligence)

BUT – generally, large departments make mistakes.

IMPROPER PURPOSE (HOW has the administrator used their power?)

RARE/USUALLY FAILURE TO CONSIDER RELEVENT CONS. STEP 1: ADJR 5(2)(c), 6(2)(c) An exercise of power for a purpose OTHER than a purpose for which the power is conferred STEP 2: Define the four corners of the law, the purpose of the power under the legislation (purpose/objects under Act) 15AA AIA (purposive approach of the section giving power) STEP 3: State the purpose they used it for STEP 4: Case authority

MULTIPLE PURPOSES – ‘SUBSTANTIAL PURPOSE’ RULE: Substantial purpose, need not be the ulterior purpose (Thompson v Randwick Munciple) Thompson v Randwick Municipal ! IMPROPER PURPOSE (Profit to reduce costs) Express purpose of Act: resume land for ‘improvement and embellishment’ Their purposes

1. Resumed land for improvement/embellishment – park/project 2. Sold some of the resumed land for PROFIT to reduce costs.

HELD: Improper purpose – substantial purpose, no attempt would have been made if it had not been desired to reduce the cost of the new road by the profit arising from its resale.

-‐ Note: Legislation authorised selling/resuming land – but HCA said these were no independent powers (incidental ones), limited by the purposes for which the council was empowered to acquire land)

BUT FOR TEST: (Samrein) ‘Substantial purpose:’ if decision would not have been made BUT FOR that purpose = substantial purpose -‐ DECISION MADE BY GROUP: IW v City Perth; decision unlawful if anyone involved had an

improper purpose (obiter). Law is unclear on this point. Can it be imputed to everyone? Facts

CASE EXAMPLES Municipal Council Sydney ! IMPROPER PURPOSE (to make profit & defray costs) Express purpose of Act: Council could resume land for carrying out improvements/remodelling any portion of city AND ‘widening + extending’ any way What the used power for: resume land w/o plan to remodel extend. HELD: Improper purpose

-‐ Purpose: to defray costs (get profit on resale) -‐ Furthered an ulterior purpose.

Arthur Yates ! IMPROPER PURPOSE (promote own business, get rid of competition) War time, re operation of national security regulation ! established committee with wide ranging powers to ensure supplies of veggie seeds available during WWII What they used power for: to prohibit anyone selling veggie seeds w/o permission HELD: improper purpose

-‐ Purpose: promoting its own business of selling seeds and eliminating competition -‐ NB: no evidence of bad faith/dishonesty.

R v Toohey ! IMPROPER PURPOSE (Defeating Land Claims) Political case, battle b/w NT govt & aboriginal people over land. Governor of NT – declaration under town planning act that land subject to claim needed for town planning purposes. HELD: Act conferred power for town planning, NOT defeating land claims -‐ Court can look behind the regulations to ascertain the true purpose (V. Important)

o Refused to hand over documents showing the improper purpose (claimed Legal Professional Privilege)

o AG v Kearney ! denied privilege where it was for an illegal purpose (here – illegal to defeat land claims)

Schlieske v IM ! IMPROPER PURPOSE (Deportation Disguised as Extradition)

HELD: Deportation power exercised as a form of disguised extradition after extradition proceedings had failed. Extradition Legislation ! different purpose that migration & deportation -‐ Deportation power could not be exercised for purpose of achieving extradition

(circumstances gave rise that it was exercised for an improper purpose. -‐ But does not preclude deportation were person would fact criminal proceedings Other examples – Political embarrassment (Padfield), and avoid political suicide (Tickner)

IRRELEVANT/ RELEVANT CONSIDERATIONS (HOW has the administrator used their power?)

ALWAYS ARGUED Practical points:

1. Govt may argue did take it into consideration, but did not give it any weight. 2. Therefore ! GET FOI ! meeting minutes etc. or right to reasons (AAT 28 & ADJR

13) Mason J in Peko-‐ Wallsend (reversal for irrelevant)

1. Failure to take into account relevant consideration only available if minister BOUND to take it into account (see also Mackellar) ! Inferred from subject, purpose, scope A decision maker must take into account only considerations she is bound to take into account.

2. What factors are binding depends on construction of the act a. If express – ascertain whether exhaustive or inclusive b. If not express -‐ look at subject matter, scope & purpose

This will be determined by construction of the statute conferring the discretion; if they are not expressly stated, they will be determined by implication from the subject-‐matter, scope & purpose of the Act.

3. If wide discretion (Roberts v Hopwood) which is unconfined, factors also unconfined EXCEPT where purpose of Act gives rise to implication of ! CONSIDER CASES

a. limitation of factors; OR b. requirement of factors

4. Need not necessarily set aside decision – if factor is so insignificant and would not have had any material effect

5. Up to Min to decide weight (otherwise – SOP, Ct conducting merits review) a. BUT: insufficient weight may give rise to unreasonableness b. Platters case – blurring distinction, cannot ask weight but not for

court to decide. 6. Due allowance must be made for broader policy considerations which may have

been relevant when Min exercised discretion RELEVANT CONSIDERATIONS STEP 1: Failing to take into account relevant considerations s 5(2) (b) & s 6 (2) (b) STEP 2: State the relevant consideration(s) the administrator failed to take into account STEP 3: Under the Act – Admin [bound/ not bound] to take into account (X) ! which is inferred from the subject-‐matter, scope & purpose (Mason – Peko) (‘bound’ – express or implied Mackellar)

! NB; where list of factors, look to parliaments intention to determine whether mandatory/discretionary.

DISCRETIONARY POWER Peko-‐Wallsend ! UV: Failed to consider COMPETING INTEREST Land rights Case NT, inquiry by land comm. Who recommended grant to abo. Peko told Comm detrimental to its mining interests if grant made. New minister appointed ! recommended grant without considering the mining interest (found out with FOI) HELD: not taken into account the mining interest (relevant consideration) = UV NB: nothing express ! but was implied by purpose & scope -‐ bound to consider any detriment to any other person. Purpose – must consider competing claims. NB: Min came to same conclusion anyway Tickner: UV – Failed to consider REPORTS By delegating, the minister had failed to take account of the relevant consideration (reports – of the woman). ! HOWEVER – the judgement indicated entitled to rely on others to process & arrange material, SUMMARIES may be sufficient if purpose of act fulfilled Murphyores ! Was a RELEVANT consideration (as opposed to an irrelevant one) VALID EIS CO, applied for consent from Min, export minerals from sand mining on Fraser Island. Cth Enviro Act passed. Min directed that inquiry be held into environmental impact before mining. Inquiry considered before export permissions would be granted.

ARGUED: Inquiry & reports was irrelevant considerations HELD: extent of power of decision-‐maker rests on legislation which confers power. Q to be answered whether decision maker has duly exercised power/was decision vitiated b/c extraneous considerations.

-‐ Regulations confer SUCH wide power & broad discretion that ONLY something that could amount to bad faith could justify the courts intervention. WIDE DISCRETION

-‐ Consideration of the environmental aspect of sandmining was w/in ministers discretion ! was proper to consider before granting any further export consent for the mineral EXPORT

Roberts v Hopwood: ! UV: must not use ARBITRARILY, still relevant considerations RECESSION Wide statutory discretion under Act to Council to pay wages to employees as it thought fit, w/o specifying any matter which Council should/should not consider. Recession – council did not decrease wages. An external review found wages too high HELD: UV, failure to take account relevant consideration Relevant consideration: Recession Paying 4 pounds regardless of age, sex, skills, duties arbitrary & not a proper exercise of discretion. Council owes duty to act with reasonable care & consider all circumstances. Paramatta City Council ! UV: failed to consider a relevant REPORT Town planning, application to council for consent to use park as sports ground. The relevant legislation instructed the council to consider ‘environment, traffic, socio-‐economic effect’ Lobby group ! send reports to council, not read, council granted consent = UV HELD: failed to take into account relevant consideration (the report) that legislation provided for NB: whether they read it was another issue. Prasad !UV: failed to consider INTERVIEWS, STATUTORY DECLARATION, PERSONAL OBSERVATIONS Permanent resident app, wife already resident – rejected, said marriage was for residency in AUS HELD: Failed to take into consideration relevant considerations (report interviewing officer in Fiji, numerous statutory declarations, personal observations from legal officer at centre). Sean Investments v Mackellar

-‐ Up to decision maker to determine (in light of all matters before him) what is relevant & important.

-‐ Ground of failure to take into account relevant consideration will only be made out where circumstances show he was BOUND to take it into account.

-‐ IE: unless it can be shown (expressly or impliedly) must be taken into account, then VALID

WEIGHT ! QUESTION FOR THE DM Hindi v MIEA Notes such as ‘has been noted’ or ‘has been read’ in a statement of reasons do not necessarily confirm decision maker has given ‘proper consideration the merits of the cases (INCLUDING ticking, putting signature -‐ not conclusive evidence Need proper, genuine & realistic consideration of factors ! at JR (this is MERITS B/C WEIGHT NTO Q OF LAW)

DUTY TO INQUIRE? VISA PROTECTION APP

Li Shing Ping ! only consider material BOUND. A sought review of refusal of refugee status. Claimed min failed to take into account relevant docs HELD: Min not required to take into account every doc in department – only material that must be considered (bound) ! large number of applications, no need for fishing expedition. However, in light of Peko – the law is not clear Realities of Government Botany Bay Council !realities of government Challenge building of third runway, minister not taken into account various information re construction process. HELD: no requirement to conduct relevant research or inquiries Q of duty to inquire also related to unreasonableness Foster ! no obligation under the legislation (ie: NOT BOUND) Extradition order to UK A argued – Min had to consider fact that was UNLIKELY to be imprisoned in UK if convicted. Materials showed min had generally considered contention. A argued, not adequate, need experts HELD: NO obligation existed in legislation (express or implied) weight given was at discretion of the minister.

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IRRELEVANT CONSIDERATIONS STEP 1: Taking into account irrelevant considerations s 5 (2)(a), & s 6 (2)(a) ADJR STEP 2: State the irrelevant consideration(s) TAKEN into account be administrator Padfield v Argi Min ! UV, sought to avoid POLITICAL consequences Legislation, wide power, refers complaints about milk marketing scheme to committee for investigation. ISSUE: complaint lodged & minister refused to pass on to the committee REASONS: Min recorded reasons for decision showing refusal based upon view that if committee upheld complain, would be expected to place himself in political controversy (came out in FOI) Although discretionary ! must be in line with purpose of legislation (nb: improper purpose too) Tickner ! UV, sought to avoid political suicide Murphyores ! Was a RELEVANT consideration (as opposed to an irrelevant one) VALID CO, applied for consent from Min, export minerals from sand mining on Fraser Island. Cth Environment Act passed. Min directed that inquiry be held into environmental impact before mining. Inquiry considered before export permissions would be granted. ARGUED: Inquiry & reports was irrelevant considerations HELD: extent of power of decision-‐maker rests on legislation which confers power. Q to be answered whether decision maker has duly exercised power/was decision vitiated b/c extraneous considerations.

-‐ Regulations confer SUCH wide power & broad discretion that ONLY something that could amount to bad faith could justify the courts intervention.

-‐ Consideration of the environmental aspect of sandmining was w/in ministers discretion ! was proper to consider before granting any further export consent for the mineral EXPORT

UNREASONABLENESS (HOW has the administrator used their power?)

RARE/ USUALLY FAIL TO CONSIDER SOMETHING or improper purpose STEP 1: Exercise of power is so unreasonable that no reasonable person could have exercised the power ADJR s 5 (2)(g), s 6 (2)(g) (Wednesbury Test) (potentially lower threshold in HCA Li case 2013)

! ‘So absurd, that no sensible person could ever dream it lay w/in their power’ ! ISSUE: merits review creeps in (CT looks are the soundness of the decision)

Wednesbury: UK statute allowed cinemas to open on Sunday empowered the local authority to allow cinemas to open subject to ‘such conditions they saw fit’. Condition issued – no children allowed in cinema on SUN w/o adult supervision. HELD: reasonable for child’s moral health. b/c not absurd and no sensible person would ever consider it. STEP 2: If w/in four corners of the matters ought to be considered – CT can only consider it unreasonable if no reasonable body could come to that decision (high threshold) STEP 3: CASES

VISA PROTECTION APP Chan v Min Imm. ! UNREASONABLE (mistake of law – misconstrued concept) Chinese citizen, came to Aust, illegal immigrant seeking refuge. Statute: immigrant needed well-‐founded fear of prosecution RRT (administrator): fear not well founded HCA: fear well founded (thrown in & out of prison most of his life) HELD: unreasonable, decision maker made mistake of law, misconstrued concept of persecution under the convention. NB: blurred merits review (+ judicial activism) Eshutu: ! NO UNREASONABLENESS Tribunal, rejected evidence claimant suffered fear of persecution if returned to Ethepoia (anti-‐govt student leader) HELD: rejected that there was unreasonableness ! unreasonableness where decision is one for which no logical basis can be discerned

Applicant S20 A argued Min decision was ‘irrational or illogical’ rather than unreasonable’ [b/c of privative clause in MI Act. -‐ saying no more appeals from RRT on grounds of natural justice, unreasonableness, irrelevant considerations & bad faith. HELD; decisions to effect that unreasonableness could not be used to challenged unreasonable fact finding STEP 4: CATEGORIES Category 1: Discrimination w/o justification Parramatta Council:! UNREASONABLE (HIGHER RATE TO ONE GROUP, non-‐payers got same benefits) Power: authorised special levy to council rate to cover costs of special benefits provided to industrial site. BY-‐LAW: imposed levy only on those who operated industrial premises on site, not the private owners. HELD: Exempt private owners from rate was UNREASONABLE, private owners were getting the benefit of amenities without having to pay rate. No justification for discrimination. Australian Fisheries: ! UNREASONABLE (1 HAD HUGE ADVANTAGE over 60 others) Act empowered minister to construct fishery management plan involving fishing quotas for licensed fisherman in particular areas. [Issue: legislative in character, and not a decision was a ‘statistical fallacy’] 50-‐60 fishing operators in area ended up with lower fish quotas than ever before. 1 operator – more than 100% higher, he got 18% of available catch area. HELD: management plan irrational and discriminative ! 1 gained huge advantage at expense of other Rule: unreasonable – lead to ‘manifest arbitrariness, injustice or partiality.’

Category 2: Lack of proportionality TEST: ‘reasonable proportionality (Tanner) Act – water quality in catchment area (pollution) Regulation: regulating, controlling or prohibiting the use of any land within a watershed ! banned construction of piggeries, zoos, & feedlots HELD: reasonable to refuse app for construction of aviary under regulation directed against zoos. WHY: ‘reasonably proportionate’ to the object of the Act (pollution). Viewed in isolation, regulation extreme ! but in context, reasonably proportionate to pursuing object of act (pollution). NB: no clear authority for proportionality as a separate ground (Honourable Justice Bruce) Category 3: Reasonable inquiries NOT carried out Prasad ! EVIDENCE NOT GOOD ENOUGH P met, married wife in Fiji, she had permit for AUS, he did not. He came after marriage, stayed at his brothers flat in Sydney. Sought permanent residence. Refused ! on basis married for purpose of getting residency Evidence flimsy

1. P overstayed a visit before they got married 2. After engaged ! wrote letter to brother saying wanted to live in Aus 3. In interview – said there was inconsistencies (failed to remember there was a

window in the room he had stayed. HELD: ! Failed to take into consideration relevant considerations (report interviewing officer in

Fiji, numerous statutory declarations, and personal observations from legal officer at centre).

! Unreasonableness: Devoid of any plausible justification. Evidence was not good enough. Not justifiable on reasonable grounds (remitted), NOT new decision re opinion.

Tickner ! UNREASONABLE (only concern – POLITICAL SUICIDE) Minister for abo affairs, refused to intervene against decision by WA govt to allow development of site (special significance to aboriginals), Refused to obtain report under legislation even though application by aborigines. HELD: Unreasonable refusal of application Real intention ! to avoid political suicide (evidence by conversation with another politician). ***improper purpose, irrelevant consideration*** STEP 5: MERITS REVIEW OVERLAP Be careful ! don’t want to intrude into merits review ! line between the two is policed more rigorously in this country than appears to have become the case in recent years in other common law jurisdictions (Murrumbidgee)

HIGH COURT CASE In Minister for Immigration and Citizenship v Li [2013] HCA 18 A lowering of the unreasonableness bar?

NO EVIDENCE (HOW has the administrator used their power?)

RARE/ FAILURE TO CONSIDER STEP 1: There was no evidence or other material to justify the making of the decision (s5(1)(h); s 6(1)(h) ! s5(3) and s 6(3) STEP 2: ELEMENTS ! s 5(3) & 6 (3) LIMB ONE Condition precedent + not just 1 fact/consideration to be established (3)(a)

1. E1: person who made decision was REQUIRED by law to reach that decision only if a particular matter was established; AND

2. E2: there was no evidence/ other material (incl facts not entitled to take notice) from which he/she could reasonably be satisfied that the matter was established

Western Television v ABT: ! ESTABLISHMENT OF FACT must be an ESSENTIAL PRE-‐CONDITION Provision relates to legislation ! either expressly/implication, provides making of decision A depends on establishment of B;

& ! there is no evidence or other material from which DM could reasonably be satisfied that

matter B was established TV Capricornia v ABT: ! NOT SIMPLY ONE CONSIDERATION (must be pre-‐condition) ! Limb applies where establishment of a fact is a precondition to the making of a decision ! JR applies where a precondition to the exercise of the decision-‐making power – not

enough to be simply ONE of the considerations relevant to making the decision POCHI ! UV NO EVIDENCE (evidence MUST have RATIONAL PROBATIVE FORCE) Immigrant, 15 years in Aust, applied citizenship, granted. Never received communication from department, therefore was an alien. Convicted of supplying Marijuana, 2year jail. Released on parole & send back to Italy. AAT evidence ! tried to show ‘big time drug lord’ & was best interests of Aust to get deported. HELD: NO EVIDENCE WHY: flimsy circumstantial evidence ! even though AAT, must have rational probative force. ***Procedural fairness applied*** Hermann v Nurses Board ! UV NO EVIDENCE Elderly lady tube down throat. Nurse had trouble pulling out, lady claimed assaulted, board suspended the nurse. HELD: Board did not have sufficient evidence to suspend the nurse Szelagowicz v Stocker: Correlation between ADJR & CL ! ADJR ‘no evidence’ rule has to be interpreted in light of current law, NOT when law was enacted. Therefore appropriate to consider impact of AAT statutory requirement for reasons. A challenge may lie if the decision, based on the material before the decision-‐maker, was perverse, capricious, fanciful, arbitrary, and irrational or not bone fide

ABT v Bond -‐ Question whether there is any evidence of a particular fact is a question of law -‐ Question whether a particular inference can be drawn from the facts is a question of law LEAVE findings of fact to the administrative body ONLY consider questions of law. LIMB TWO: (3) (b) FACT DID NOT EXIST Person who made decision based decision on the existence of a fact AND that fact did not exist Western Television: only where express findings of fact are made that are plainly incorrect TV Capricornia: Second limb is a more onerous test ! requiring an applicant to NEGATIVE the existence of any facts relied upon in the decision under review Curragh Mining: ! UV (NO EVIDENCE) incorrect assumption about legal liability under K Heavy burden ! obligation to negative any fact relied upon. A imported mining equipment to meet obligations under K to supply certain quality of coal by specific date. ! Had to pay tax if available locally, did not have to pay tax if not available locally

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! A argued local equipment could not extract coal quickly enough to fulfil contractual obligations

HELD: decision to tax ! based on a fact that was incorrect THOUGHT A could negotiate delivery date later than that stipulated ! INCORRECT assumption about legal liability of applicant under K. Anghel: ! VALID DECISION : The fact must have high significance (and not peripheral) Decision: sought review of minister approval of construction on rail link. Statute: obligation to account for environment effects ! environmental impact statement. App Argued: EIS was defective & therefore no evidence or other material to justify decision. HELD: Could not succeed simply b/c of existence of EIS which was available to Minister at time of decision. ! MUST SHOW that decision maker RELIED on fact which was non-‐existent IM v Rajamanikkam (HC) (2002) ! VALID, decision not based on non-‐existent RRT rejected application re refugee status (no well-‐founded fear of persecution) 2 of 8 reasons recorded by RRT! based on assumption that A had deliberately conveyed a FALSE impression that it was unsafe for him to return LATER: shown no foundation for this. HC: SPLIT ! took narrow view of no evidence rule

-‐ Gleeson: must negative the fact on which decision made -‐ Majority: decision not considered to be based upon non-‐existent facts

NO EVIDENCE – RARELY ARGUED, RARELY SUCCESSFUL.

UNCERTAINTY (HOW has the administrator used their power?)

VERY RARELY ARGUED; NO SUCCESFUL CASES Usually in relation to regulations (delegated legislative power) [! common law 39B b/c legislative in character]

STEP 1: ‘Exercise of a power in such a way that the result of the exercise of the power is uncertain ADJR 5(2)(h), 6(2)(h) King Gee ! POTENTIALLY GROUND OF UNCERTAINTY (but relied on another ground) Ruled out uncertainty as a ground, but invalid on basis of narrow UV Price Commissioner – power under Regs to fix & declare prices. HELD: complex formula for prices was too discretionary & lacking in terms of setting objective standards and it was impossible to objectively ascertain the maximum price for anything

! Did not satisfy reg requirement ‘fix & declare or ‘specify’ ! Was uncertain !but found another ground to rely on.

IMPOSSIBLE to ascertain the maximum ! uncertain. Television Corporation ! KITTO uncertainty (other judges, other grounds) Minister, power to grant TV licences upon conditions as saw fit. Conditions set by Min wide & uncertain. Kitto: uncertainty of meaning & application ground for challenge. (only kitto – other judges found other grounds) Racecourse Cooperative! UNCERTAIN? ! did not provide certain standard Followed King Geee – vague measures do with fixing sugar prices, did not provide a ‘certain or objective’ standard & therefore did not ‘determine and declare’ the price as required by Act. Zhang Fu Qui Observation: It is not yet clearly a separate and independent ground of review in Australia

FAILURE TO EXERCISE A DISCRETIONARY POWER (HOW has the administrator used their power?)

GROUND 1 DELAY AS [admin] has not made a decision with respect to the [decision], and there is no period specified when this decision must be made, [applicant] may apply to the Federal or Federal Magistrates Court for an order of review for unreasonable delay (s7 ADJR – failure to make a decision) & 5(2)(f) for the ground of failure to exercise a discretionary power. In doing so, [Applicant] may seek a WRIT OF MANDAMUS to compel [administrator] to perform his/her duties. OFTEN – phone call, a letter ! or internal review

GROUND 2 INFLEXIBLE APPLICATION OF POLICY Administrators are suppose to look at ALL THE MERITS OF THE CASE STEP 1: Common Law Rule & ADJR s5(2)(f): An exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the case

-‐ IE: Consider merits AVOID blanket application of policy RULE 1: The policy must be LAWFUL RULE 2: CANNOT be applied blindly – Admin need to take into account each particular consideration of facts of the individual case Port of London: Decision maker cannot ‘shut his ears to an application’ 1. May lawfully adopt a policy as a guide to making particular decisions 2. provided that the policy is not applied inflexibly and 3. A particular applicant is not denied the opportunity to argue that the policy should not

apply in the case. Drakes Case Cannot through a blanket policy over it w/o due regard to individual merits of each case AAT inflexible application of policy. Decision maker must leave him/herself free to consider the unique circumstances of each case. This is not to deny the lawfulness of an appropriate policy that ‘guides but does not control’ the making of decisions, a policy which is informative of the standards & values that the decision-‐maker usually applies. Must not produce an injustice

Hindi v Minister of immigration FORUMLA: administrator must give ‘proper, genuine and realistic consideration to the merits of the particular case & be ready in APPROPRIATE CASE TO DEPART FROM APPLICABLE POLICY KEY POINT: HAS IT BEEN GIVEN THE ATTENTION IS REQUIRES?

British Oxygen CO (UK) ! VALID (high level of application, inevitable to apply a policy) -‐ Board of trade, power to make grants to businesses to assist with the purchase of new plant

& equipment & it adopted a policy of refusing grants for the purpose of individual items costing less than a specific amount

-‐ Policy applied to the detriment of an applicant -‐ Board was required to deal with a multitude of applications AND it was inevitable and

proper for it to develop a policy -‐ PROVIDED ! it did not ‘shut its ears’ to each application. (inflexible application) Green v Daniels ! ULTRA VIRES INFLEXIBLE APP. (blanket policy AND inconsistent with Act) 16 yr old school leaver – sought social security benefits before Christmas on basis that she was unemployed. Refused: discretion given to decision maker in legislation to give benefits provided that

1. Unemployed 2. Willing to undertake work 3. Had taken reasonable steps to obtain work

ISSUE: not decided on merits, blanket policy. [policy: reduce benefits to all school-‐leavers until the beginning of the next school year] HELD: UV – INFLEXIBLE APP. OF POLICY ! policy applied was inconsistent with the eligibility criteria for unemployment benefits set out in the Act (THEREFORE: UNLAWFUL?) DISTINCTION: b/w -‐ general rule that it was permissible instruction by director general to his delegates as to

how to determine they were satisfied with matters and -‐ rule that substituted inconsistent departmental criteria that did not exist in the Act.

(here – it was the latter one in issue) MIEA V Tagle ! UV INFLEXIBLE APP. (blanket policy – didn’t consider merits of representations)

Prohibited immigrant – overstayed temporary permit – deportation order issued, T made representations re intended marriage & family ties, deportation order stated reason as failure to alter status as prohibited immigrant HELD: reasons given indicated that T’s representations were not considered. Inflexible application of policy (**and failure to take into account relevant consideration**) GROUND 3 ACTING UNDER DICTATION

! Similar to irrelevant consideration! boss telling them what to do when it is THEIR responsibility to consider certain things, and the bosses instructions are NOT an relevant consideration (IRRELEVANT)

STEP 1: Applicant may argue that Administrator was exercising his personal discretionary power at the direction or behest of another person ADJR 5(2)(e)

! Difficulty proving that X told Y to do something ! FOI FEDERAL GOVERNMENT 2 AIRLINE POLICY R v Anderson ! NO DICTATION Clash b/w 2 airline policy & a discretionary power vested in director G to issue charter liciences & grant permission to import the necessary aircraft. DG was satisfied that IPEC met safety requirements but STILL rejected application for import of aircraft (b/c taking into account 2 aircraft policy). Rejected licence, no aircraft. UPHELD DG decision – FINE to act at direction of minister & take into account policy Ansett v Cth ! NO DICTATION Same issue – Ansett alleged breach of K by Cth o ‘Airlines Agreement’ (2 airline policy), when Cth approved importation of aircraft by two other companies. Challenged secretaries decision to allow importation HELD: emphasised ministerial responsibility & found decision maker (secretary) was bound to carry out communicated policy/direction of government. Proper to apply policy of minister. Bread Manufactures ! NO DICTATION (free to take advice from minister) Association of bread makers challenged orders made by NSW prices Commission which increased maximum price of bread by marginal amount. -‐ Statute: conferring power to Commissioner also gave Minister active role in price fixing

scheme ! including right to veto a decision -‐ Applicant argued: that decision to increase maximum price was made under dictation of

the minister HELD: application dismissed ! powers given to minister, Comm could not be expected to operate in vacuum & was free to take advice from minister ! no evidence of improper pressure or an abrogation by the Commission of its independent function -‐

Nemer v Holloway ! NO DICTATION (direction re DPP’s functions, it had power under Act to do so Sex offender given light sentence. AG had broad power to give DPP directions and guidelines ‘in relation to the carrying out of his functions.’ AG instructed DPP to appeal. Applicant argued AG’s direction was invalid. HELD: Direction was in relation to carrying out of DPP’s functions = VALID. Department head faces difficult choice between either falling into line with minister OR exercising independent discretion 1. Choice 1: Follow minister b/c in a representative democracy important admin follow

minister: (Windeye, Barwick & Murphy) o USUALY FRAMED: Decision-‐maker merely fulfils administrative function virtue

of office, accountable to minister. o No personal discretion & bound to determine Q of fact in accordance with

criteria. 2. Choice 2: Independent discretion is accordance with positions of Menzies, Kitto & Mason

o Framed as the decision maker was bound to arrive at his/her own decision, albeit after considering government policy

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PROCEDURAL FAIRNESS (BROAD UV) PROCEDURAL FAIRNESS (NATURAL JUSTICE) IS CONCERNED WITH PROCEDURE OF DECISION MAKNG Two established principles of PF

1. Right to a hearing ! 5(1)(a) 2. Absence of Bias ! 5(1)(a)

RIGHT TO A HEARING The hearing rule requires that when a decision is to be made that adversely affects a person’s legal rights, interests or legitimate expectations (‘LE’), she must be given adequate notice that a decision may be made, any information adverse to the person on which the decision may be based so she has an opportunity to respond to it, and an opportunity to make her case.

STEP 1: DOES PF APPLY? (AT COMMON LAW?) HISTORICALLY only apply to CT ! then to quasi tribunals & growth of admin decision make + significant impact of decisions ! CT extended PF to administrators

KIOA: (Mason) STEP 1: Section 5(1)(a) STEP 2: Rules of PF likely to apply to every exercise of admin power. ! look at subject matter of the statute ! did legislature intend rules of PF apply. (Only CLEAR intention of legislation can exclude) STEP 3: Admin decisions which affect the RIGHTS, INTERESTS & LEGITIMATE EXPECTATIONS RIGHTS & INTERESTS: Step 1: Right to PF attached to an admin decision affecting the rights/interests of A (Kioa) Step 2: State the interest that PF has attached to. Examples of fundamental rights include such things as property, employment, financial and personal liberty etc.

-‐ Mason J in KIOA ! the reference to ‘right or interest’ is to be understood as relating to personal & liberty, status, preservation of livelihood and reputation, as well as property rights or interests

-‐ Banks v Transport: Cab driver licence couldn’t be revoked w/o affording PF as licence is property (could be sold), not mere privilege & holder has a legal right

-‐ Winneke: Workers comp insurance cancelled ! ‘business interest’ = PF applies, right to be heard

-‐ Ainsworth ! reputation (damaged by report – opportunity to respond) [TC: Procedural fairness attaches – Right to present case?] LEGITIMATE EXPECTATION A legitimate expectation is an expectation which is REASONABLE, that a legal right or a legal liberty will not be interfered with, or will be received. STEP 1: What is the LE

# (Objective assessment – (Winneke)(Teoh): would reasonable person hold LE in circs? # Subjective (Lam – person must actually hold the LE) (LAM – leading authority?)

Schmidt ! Must be reasonably based. -‐ There are interests that will attract PF (beyond legal rights) -‐ As long as they are reasonably based Student, temporary entry permit, legitimate expectation that it would run its full term STEP 2: Examples of LE ! Licence would be renewed unless adequate reasons to contrary (Winneke) ! A member of public to enter race track upon payment of fee (Heatley) ! Could remain in Australia unless good reason to be deported (Kioa) ! Deportation power would be exercised in compliance with provision of treaty. However –

overridden in 1997, treaty must be enacted to domestic law (Teoh) ! Giving assurances/undertakings of statements of policy by min would be followed

(Haoucher) ! Existence of regular practice (Civil Services Case) ! Very nature of application/consequences of denial (Winneke) ! Existence of clear statutory criteria (particularly where satisfied) ! Consideration of factors specific to the person or entity in question (Winneke) (Kioa) STEP 3: Case examples Heatley: ! BREACH OF PF Accepted ‘legitimate expectations’ in Australia TRGC – power to issue warning off notice preventing persons entering racecourse. H issued notice, but no advanced notice & not told of grounds why given notice

Denied opportunity to present case HELD: w/in statutory authority to interfere with legitimate expectation (not a right) as member of public to enter. BUT had to comply with PF

-‐ Notice of intention to ban -‐ Grounds of the notice -‐ Then needed an opportunity to respond

Winneke ! BREACH OF PF (Right/interest AND legitimate expectation) FIA, had workers comp insurance (for significant period of time). Suddenly told was not getting it again.

-‐ Right/ interest: ‘business interest’ = right to be heard -‐ Legitimate expectation =that licence would be renewed unless adequate reasons to

contrary – a matter entitled to be hear. -‐ No legal right to be approved ! but had legitimate expectation that

renewal/approval would not be withheld Kioa v West: ! BREACH OF PF Legitimate expectation: that they could remain in Australia unless there were good reasons why they should be deported (b/c had no legal right) Tongan family came to Aus. Temporary entry permit expired, bailed to another part of AU, found. Deportation b/c, allegations:

-‐ Had changed address w/o notification -‐ Active with other illegal immigrants seeking to get around laws

Breach of PF 1. Allegations never forwarded to family: therefore – 2. Not given opportunity to respond

Held: deportation order set aside-‐ breach of Pf (had LE). Council of Civil Service (UK) ! VALID (BUT COULD BE BREACH IN OTHER CIRCS) Govt removed unions from official electronic eavesdropping and intelligence services. HELD: prior practice of consultation b/w govt & union re working conditions normally gives rise to LE that practices would continue – circumstances of case, no LE. Haoucher (HCA) ! BREACH OF PF Statement to parliament by Minister that he would depart from AAT recommendations re deportation decision only in exceptional circumstances HELD: Gave rise to LE that these recommendations would be followed. Min obliged to consult any deportee if planned not to follow AAT recommendation against deportation Teoh (HCA) ! BREACH OF PF T, to be deported b/c drug offences. Successful in having deportation set aside. WHY: best interests of his children was not a primary consideration Aust signatory to Rights of child treaty . LE: deportation power would be exercise in compliance with treaty. HELD: not relevant whether expectation actually entertained by relevant person -‐> but one that MIGHT be reasonable entertained by person in that position. Teoh didn’t know about treaty. LAM ! VALID & COMPLIED WITH PF Min intended to deport AUst res on character grounds – drug conviction. A asked to comment on matters ! how deportation may affect best interests of children. Asked to provide details of childrens mother so Dept could contact her. Did not contact Argued: LE that mother would be consulted HELD: dismissed 1. NO LE: that dept would contact mother 2. Teoh rejected – LE could not arises where A did not entertain it 3. Even if expectation – as not relevant. He never relied on it to his detriment. (ie: did not

disclose b/c he though mother would – this would be unfair)

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STEP 2: TO WHAT EXTENT DOES PF APPLY? ! is it excluded by legislation STEP 1: KIOA v West: strong willingness to imply PF subject only to a clear manifestation of a contrary statutory exception Mason J: critical question not whether natural justice apples – but it is what does the duty to act fairly require in the circs of this particular case? To what extent does the legislation permit:

-‐ SHOULD THEY HAVE A RIGHT TO A HEARING? -‐ SHOULD THEY HAVE A RIGHT TO RESPONSE? -‐ IN PERSON OR IN WRITING?

PF REQUIREMENTS IN LEGISLATION Where legislation sets out certain PF requirements – cannot be inferred that the legislature intended to exclude CL rules of PF simply b/c it prescribes procedures. Annets v McCann:! BREACH OF PF (Statute did not exclude CL right to be heard) Prejudicial findings = right to be heard. Act-‐ provided for personal attendance & cross examination of witnesses if consider person sufficient interest in the matter. Refused to here submissions from counsel representing parents o deceased child. Q arose – whether procedural provision had effect of excluding CL rules of PF ! particularly where right of appellants to be heard in opposition to any potential finding prejudicial to their interest HELD: PF denied. Legislation did not expressly exclude common law right to be heard PURPOSE of legislation ! to abolish unfettered Coroners discretion IE: legislation must be very CLEAR to exclude LEGISLATION EXPRESSLY EXCLUDING REQUIRES: express wording & clear manifestation is required to exclude PF (Kioa v West) (Miah) MUST expressly state – that procedures under Act expressly displace common law PF LEGISLATION: IMPLIEDLY EXCLUDING PF STEP 1: look at the objects and purposes of the provisions to determine whether was excluded by implication STEP 2: CATEGORIES parliament may intent to impliedly exclude PF (A) PRELIMINARY DECISION MAKING (Decision making BEFORE an inquiry or investigation) GENERAL RULE: decision making process must be viewed in its entirety Laws v Aust Broadcasting tribunal ! BREACH OF PF (credibility of A + no prelim hearing giving) Laws, radio host, criticized govt spending on Abo welfare. After meeting radio executives (not laws) announced there was a’ breach of program standards ‘incite hatred against race.’ Tribunal decided to hold an inquiry to consider action against radio station. Decision to hold inquiry -‐> publicity ! vitiated by a breach of procedural fairness. WHY: Laws himself had not been given a hearing

$ Also – ground of bias successful Li Shi Ping ! ***CREDIBILITY OF PERSON IS CRITICAL TO PF*** Where applicants credibility is of critical importance to the decision ! the initial decision maker may have to hear applicant IN PERSON Edelsten v HIC (HCA) ! PF Rules did not require hearing at INITIAL (initiating) STAGES Made finding that there was sufficient evidence of medical over servicing to refer matter to an inquiry. NO PF requirement for Dr E to get hearing at the INITIATING stages (process just to iron out inconsistencies & errors Noted: legislation, length procedure for cases to go to inquiries & review tribunal. (B) INVESTIGATIONS GENERAL RULE: investigator has duty to afford PF at INITIAL STAGES of investigation to a person against whom:

! Specific charges or allegations are made OR ! In respect of matters which may affect the persons LEGAL RIGHTS OR INTERESTS

HOWEVER: Ainsworth: ! BUSINESS REPUTATION AT STAKE (nb: specific to Ainsworth) Breach of PF because business reputation was affected by report. (But it made a recommendation that A never have poker machines! allegation)/ Specific interest) ! Not given chance to be heard, and he was named in report ! recommendation particular to him.

! BUT CLEAR: must have specific allegations, or the report on its own can prejudicially affect interests. (Ainsworth)

! OTHERWISE ! maybe PF arise later in investigation procedure.

(C) STATUTORY HEARING OR APPEAL GENERAL RULE

! Ct reluctant to conclude statutory right of appeal displaces duty afford PF. ! BUT: existence of right to appeal may affect obligation to afford PF to some extent

If appeal right exercised, may ‘cure’ denial of PF ! if not, its existence may allow court to exercise discretion to refuse relief where the appeal is the appropriate remedy. Twist case: ! VALID PF GIVEN (Statutory appeal + missed time limit, bad luck.) Council, ordered demolition of Twists building pursuant to legislative power to demolish potentially harmful buildings. Statutory appeal: right to appeal to District court on a De Novo basis (fresh hearing), not given hearing by council, did not appeal w/in prescribed time. Refused extension of time. HELD: Missed time, bad luck – statutory right given (PF), not entitled to PF before council made order Marine Hull: ! PF GIVEN ! procedure for review by AAT indicated a legislation intention that I there isn’t PF it WILL BE CURED AT THAT STAGE (by appeal to AAT) Insurance Co under investigation – treasurer gave a direction w/o affording PF to CO not to issue or renew policies. Must appeal to AAT. ! Appeal would cure and denial of PF. HOWEVER – power may need to be exercised URGENTLY! therefore content of PF could be limited to extent that urgency requires it (as per circs) ! May negate need to afford PF. CONTRAST – Courtney v Peters: Existence of a right to appeal does NOT necessarily mean that person who is denied PF at first instance must rely on the appeal process and only on that system. Courtney v Peters ! PF APPLIED – where ‘minimise cost’ must be afforded even if right to appeal to AAT ISSUE: Right of appeal to the AAT from the Veterans Review board did non absolved the board from the duty to accord procedural fairness. WHY: aim of the statute was to avoid unnecessary expense (application to AAT $) – cheap speedy reviews with minimum cost to A at the board, not AAT (Higher tribunal)

VISA PROTECTION APP MIAH ! FAILED PF: VISA AS MORE SERIOUS CONSIDERATION vs Business/building demolition Application for a protection visa, Appeal de novo to RRT but had to be made w/in 28 days, lawyer failed to get it within, missed time. Effect of appeal – did no effect applicants right to PF at first instance. b/c lots o formalities, and the appeal body is a tribunal as opposed to a court. JUSTIFICATION FOR NOT AFFORDING PF STEP 1: Admin may argue that [xxxx] may outweigh considerations of fairness and that they were justified in NOT affording PF (D) SECRECY, URGENCY, NATIONAL SECURITY ! outweigh considerations of fairness

1. SECRECY Kioa v West Brennan: no notice where it would frustrate the purpose for which power is conferred (ex: told going to be deported, hearing in 3 weeks – flee) HOWEVER – today: would just be detained.

2. URGENCY General: Some urgencies may warrant having a lower level of PF apply (Marine Hull) (Kioa) Examples: -‐

" Destroy dangerous animals " Quarantining persons with infectious disease " Forcible entering premises where fire/disaster " Going to leave country (Edelsten)

Edelsten !PF AFFORDED (B/C URGENT – WOULD LEAVE COUNTRY) Tax evasion: Urgency – fear he would leave the country so no advance notice (departure prohibition order) given no chance to respond. ALSO prohibition order was reviewable.

3. NATIONAL SECURITY Despite vagueness & dangers of political bias re declaring something contrary to national security – CT declared assessment made by GOVT not the COURT Council for Civil Service (UK) ! ABLE TO DENY PF (intelligence service) Govt decision, remove unions from official electronic eavesdropping intelligence service. HELD: existence prior practices normally give rise to LE that would continue & discontinue only after union consulted. National security – no right to be consulted b/c of the circumstances – denied any right to PF. Coutts v Cth (Australia) ! ABLE TO DENY RIGHT TO HEARING (Defence force high level policy) Public policy considerations attached to appointment in the armed forces ! air force pilot could be compulsorily retired on medical grounds without a hearing (high level policy with defence)

(E) HIGH LEVEL GOVERNMENT POLICY GENERAL RULE: high level policy decisions less likely to attract obligation to PF.

-‐ Cabinet decisions (Peko Wallsend) Peko-‐Wallsend: ! NO PF APPLIED (international obligations – matter of policy) Cabinet decision to include area in world heritage list. PW sought review – b/c of denial of PF. HELD: involved matters exceeding beyond the rights and intersts of a mining company. WAS: important national policy issues at state ! r’ship b/w mining, conservation & environmental treaties. MATTER OF POLICY (not for the Court) O’Shea ! high level of government policy should GENERALLY be left to executive arm Sex offender parole, hearing held, rules of PF provided at initial stage of board hearing. Parole Board decided parole given, recommended to Governor in council. CIC (consult with cabinet), denied parole on public policy grounds (deterrence, retribution, public confidence) HELD: only have the right to another hearing/submissions -‐ if something else had come to light. HCA: decisions with political or policy judgement DO NOT ALWAYS excluded duty to act fairly NB: huge public case. Barratt ! BREACH OF PF: Entitled to WRITTEN SUBMISSIONS for hearing (enough) Public Service Act ! Barratts dismissal as Secretary of Defence Department was INVALID BREACH of PF: should have been given a hearing However – hearing entitled to NO MORE THAN WRITTEN SUBMISSIONS to the minister. THEN – able to dismiss w/o reason other than lost confidence. This was enough in the circumstances. (F) DELEGATED LEGISLATION RULE: Delegated legislation-‐making power will ordinary not require PF to be afforded because it is of general application [USUALLY – legislative in nature, this not administrative in character, 39B or 75 of consti ! common law]

! NOT a decisive test! (Gibbs – in Bread Manufacturers) Bread Manufacturers ! ONLY AFFECT INDIVIDUAL (PF), CLASS of person (NO PF RQRD)

-‐ Not always decisive (but maybe in some circumstances where delegated legislation affects a small enough class of people they should be afforded PF?)

BM objected to price commission decision to increase price of bread via delegated legislation GIBBS – endorsed distinction between between action that directly affects person individually & one that effects them as a member of the public/class of person. (latter = policy) (G) PRINCIPLE OF NECESSITY Laws v AB Tribunal HCA–even if tribunal is biased (denied PF), and they are the only ones that can hear the matter. HC declared rule s PF cannot be invoked to frustrate the intended operation of a statute that sets up a tribunal and requires it to perform the functions entrusted to it. Dissent (Deane, Gaudron & McHugh: if going to be substantial injustice in circumstances must not hear ! contrary to all principles of fairness, must have clear statutory intention to be able to do so

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STEP 3: CONTENT OF RULES OF PF! RIGHT TO A HEARING ISSUES: Full blown hearings, proceedings w/right to cross examine, right to be heard orally, right to be notified of a specific allegation. All comes down to what is fair in the circumstances (Kioa v West) STEP 1: A may apply to FC for order of review of (what happened) on grounds of breach of procedural fairness s 5(1)(a) & s 6 (1)(a) in connection with making his decision. BREACH is X: THE MORE SERIOUS THE CASE – THE MORE PF SHOULD BE AFFORDED 1. ADEQUATE PRIOR NOTICE & DISCLOSURE ! Allow reasonable time to prepare a case before the hearing (Thames: Removal from

office, given notice, not contain all necessary information – not adequate prior notice) ! Prior notice of specific allegations (Ong) ! Prior notice to general inquires?

o Potentially not required at preliminary stage o If investigatory to supply details may frustrate inquiry notice not

required to afford PF (bond) General discussion: depends on seriousness of issue, BUT necessity or urgency may negate requirement all together. Ong: ! BREACH OF PF: notice of ALL information, even if find more matters during investigation Removal from office, notice given but did not contain all necessary information. Committee gave A prior notice of matters it intended to investigate, proceeded later to add further matters during the investigation. Not fair, sufficient, or adequate preliminary notice. Bond: ! VALID, PF AFFORDED (aware of material relevant to exercise of power adverse to interests) ! given enough information Particulars of investigation provided to bond, claimed inadequate. Character of B for licence HELD:PF not denied, duty of AB tribunal limited to ensuring Bond & CO aware of material before which is relevant to exercise of power ADVERSE to their interests WITH full opportunity to put forward additional material. Satisfied in circs ! Had been given enough information. Dainford v ICAC !VALID: All that was needed was notification of the general scope of the inquiry ICAC inquired into D’s land dealings (property developer) . Needed notification of general scope of inquiry, do not have to give all evidence, but IF material found which is adverse – must be given opportunity to respond. NCSC v News Corp !VALID: No need for full hearing, legal rep + opp to respond enough. NCSC empower to conduct inquiries under Corps Act, notified news corp about inquiry into shares. Statute – rules of natural justice must be complied with, but no content of PF to be applied was given. News corp wanted full blown hearing w/cross examine, but this was just a preliminary hearing, NCSC rejected demands. HCA: upheld NCSC rejection. – they could have legal representation, and opportunity to respond to any views critical of news corp. That’s what PF affords, no full blown hearing. As an investigatory body charged with responsibility of examining possible contraventions of law – NOT OBLIGED to ‘show its hand’ at every stage of investigation -‐! PROVIDED it gave advanced notice of any adverse findings AND made opportunity for affected persons to respond

VISA PROTECTION APP MIAH ! BREACH PF: non-‐disclosure & resulting lack of opp to respond Protection visa application, Applicant not informed of decision makers intention to rely on change of government in home country as means for arguing not well founded fear of persecution. HELD: non-‐disclosure and resultant lack of opportunity to respond was a breach of PF Relevant Circumstances: information, newness & unexpectedness, and fact that applicants view would have been instructive.

ISSUE: CONFIDENTIALITY & POLICY RULE: confidentiality or public policy grounds may narrow operation for notice requirement. Ansett: Confidential material does not negate application o PF rules, rather it narrows its field of operation. PF may be observed: informal discussion with communicates, gist of information w/o revealing confidential material, enable party to comprehend matter. Kurtiovic: ! ALLOWED LAWYERS, NOT CLIENT TO ACCESS (PF AFFORDED) Did not allow consideration of confidentiality & safety of parole officer & informants to stand in way of supplying reports to prisoner facing deportation (his lawyer). HELD: in favour of disclosure b/c considered that confidentiality and safety interests of the officer & informants could be adequately protected by allowing lawyers but not client to access documents VEAL v MIMIA: Unsolicited letter received by RRT in course of review.

1. RRT CANNOT argued that reason for non-‐disclosure was act that no weight was afforded to doc. MUST be disclosed if ‘credible, relevant & significant’

2. Request for confidentiality by supplier of info NOT determinative – public interest considerations are relevant ! in these circumstances, in substance, letter could have been disclosed WITHOUT THE IDENTITY of informant being disclosed

2. RIGHT TO A HEARING (ADEQUATE OPPORTUNITY TO ADDRESS) General Rule: No absolute right to an oral hearing. Depends on: seriousness of the case & whether person has been given an adequate opportunity to present their case

-‐ Circumstances -‐ Legislation

Oral hearing required: -‐ Livelihood (pett) -‐ Reputation (Pett) -‐ Appeals (Finch) -‐ 2 competing bodies (b/c cross examine) (Finch) -‐ Credibility (Chen) -‐ Intention of parties at dispute (Chen)

Written submissions fine: -‐ Nothing expess in leg + circumstances of case (Heatley) -‐ High volume decision making (Chen) -‐ Objective decision making – potentially fine (Chen)

Pett v Greyhound Racing (UK) ! LIVELIHOOD AND REPUTATION (RQRD ORAL HEARING) Individual entitled to an oral hearing where their livelihood or reputation was at stake. Heatley ! WRITTEN SUBMISSIONS (right to enter race course) Commission had to comply with rules of natural justice. Race course entry case. Nothing express in legislation re oral heaing

-‐ Notice of intention -‐ Grounds of issueance (warning of notice) -‐ NOT: necessary for oral hearing ! written submissions were fine.

Finch ! APPEALS OR 2 COMPETING BODIES (RQRD ORAL HEARING) Oral hearing NECESSARY where process of decision making is one of:

1. APPEAL 2. Decision making body required to adjudicate b/w 2 competing bodies

Committee established hear appeals re promotions. Required to adjudicate b/w 2 parties in dispute over 1 of them being promoted

VISA PROTECTION APP Chen Zhan Zi ! CREDIBILITY OR INTENTION OF PARTIES ! High volume decision making ! may negate requirement of oral hearing Principle: oral hearing required where there is an issue of creditability or a dispute as to the intention of the parties Chen sought refugee status (well founded fear of persecution) Challenged procedure of Migration Department. Procedure: that every application given to a delegate but only those with merit get opportunity to respond. Those without merit no opportunity to respond. Could appeal to refugee Committee – but that also on paper/ by writing. HELD: objective test ‘well-‐founded fear of prosecution’! could be done on paper. WHY: High volume decision making jurisdictions ! practical considerations may negate the requirement to afford an oral hearing. HOWEVER – where:

-‐ Real Q as to credibility -‐ Applicant disadvantaged being limited to written submissions

MAYBE – oral hearing required. 3. REPRESENTATION STEP 1: General Rule: No absolute right to representation (Cains v Jenkins) (Krstic)

! Statutes can override entitlement to legal representation ! Even where livelihood is at stake

STEP 2: WABZ v MIMIA: 4 Factors considering whether entitled to representation (in RRT) 1. Applicants capacity to understand the nature of the proceedings and the issues 2. Applicants ability to communicate effectively (in language used)

3. The legal and factual complexity of the case 4. The importance of the decision to the applicants liberty or welfare

Cains v Jenkins: ! VALID, GIVEN PF: Seriousness, complexity & ability Trade union committee hearing of charges against union secretary. Refused right to be accompanied by articled clerk. HELD: no denial of PF ! taking into account the applicants experience and ability to present his case. Requirement varies according to:

1. The serious of the matter 2. The complexity of legal and factual issues 3. Ability of the person to represent themselves

In Cains: lack of seriousness, complexity & person capable of doing it themselves Krstic ! VALID, GIVEN PF: Age, qualification, education No absolute right (even where livelihood at stake) Lost job with telecom, sought review, requested representation, tribunal denied representation. HELD: no denial of PF No legal representation b/c it is an informal procedure Tribunal directed by its regulations ‘to proceed w/o regard to legal forms A person with a ‘tertiary qualification & normal amount of self-‐confidence should require no representation or assistance. ENTITLED: to non-‐legal representation (union rep) CONSIDER: age, qualifications, education Canellis: ! VALIF, GIVEN PF: convicted person inquiry, no need for rep. HCA did not accept conduct of statutory commission of inquiry into doubts of convicted person required that the witness be afforded legal representation (as general rule). NOTED – significant public cost. Sullivan ! DECISION MAKERS NOT REQUIRED TO ASSIST APPLICANT (all required – reasonable opp to present case – not impossible task of ensuring that part best take advantage of the OPP) S sought review of decision refusing to renew commercial pilots licence on medical grounds. S represented himself, sought to call medical witness. Medical witness not present, w/o evidence he could not proceed. ISSUE: S did not request an adjournment & AAT did not offer one HELD: no denial of PF for failing to tell him he had right to adjournment. Not up to AAT 4 RIGHT TO AN INTERPRETER Sing ! BREACH OF PF: absent interpreter + failure to give record Set aside decision to deport applicant on ground that absence of an interpreter for part of the interview and a failure to provide the applicant with a copy of the record of interview amounted to breach of PF Obiter… Cains v Jenkins AND Krstic: suggests migrant with no English or a deaf mute would have a right to an interpreter. Provided at no cost International Covenant on Civil and Political Rights contains guarantee in Art 14 cl 3(f) of the free assistance of an interpreter if he or she cannot understand or speak the language used in court (Australia has ratified) 5. RIGHT TO CROSS-‐EXAMINE STEP 1: No general right to cross-‐examine a witness (O’Rourke v Miller) O’Rourke ! VALID, no cross examination required PF did not require police constable be entitled to cross examine persons lodging complaints about his behaviour prior to the conclusion of the probation period. HCA: Swayed by Comms responsibility to week out probationary officers. Special category of disciplinary proceedings in the police force STEP 2: Exceptions Issue 1: Cross examination ordinarily allowed where CREDIBILITY is an issue (Harrison v Pattinson) -‐ Person charged with breaches of discipline denied opportunity of cross-‐examining witness

called at inquiry to investigate complains about his behaviour in work place

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-‐ HELD: credibility of witness – called to testify against him was fundamental to the outcome & PF required to cross examine

Issue 2: competing bodies, serious allegations -‐ Finch v Goldstein !CROSS EXAMINATION RQRD FOR PF: 2 competing bodies, serious

misconduct, needed cross examination re issues a. Committee established to hear appeals in respect of promotions, was

required to adjudicate b/w to parties in dispute over one of them being promoted.

b. HELD: That only through cross examination & re-‐examination of witnesses that the committee could properly explore the relevant issues (involved serious misconduct)

-‐ Ansell v Wells: consider the gravity of any allegations made by or against any party Issue 3: powers of decision maker The nature, constitution and powers of the tribunal and whether it follows procedures analogous to a court should also be considered (Hurt v Rossal) RULES OF EVIDENCE

STEP 1: No general rule of pF that decision making bodies abide by the formal rules of evidence (unless legislation requires it)

-‐ **other grounds: no evidence, failure to take into account relevant considerations STEP 2: HOWEVER DECISIONS MUST BE LOGICALLY PROBATIVE EVIDENCE (MIEA v Pochi) Drug lord (Italian, papers for citizen approved but never received), but not enough evidence to go on. Department had acted on a suspicion, not on clear probative evidence, MERE SUSPICION IS NOT GOOD ENOUGH Brennan J warned ! although AAT not bound by rules of evidence, should be careful to ensure ‘legally probative evidence’ In that case – AAT refused to take account of hearsay evidence which has highly prejudicial consequences for a party. NB: Decisions on flimsy evidence ! NO EVIDENCE GROUND

STEP 3: CONTENT OF RULES ! right to have a hearing FREE FROM BIAS

ACTUAL BIAS (pecuniary or proprietary) Heavy obligation ! easier to prove ‘apparent bias’ (see hot Holdings) TEST: must be a pre-‐existing state of mind that disables the decision-‐maker from undertaking or renders her unwilling to undertake any or any proper evaluation of the materials before her that are relevant to the decision to be made. French J referred to this as ‘dysfunctional decision-‐making’. This test was approved by the HCA in MIMA v Jia Legang STEP 1: If decision maker has a pecuniary interest – this will be a conclusive presumption of bias (Dimes v Proprieters) Judge hearing matter owned shares in the defendant corporation. Decision void. It is irrelevant whether the interest has influenced the decision maker or not. STEP 2: HOWEVER – strict pecuniary test is now rejected (Ebner) TEST: A REASONABLE APPREHENSION

-‐ Disqualification will not result if the pecuniary interest is ‘too tenuous or remote’ -‐

Web v R ! ‘Reasonable apprehension’ of bias test –JUROR NO BIAS Biased juror had given murder victim’s mother some flowers during trial = actual bias. HCA: apprehension of bias was wiped away when juror apologized, made public and judge gave appropriate warning to jury in the circumstances. Ebner: ! NO BIAS, must have reasonable apprehension. Few cents not enough -‐-‐JUDGE Pecuniary interest rule ! held that a pecuniary interest was relevant insofar as it indicated actual bias or was such as to give rise to a reasonable apprehension of bias. Judges shareholding in a defendant bank was such that decision in favour of the bank, at most, would make a few cents difference to the dividends received by the judge ! not enough to give rise to the requisite degree of apprehension. Hot holdings ! NO BIAS, FAILED TO MEET THRESHOLD -‐-‐ ADMINISTRATOR Claim for mining exploration licence, departmental meeting between B & P. M recorded minutes, included recommendation that X’s tender be accepted. Recommendation went to D-‐G – then to minister, who on evidence, gave the matter independent consideration. M & son of P had shares in the CO with option to buy 80% interest in licence awarded to X. HELD Both interests INSUFFICIENT to give rise to reasonable apprehension of bias. NB: Migration Act (Cth) ! limited appeals of bias the basis of actual bias = privative clause. (limited JR appeals on this basis). EX: if refugee claimed JR b/c protection visa was rejected, only available if ACTUAL bias was available. MIMA v Jia Legang – MINISTER – NO BIAS Full court held ACTUAL BIAS (based on comments made by Minister in media interviews that he was distressed that the AAT was overruling his decisions on ‘character’ grounds – including this case specifically – in the context of this particular case and other) APPEAL TO HCA: unanimously rejected actual bias & 4:1 apparent bias Minister will not be held to the same strict standard of impartiality as a judge APPARENT BIAS (non-‐pecuniary) STEP 1: non-‐pecuniary bias includes bias by association, conduct or prejudgment STEP 2: TEST – if fair minded people would reasonably apprehend or suspect that the court or tribunal has prejudged the case (R v Watson – HCA) -‐ ‘Fair mind’: given thought to subject matter & formed views w/respect to it (R v CCAC)

-‐ ESTABLISH BIAS: reasonable basis or fear (suspiscion) that decision makers mind so

prejudiced in favour of conclusion already formed that they will not alter conclusion irrespective of evidence/arguments. (Laws – Gaudron & McHugh)

STEP 3: ‘PREJUDGEMENT’ OF THE FOLLOWING CATEGORIES (1-‐7) 1 Previous expression of opinion Where decision maker has given their opinion somewhere – ex: to the media Laws v ABT (Gaudron & McHugh) Must firmly establish

1. Reasonable fear that the decision makers mind is so prejudiced in favour of a conclusion already formed

2. That he/she will not alter that conclusion irrespective of the evidence or arguments presented to him/her

CONSIDER – the context of the case & is previous statement/expression so clear? 2 Provisional views expressed during a case Vakuaka v Kelly: Widely accepted that judicial silence may be counterproductive.

-‐ You expect them to give some idea of how they feel about a particular issues as the case produces

-‐ You want them to question you Richmond River: Critical comments can be useful to a part early on in an hearing

-‐ However; the belief or opinions must be provision and the decision makers readiness to listen and be persuaded is the critical matter at hand

-‐ CONTEXT: must be provisional/preliminary Koppen v Commissioner: ! BIAS, COMMENTS -‐ During compulsory conciliation conference ! alleged that K had refused Aboriginal

people entry to his night club on basis of their race. -‐ Conciliator, an aboriginal woman, commented that her daughters had also been denied

entry into Koppens night club HELD: Comments gave rise to reasonable apprehension of bias ! risk that conciliator would have actively entered the controversy between the parties 3 preconceived opinions evidenced by public statements Re Maurice ! BIAS, ‘POLITICALLY SENSITIVE’ Aboriginal land commissioner made comments critical of the Government, incl that ‘it has pretensions to be a government for all people in the NT… yet its actions consistently betray an underlying hostility to the basic principle of land rights for a disposed people.’ HELD: Commissioner precluded from any further involvement in a significant land claim in NT Remarks were POLITICALLY SENSITIVE issues & allow o publicity surrounding the comments Carruthers v Connolly ! BIAS, publically critical of a commission inquiry he was part of. Commission of inquiry set up to investigate future of CJC in Qld, Connolly (ex supreme ct judge), a commissioner on inquiry, done for bias. Public comments critical of CJC chairman & CJC generally. Showed supper for witness critical of the CJC. Other commissioner was disqualified from commission Connolly – guilty of most flagrant form of apparent bias verging on actual bias. Keating v Morris ! BIAS, same basis as connolly Involved shutting down another official inquiry same basis as Connolly. NB: Can apply to statements made after the hearing (Re MIMA Epeabaka) Re MIMA Epeabaka: Comments posted on RRT members WEBSITE, which included a reference to the fact that ‘applicants lie’ ! Bias not held in this particular case – but said it could apply in these sorts of circs. 4 Preconceived opinions evidenced by former decisions GENERAL RULE: listing of cases before a decision maker is a matter for the relevant institutions and judge shopping is not allowed! ALL CASES UNSUCCESSFUL. NO JUDGE SHOPPING.

-‐ The fact that a decision maker has decided an issue of fact or law in a way & may decide same way against ! DOES NOT indicate prejudgment amounting to bias.

TEST: must show decisions makers mind was so prejudiced in favour of a conclusion despite the evidence presented that the party will not be afforded a proper hearing. Raiski v Wood: (Kirby J) If parties could pick & choose judges according to perceptions of the way in which their choice could advantage them ! great DAMAGE would be done to the integrity of the judicial process and to community confidence in the neutrality and impartiality of the judiciary The courts are vigilant to adopt procedures to guard against forum shopping & judge selection Vietnam Veterens v Gallagher Argued that past decisions showed that Member M (siting on VRT) was biased AGAINST Vietnam veterans seeking pensions HELD: dismissed – -‐ Although statistical evidence may indicate that b/c M has decided cases in a particular way

in the past, he was likely to decide a case of the same nature in the same way in the future, that did not amount to apparent bias.

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-‐ FURTHER ! would be an abdication of duty for decision makers to disqualify themselves on request ! procedure adopted for the allocation of cases to board members ensured that applicants could not pick the panel of their choice.

5 Predisposed attitudes assumed by virtue of decision-‐makers identity (race, religion etc) Bird v Minister for Education

-‐ Unsuccessful bias application on basis of gender and ethnic origin (female jewish judge) -‐ Cannot claim just because they are a woman or that they are Jewish

6 Known attitudes to witnesses Livesay v NSW Bar Association ! BIAS, CLEAR VIEWS ABOUT CREDIT OF WITNESS whose evidence is significant 3 Judges struck barrister (livesay) off roll. Few months earlier 2 of those judges determined person who worked closely with barrister was not ‘fit an proper’ for admission. They had been severely critical of livesey in first case in circumstances where the relevant facts were central to the second case & why he was struck off HELD: bias -‐ & noted bias by reason of prejudgement arises ‘if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views about the credit of a witness whose evidence is of significance on such a question of fact, then the appearance of bias by prejudgment must be avoided and the judge should not hear the case. Vakuata v Kelly ! BIAS, PRECONCEIVED VIEWS ABOUT MED WITNESS. TJ referred to the D insurance company’s medical witness as a unholy trinity’ whose views were generally slanted in favour of the Governments insurance office. Made further comments critical of the witness in his reserved judgement. HELD: Bias – Trial judge ‘concerned to vindicate his preconceived views about the reliability of the witness, and he allowed the views to prejudice his whole approach to the case to the detriment of the defendant Acknowledged: decision makers who regularly see certain medical witnesses (doctors) are likely to form views about the reliability and impartiality of those witnesses. This does not disqualify a judge. To whom does the rule apply? 1 Courts In Tahmindjis v Brown, an ADJR case that followed on from Lamb v Moss, the CT held that the magistrates, hearing a complex and difficult committal hearing where 16 people were accused of social security fraud, was disabled by an apprehension of bias. 2 Tribunals All tribunals, including regulatory and investigative tribunals, are under a duty to act judicially (i.e. to accord natural justice), which will include a duty to act in an unbiased fashion. Angliss Group the issue was whether comments made by Kirby J (the Commissioner), about equal pay for women and men in a National Wage case was deemed non-‐pecuniary bias by prejudgement. A unanimous HCA held there was no bias, the very nature of the office of Commissioner involved the investigation of policy options and tentative expressions of opinion; a ‘fair and unprejudiced mind’ is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it’ (554) In Re MIMA; Ex parte Epeabaka, an RRT member, Dr Hudson, who had spent extensive time abroad working for and with refugees, established a website (after he had given his decision in this case) where he referred to applicants who ‘lie through their teeth (as they often do)’ and said ‘We work with dishonesty and corruption on all sides… applicants who weave webs of lies, lawyers and migration agents who prey on them to rip off what little money they have…’ Epeabaka applied for certiorari, prohibition and mandamus in the High Court’s original jurisdiction on the basis that Hudson’s decision to affirm the rejection of his visa application vitiated for apprehended bias. Gleeson CJ, McHugh, Gummow and Hayne JJ referred to Angliss Group noting that ‘a mere lack of nicety’ is not sufficient to establish apprehension of bias, but rather it must be ‘firmly established’ looking at all the circumstances and in context; there was no bias in this case. Kirby agreed in a separate judgement. Institutional bias – see Laws case An ABT member made a public statement repeating the allegations of the purported decision. Laws sought judicial review on the ABT decision on the basis of the public statement. On appeal by Laws from the FC to the HCA, the question was whether the ABT was precluded from entertaining an inquiry against Laws, given apprehended bias deduced from its behaviour and

public statements and its defence of the defamation proceedings. The HCA held that was indeed apprehended bias by virtue of the defence to the defamation proceedings. WAIVER GENERAL RULE: an objection must be made as soon as possible after the person affected becomes aware of the bias

! Parties often afraid to allege bias in case, b/c makes decision maker more hostie. ! Risk to make objection, but late objection shows uncertainty as well

FAILURE: to object, may amount to a waiver of the right to complain Lilydale ! WAIVED, waited to see if could get a favourable decision. Magistrate driven by counsel for one side to view site. Court made it clear that his issue of association also arises when judges listed to hear cases in which they were involved with parties before their appointment to the bench. HELD: Applicant barred from seeking relief on basis of bias ! applicant and lawyer chosen to let the bias pass in hope of securing favourable decision. WAIVED by not bringing it up earlier NOT: allowed to ‘eat his cake and have it too’ Osland v Secretary to the Department of Justice See access to information and LPP Vakuta v Kelly: Failed to object, waived right re in court remarks Appellant did not object to commends First instance: waived right to object insofar as the in-‐court remarks On appeal (HCA): appellant had not waived right to complain as TJs comment were reviewed in his judgement COURTS attempted to accommodate realities of decision making process, recognising that:

1. Appearance on bias may be cumulative (rather than instantly identifiable)! factors 2. Late objection may be product of indecisiveness (or scared) rather than strategy 3. Enthusiastic objective can be a risky strategy

NECESSITY Where NO ONE ELSE can hear it Laws Case (nb: procedural fairness in the context of preliminary decisions) -‐ Laws made comments that were critical of aboriginal welfare programs AB tribunal met

with radio station, held laws breached standards of legislation, inquiry would be held. -‐ Laws challenged under ADJR & sued for defamation (b/c director discussed tribunals public

inquiry on radio -‐ HELD: decision to hold inquiry which attracted much publicity was vitiated by breach of PF -‐ WHY: Laws had not been given change to be heard – 3 members that made decision to

hold inquiry could not sit on bench in proper public hearing that was to be held. If there were no others, then the principle of necessity would enable them to hear the matter

STEP 4: CONSQUENCES OF NON COMPLIANCE

STEP 1; If decision involves failure to comply with PF ! the decision is VOID (Ridge v Baldwin) (Miah)

! Decision ‘Void’ = never existed ! RE TRIAL STEP 2: decision set back to administrator ! may happen against with correct procedures with same outcome + relief is discretionary. No need to prove that the decision would have been different if the rule had been complied with In some cases where relief is futile, the court may refuse to grant relief in its discretion ( Glynn v Keele University) (Stead v State Government Insurance Commission)

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