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

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
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
An order declaring the rights of the parties in respect of any matter to which the decision relates
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 case was that it should be consistent with relief available under other grounds
In Park Oh Ho the HCA observed in passing that an award of damages wasn’t an appropriate remedy under the ADJR Act. The Full Federal Court, affirming the Federal Court at first instance observed
- “It is justice in relation to the actual decision under review, and not in relation to common law claims which might arise out of the decision and which are not pleaded in the proceedings which is referred to in s16(1)(d)”
- The award of damages was never available under judicial review but it would have been possible for the appellants to join their claims for relief under the Judicial Review Act and the court could entertain them in their accrued jurisdiction
  - This doesn't impair the courts ability to make an order requiring money be paid to satisfy a statutory entitlement (Comptroller-General of Customs v Kawasaki Motors)
The ruling of Park Oh Ho mirrors a common law principle to the same effect – breach of administrative law grounds or violation of public rights created by statute or non-performance of public duties imposed by statute don’t give rise to a right to damages (Wentworth v Woollahra Municipal Council)
- Damages require a cause of action to be established under private law

Courts have discretion to refuse a remedy even though breach of the ground of review has been established for reasons like:

Inexcusable delay in commencing proceedings	Ineffectiveness/futility of granting it
Unwarranted prejudice to the interests of a party relying on the administrative decision	Failure to utilize a statutory appeal procedure before attempting judicial review
Acquiescence by an applicant in or waiver of a breach	The existence of a more convenient alternative remedy
Competing public interest concerns (e.g. stopping a national election

Some discretionary considerations are particular to individual remedies
- Habeas corpus is easier for an applicant to obtain as final relief (Vardals) though not available “as of course”
- Injunctions have a much higher discretionary barriers since breach constitutes contempt of court
- Some authorities suggest that declaration should be refused in cases of errors of law within jurisdiction since they would be ineffective – certiorari being the more appropriate remedy (Punton)
Discretionary barriers to granting to relief can arise at the conclusion and outset of judicial review proceedings
- Futility generally arises once the substantive legal issues have been addressed but the existence of alterative remedies generally is raised at the outside to preclude a full hearing
- s 10(2)(b)(ii) confers discretion on the court to decline an application for review if adequate alternative provision is made for review by another court, tribunal, authority or person

Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31

Facts: Bragg was dismissed from the APS because of improper conduct towards another employee. An appeal lay to the Disciplinary Appeal Committee established by statute and in light of this the court dismissed the application for JR under s10(2)(b)(ii)

Davies J:

The appeal to the Disciplinary Action Committee would constitute an adequate alternative in the circumstances:
- It has 3 members, one of which is an experienced legal practitioner, evidence can be taken on oath/affirmation and applicants can appear by council and call witnesses.
- The committee can confirm/vary/set aside charges
- There is no reason why they...

#7225 - Remedies Ii - Administrative Law

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