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Law Notes Administrative Law Notes

Remedies Ii Notes

Updated Remedies Ii Notes

Administrative Law Notes

Administrative Law

Approximately 368 pages

A 197 page summarised bible of administrative law notes including detailed case and materials summaries, super summaries and flow charts intended for exam use. Structure of the summarised bible is as follows:

Class 1 - Accountability in an administrative state
Class 2 - Legality, Rules, Discretion & Policy
Class 3 - Statutory Interpretation and the Ombudsman
Class 4 - Subordinate Legislation
Class 5 - "Reasons for Decision"'; Freedom of Information
Class 6-8: Merits Review
Class 9: Stand...

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Remedies II

Statutory Judicial Review Remedies

  • Section 16(1) of the ADJR Act provides that the FC and FMC can:

  1. An order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies

  2. An order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit

  3. An order declaring the rights of the parties in respect of any matter to which the decision relates

  4. An order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties

    • In similar terms s16(2) provides the same for ‘conduct’ engaged in for the purpose of making a decision; but only provides for a declaration and a direction

    • s16(3) provides in similar term for failure to make a decision; providing for direction, declaration or injunction

  • These are comparable to the common law and equitable jurisdiction but go further to identify the amplitude of the power (‘from a date’ s16(1)(a)), ‘which the court considers necessary to do justice between them (s16(1)(d))

  • Courts have stressed that the section is to be construed liberally and not confined to the limitations on the prerogative writs – but general law provides a starting point for applying s 17

    • Johns v ASC – Action to restrain defendants from using/publishing confidential information relating to the applicant.

      • Brennan J notes that relief is only to be given where there is a ground for relief at general law – e.g. the reference in s16(1)(d) to ‘justice between them’ means justice according to law

    • Conyngham – courts shouldn’t make an order directing DMs to a decision to be made in exercising a discretionary power

    • Park Oh Ho – order for damages can’t be made under the section

Minister for Immigration and Ethnic Affairs v Conyngam (1986) 11 FCR 528

Facts: Minister declined to approve Mr Conygnham’s sponsorship application for entry permits for a singing group. The trial judge held that the decision was unlawful, and considered that the sponsorship application fell within the minister’s policy guidelines – thereby obliging him to approve the application. He made orders under s16 requiring the minister to grant entry permits. The FFC held the trial judge erred in: concluding the minister was obliged by non-statutory guidelines to grant the application, and making an order under s16 compelling the minister to approve the application

Sheppard J:

First considered that s 16(1)(d) could apply to Ministers or any DM. Said that the words ‘necessary to do justice should be given their ‘plain and ordinary meaning’ and that furthermore the sections in 16 were not dependent on one another and that even though relief will be usually granted under a) and b) this doesn't mean an accompanying order might be made under d)

Provided a rationale for reading the sections expansively – all of the remedies were available under prerogative writs and hence they should be at least as extensive of the powers of the courts of common law.

  • The powers under s16(b) are more likely to be exercised where there is an error of law (and hence where there is only one course open to the DM and he didn’t exercise that course)

  • But where there is residual discretion in the DM (even though it miscarried in this case) to decide the ultimate question, the order which the court makes should, if not invariably, be one remitting the matter for further consideration

Park Oh Ho v Minister for Immigration and Ethnic Affairs

Facts: P and others were detained as prohibited non-citizens and were kept this way pending prosecution against another, as potential witnesses. The FC held the deportation orders unlawful since they were made for the purpose of detention, not deportation. The HC further held that continued detention was unlawful since the Migration Act only authorized detention of a deportee pending deportation. The appellants were hence entitled to a declaration under s17 that their detention was unlawful.

Mason CJ, Deane, Toohey, Gaudron & McHugh JJ:

The detention wasn’t authorized by statute and was hence unlawful.

  • The purpose of s16(1)(c) and (d) were to allow declaratory/injunctive orders, and flexibility in their framing to do ‘justice between the parties’ (e.g. avoid unnecessary re-litigation)

  • The section shouldn’t be constricted to undue technicality; the phrase ‘any matter to which the decision relates’ should be construed as encompassing any matter to which is so related to the impugned decision that it is appropriate to be dealt with by the grant of declaratory relief in judicial proceedings for review of the propriety of that decision

    • Where the impugned decision (deportation order) is void, the lawfulness of a period of imprisonment based on that order could be such a matter – and an injunctive order to do whatever is necessary to procure their release could be considered as ‘necessary to do justice between the parties’

  • The voidness of the order removes any lawful basis for their imprisonment – hence the appellants are entitled to a declaration that their detention was unlawful and an order formally quashing the deportation order on which it was based

  • In Wattmster v Button the discretion to choose a date under s16(1)(a) was considered

    • Facts: Wattmaster paid an anti-dumping duty to the COC.

    • Held (17 months later): It was invalid but set aside only from the date of the order

    • The Full FC upheld this; observing that there was no presumption as to the appropriate date from which a decision should be quashed or set aside and there is no onus on a party to demonstrate a reason for choosing one date – the court should have regard to the circumstances of the case and choose a date best suited to doing justice to the parties

    • The reason in this...

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