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Merits Review - Internal review (IR) Advantages


Important case Law

General Principles


* Lack of criteria for reviewability

Schemes established by executive action


* Absence of formal imperative

Re Taxation Appeals - officer conducting IR subject to same statutory criteria and legislative limitations as primary DM but can take into account new evidence that has arisen

Relatively simple

* Doubts as to when it may be conducted

Bhardwaj - internal review decision can be reconsidered if no valid decision made due to jurisdictional error

Re Uniway - Confirmation of earlier decision is not de-facto internal review - must be a regular practice instituted before it is recognized

* Risk of perception by public of lack of impartiality
* Prevent speedy resolution by external body
* Can be confusing in certain circs were it adds another layer to the processs

Accountability Mechanisms Political Accountability

Financial Accountability

Can make use of the 'transmission belt' process of parliament - namely the Minister's accountability to the electorate by:

Approach an MP who is part of the Joint Committee of Public Accounts and Audit; s10 of the Auditor-General Act allows them to make schemes a priority for the A-G to considerRaising the issue with a local MPRaising an issue with the relevant minister

Human Rights Bodies - none can make a binding declaration (except in the States)Bring it up with the AHRC - they have jurisdiction over discrimination on the basis of sex, marital status, race, colour, age and other thingsRaise it with specialist Commissioners: o Human Rights Commissioner under the HREOC Act o Sex Discrimination Commissioner (Sex Discrimination Act) o Race Discrimination Commissioner (Racial Discrimination Act)

o Disability Discrimination Commissioner (Disability Discrimination Act) o Age Discrimination Act - no commissioner but the commission performs the functions (in practice the Sex Discrimination Commissioner performs the function) o Privacy Commissioner - Privacy Amendment (Office of the Privacy Commissioner) Act - receives complaints against government agencies In emergency refer to 281-282 - the HREOC Act; the rights which are protected and the process

Ombudsman Advantages


* Good to address systemic problems


*Despite lack of determinative powers it is considered authoritative

* It's a long road and takes time


Make a complaint (either orally or in writing) - s7

If it investigates the action (s5):

* No determinative powers - if new decision
/invalidation is what the person seeks, no pointConduct inquiries, compel attendance of witnesses, etc. s7A

* May exercise its discretion not to investigate (s6) if:Can conclude investigations by

Awareness of issue for 12+ months, lack of sufficient interest, alternative method of review, complaint not raised to the agency it relates, investigation unjustifiable in the circumstances

Limitations - s5 cannot investigate


Noticeable shifts in the work of the ombudsman

I. The functions have been expanded to include the discharge of specialist functions conferred by statute (compliance auditing of police records, review of reportable deaths etc.)

II. Reporting to agencies and recommend further action be taken s15(1) if it appears the action investigated is :(i) Appears to be contrary to law(ii) Unreasonable, unjust, oppressive, discriminatory (UUO)(iii) it was in accordance with a UUO ruleDecisions by a minister(iv) Was based on a mistake of law/factCourt or tribunal(v) Was otherwise, in the circs, wrong

III. They have given increased importance through publications/training to improving administrative-decision making, administrative conduct and complaint management An increased number of own motion investigation into systemic problems in Administration


And is of the opinion that s15(1):

Concerning the employment of someone in the public service (s19C - investigate complaints about members of the ADF)

But does extend to departments of the public service



It should be referred back for further consideration


A particular action should be taken to mitigate the effect of the decision


The decision should be cancelled


The rule from which it was made should be altered


Reasons should have been provided but weren't


Any other thing should be done

s15(4) Request the Department or authority to furnish a report within a specified time about actions it proposes to take in response to the report


Make a complaint to the PM s16(1)

General Principles Statutory InterpretationThe starting point is the literal approach - if the words are "clear and unambiguous" and "consistent and harmonious with other provisions of the enactment, and can be intelligibly applied to the subject must be given its ordinary and grammatical meaning" (Gleeson CJ, Cooper Brooks)s15AA Acts Interpretation Act - a construction that would promote the purpose/object of the act is favored to one that does not - s15AA(1) this works alongside the literal approach


Purpose may require a reading that does not correspond with grammatical meaning (Project Blue Sky)

Other factorsNature of Subject Matter - e.g. national security matters will be given expansive constructions (Woodward) but a power focused on whether an activity is socially desirable will not (Bradbury)Interests to be affected - statutory discretions affecting rights of citizens generally won't be interpreted as unfettered (FAI) and to diminish basic immunities express language is required (Coco)Nature of the power - Polycentric powers are construed broadly to accommodate the range of competing interests, even with subordinate legislation (Tanner), prerogative powers will be construed to reflect the origin of their construction (Coutts)Nature of the decision-maker - Is relevant to the standard of impartiality that is to be expected (e.g. Minister's can be drawn by public debate (Jia, Peko))Interpretation Statutes - Acts Interpretation ActExtrinsic Materials s15AB(2) - second reading speeches, explanatory memoranda, international conventions for ('interpretive influence) but is only relevant for confirming the ordinary meaning by taking into account context/purpose (s15AB(1)) - at the outset of construction to ascertain context and at a later stage if required to resolve ambiguity/manifest absurdness (CIC Insurance v Bankstown Football Club)Sense of the word - natural and ordinary meaning used unless word is used in a trade sense, then use the technical meaning (Pozzolanic)

Judicial Presumptions Implied incidental powerAs long as it is done "reasonable and properly under the main purpose" it is not prohibited (AG v Great Eastern Railway); it must, although "incidental and collateral, serve to promote the accomplishment of the main purpose" (GJ Coles, Herscu - bribing)


Some instances: government agency can do its printing in-house rather than contracting (Smethwick), DPP can advise government agencies as well as do its principle role

(Freeman), a power to grant/issue instruments presumably includes a power to revoke (Acts Int. Act)Other principle: clear language to authorize conduct that is tortuous or interferes with fundamental rights (Coco), cannot be used for unauthorized purpose, must compliment not supplement the statutory scheme (can't add powers even if it does more effectively cope with the evils Carbines)Kent v Johnson - just because it is "reasonable and sensible" and "economically viable" does not mean it is "necessary for the reasonable fulfillment" of using the powerThompson v Randwick Corp - Buying land for sole purpose of reducing cost on the remainder which was needed - abuse of the power

Established Freedoms and Immunities Step 1: Plenty v Dillon - A presumption exists that the legislature did not intend to authorize tortuous conduct (improbable that the legislature abrogate fundamental rights - Potter v Minihan) Step 2: Coco v The Queen - Statutory authority to engage in tortuous conduct must be clearly expressed in unmistakable and unambiguous language (e.g. trespass - Entic v Carrington, power to install listening device did not necessarily extend to unauthorized entry)The legislature must have directed itself to the question of abrogating the fundamental right and must have determined on their abrogation; courts will not infer this

Evans - Though Potter has been read down (what is 'fundamental' changes), freedom of speech and religion definitely enjoy special recognition at common law. Here the idea of 'annoyance' competed with freedom of speech and could not be reconciled [Malika - some are definitely fundamental: fair trial, proof beyond reasonable doubt]

Other situations: Right to re-enter country of AU born person without dictation test (Potter v Minihan), power to serve summons does not authorize entry to private property (Plenty v Dillon) neither does a power that requires 'all things necessary or convenient' (Anthony Lagoon Station), creation of statutory hearing procedure does not displace obligation to accord natural justice (Miah)

S157 - If legislation is enacted pursuant to international obligations, courts should favour constructions according with them in the case of ambiguity. Confirms the Plenty/Coco principle

Subordinate Legislation Watch out for the possibility of a Henry VIII clause Sub-ordinate legislation can either come in the form of a regulation (subordinate rules made by GGs or Gs), rule (specifies matters of procedures), by-law (instrument limited to geographic area), Ordinances, disallowable instruments (must be tabled and can be disallowed but does not have to be published in advance), circulars, codes, guides, evidential rules etc.

Applicable doctrines and limitationsCompliance with statutory procedural requirements which will be set out in the ActSubstantive statutory authorization - subordinate legislation must be supported by a primary Act or will be ultra viresStatutory constructions - the presumptions concerning interpretation apply (even if a broad power is given ('necessary and convenient' not sufficient to abrogate fundamental rights)Compliance with administrative law criteria (proportionality, unjust/reasonable etc.)Consistency with primary legislation - subordinate legislation is subordinate to all acts unless there is an override clauseConstitutional compatibility - Must be compatible with it, if it transcends Cth legislative authority it is invalid - the same goes for State subordinate rules

Unauthorized decision-making

General Test - "Legislation will be declared invalid if it is not reasonably proportionate to the pursuit of the enabling purpose"

Regulate/ProhibitPowers enabling prohibition also extend to the making of conditional prohibition (including conditions that require consent from someone) (Foley v Padley)

oIn that case the purpose for which the power was conferred was enjoyment of the community - the power to grant consent must be exercised for that purpose

Power to regulate can authorize a degree of control approaching prohibition (Bradbury) - e.g. O'Connel v Nixon - power to regulate police promotion appeal board could prohibit appeal from person who hadn't applied for promotion unless the board rules otherwise

Means/EndsPaull v Munday - Where a statute allows for a certain means to be adopted to achieve a particular end - it does not permit the adoption of a different means that leads to the same end

oHence a statute allows subordinate legislation to regulate, control, prohibit emissions of air impurities does not allow subordinate legislation which regulates or prohibits the source of those impurities

Utah Construction v Pataky (PC) - Act allowing 'regulations relating to the safeguards/measures for securing the safety and health of persons engaged in excavation work' didn't support regulation providing that 'all tunnels should be securely protected and made safe for persons employed' - the Act prescribes the means for regulations to achieve an end, not

the creation of an end itself (hence you can't just say "you have to achieve this end by doing this")

UnreasonablenessGeneral reluctance to apply it as a test - but there is the reasonable proportionality test


Austral Fisheries - Plan allocating fishing quotas was invalid because it was fundamentally flawed by 'statistical fallacy' and its provisions 'capricious...such that no reasonable person could have devised it'o

Delegated legislation can be invalid for unreasonableness if it leads to "manifest arbitrariness, injustice or partiality" - in that it si not within the scope of what parliament intended

De Silva - Just because a regulation imposes differential/unfavourable treatment doesn't mean it is unreasonable - especially if there is an underlying policy rationale

Reasonable Proportionality - Purpose/Subject matter (South Australia v Tanner)(Joint Judgment): Is the regulation capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose - it must be so lacking in reasonable proportionality as not to be a real exercise of the power (the court shouldn't impose its untutored judgement on legislators, even if it goes as far as "using a sledgehammer to crack a nut")


Hence power to regulate use of land in a watershed zone extended to prohibiting the building of a zoo (majority say Zoos affect the massive problem of water quality)


Brennan J in Dissent: It is undiscriminating and would apply to activities which don't at all enhance the risk of water pollution

Legislative Instruments ActLegislative Instrument:


s5(1) - a) Must be of legislative character [(2) - determines/alters the content of the law rather than applying it to particular case and indirectly/directly affects a right/privilege/interest or imposes an obligation)


b) Is/was made in the exercise of a power delegated by the parliament


s9 - Rules of courts for the HC/FCA/FC/FMC are not legislative instruments

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