#6386 - Administrative Law – Hypothetical Structure - Administrative Law

Administrative Law – Hypothetical structure

ACCESS TO INFORMATION

• Reasons – what further relevant information needs to be provided in relation to this decision?

• Is content sufficient?

Commonwealth:

Under s13 ADJRA certain persons are entitled to apply to the DM for a stmt of reasons similar to s28 AAT Act.

A request for stmt of reasons must be made w/in 28 days of receipt of dec’n.

DM has 28 days from receiving request to provide stmt of reasons.

Cannot apply for stmt of reasons IF:

• Person could not have applied for stmt of reasons under AAT Act; or

• Dec’n complained of contained or was accompanied by stmt of reasons; or

• Dec’n incl’d in classes of dec’ns in Sch 2 of ADJRA

Freedom Of Information:

• Discuss what documents

• Discuss possible exemptions – if any

• Present submission on why exemption should/should not apply – if possible

Common law

• No general principle that states reasons should be given for statutory decision: Osmond. Other available avenues more applicable because stmt of reasons granted at CL must be in public interest and if no ‘public element’ to dec’n, there won’t be enough to sustain CL grant: Sankey

Statute

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:

• [Material fact]

• [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?

• Cth – Schedule 1 – s3(1)(d) ADJRA

• Qld – Schedule 2 – s18 JRA

What is required of statement of reasons?

• Time limits – 28 days

• In writing to DM

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

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

• 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.

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.

MERITS REVIEW (IF AVAILABLE)

What argument/s might be made on these facts?

Part 1 – Key elements of merits scheme

• Accessibility and standing?

• What can it achieve?

Part 2 – Submissions to be made in merits review

The DMs dec’n is infected with errors:

• Discretion: any submission to get a favourable exercise of discretion

• Facts: any new facts, or avenues to explore to find new facts

• Law: can have an opinion as to the law here, but should note legal submission will be the same as submissions made in JR section

Q of Law: meaning of provision

• Interpretation: [applicant] appears to satisfy the thresholds of [particular terms in legislation]. Describe each term and the incorrect interpretation of it eg error in wrong interpretation of ‘sufficient reason’.

• Application of facts to the law: “Failure by DM to take [applicant’s] reasons for …..”; “failure to take into account employer’s stmts that are irrelevant when another relevant ‘sufficient reason’ is available”.

• Policy matters: Drake no 2 sets out std for considering policy – need to indep’ly assess applying policy and not apply it blindly and consider Justice Brennan factors. Look for inconsistencies b/t policy and legislation provision

Q of Fact: relevant facts

• DM should have sought facts relevant to provision threshold and therefore sought facts about applicant’s ……

Q of Discretion: choice and weight of evidence

• Here, ‘opinion’, ‘may’, ‘ought’ so requiring DM to choose b/t competing ‘facts’ (Swift – the weight to be attributed to facts w/in bounds of legitimate facts). Should give greater weight to …. And should not give weight to …..

Advise client of likelihood or desirability of MR

Merits review bodies

Tribunals and the like

Ombudsman and the like – use if MR not available. Ombudsman may refuse as there are time limits and no established access to MR.

JUDICIAL REVIEW

What are the prospects of bringing a judicial review application in relation to this decision?

Two parts:

• Part 1 = CL and Statutory avenues

• Part 2 = Standing

Part 1 - Access to judicial review (including privative clauses – if any)

The test is whether an institution is subject to JR is whether it exercises ‘public’ power. If a decision of a body clearly expresses power conferred by statute, it can be reviewed. The general availability of statutory review has not replaced ‘common law’ review powers of the court. As they run parallel, both can simultaneously be brought to the courts.

Time limits state that the applicant can allow leave of court to bring an application OUTSIDE of 28 days.

Avenues

• COMMON LAW

  • Public character?

    • Chapmans v ASE

    • R v Panel on Takeovers and Mergers; Ex parte Datafin

  • Justiciable? – Ditford case = whether court will examine

Examples of these areas are:

• Defence of the realm

• Mercy for prisoners

• Grants of honours

• Dissolution of parliament

• Appointment of ministers.

As civil servants worked in national security and related to defence: NOT justiciable: CCSU v Minister for civil service.

Church of Scientology Inc v Woodford (1982) 154 CLR 25 (D&J 746)

Issue: Was ASIO reviewable? Theoretically, yes

1. Mason J - lead judgment: strong emphasis on rule of law

2. Just because national security does not make ASIO non-justiciable

3. ASIO powers are in statute

4. Therefore role of court to ensure statutory power not exceeded and review is possible

5. However, difficult for applicants attempting to review ASIO as most evidence will be subject to public interest immunity

6. Murphy J approaches issue politically: strong emphasis on human rights.

• STATUTORY

  • CTH = s8 ADJRA = Federal Court

  • QLD = s19 JRA = Supreme Court

  • Express exclusions?

    • If G-G (s3(1)(c) ADJRA or if exercised non-statutory powers = must use CL review

      • If Qld = G-G dec’ns ARE reviewable

    • Schedule 1 – s3(1)(d) ADJRA

    • Schedule 1 – s18 JRA

  • Administrative character?

    • Minister for Industry and Commerce v Tooheys

    • Qld Medical Laboratory v Blewett

    • SAT FM v ABA

  • Under an enactment?

    • s3(1) ADJRA

    • Discuss diff approahes of Toohey and Blewett cases

    • Distinguish b/t by and under

    • How proximate is it to the enactment?

    • What dec’n is under AIA

      • ANU v Burns

      • NEAT Domestic Trading v AWB

      • Griffith University v Tang

  • Decision?

    • State section in Act authorising the dec’n being reviewed. - must be directly provided for!

    • ABT v Bond

• Privative clauses

  • Hickman

  • Hockey

  • Racal

  • Anisimic

  • Houssein

  • S157/2002

  • Darling Casino

Part 2 - Standing

• Is he/she a person ‘aggrieved’?

• Have his/her interests been adversely affected?

The Q of standing to commence proceedings or standing to request stmt of reasons is crucial. It must be examined. The courts have determined that the test for standing of a person ‘aggrieved’ is both wide and flexible. The court will apply a ‘special interest’ test.

GROUNDS OF REVIEW

If judicial review is available, what kinds of arguments might make it through based on these facts?

• Procedural fairness

JR Act ss 20(2)(a) and 21(2)(a)

• Have his/her rights, interests or legitimate expectations been affected?

• Has a notice been given without being heard?

  • Direct detriment to an existing benefit?

    • Ackroyd v Whitehouse

    • Heatley v Tasmanian Racing and Gaming Commission

    • Annetts v McCann

    • Ainsworth v CJC

  • Adverse allegation and objection: Kioa v West

  • Legitimate expectation of receiving a benefit: AG(nsw) v Quin

    • Giving of assurances: Salemi v Mackellar

    • Existence of a regular practice: Heatley v Tasmanian Racing and Gaming Commission

    • Consequences of denying a benefit: FAI v Winneke

    • Satisfaction of statutory criteria: Re HK (an infant)

  • Legitimate expectation of being heard: A-G (HK) v Shui

    • McDade v State Railway Authority

    • Merman v NME

  • Legitimate expectation under an international treaty: MIEA v Teoh

    • Kiao v West

    • MI v Miah

    • Re MIMA; Ex parte Epeabaka

    • Haoucher v MIEA

• Has PF been excluded?

  • By legislative action?

  • Was there statutory exclusion of PF?

• Beyond powers

  • Ruddock v Vardarlis

    • Has the dec’n gone beyond the power conferred by the common law?

    • MV Tampa was carrying 433 ppl and began sinking 140km from Christmas island. Aust’n Govt at the time forebade ship from landing in Aust’n territory. Victorian Civil Libeties Incorporation applied for writ of habeas corpus and for orders of mandamus, arguing that the Cth govt was effectively imprisoning the passengers.

    • ISSUE: whether the Cth’s actions could be justified under its ‘executive powers’ as detailed in s61 Constitution (powers incl CL ‘prerogative power’.) The relied upon power arose as nec’y aspect of territorial sovereignty and power of the exec under s61...