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[TOPIC 2]: MERITS REVIEW
Ownership may be transferred through a contract for the sale of goods under the SoGA 1923 (NSW).
1. Under s 25(1) of the AATA, an enactment may permit the AAT to undertake merits review of decisions made in the exercise of powers conferred by that enactment.
o As per s 3(3) of the AATA, a decision refers to:
(a) making, suspending, revoking or refusing to make an order 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; or (g) doing or refusing to do any other act or thing.
o This requires nothing more than a decision in fact made, regardless of whether it is a legally effective decision (Brian Lawlor; M174)
. . b a
However, the AAT cannot declare a law to be unconstitutional (Re Adams)
2. Under s 27(1) of the AATA, an applicant has standing to seek merits review if their interests are affected by the decision.
o Under s 27(2) of the AATA, an organisation is presumed to have interests that are affected by a decision if the decision relates to a matter included in its objects/purposes.
o Under s 30(1A) of the AATA, the AAT may make any other person whose interests are affected by the decision a party to the proceedings, upon application by that person.
3. The task of the AAT is to make an independent assessment of whether the decision was the correct or preferable one, based on the material before it (rather than the original reasons) (Drake (No 1)).
o The AAT must ensure that every party is given a reasonable opportunity to present their case, to inspect relevant documents and make submissions (s 39(1) AATA)
o The AAT is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate (s 33(1)(c) AATA)
A person with standing may request in writing a written statement from the original decision maker which sets out the findings on material questions of fact (referring to evidence/material on which those findings were based) and reasons for the decision (s 28 AATA)
Some general rules of evidence may apply (procedural fairness, must take into account mandatory relevant considerations etc.)
o The AAT will ordinarily apply a relevant governmental policy unless there are cogent reasons for departure (Drake (No 2))
The AAT should not apply a policy when it is unlawful or when it tends to produce an unjust decision in the circumstances
Ultimately this must not compromise its primary function of determining the correct or preferable decision
o In reviewing a decision, the AAT may consider later evidence from events that occurred after the decision was originally made (Shi)
The AAT may have regard to the original decision but must still reach its own decision
o The AAT members must bring their own mind and judgment, freed not only from infections like prejudgment or bias, but from blindly following the conclusions of others (MZZZW).
The Tribunal must consider a the application / a (MZZZW).
4. For he p rposes of meri s re ie , he AAT ma s and in he shoes of he original decision-maker and exercise all the powers and discretions that they had, and shall make a decision in writing (s 43(1) AATA):
o (a) affirming the decision;
o (b) varying the decision; or o (c) setting aside the decision and
(i) making a decision in substitution; or
(ii) remitting the matter for reconsideration by the original decision-maker in accordance with any directions or recommendations of the AAT
o The AAT shall give reasons either orally or in writing (s 43(2) AATA)
5. Under s 44(1) of the AATA, appeals of AAT decisions may be made on a question of law to the Federal Court which shall hear and determine the appeal, as well as make appropriate orders as per s 44(4).
o Under s 44(5) of the AATA, non-exhaustive orders the Federal Court can make include:
A a a AAT ;
An order remitting the case to be heard and decided again by the AAT
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[TOPIC 3]: JUDICIAL REVIEW JURISDICTION OF THE COURTS
Consider what court to seek review in or whether you can seek review at all (i.e. does a particular court have the power to review a government decision).
There are 7 jurisdictions:
- NSWSC a , a a or prohibition for jurisdictional error (ss 23, 65, 69(3) SCA)
- NSWSC a a a ( s 23, 65, 69(3) SCA)
- HCA for matters in which the Commonwealth is being sued (s 75(iii) Constitution)
- HCA for matters in which mandamus, prohibition or injunction is sought against an officer of the Commonwealth (s 75(v) Constitution)
- Federal Court for matters in which mandamus, prohibition or injunction is sought against an officer of the Commonwealth (s 39B(1) JA)
- Federal Court for matters arising under Commonwealth legislation (s 39B(1A) JA)
- Federal Court for decision of an administrative character made under an enactment (ss 5 and 3(1) ADJRA)
1. Firstly, consider whether there is an ouster clause [see Topic 13].
a. NSW
i. If there is, this may oust NSWSC -entrenched inherent jurisdiction to issue certiorari for error of law on the face of the record
ii. However, it will not displace the entrenched inherent jurisdiction of the NSWSC to remedy jurisdictional error (s 23 SCA; Kirk)
b. Commonwealth
i. If there is, a a a a HCA a
jurisdictional error under s 75(v) Constitution (i.e. officer of the Commonwealth) ii. Jurisdiction under the ADJRA is effectively ousted
2. If there is no ouster clause:
a. Commonwealth
i. It should be advised that an applicant should prioritise judicial review under ss 5 and 3(1) ADJRA in the FCA
1. This is because:
a. FCA is more accessible than the HCA, the ADJRA provides the widest possible grounds of review under a simple and flexible remedial model, as well as a right of appeal to the HCA
b. Thus, need to consider exceptions and compliance with the definitions ii. Then consider (FCA first):
1. W a C a a b made a respondent (s 39B(1) JA; s 75(v) Constitution)
2. Whether the review involves rights/obligations under federal legislation (s 39(1A)(c) JA) 3. Whether the Commonwealth can be made a respondent (s 75(iii) Constitution)
New South Wales (State)
The decision was made under a NSW Act, so the applicant should challenge its legality in the NSWC pursuant to SCA (NSW).
1. The NSWSC has an inherent supervisory jurisdiction for the judicial review of an exercise of the public powers of the state (Chase Oyster; ss 23, 65, 69(3) SCA)
o Supreme Court Act 1970 (NSW)
s 23 C a a b necessary for the administration of
ss 65 and 69(3) jurisdiction for remedies
2. However, the NSWSC may lack jurisdiction for judicial review if the original decision-maker is a private entity, rather than a public one, as it would lack the p blic charac er ha a rac s he inheren re ie j risdic ion.
o Public powers:
Statutory powers
Decisions under statute that affect rights/obligations/interests by force of the statute (Chase Oyster)
o This extends to statutory powers in private hands (see Chase Oyster below) Prerogative powers
Coercive powers with a legal effect derived from prerogative (Peko-Wallsend) o Private powers:
O powers derived from the consent of the person affected by their exercise (e.g. the powers given under a contract or other form of voluntary association) (Jockey Club; Adamson) o Examples:
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Straightforward
An operative administrative decision is made by a government officer in exercise of a statutory power; the decision affects an a a /obligations through operation
a a ( , ) (straightforward)
An operative administrative decision is made in exercise of a statutory power; that decision affects the statutory rights/obligations of a government officer (straightforward)
Difficult
G a -statutory capacities
G a a / a
Non- a b
o In the UK, Datafin recognised that private entities which conduct public/governmental functions may be amenable to judicial review
The entity (Takeovers Panel), as an extraordinary institution as a de facto regulator, exercised public law functions including:
A public duty in regulating the take-over market.
The rights of private citizens were indirectly affected by Panel decisions A duty to act judicially as it construes the Code on Takeovers
Source of power was only partly based on moral persuasion and member assent
o Although it had no legal authority to enforce its decisions, the assumption was that the Department of Trade/Stock Exchange would use statutory powers against people who refused to comply with Panel decisions
o However, there is an absence of authority in Australia on whether Datafin is applicable (Chase Oyster per Basten JA)
However, the supervisory jurisdiction of the NSWSC under s 69 of the SCA extends to an exercise of statutory powers or the conduct of statutory procedures, whether or not the person to whom the order is directed is a public officer (Chase Oyster)
The authority of Chase Oyster Bar does not go as far as Datafin, as there was a statutory basis for the public dispute resolution process in which the private arbitrator rendered his decision (Basten JA)
The NSW had jurisdiction for judicial review of the decision because:
o The statute gave the arbitrator the power to decide (i.e. a statutory function) It was not a resolution process entered into consensually or in self-interest (ie. Was not contractual)
The statutory scheme was very prescriptive Consider Forbes (but earlier than Datafin)
The NSWSC had jurisdiction to judicially review a decision by the NSW Trotting Club to exclude Forbes from trotting courses
Although not a public body, it was entrusted by the government as such and exercised public powers regarding public horseraces at which betting was allowed by statute (per Murphy J)
o L a ba a significantly affects members
b
o I a a a a
a
o T a a a a a b b a
significant degree, they may often be described as public rights and their exercise as a b
Commonwealth
The decision was made under a Commonwealth Act, so the applicant may challenge its legality in the High Court/Federal Court pursuant to the [relevant Cth Act].
High Court:
1. The High Court may have jurisdiction under s 75 (or s 73) of the Constitution to undertake judicial review.
s 75 Constitution (original jurisdiction).
o
(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;o
(v) in which a writ of mandamus, prohibition or injunction is sought against an officer of the Commonwealtha C a
o an individual appointed to a tenured office by and usually receiving a salary from the Commonwealth including (R v Murray):
Officers in the public service
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Ministers and delegates Federal judges
Other persons appointed/employed by a Commonwealth authority Not a solicitor supplying legal services to a department (Leerdam) o The court will read down legislation to facilitate judicial review where the
Commonwealth is implicated (M61)
The HCA exercised jurisdiction to judicially review decisions made by private contractors without determining this issue
The Minister and the Commonwealth were respondents to the proceeding,
a b a a s
assessments
As part of the HCA accrued jurisdiction, certiorari is available as an ancillary remedy (Aala) s 73 Constitution (appellate jurisdiction)
o
The HCA shall have jurisdiction to hear and determine appeals from all courts at the federal, state or territory levels
2. However, the High Court may lack jurisdiction for judicial review if the original decision-maker is a private entity, rather than a public one, as i o ld lack he p blic charac er ha a rac s he inheren re ie jurisdiction (see above).
Federal Court:
3. The Federal Court/Federal Circuit Court may have jurisdiction under s 44(1) of the AATA, ss 39B/39(1A)(c)/44 of the JA, or ss 5/3(1) of the ADJRA.
Administrative Appeals Tribunal Act
o
S 44(1) see Topic 2 (appeal from AAT only on a question of law) Judiciary Acto
S 39B(1) original jurisdiction over matters in which constitutional writs (writ of mandamus or prohibition or an injunction) is sought against an officer of the Commonwealthmirrors s 75(v) Constitution for HCA
a C a see above
o
S 39(1A)(c) original jurisdiction over matters arising under any laws of Parliament (except criminal)o
S 44 any matter pending in the HCA may be remitted to a federal court that has jurisdiction Administrative Decisions (Judicial Review) Acto
Ss 5 and 3(1) jurisdiction for review of a decision of an administrative character made under an enactmentexcluding decisions of the Governor-General and Sch 1 decisions (s 3(1)(c) and (d) ADJRA)
o
Also:S 6 also jurisdiction for conduct for the purpose of making a decision
S 7 also jurisdiction for a failure to make a decision where there is a statutory duty to make a decision
Note: always propose both ADJRA and s 39B(1) JA to be safe
4. For the Federal Court to have jurisdiction under ss 5 and 3(1) of the ADJRA, here m s be a decision of an adminis ra i e charac er made nder an enac men ( i h e cep ions above).
Decision
o
A decision of substance which is final and determinative (Bond)Not limited to a final decision disposing of the controversy, but must be more than a mere step taken in the course of reasoning to making a final decision
o But not an intermediate substantive decision, unless the act provided for its making as an essential preliminary step in the reasoning process to the ultimate decision A finding of fact can only be reviewed if it is an essential preliminary fact that the statute specified must exist
A decision to abstain from doing something constitutes a decision (Right to Life) Bond
