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Overview of Judicial Review Does the court have jurisdiction? -- Commonwealth level the ADJR Act the constitutionally-protected right to judicial review specific statutory schemes for judicial review, for example, Migration Act 1958 (Cth) Pt 8.
Is the application justiciable? Three aspects to consider: Politics The matter does not require the resolution of a question that is solely political or polycentric: Peko-Wallsend The matter requires the determination of legal rights and interest: McBain The matter does not require the court to resolve a purely hypothetical or academic question: McBain Policy The matter is not statute-barred (for example, because a constitutionally valid time limitation clause applies): Bodruddaza International Relations The resolution of the matter will not adversely affect the conduct of Australia's international relations: Fraser.
Does the applicant have standing?
Under the ADJR Act, the applicant must be 'aggrieved' by a reviewable decision or conduct (ss 5, 6 of the ADJR Act), meaning that their 'interests are adversely affected by the decision or conducts: s 3(4) For the constitutional protected right, the test is 'special interest' test.
Is a breach of one or more of the grounds of review established?
Procedural grounds -- focus on the conduct of the administrative decision-maker Hearing rule: the person affected by the decision must be given an opportunity to be heard.
- Not necessary must the person who decides hear.
- Failure to consider reasonable legitimate expectation may breach hearing rule.
- Undue delay.
- No right to cross-examination.
- No right to determine order for witness. Bias rule: the administrative decision-maker must be impartial and disengaged from the practical outcomes of the decision. Breach of statutory procedures: where the legislation imposes procedures on administrative decision-making.
- Failure to respond to substance.
- Not necessary for failure to provide reason -- depend on legislation. Reasoning process grounds -- focus on reasoning process of the administrative decision-maker The administrative decision-maker must consider relevant factors. The administrative decision-maker must disregard irrelevant factors. The decision cannot be for an improper or unauthorised purpose. Policy must be consistent with the enabling legislation and must not be inflexibly applied. There is no doctrine of 'administrative estoppel' by representation. An administrative decision-maker cannot act under dictation. An administrative decision-maker cannot delegate their power in an unauthorised manner -- breach of statutory requirement.
Decisional grounds -- focus on the actual decision of the administrative decision-maker Jurisdictional facts. Wednesbury unreasonableness -- Cannot be 'so unreasonable that no reasonable authority could even have come to it'. A degree of certainty in decision-making is required. No evidence.
Is a remedy available?
Prerogative writs -- Certiorari; Prohibition; Mandamus. Equitable remedies -- Injunction; Declaration. s 16 of the ADJR Act
Jurisdiction for ADJR The Federal Court of Australia (FCA) and Federal Magistrates Court (FMC) both have jurisdiction to hear matters arising under the ADJR Act: s 8
Generally speaking, if ADJR Act is available, should deal with ADJR Act rather than relying on s 39 of the JA.1
s 5 and 6 provides the applicant who is aggrieved either by the decision or the 'conduct for the purpose of making' a decision can seek judicial review.
* Conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision (like taking evidence or holding an inquiry), as provided by s 3(5)
A "decision to which this Act applies" means 'a decision of an administrative character made, proposed to be made, or required to be made": s 3 a) Under an enactment; b) By a Commonwealth authority or an officer of the Commonwealth under an enactment; c) Other than a decision by the Governor-General; and d) Other than a decision set out in Schedule 1.
Elements for an ADJR Decision A decision
Reviewable decision should be final or operative and determinate, not a mere 'step along the way' as an element in the chain of reasoning: Bond. The test is whether the decision is "a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision": Bond. If the statute requires the making of a report or recommendation before a decision made, it would fall under the definition of a decision, according to s 3(3) of the ADJR Act and Bond. -- 'a determination effectively resolving an actual substantive issue'. With respect to conduct, it refers to acts preparatory to a decision, other than fact-finding: Bond. But if the conduct amounts to some breach of procedural requirements to reach the relevant conclusion, it would be reviewable: Bond. Of an administrative character
Decisions of an 'administrative character' means that the decision must not be legislative or judicial: Roche. Accordingly, making delegated legislation is not of an administrative character but of an legislative one. Made under an enactment
The scope of enactments includes delegated legislations. Decision "made...under an enactment" means that the decision must be made in the purported exercise of statutory power, as distinct from prerogative or executive power:Tang.Test: The decision must be expressly or impliedly required or authorised by the enactment; The decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. The following decision are not made "under an enactment": Decisions made under a general power to enter into contracts:Telstra. Decision made under consensual arrangement:Tang. Decision made primarily under the company's articles of associations: NEAT
Noteworthy, much of the jurisprudence on the ADJR Act is "futile", because even if there is no 'decision', or no administrative character or no "made under an enactment", there are still alternatives of jurisdiction for the Federal Court, for example, the one conferred by s 39B of the Judiciary Act 1903 (Cth).
Decision s 3(2) provides that a reference to the making of a decision includes a reference to: a) Making, suspending, revoking or refusing to make an order, award or determination b) Giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission c) Issuing, suspending, revoking or refusing to issue a licence, authority or other instrument d) Imposing a condition or restriction e) Making a declaration, demand or requirement f) Retaining or refusing to deliver up an article g) Doing or refusing to do any other act or thing
The making of a report or recommendation is deemed to be the making of a decision, where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or another law, as provided by s 3(3)
1 Judiciary Act 1903 (Cth). 2
Jurisdiction Element of decision: Bond.2
- Reviewable decision should be final or operative and determinate, not a mere 'step along the way' as an element in the chain of reasoning.
- However, if the statute requires the making of a report or recommendation before a decision made, it would fall under the definition of a decision.
- Therefore, the test is whether the decision is "a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision". --> if YES, it is a decision.
- Reviewable decision should be 'substantive', rather than mere fact-finding.
Reviewable conduct under s 6 of the ADJR Act means acts preparatory to a decision. Therefore, it does not refer to 'fact-finding', unless the conduct alleged "is some breach of procedural requirements to reach the relevant conclusion": Bond
Of an administrative character
Judicial review under the ADJR Act is limited to decisions of an "administrative character", as provided by s 3(1) Decisions of an 'administrative character' means that the decision must not be legislative or judicial: Roche. 3
Noteworthy, delegated legislation is not of an administrative character but of an legislative one -- cannot be challenged under ADJR.
Of an administrative character or legislative character: Roche
Indication of legislative character Decision is the creation or formulation of new rules of law have general application; There is public notification and consultation in regards to the making of the regulation -- newspaper, advertisement done by the government to require people to do something. There are broad policy considerations imposed; There is Parliamentary control of the decision -- table to the parliament. Indication of administrative character Decision is the application of those general rules to particular cases. There are provisions for merits review. The decision is amenable to executive variation or control.
Under an enactment s 3(1) defines an enactment as a Commonwealth Act and "an instrument (including rules, regulations or by-laws) made under such an Act". Therefore, it includes subordinate legislation.
It was held in Tang, "made...under an enactment" means that the decision must be made in the purported exercise of statutory power, as distinct from prerogative or executive power.
Test of whether a decision is made "under an enactment":Tang
- The decision must be expressly or impliedly required or authorised by the enactment -- a purported exercise of statutory power;
- The decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.
A decision will only be "made ... under an enactment" if both these criteria are met."
* In Telstra, the Legislation conferred on Telstra "all the powers of a natural person" -- the Court held the legislation was not specific enough about the particular decision to be treated as decision made under an enactment -- Telstra's behaviour should be regulated by contract law, not by administrative law. 4
* In Tang, it was held the relationship between Tang and the University was only a mutual consensual relationship -- either party could walk away -- although the University had been authorised power "to have management and control of the University's affairs" under the Act, but the legal rights or obligation that had been affected was not established in Tang. -- they should do in contract law. 5
* In NEAT, two reasons for the Court to reject the decision had been under an enactment for the purpose of ADJR Act:6
* Source of the company's power is something else, -- the primary source is its article of its association, it made the decision under that authority. -- therefore, it is its company law powers.
* This is a company -- objective is to maximise profit. -- if ADJR act applies, a company would not be able to accommodate public law with its purpose to maximise profit.
Constitutional Protected Judicial Review
State decisions are challenged in State Courts; by contrast, federal decisions are challenged in federal courts.
Broadcasting Tribunal v Bond (1990).
3 Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007).
4 General Newspapers Pty Ltd v Telstra (1993).
5 Griffith v Tang (2005).
6 NEAT Domestic Trading Pty Limited v AWB Limited (2003). 3
High Court Constitutional writs: s 75(v) of the Constitution
s 75(v) of the Constitution provides that the High Court has original jurisdiction "in which a Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth"
This is constitutionally entrenched, so the Commonwealth Parliament cannot mobilise 'privative clauses' to exclude the High Court's jurisdiction to grant remedies for jurisdictional errors
The basic requirement is that the relief is sought "against an officer of the Commonwealth"- this means that there an institutional nexus between the decision-maker and the government must be established
It was confirmed in Plaintiff M61 that an 'officer of the Commonwealth' is 'a person appointed by the Commonwealth to an identifiable office who is paid by the Commonwealth for the performance of their functions under the office and who is responsible to and removable by the Commonwealth concerning the office". 7
As a consequence, an "officer of the Commonwealth" includes
- Public servants
- The Commonwealth Director of Public Prosecutions
- The police force
- Members of the Administrative Appeals Tribunal
- Federal judges (but not those on the High Court)
Noteworthy, the Court may have jurisdiction in dealing with a case where the decision was made by a company as the agency of the government, not by way of s 75(v), but through other ways: Plaintiff M61.
* Jurisdiction can be found in s 75(iii) of the Constitution.
* Jurisdiction can also be found in s 75(i) because the case is related to Convention.
Original jurisdiction: s 75(iii) of the Constitution
s 75(iii) of the Constitution provides that the High Court has original jurisdictional in all matters "in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party"
The section does not constitutionally entrench the availability of particular remedies, so the Commonwealth Parliament can legislate to prevent relief for non-jurisdictional errors.
Appellate jurisdiction of HC
The High Court also has appellate jurisdiction, hearing appeals from the federal courts and State Supreme Courts, as provided by s 73(ii) of the Constitution
State Supreme Court States decisions made under States' laws are challenged in the State Courts The Supreme Court of New South Wales has jurisdiction over that "which may be necessary for the administration of justice in New South Wales", as provided by s 23, SCA. -- this is statutory support for the inherent 'supervisory' jurisdiction of State Supreme Courts. 8
The Supreme Court may order any person to fulfil any duty "in the fulfilment of which the person seeking the order is personally interested", as provided by s 65(1) SCA. -- this provides for the writ of mandamus.
The Supreme Court has jurisdiction to grant relief or remedy of prohibition, mandamus, certiorari and others by a judgment or order, rather than a writ, as provided by s 69(1) SCA (but no application to the writ of habeas corpus ad subjiciendum: s 69(2))
The Supreme Court also has jurisdiction to quash the ultimate determination of a court or tribunal if it has been made on the basis of nonjurisdictional error (error of law on the face of records), as provided by s 69(3) SCA. -- this provides for certiorari.
Federal decisions made under the federal laws are challenged in the Federal courts.
Original jurisdiction of the Federal Court:
s 39B(1) of the JA provides that the original jurisdiction of the Federal Court includes "jurisdiction with respect to matters in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth".
* It is identical to s 75(v) of the Constitution- it was inserted to confer an identical jurisdiction upon the Federal Court and thus avoid overburdening the High Court
s 39B(1A) of the JA provides that the original jurisdiction of the Federal Court also includes: a) Matters in which the Commonwealth is seeking an injunction or a declaration b) Matters arising under the Constitution or involving its interpretation c) Matters arising under any laws made by the Parliament, except criminal matters (allows for judicial review of delegated legislation at federal level)
Therefore, with respect to s 39B(1A)(c) of the JA: The Court's jurisdiction was extended to include all matters 'arising under any laws made by the parliament'.
* Need to
7 Plaintiff M61/2010E v Commonwealth of Australia (2010).
8 Supreme Court Act 1970 (NSW). 4
- Identify a right, duty or defence which owes its existence to a law made by the parliament.
* Expansion of the jurisdiction:
- Federal Court can review the legality of subordinate legislation, (which is not reviewable under the ADJR Act)
- Federal Court is not limited to whether the decision-maker is an 'officer of the Commonwealth'. Remittal matters by the High Court
As provided by s 44(1) of the JA, the High Court can remit "pending" matters to any federal court, State court or Territory court that has jurisdiction with respect to the subject-matter and the parties, upon the application of a party or by the High Court's own motion.
As provided by s 44(3) of the JA, where the High Court remits a matter or part of a matter to a court, that court has jurisdiction in the matter and further proceedings in the matter are directed by that court.
Jurisdiction conferred by ADJR Act
Public v Private
Issue is whether courts have jurisdiction to private institution exercising public functions.
In England, it was held that 'a non-governmental institution exercising public functions may be reviewable': Datafin9
* Test of whether the institution is a public body
- Whether the institution performs a public duty -- inferred from the governmental limited legislation and used the institution as preferred form of regulation, i.e., governmental consent. -- regulating certain area.
- Whether rights of citizens are indirectly affected by the institution's decisions
- Whether the institution has a duty to act impartially (judicially)? -- procedural fairness, natural justice.
- Whether the institution's source of power is only partly based on moral persuasion and assent of members? -- if there is a noncompliance with the code, there are governmental authority who can step in to persuade people to be compliance with the code.
- Whether the rights offered by the institution attracts a significant amount of members of the public: Forbes10 However, the High Court has been reluctant to set out clear guidelines regarding the public/private distinction in Australian administrative law, for example, NEAT. At federal level, there are debates for whether the Datafin principle should be adopted by Australian Courts -- but Datafin principle has been widely adopted by State Supreme Courts.
* The broad view is that the principle in Forbes should be adopted as a general principle, therefore that 'institutions exercising public power must observe due process and natural justice'.
* The narrow view is that the principle in Forbes can only be applied to sporting clubs and limited to procedural fairness. Generally speaking, prerogative writs - historically/traditionally applied to public decision-makers, for example, Justices of Peace, Commissioners, specialist Courts. ADJR Acts applies to "decision of an administrative character made ...under an enactment". But the remedies of declaration and injunction are preferred in the judicial review for public and private decisions-- because it is difficult to reconcile with the conceptual basis of the constitutionally entrenched judicial review jurisdiction of the High Court, which is only available in respect of jurisdictional error.
Whether a breach of the public contract is justified depends on the 'balancing act' between 'the interest of the other party in the enforcement of the contract (as well as public confidence in government dealings) against 'the public interest': Ansett 11
Therefore, a public authority cannot preclude itself from exercising discretionary powers or performing public duties by a contract that is inconsistent with the statute-- non-fettering principle: Ansett.
A third party to a public contract is not bound by the contract which is inconsistent with the third party's discretion power: Ansett.
* Accordingly, where a contract made at a higher level of government affects the powers of an agency which is not itself a contracting party, the contract must be ineffectual as a limit on the agency's future exercise of its powers.
If the public contract is authorised by the statute, it is valid. Any breach of the undertaking will be enforceable by damage: Ansett.
9 R v Panel on Take-overs and Mergers; Ex parte Datafin plc .
10 Forbes v New South Wales Trotting Club Ltd (1979).
11 Ansett Transport
Industries (Operations) Pty Ltd v Cth (1977). 5
Standing for ADJR Under the ADJR Act, 'a person who is aggrieved' by a decision (s 5), conduct (s 6) or a failure to make a decision (s 7) can bring an application for judicial review.
s 3(4) of the ADJR Act defines 'a person who is aggrieved' as "a person whose interests are adversely affected by the decision".
Thus, the test for standing in the ADJR Act is essentially synonymous with the 'special interest' test: Marine and Power Engineers12; the term "person aggrieved" is not a restrictive one, rather it is of very wide import: Right to Life Association.13
Standing for Constitutional Protected Juridicial Review 'Standing' means is the right or ability to initiate proceedings in a court or tribunal. -- determine who can be the plaintiff. The function of standing is thus to limit access to the courts to persons and organisation with a sufficient interest in the decision or conduct being challenged.
Generally speaking, in order to establish standing, the applicant must show a 'special interest' in the subject matter of the dispute: ACF v Cth14
Remedy-Specific Test The remedy-specific test is very complex due to tests being linked to different remedies. For equitable remedies like a declaration or an injunction, the applicant must have a 'special interest' over and above that enjoyed by the public: Marine and Power Engineers
For mandamus, the applicant must demonstrate a sufficient interest or a specific legal right in enforcing a public duty owned to the applicant: Blackburn
For certiorari and prohibition, a 'stranger' (i.e., someone without a private legal right or a legal interest in the dispute) can institute proceedings, however, the court has a discretion to refuse to hear the matter if the applicant does not also have a special interest: McBain; and 'the fundamental consideration is that the Common law remedies go in the interest of the community rather than simply to enforce private rights': Marine and Power Engineers
But these remedy-specific tests are outdated today -- there is now 'broad agreement' between the rules of standing for the various remedies: Marine and Power Engineers
Special Interest Test
Special interests test should be construed as an "enabling, not a restrictive, procedural stipulation": Bateman15 The general principle is that an applicant will not be given standing if merely attempting to 'prevent a public wrong': ACF v Cth16 To establish standing for public rights or prevention of public wrongs, an applicant must show: ACF v Cth
that the decision or conduct either interferes with their private law rights (like property or contractual rights), or
that they have a 'special interest' in the subject matter of the action:
Test of 'Special Interest'
'Special interest' requires the applicant is likely to gain some advantage if his action succeeds; or to suffer some disadvantage if his action fails: ACF v Cth Moreover, the applicant will have an interest in the subject matter of the action if his interests is greater than that of other members of the public: Onus v Alcoa Accordingly, financial interest (detriment to economic interest of a business) in the matter is a common basis on which to be granted standing: Bateman; Argos but it is not the only basis -- for example, a spirit connection to the matter can be sufficient: Onus v Alcoa
Scope of 'special interest' may extend to:
for the purpose of protecting the interest of subscribers where the nature and subject matter of the litigation is the observance of the statutory limitation: Bateman; -- competitor's interest. for the purpose of intervening in the litigation where the third party (the applicant) takes active role in an administrative decisionmaking process: United States Tobacco for the purpose of protecting public interests or prevention public wrong when the applicant is a responsible body, recognised by the community as having a special interest in the particular area related to the litigation: North Coast Environment Council for the purpose of the protection of economic interest of individuals: Argos. Applicant's interests need not coincide with the object of the Act under which the decision was made: Argos.
12 Australian 13
Right to Life Association (NSW) Inc v Secretary, Commonwealth Department of Human Services and Health (1995).
14 Australian 15
Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) Conservation Foundation v Commonwealth (1980)
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Limited (1998)
Conservation Foundation Incorporated v Commonwealth of Australia (1980) 6
Standing But 'special interest' may not extend to
Merely an emotional or intellectual concern is not enough to constitute 'special interest' -- 'direct harm' is required: ACF v Cth. The interest of a mere intermeddler or busybody whose interest is not above that of an ordinary member of the public: Right to Life Association The interest of a corporation whose members have an interest in the subject matter of the litigation: Right to Life Association Noteworthy, a sufficient special interest will not be insufficient only because it is accompanied by an emotional or intellectual concern: Onus. What is a sufficient interest will vary according to the nature of the subject matter of the litigation: Onus v Alcoa17
Once the plaintiffs show that they have a sufficient interest, they do not lost standing to bring an action because the only remedy which they may obtain may afford less than complete relief: Onus v Alcoa
* Therefore, the Alcoa's argument that 'what the plaintiff could obtain was only a prohibition to destruct the relics. -- By contrast, Alcoa had the right to own the land. The plaintiff had no right to resort to the land and therefore could gain no advantage from success in the present action' failed.
Emotional or intellectual concern is not enough
Special interest does not equal to an emotional or intellectual concern, accordingly merely a belief that the law should be observed is
not enough -- some 'direct harm' is required: ACF v Cth. Accordingly, the judgement of special interest requires "a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff 's relationship to that subject matter": Onus.
* In ACF v Cth, the HC rejected any standing of the Australian Conservation Foundation.
- The fact that the Foundation is incorporated with particular objects does not strengthen its claim to standing. A natural person does not acquire standing simply by reason of the fact that he holds certain beliefs and wishes to translate them into action. -- what they have was a belief that the law should be observed is not enough. -- the Court look for 'direct harm'.
- The fact that the Foundation had sent written comments, as permitted by the administrative procedures, is logically irrelevant to the question whether it has a special interest giving it standing -- it is different from a situation if the Foundation had a further right which he was entitled to enforce. (like mining right being deprived by a proposal...etc.)
By contrast, in Onus, it was held the applicants had special interest in the subject matter of the claim:
- Small community of Aboriginal people live in the specific area.
- The relic was extremely important to them.
- They were custodian of the relics.
Liberalisation & Limitation of 'Special Interest'
In a case where the nature and subject matter of the litigation is the observance of the statutory limitation, the criteria of 'special interest' may be satisfied if the purpose of the litigation is to protect the interest of subscribers: Bateman -- Competitors may have standing.
If a person takes active role in an administrative decision-making process, even he is not a party to the litigation with respect to the administrative decision, he has a 'special interest' and therefore can intervene in the proceedings: US Tobacco18
* Therefore, in US Tobacco, the AFCO would not have standing to intervene in the judicial review proceedings simply on the basis that it had made a submission to the Attorney-General seeking a ban on the importation of smokeless tobacco products.
* But AFCO had a 'special interest', once it was deemed to be entitled to attend the conference under s 65J of the Trade Practices Act 1974 (Cth) -- different from ACF case, the legislation provided formality for the attendances of the conference.
In order to determine whether an organisation has a 'special interest' in public rights,the following aspects are decisive: North Coast Environment Council Inc19 Whether the activities of the organisation are related to the subject matter of the judicial review?
Whether the organisation is a responsible body, recognised by the community as having a special interest in the particular area related to the litigation? -- Enough to indicate a 'special interest' peak environmental organisation in North Coast region -- 44 environmental groups recognised by NSW and Commonwealth governments and participated in government committees - funded by government. conducted or co-ordinated projects and conferences on matters of environmental concern had made submissions on forestry management issues to the Resource Assessment Commission - It had a history in participating decision-making process. The following issues are not enough but only indicative that the organisation has a 'special interest': North Coast Environment Council the scale of the company -- large income and paid staff only strong indicators. the object and function of the organisation the fact that the organisation makes submission in the consultation process. complaint about possible non-compliance with the procedures According to North Coast case, gives all these facts, a group though does not need to have a sort of personal harm, does have good representative character of public interest for the particular decision that has to be made.
17 Onus v Alcoa of Australia (1981)
18 United States Tobacco Co v Minister for Consumer Affairs (1988)
19 North Coast Environment Council Inc v Minister for Resources (No 2) (1994). 7
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