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? What is it that you are challenging?
o Decision/Failure to make a decision/conduct related to making a decision
? Who is challenging or questioning the decision?
o Do they have standing
? Under what forum of review will your challenge be made?
o 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 o Normally should argue grounds of review alongside each other (ADJR and CL) but remember there are differences in jurisdiction and remedial powers o 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: o Do you have them? If not, invoke your statutory right to reasons o If you have them, are they adequate and understandable?
o 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?
o 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 REVIEWJurisdiction o 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 o 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 o Only need to seek 'an order to review', overcomes technical problems in CL if you ask for the wrong remedy (s 16) o Requirements for jurisdiction (1) Decision or conduct
? Decision o 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 o 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 o 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 o 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; ordoing or refusing to do any other act or thing;
o 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) o 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 o Includes the doing of any act or thing preparatory to making a decision, taking evidence, holding inquiry or investigation s3(5) ADJR Act o 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 o 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 o 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 o 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) o Tax*
o National security o Migration*
o Some industrial relations*
o Police and prosecution decisions or operations matters o Fair work o 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) o Decision of the Governor-General (s3(1) ADJR Act) (prerogative powers) o * = 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 (pre1980) do not restrict judicial review under the Act (s4 ADJR Act) o o o o o?
Standing o 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 o 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 o Designed to talk about individuals, not groups. Builds on common law. You can take common law and apply here, and vice-versa o 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 o 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) o 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 o Government recognition (eg membership of advisory committees) and funding, which suggests government considers it a competent body o Consultation with and advice given to government o Studies and submissions on area of concern o Ground work o Involved in similar decisions in the past o Very involved in the processRepresenting public interest may be a concept that shifts and evolves over time ACF v Minister for Resources o NB: test for joinder same as standing test
? the court can join to a party who is "a person interested in the decision": s12(1) - this phrase is different to s3(4)(a) which mentions a 'person aggrieved'
? the cases suggest a 'person interested' means the same as a 'person aggrieved'
? the court has a general discretion to refuse or grant an application for joinder: s12(2)
? an application can be granted unconditionally or subject to conditions the court thinks fit: s12(2)(a)Reasons o Questions to ask:
? Do you have reasons? If not, invoke statutory right to reasons.
? If you have them? Are they adequate? If not, invoke right to get better reasons
? If the reasons are ok, do you think they might nonetheless by supplemented by FOI? Is there anything your client does not have that was used to make the decision, possession of which might assist review of the decision?
o Any person entitled to seek judicial review of a decision is entitled to written reasons for that decision s 13 ADJR Act o The requirement for reasons provides an intelligible explanation of decision-making and ensures that the decision-maker is accountable for the decision made o Requirements
? A reviewable decision has to be made/the applicant has standing to seek review/ a request is put in writing o Exemptions
? If the decision is not covered by the ADJR legislation e.g. a decision that is not administrative in character, or that is not made under an enactment
? If reasons have already been given or the person has a right to reasons under the AAT Act
? If the decision falls under Schedule 2 of the ADJR Act (read narrowly) e.g. defence, consular, diplomatic, migration, national security, criminal justice and law enforcement (investigation, prosecution, granting of warrant) Schedule 2
ADJR Act If the Attorney-General certifies that the disclosure of the information would be contrary to the public interest: s 14(1) ADJR Act o If it would prejudice the security, defence or international relations of Australia; o because it would disclose Cabinet deliberations or decision; o or for any other reasons It does not have to be included. And if the statement would be misleading without that information, the statement doesn't need to be produced at all: s 14(2). Must give them a statement saying why it was not included : s 14(3)
? Decision maker must then furnish written reasons for decision as soon as possible being not less than 28 days s 13(2) ADJR Act
? DM can refuse request
? They can apply to the Federal Court or Federal Circuit Court for an order declaring that the person who made the request was not entitled to make the request 13(3). Must also provide notice of refusal to provide reasons 13(3)(a)
? They can refuse if: s13(5) o A person didn't request within 28 days o Or within a reasonable time after the decision is made
? A person can challenge this refusal and the Federal Court or the Federal Circuit Court can decide s 13(4A) o Content
? Reasons must include a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision s 13(1) ADJR Act
? The statement should assess the relevant considerations and indicate, either expressly or by necessary implication, how the reasoning process took account of each consideration Allen Allen & Hemsley v Australian Securities Commission
? Cannot provide an ex post facto justification for the decision under challenge, and thus should not omit findings or reasons for the decision which may later appear to be irrelevant or based on false evidence, as this would amount to a fraud on the public and the court Minister for Immigration and Ethnic Affairs v Taveli?
More unexpected the decision is, sharper the obligation to explain it Length of statement will depend on the nature and importance of the decision, its complexity and the time available for formulate the decision
? Cut and paste is ok Wu's Case
? Inadequate reasons do not create an error of law in the decision itself Wingfoot Australia Partners v Kocak
? Does not include confidential information s 13A(1) ADJR Act
? What is reasons aren't good enough?
? The Federal Court or Federal Circuit Court, if they believe the statement does not contain adequate particulars, can order the DM to give the person who made the request additional statements 13(7) o Freedom of information s 11
(1) Every person has a legally enforceable right to obtain access in accordance with this Act to:
? A document of an agency (other than an exempt document)
? An official document of a Minister, other than an exempt document (2) A person's right of access is not affected by:
? Any reasons the person gives for seeking access; or
? The agency's or Minister's belief as to what are his or her reasons for seeking access
Grounds for Review o Identify the precise grounds for judicial review. Remember to conclude which is best. o The ADJR Act is a codification of the Common Law. Kioa v West All except for the "No evidence" ground
? ADJR grounds do not apply to government action that doesn't have a statutory authority to support it (but relies on the executive power of government)
? Assume that the statute is valid, but not the regulations o X will apply for judicial review under section 5(1)/6(1) of the ADJR Act for the *insert decision/conduct*, arguing that they are aggrieved by a decision on the ground that
? Acts of the DM beyond scope of statute (narrow UV)
? Procedures haven't been followed (narrow UV)
? Improper Delegation (narrow UV)
? Relevant and Irrelevant Consideration (Broad UV)
? Unreasonableness (Broad UV)
? Bad Faith (misconduct by DM) (Broad UV)
? Improper purpose (just not right for the statute) (Broad UV)
? No Evidence (different under Common Law)(Broad UV)
? Inflexible application of policy (Broad UV)
? Acting under dictation (Broad UV)
? Natural Justice (Hearing Rule):
? Jurisdictional/Non-jurisdictional error
Acts of the DM beyond scope of statute (narrow UV)??
Decision: s 5(1)(d) the decision was not authorized by the enactment in pursuance of which it was purported to be made Conduct: s 6(1)(d) that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision; The government and their officers cannot do anything they are not authorised by the relevant statute to do Entick v Carrington o Many cases involve regulations made by administrative officials. As regulations are made in exercise of statutory power, they must also fall within the scope of the power to make regulations. Scope: What power does the empowering legislation confer on the DM?
o Express: Identify the statutory provision if able.
? Does it give them power to regulate/prohibit/prevent/restrain o Implied: Incidental power
? Those things which are incident to, and may reasonable and properly be done under the main purpose, though they may not be literally within it, will not be
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