Administrative Law Notes

JUDICIAL REVIEW INTRODUCTION Judicial review is available for people aggrieved by an administrative decision to seek review of the lawfulness of that decision rather than the merits of the case. Judicial review may succeed if the court has jurisdiction to judicially review the decision and accepts that the decision is 'justiciable', if the applicant has standing, if the applicant can show that there are grounds for review, if the court has the power to grant an appropriate remedy, and if there are no privative clauses preventing judicial review. JURISDICTION The relevant legislation in this particular question is the [name of Act], a piece of [Cth or NSW]. [See this for reference but write out what is in the table below] COURT Federal Court REMEDIES Mandamus, prohibition or injunction An "order for review" Federal Magistra tes Court High Court Supreme Court An 'order of review' if the ADJR Act applies Prohibition, Mandamus or injunction against an officer of the Cth Any appropriate remedy Prerogative writs: Certiorari, mandamus, prohibition, and habeas corpus. Declarations, Injunctions and any other private law remedy which might be appropriate (such as damages) SOURCE OF POWER Judiciary Act 1903 (Cth) s39B(1) (1A). Any matter in which the Cth is seeking an injunction of a declaration Any matter arising under the Cstn, or involving its interpretation Any matter arising under any laws made by [Cth] parliament. The ADJR Act gives it same jurisdiction as the Federal Court in judicial review matters. Constitution s 75(v), 75(iii) Judiciary Act 1903 ss 30-33 Either an power inherited from the superior courts or Supreme Court Act 1970 s23. COMMONWEALTH NSW As it is Commonwealth legislation, the ADJR Act ("the Act") will be used for judicial review. Under the ADJR Act 1997 (Cth), the Federal Court of Australia has jurisdiction to hear and determine applications for judicial review of the lawfulness of a decision (not its merits - s 16). Using this statutory instrument, [person affected] can argue that either the decision or conduct of the As it is NSW legislation, common law will be used for judicial review, as there is no statute governing judicial review in NSW. 1 [decision maker] was invalid or unlawful. JUSTICIABILITY Judicial review is only available for cases that are deemed to be justiciable. COMMONWEALTH NSW The decision to [decision] must be one to which the Act applies which means it must be 'a decision of an administrative character made under an enactment' (s3). This may also include a failure to make a decision (s6) or conduct while making a decision (s7). A case may be non-justiciable if there are no manageable legal standards in the case, if judicial intervention is not constitutionally appropriate or legitimate, if the decision maker has open discretion and unfettered power (no boundaries on what they can do), academic grading decisions, religious or inherently political questions (Minister for Arts Heritage and Environment v Peko-Wallsend (1987) 15 FCR 274), ASIO, national security, diplomacy, national relations (Thorpe v Commonwealth (No 3) (1997) 144 ALR 677). The judiciary must not encroach on the legislative or executive as this would be a breach of the separation of powers. In this case, the matter is [describe matter], which is in the jurisdiction of the [executive, legislature or judiciary], therefore it is/is not justiciable. Under Schedule 1 of the ADJR Act, certain decisions are considered nonjusticiable which means they are decision to which the Act does not apply. [Choose one of the following]: - The decision [insert decision] is [a decision by the GovernorGeneral, a decision regarding national security, conciliation and arbitration, defence, tax, criminal process and specific decisions under the Migration Act (Schedule 1 ADJR)] and is therefore excluded from judicial review. - The decision is not expressly excluded from judicial review in Schedule 1 or as a matter of policy. Therefore it must satisfy the test in section 3. A decision may be reviewable because it is the decision of a Minster (Minster for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24) [choose one of the following]: - making orders or determinations, granting licenses, awards, (Section 3(2)) - reports and recommendations required by statute (Section 3(3)). 2 The decision must be of 'administrative character,' which means not of judicial or legislative character (Burns v ANU (1982)). [Choose one of the following]: - The decision is clearly an administrative one because is involves the application of general rules to a specific case. - The decision is clearly a legislative one because it involves the creation and formulation of new rules that have a general effect (Minister for Industry & Commerce v Tooheys Ltd (1982) 60 FLR 325). Therefore it may not be subject to judicial review. - The decision is clearly a judicial one because it determines questions of law with reference to established rules and principles (Hamblin v Duffy (1981) 50 FLR 308). Therefore it may not be subject to judicial review. The decision must also have been 'made under an enactment' which firstly requires there to be an 'enactment'. [Choose one of the following]: - The [Act] is an enactment because it is [an Act, rules, regulations, by-laws or Ordinances] (s3). - The [Act] is not an enactment because it is a [describe] not [an Act, rules, regulations, by-laws or Ordinance] as required by section 3. The decision must have been 'made under' the [Act] which means [Act] must have been the source of power to make the decision (Hutchins v Commissioner of Taxation (1996) 65 FCR 269; General Newspapers Pty Ltd v Telstra Corporation (1993) ATPR 41274). Griffith University v Tang (2005) provides a two stage test to answer this question. (i) Firstly, the decision must be expressly or impliedly required or authorised by enactment. The decision to [insert decision] is 3 [expressly/impliedly] [required/authorised] by section [ X ] of the [Act]. (ii) Secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations and the capacity to do this must derive from the enactment (Griffiths v Tang (2005) 221 CLR 89, 129). The crux of this inquiry is 'whether the enactment has played a relevant part in affecting or effecting rights or obligations' (Scharer v State of New South Wales (2001) 53 NSWLR 299). The decision in this case clearly affects the applicant's legal rights because [insert reasons]. STANDING Assuming that the matter is justiciable, it must now be established that [applicant] has sufficient standing to apply for [decision] to be judicially reviewed. COMMONWEALTH NSW ADJR Act Common Law Under the ADJR Act 'a person who is aggrieved by a decision' may have standing to seek judicial review. A 'person aggrieved' means someone 'whose interests are adversely affected by the decision' (s 3(4)(a)(i)). This test is intended to have a broad meaning (Ogle v Strickland (1987) 13 FCR 306, 320-324) and is not restricted to tangible interests such as legal, financial or proprietary interests. However, it must be more than simply an intellectual, philosophical or emotional concern, and must affect the applicant more than the rest of the public generally (Right to Life Association (NSW) Inc. v Secretary, Department of Human Service and Health (1995) 128 ALR 238; United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520; Ogle v Strickland (1987) 13 FCR 306). The context and specific factors in the case are to be considered to determine whether the applicant has a 'special interest' peculiar to themselves (North Coast Environmental Council Inc v Minister for Resources (1994) 55 FCR To have standing for judicial review under common law, [applicant] generally needs to have substantial economic interest - private pecuniary interests, apprehended or actual damage to proprietary rights (ACF v Cth (1980). Mere intellectual, emotional or philosophical interests will not constitute standing (ACF v Cth (1980), Right to Life Association (1994). [Applicant] must suffer damage peculiar to themselves, more so than the rest of society (Onus v Alcoa v Australia (1981), Batemans Bay Local Aboriginal Land Council (1998)). However, the rules of standing vary slightly according to the remedy sought at common law. If [applicant] is seeking a writ of mandamus [he/she] would need to satisfy a higher threshold for standing because [he/she] is seeking to impose a duty on the [decision maker]. Whereas, the test for prohibition, certiorari, declaration or injunction is the same as the 'special interest' test to evidence standing under the ADJR Act. In the case of equitable remedies, 4 492.) individuals generally do not have standing unless it also affects their private rights (as well as public) and causes them to suffer special damage peculiar to themselves (Boyce v Paddington Borough Council). In Ogle v Strickland the court held that damage to a person's social, political or spiritual interests may be sufficient to constitute a 'special interest' for the purposes of equitable relief. [Choose one of the following]: - [Applicant] may have standing in this case due to [reasons]. - [Applicant] may not have standing under the ADJR Act in this case because [reasons]. However, if [applicant] can establish standing at common law, [he/she] may still have the decision reviewed pursuant to common law judicial review. [Go to NSW standing and copy out]. [Choose from the following] - [Applicant] may have standing in this case due to [reasons]. - [Applicant] may not have standing under common law and as such cannot have [decision] judicially reviewed.PRIVATIVE CLAUSES A privative clause is a provision in a statute that aims to prevent or restrict judicial review of administrative or other actions, even if that action is flawed or illegal. COMMONWEALTH NSW The privative clause contained in section [ X ] of the [Act] purports to [prevent/limit] judicial review on the basis that [insert details of the clause]. In order for [applicant] to enforce any rights of review over the [decision makers] decision, [applicant] must demonstrate to the reviewing court that this clause has no real effect in ousting judicial review. The privative clause contained in section [X] of the [Act] purports to [prevent/limit] judicial review on the basis that [insert details of the clause. In order for [applicant] to enforce any rights of review over the [decision makers] decision, [applicant] must demonstrate to the reviewing court that this clause has no real effect in ousting judicial review. [Write if relevant]: 1. Because the privative clause is attempting to restrict the operation of section 75(v) of the Constitution, this will not be effective because it contradicts the rule of law (Bodruddaza v MIMA). 2. Because the privative clause was created prior to 1977 (when ADJR Act was enacted) it has no effect due to section 4 of ADJR. There has been some conjecture as to whether the analysis in Plaintiff S157 is applicable to state privative clauses, due to the lack of "constitutional overlay" (Mitchforce). There is no constitutionally entrenched separation of powers at the state level, nor is there any constitutional recourse to the HCA under s 75(5) Constitution. However, Gleeson CJ in Plaintiff S157 does indicate that the Hickman principle of statutory construction is applicable to the states in the context of privative clauses. Since the decision in Plaintiff S157, it is clear that a privative clause will only exclude judicial review where the three limbs of the Hickman principle are satisfied. 5 1. Decision must be a bona fide attempt to exercise the power. Will not be bona fide if it is done in malice or is a deliberate attempt to thwart a person's entitlements etc. 2. Decision relates to the subject matter of the legislation; 3. The decision is reasonably capable of reference to the power conferred (it is within its legislative authority) As such, it is clear that a privative clause will only exclude judicial review where the three limbs of the Hickman principle are satisfied. 1. Decision must be a bona fide attempt to exercise the power. Will not be bona fide if it is done in malice or is a deliberate attempt to thwart a person's entitlements etc. 2. Decision relates to the subject matter of the legislation; 4. The decision is reasonably capable of reference to the power conferred (it is within its legislative authority) A fourth element was introduced in R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208: that 'imperative duties or inviolable limitations or restraints' are not infringed. Plaintiff S157 made it clear that simply satisfying the Hickman principle was not enough, and at best, it was merely a preliminary step of statutory construction along the way to examining any inviolable limitations. In Plaintiff S157, Gleeson CJ emphasised that legislation is to be construed in a way that considers international obligations, protects citizens' rights, unless parliament curtails them in unmistakeable and unambiguous language, against the backdrop of the rule of law upon which the Constitution is framed and the fact that JR is the vehicle to enforce executive accountability, that privative clauses themselves are not construed to limit rights unless very clear, the whole exercise is a process of reconciling a statute that firstly seeks to impose conditions on the exercise of power, but then includes a provision that basically allows the decision-maker to proceed free from any restriction Plaintiff S157 made it clear that simply satisfying the Hickman principle was not enough, and at best, it was merely a preliminary step of statutory construction along the way to examining any inviolable limitations. In Plaintiff S157, Gleeson CJ emphasised that legislation is to be construed in a way that considers international obligations, protects citizens' rights, unless parliament curtails them in unmistakeable and unambiguous language, against the backdrop of the rule of law upon which the Constitution is framed and the fact that JR is the vehicle to enforce executive accountability, that privative clauses themselves are not construed to limit rights unless very clear, the whole exercise is a process of reconciling a statute that firstly seeks to impose conditions on the exercise of power, but then includes a provision that basically allows the decision-maker to proceed free from any restriction But there is authority for the proposition that a state privative clause can preclude JR for errors of any kind (Darling Casino). This will only be the case where the privative is more precise about what it excludes (ie just saying "cannot be called into question in any court of law" is not enough to exclude jurisdictional error), which means that there is no constitutional validity issue under s 75(5) when state privative clauses seek to prevent JR of even "purported" decisions. Section 75(5) of the Constitution cannot apply It is necessary to look at the legislation as a whole - the privative clause will not protect a decision made in contravention of a provision of the legislature intended to be mandatory (R v Murray; Ex parte Proctor (1949)). 6 to the state because no writ is being sought against an "officer of the Commonwealth." On that basis, a privative clause in a state Act will be more effective at least to the extent that it can prevent decisions tainted by JE (Darling Casino). GROUNDS FOR REVIEW [Applicant] will need to establish at least one ground for judicial review. COMMONWEALTH NSW ADJR grounds of review must be determined to prove that [decision maker] has exceeded their powers in this case (s5(1)). Common law grounds of review must be determined to prove that [decisionmaker] has exceeded their powers in this case. BREACH OF NATURAL JUSTICE BREACH OF NATURAL JUSTICE Under section 5(1)(a), a breach of the rules of natural justice in connection with the making of the decision constitutes a ground for judicial review. The principle of natural justice governs every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals (Wood v Woad (1874)). The principle of natural justice governs every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals (Wood v Woad (1874)). Natural justice requires that there be a proper inquiry (R v Dyer (1703)) and a right to be heard by an unbiased decision-maker (Dr Bonham's Case (1610)). Natural justice requires that there be a proper inquiry (R v Dyer (1703)) and a right to be heard by an unbiased decision-maker (Dr Bonham's Case (1610)). This applies to courts (Dimes v Proprietors of the Grand Junction Canal (1852)), tribunals (Angliss Group (1969)), clubs (actual bias needed - Cains v Jenkins (1979)), universities (in some circumstances - Re Macquarie University; Ex parte Ong (1989)) and ministers (though applied less stringently - Century Metals and Mining NL v Yeomans (1989)). This does not apply when the person has waived their right to object (Vakauta v Kelly (1989)), when the judge is simply sounding out the law (Vakauta v Kelly (1989)), the doctrine of necessity (Laws v ABT (2000)), and to Ministers when they have an obligation to be biased in favour of their policies (MILGEA v Mok Gek Bouy (1994)). This applies to courts (Dimes v Proprietors of the Grand Junction Canal (1852)), tribunals (Angliss Group (1969)), clubs (actual bias needed - Cains v Jenkins (1979)), universities (in some circumstances - Re Macquarie University; Ex parte Ong (1989)) and ministers (though applied less stringently - Century Metals and Mining NL v Yeomans (1989)). This does not apply when the person has waived their right to object (Vakauta v Kelly (1989)), when the judge is simply sounding out the law (Vakauta v Kelly (1989)), the doctrine of necessity [Choose one or both of the following]: 7

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