#9221 - Entire Course Summary - Administrative Law

Preliminary Points

• What is it that you are challenging?

  • Decision/Failure to make a decision/conduct related to making a decision

• Who is challenging or questioning the decision?

  • Do they have standing

• Under what forum of review will your challenge be made?

  • Check the availability of AAT (Merits) Review as a preliminary point (usually conferred for particular decisions). Ascertain what kinds or classes of decision is the AAT given jurisdiction and ask whether the issue falls within those classes

  • Normally should argue grounds of review alongside each other (ADJR and CL) but remember there are differences in jurisdiction and remedial powers

  • Does the Act contain any internal or statutory review mechanism? The failure to utilise a viable avenue of statutory appeal is a ground to refuse relief, so if a de novo rehearing (as opposed to a hearing on a specific point) is available a party will need a good excuse not to use it

• Reasons:

  • Do you have them? If not, invoke your statutory right to reasons

  • If you have them, are they adequate and understandable?

  • If they are ok, could they be supplemented by FOI?

• Do they have standing to sue?

• Are there any relevant jurisdictional facts?

• Is there a privative clause in the legislation?

  • Remember for statutory judicial review, review can be excluded by adding it to Schedule 1

If you are going to argue both judicial and merits review: Start with judicial review, state grounds of JR, and then when you discuss merits review, refer the reader to the grounds already mentioned and say that they outline the broad basis upon which you would argue for merits review and then add anything peculiar to merits review

• Judicial Review: Focuses on legality of process to make decisions.

• Merits: Outcome of decisions, appeal to an internal merits review first, then go to external merits review

ADJR JUDICIAL REVIEW

• Jurisdiction

  • A person aggrieved by a decision (s5 Administrative Decisions (Judicial Review) Act) or conduct in connection with the making of a decision (s6 ADJR Act) may make an application for judicial review

  • A decision is amenable to judicial review if it is a decision of an administrative character made under an enactment to which the Act applies s3(1) ADJR Act

  • Only need to seek ‘an order to review’, overcomes technical problems in CL if you ask for the wrong remedy (s 16)

  • Requirements for jurisdiction

    1. Decision or conduct

       • Decision

         • Generally entails a decision that is final, operative and determinative (Australian Broadcasting Tribunal v Bond; Director-General of Social Services v Chaney, Eggleston v Health Insurance Commissioner

         • An interim decision can be reviewable if it is a finding expressly required under the Act, but must be a decision which is substantive rather than procedural Bond

         • 3(1) decision means: a decision of administrative character made, proposed to be made, or required to be made

           • Under an enactment

           • By an officer of the Commonwealth

           • Other than a decision by the G-G or a decision in Schedule 1

         • 3(2) includes:

           • making, suspending, revoking or refusing to make an order, award or determination;

           • giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

           • issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

           • imposing a condition or restriction;

           • making a declaration, demand or requirement;

           • retaining, or refusing to deliver up, an article; or

           • doing or refusing to do any other act or thing;

         • Where a provision is made by enactment for the making of a report or recommendation before a decision is made, the making of such report or recommendation is deemed the making of a decision 3(3)

         • Includes anything preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation 3(5)

       • Conduct for the purposes of making a decision

         • Includes the doing of any act or thing preparatory to making a decision, taking evidence, holding inquiry or investigation s3(5) ADJR Act

         • Conduct should be procedural rather than substantive (opposite of decision) ABT v Bond

    2. Administrative character

       • The prerogative to make legislation is legislative rather than administrative in character, whereas the administration of legislation or its application to a fact situations is of an administrative character Qld Medical Laboratory v Blewett;

       • If the action is legislative or judicial, it can’t be administrative

       • Administrative action is concerned with the application of the law rather than the determination of the law Federal Airports v Aerolineas Argentinas

         • Application of general rules for a particular case Toohey

       • Central Qld Land Council Aboriginal Corp v A-G established five factors:

         1. Legislative decisions determine the content of general rules while administrative decisions apply to rules in a particular case

         2. Parliament often has control over a legislative decision

         3. Legislative things usually have a requirement for public consultation determine their contents

         4. Provision for review on merits in another ‘pointer’ that a decision is administrative in character

         5. If it has a binding effect which takes effect immediately – suggests it is legislative

            • Admin decisions take effect when notified

    3. Made under an enactment

       • Griffith University v Tang adopted a twofold test:

       1. The source of decision-making power must be statutory, in that decision is expressly or impliedly made under the Act

          • Simply because a body is established under statute, it does not open every decision to review; actual decision must be made pursuant to statute in that the decision was given force or effect by the statute General Newspapers v Telstra; Griffith University v Tang

       2. The decision must affect legal rights or interests that are established or governed by the enactment

       • Excludes non-statutory decisions e.g. those made under executive and prerogative powers and decisions made under contract to which a government agency is a part

         • Decision made under contract Griffith

    4. To which this Act applies

       • Certain types of decisions are excluded from operation of the Act (Schedule 1 ADJR Act)

         • Tax*

         • National security

         • Migration*

         • Some industrial relations*

         • Police and prosecution decisions or operations matters

         • Fair work

         • Witness protection

         • Proceeds of Crime

         • Security Intelligence

         • Decision made by Commonwealth/State ministerial councils

         • Child support*

         • Decision of government-owned corporations (e.g. Qantas, Telstra)

         • Decision of the Governor-General (s3(1) ADJR Act) (prerogative powers)

         • * = have specialist merits review tribunals

       • Use common law instead, use the constitution

    • Privative clauses

      • Privative clauses in existence prior to the enactment of the Act (pre-1980) do not restrict judicial review under the Act (s4 ADJR Act)

• Standing

  • A person who is aggrieved by a decision s 5 ADJR Act may make an application for judicial review. Aggrieved is same meaning as common law test Tooheys

  • A reference to a person aggrieved includes a reference to:

    • A person whose interests are adversely affected s 3(4)(a)(i) ADJR Act

    • A person whose interests would be adversely affected s 3(4)(a)(ii) ADJR Act

  • Designed to talk about individuals, not groups. Builds on common law. You can take common law and apply here, and vice-versa

  • Private interest

    • A person will have standing if the action confers a personal benefit or disadvantage on them

      • Commercial interest is sufficient Bateman’s Bay Local Aboriginal Council v Aboriginal Community Benefit Fund

  • Public interest

    • Is there a public interest in the area? Factors for a special interest:

      • Prior involvement in decision making process ACF; Walton

      • Spiritual connection Onus v Alcoa

      • Government recognition or funding Northcoast cf Right to life

      • Does it tie in to the purposes or objects of the particular Act? Right to Life Must be considered in light of scope and purpose of legislation Alphapharm v Smith Kline Beecham

      • Capabilities of group or individual (Funding, knowledge, public perception) Right to life

      • Trade Unions - Person or group must be specially – not uniquely – affected compared with the public at large: shop assistants employed have an interest in the trading hours of the shop which is different and far greater than the general public Shop Distributive v Allied

      • Incorporated (neutral factor, not enough by itself)

      • Doesn’t matter if other people have a better interest than you, doesn’t render you incapable of being affects McHatton

    • Factors against a special interest:

      • Must be more than merely an intellectual or emotional concern ACF v Commonwealth

      • Purely economic Alpha Farm compared to a significant impact on business Batemans

      • Emotional concern Right to Life cf Onus

    • Is the applicant the appropriate body to represent that interest?

      • The applicant must have an interest of an intensity and degree which is well above an ordinary member of the public Australian Institute of Marine and Power Engineers v Secretary, Department of Transport; North Coast Environment Council v Minister for Resources.

      • Factors: North Coast (regional body)

        • Status as a peak body for particular area.

          • However Environmental East Gippsland v VicForests suggests all you need to be a is a reputable body, not necessarily a peak one

        • Government recognition (eg membership of advisory committees) and funding, which suggests government considers it a competent body

        • Consultation with and advice given to government

        • Studies and submissions on area of concern

        • Ground work

        • Involved in similar decisions in the past

        • Very involved in the process

      • Representing...