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Administrative Law Exam Notes

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1 Administrative Law Exam Notes 2011

ACCESS TO INFORMATION STATEMENT OF REASONS "Both CL and statutory mechanisms are available for accessing info with relation to a dec'n which has been made that affects a person. In this case, the jurisdiction of claim is [Cth/Qld] which will influence the Statutory mechanisms avail to the affected person. CL right to reasons: At CL, there is no general principle which states that reasons should be given for a stat'y dec'n: Osmond v Public Service Board of NSW. Other avail avenues are more applicable because stmt of reasons granted at CL must be in the public interest and if no 'public element' to the dec'n, there will not be enough to sustain a CL grant: Sankey v Whitlam. Statutory avenues: content of dec'n Statutory right to reasons: this is set out in section x which requires (written notice of the decision) - incl'ing a stmt of reasons and reference to the [AAT] as an avenue of appeal: s13 ADJRA/ s32 JRA. In the absence of other leg've provisions, [s25D AIA Cth/ s27B AIA Qld] states that the content of a stmt of reasons should consist of findings on material questions of fact, and refer to the evidence or other material on which those findings were based. As there were insufficiencies, the applicant could ask for proper reasons to be provided which fully explain the findings of:

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[Material fact]

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[Refer to evidence/other materials in depth]

In Soldatow, reasons for a dec'n are necessary to determine whether or not a dec'n has been properly made. As adequate reasons were not provided, the merits review system will provide for a stmt of reasons.

Statement of reasons: Do exceptions apply?
o

Cth - Schedule 1 - s3(1)(d) ADJRA

o

Qld - Schedule 2 - s18 JRA

What is required of statement of reasons?
o

Time limits - 28 days

o

In writing to DM

o

DM has 28 days from date of receiving request to provide reasons

o

Is DM precluded from providing a Stmt of reasons under the empowering act?

o

If so, applicant can go to FC or Fed Mag Court (ADJRA) or Qld Supreme Court (JRA) and AAT under AATA to get reasons or resolve why reasons not provided.

If can use s28 AAT obliged to use it over s13 ADJRA. Under s28 AAT Act, applicant affected by dec'n may obtain reasons for the dec'n. s25 states dec'ns covered by Act confer on AAT a review power and s28 states that DM must provide reasons if reasons are requested.

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Based on these findings, the applicant should ask for reasons to be provided that set out the findings on material Qs of fact and refer to the evidence or other material on which those findings were based: s13(1) ADJRA. FREEDOM OF INFORMATION Note time limits. Be wary of language. Due to the 'or's' involved, the applicant can be a ______ OR 'the person concerned'. Note Allens v Transurban case where it wasn't wide enough as they used 'the person' rather than 'a person' concerned. Go through checklist. What type of review: list the 3 and state which one. Highlight advantages and disadvantages eg. "This will be a specialist external review. [highlight adv and disadv's] It can be captured by ex-agency staff, therefore, can get the same information back. It is an inquisitorial review, therefore, no lawyers which can be intimidating." What are the likely documents sought? "They'd be seeking a file or files containing notes about what had happened to cause the inquiry, what had been seen or heard during the investigation. It is important that they search for policy/guidelines stating what it is that happened eg. employees found with alcohol must be sacked. If not found in policy then it is an easier obstacle to overcome." Freedom of information is for access to info in poss'n of the govt by making avail to the public, info about the op'ns of depts and public authorities ie govt accountability and transparency.Process of application o

Needs to be in writing

o

Agency must help ID docs

o

Agency can refuse if excessive or give request to more rel't agency

o

Costs (appl'n fee + working time+ photocopying)

o

Costs reduced if after applicant's personal info

o

Parts of docs (can black out exempt material)

o

28 days turn around

o

Merits Review (Cth AAT, Qld Info Commissioner)Documents availablePossible exemptions?
o

Type 1: Docs are not to be disclosed

o

Type 2: Docs in public interest NOT to be disclosed but public interest in content could allow disclosure

o

Type 3: Docs in public interest to be disclosed but public interest in content could prevent disclosure

o

Note: Re Howard testHigher the officePolicy formationInhibit frankness and candour

3 Administrative Law Exam Notes 2011Confuse publicMislead as to reasons

Are there any issues about statements which may 'affect personal privacy' (s41)?

1. Does it set out information which is personal in that the person who made it may be identifiable?

2. Colakovski - accessing caller ID information of "nuisance" callers ? constituted personal information. a.

Therefore if person is identifiable, not likely. Should ask that they de-identify the documents OR provide a summary as the information contained in the doc is central to understanding the reason for the decision: AI ACT s25D.

Are there any issues about policy documents as internal working documents? s36

1. Would argue that these are agency documents for making decisions under s9 and therefore should be accessible

2. If an extract has already been provided there is little reason why the rest of the document should also be provided.

3. There may also be scope to argue that the release of the documents is in the public interest (Re Howard).

If this is not effective can also approach ombudsman as another option. Possible documents exempted - internal working docs s36(1) FOI; national security s33; cabinet docs s34;
**ANY PERSONAL INFORMATION docs - s41 - must argue IN the public interest as they are a type 2 exemption.

MERITS REVIEW JURISDICTION "We are dealing with a [Cth/Qld] Act, ie _______Act (Cth/Qld), therefore, jurisdiction is
[Commonwealth/Queensland]."

OUTLINE SCHEME o

Statutory access to MR

o

Powers of Review bodyo

"Decisions can be reviewed 3 ways: internal review, specialist review, general external review. In this case, it is a ________ review as the ______ under section ___ of the ____ Act provides for access to Merits Review in the _____. Decisions made under sections _____ are reviewable. As the decisions we are dealing with was _____."

Standing

4o

Look at types of dec'ns up for review in ______ Act. Look for wording of authority. If applicant does NOT fit into the criteria for having dec'n reviewed then applicant has standing but the decision is NOT open for review under the _____ merits review.

Timelines28 days to send for reasons; 28 days to respond to applicant.

OUTLINE SUBMSISIONS o

Discretion, Facts, Law"There are 3 areas where errors can be made in a dec'n which may mean that the 'correct or preferable' dec'n was not reached. There are fact, law and discretion."

Questions of Fact: Does the evidence prove the fact that has been asserted - both primary facts and inferences of fact?
Swift: "the weight to be attributed to facts w/in the bounds of legitimate facts is to be subject to discretion."Were the correct facts sought to satisfy the test?Were the correct facts relied upon when making findings of fact?

Questions of Discretion: Did the DM make a dec'n which was outside of their delegated authority/make a decision incorrectly exercised?No Fettering Rule: Did the DM fail to exercise discretion by blindly following a policy or directive?Improper Purpose: Did the DM use the discretion for an improper purpose?Relevant Consideration: Did the DM consider all relevant requirements when exercising discretion?Irrelevant Consideration: Did the DM consider any requirements that they were not relevant when exercising discretion?Unreasonableness: Was the decision one a reasonable DM would come to?Procedural Fairness: Was the decision tainted by the DM's failure to be procedural fair?

Were the right things given the most weight by the decision maker? (Swift) "Drake No 2: Policy should be independently assessed before it is applied and should be applied blindly. When the tribunal is reviewing the exercise of a discretionary power ... and the [decision-maker] has adopted a general policy to guide him/her in the exercise of the power, the tribunal will ordinarily apply that policy in

5 Administrative Law Exam Notes 2011 reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision." Questions of Law: the actual application of the law was done correctly - did the facts fit the statutory terms for the dec'n?
Hope v Bathurst CC: "whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law" o

Legislation doesn't denigrate longstanding common law rights and freedoms without clear words (eg freedom of contract, privacy and property)

o

Legislation doesn't restrict access to Courts without painfully clear words (and even then maybe not)o

Legislation should not impose a retrospective obligation unless clear words

o

Express powers exclude additional implied powers.

o

Actions must not depart from statutory words

There was a 'decision' made for the purposes of the statute to allow appeal to the higher body. oNeed to show that the decision was final and therefore can appeal.

The decision was not 'correct and preferable' (Drake No 1) o

The decision maker did not use their power for proper purpose

o

The decision maker did not have a mind to the relevant factsMade their decision on evidence which was not relevant to the purpose of the statement they should have been finding about.They allowed irrelevant evidence to prevent them from making an finding about the relevant facts which would have lead to the correct and preferable decision. There may need to be more information submitted to establish these things.The decision was infected with errors. o

Interpretation ? based on what we know, the client fits the statutory provisions.

o

The law was incorrectly applied to the facts (Hope v Bathurst City Council)Incorrectly applied facts?Unimportant facts relied upon?

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o

Was policy applied blindly? (Drake No 2)Is it inconsistent with the law in the legislation?

Standing: Section 27 ADJRA, "persons whose interest are affected by the dec'n". s27(2) ADJRA defines interests of persons affected for assoc'ns if the assoc'ns objects or purposes relate to the dec'n. The applicant has standing as he/she is being directly affected by the decision: s27 ADJRA.

ADVISE CLIENT of likelihood/desirability.

Note: OMBUDSMAN, if MR not available. "Ombudsman may refuse to consider the case as there are both time limits and no established access to MR."

JUDICIAL REVIEW ACCESS TO JR "Judicial review is more limited in remedies than Merits Review, but it does have a wider applicability. The overall ground of JR is that the repository of public power has breached the limits placed upon the grant of that power. The focus is therefore, on the LEGALITY of an exercise of power, not the merits of a particular decision. The legality/merits distinction is simply marked by whether or not a particular ground of judicial review is available in a given case; if it is not, then judges cannot interfere with the 'merits' of the decision. The ADJRA does not exclude the CL. They are a dual scheme. As this of [Cth/Qld] jurisdiction (section 8/19 ADJRA/JRA), the [Federal/Supreme] Court will hear matters of judicial review. [s39B JA conferred HC powers to the Federal Court/......], therefore, parallel JR applications of CL and Statutory Reviews can be brought to the
[Federal/Supreme] Court at the same time. Applications must be brought within 28 days (s11ADJRA; s26 JRA) but can be brought after the 28 day limit with the leave of the courts. Leave of the court will depend on the matter and statutory context, effect of delay in bringing application and interest of the applicant (Hunter Valley Developments Pty Ltd v Cohen (1983) 58 ALR 385). STATUTORY REVIEW: Access to Judicial Review for Statutory Review depends on satisfying 4 elements (s5, 3(1) ADJRA; s20, 4 JRA):Express Exclusions

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COMMONWEALTH - ADJRA

7 Administrative Law Exam Notes 2011 o Decisions of Governor-General - s 3(1)(c) o

Schedule 1 - s 3(1)(d); egDecisions under ASIO Act (Sch 1 (d))Decisions under Industrial Relations Laws (Sch 1 (a))'step along the way' decisions for determining tax (Sch 1 (e))25(1) or Part IIIA of the Commonwealth Electoral Act 1918 (Sch 1 (q))

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QUEENSLAND - JRA o

Schedule 1 - s 18; egPart 1, 1. Casino Control Act 1982, sections 28(3), 31(23) and 32(7)Part 1, 4. Industrial Relations Act 1999, section 349Part 1, 7. Retail Shop Leases Act 1994, section 88Part 2, 1 District Court of Queensland Act 1967Part 2, 6. Witness Protection Act 2000

"Under Schedule 1 of s3(1)(d) ADJRA/s18 JRA, there are no express exclusions listed. We have satisfied the exemptions, therefore, can look at rest of ADJRA/JRA." a.

PLEASE NOTE JRA has no equivalent of ADJRA s 3(1)(c) and therefore the Governor's decisions ARE reviewable.'administrative character'

"Imposes separation of powers exclusion, only dec'ns of an administrative character can be reviewd. Initial Tooheys test of creation of new rules vs appl'n of old rules has been rejected. QML v Blewett says that if the DM is standing in the shoes of the parliament when they are acting then this will be legislative. Best test SAT FM v ABA per Sundburge J. "

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SAT FM case: o

Is dec'n making general rules?

o

Is dec'n formally gazetted?

o

Is there wide public consultation?

o

Is there wide policy consideration?

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