This preview only contains small extracts from a few topics. The full set of notes contains every topic in complete form.
(1) JURISDICTION
(1) The decision involves an exercise of public power (A) Administrative decision-maker (DM)
Chase Oyster (Spigelman CJ): As the DM has exercised a NSW / Cth statutory power, this constitutes a public decision that is amenable to judicial review.
(B) Private individual/body
Chase Oyster (Spigelman CJ): Where a NSW / Cth statutory power has been exercised by a private entity, this constitutes a public decision that is amenable to judicial review.
(2) State vs Cth (A) NSW
Because the decision involves an exercise of State administrative power, the appropriate avenue for judicial review is the inherent jurisdiction of the NSW Supreme Court under SCA s23 (common law remedial model).
The NSW Supreme Court may grant the remedies:
• Of prohibition, mandamus and certiorari for jurisdictional error (SCA s69).
• Of certiorari for error of law on the face of the record (SCA s69).
(B) Cth
The decision on these facts involves an exercise of Cth administrative power, so X must seek JR in a federal jurisdiction.
Therefore, there is an option to commence proceedings in the…
High Court (HC):
X could apply for JR in the original jurisdiction of the HC under s75(iii) of the Constitution, as it is a matter in which the Cth, or a person suing or being sued on behalf of the Cth, is a party.
X could apply for JR in the original jurisdiction of the HC under s75(v) of the Constitution, as the matter is one in which X wants to seek mandamus, prohibition or an injunction (or certiorari / declaration as an ancillary remedy to the constitutional writs (Aala)) against an officer of the Cth.
Federal Court (FC):
JA:
X could apply for JR in the original jurisdiction of the FC under JA s39B(1), as the matter is one in which X wants to seek mandamus, prohibition or an injunction (or certiorari / declaration as an ancillary remedy to the constitutional writs (Aala)) against an officer of the Cth.
X could apply for JR in the original jurisdiction of the FC under JA s39B(1A)(c), as it is a matter arising under a law made by the Cth Parliament.
ADJRA:
X could apply for JR in the FC under the ADJRA, as the matter is a decision of an administrative character made under an enactment (ADJRA s3(1)). (If there are no issues re: ADJRA jurisdiction, briefly apply Roche to confirm that the decision is of administrative character).
(2) STANDING
(1) Different tests to establish standing
X will have to establish their right to initiate JR proceedings.
CL: “special interest / ADJRA: “person aggrieved”
While there are separate tests to establish standing at common law and under the ADJRA, per Gummow J in AIM there is “a measure of broad agreement” regarding these rules. Therefore, as the standing tests have been interpreted in a similar manner by Australian courts, they will be treated the same in this analysis.
(2) “Special interest” test (applicable to “person aggrieved” under the ADJRA) (A) Individual’s private right has been affected by the decision
Per Gibbs J in ACF, to establish standing, X must have a “special interest” more than mere intellectual or emotional concern. As X’s private right to ZZZ has been directly affected by the decision, X clearly has a special interest in the decision (ACF).
(B) Public interest has been affected by the decision
Per Gibbs J in ACF, to establish standing, X must have a “special interest”. As X’s private rights have not been directly affected by the decision, in order to establish standing, X must have a “special interest” that is more than mere intellectual or emotional concern.
Relevant factors to establish special interest:
(1) Proximity: Proximity to affected subject matter may indicate a special interest (Onus; North Coast).
• Onus: The HC unanimously held that the Indigenous custodians of the land owned by Alcoa had a sufficient special interest to be granted standing. The Indigenous custodians had close proximity to the land, including a unique spiritual connection, and held the position of “active custodians” of the land (actively engaged with the land; made use of the relics in teaching and transmitting culture) (2) Financial interest: A special interest encompass can financial interests if there is evidence of “severe detriment” (Bateman’s Bay; Argos)
• Batemans Bay: As X operates in a limited market, there is a risk of “severe detriment” to their business if a new business commenced operations in the same limited market. This is sufficient to constitute a special interest.
• Argos: As X will suffer an immediate and direct loss of profitability if the commercial development goes ahead, this is sufficient to constitute a special interest.
(3) Participation in administrative process: As a general proposition, mere participation in the administrative process (e.g. by making submissions to public consultations) alone will not give standing (ACF). But if the submissions are part of a statutory process which the applicant has been directed to participate in, this is sufficient to give rise to a special interest (US Tobacco).
• US Tobacco: The FC held that AFCO had a sufficient special interest to be granted standing, as it had acquired a special position because it had been directed to participate in the conference. It would be a breach of natural justice if AFCO, a participant in the conference, was not given an opportunity by the court to say that the conference, which is alleged by US Tobacco to be unlawful and void, was indeed lawfully called.
(4) Zone of interests: Some authorities have placed importance on an applicant’s interest aligning with
(3) GROUNDS OF REVIEW
(A) JUDICIAL REVIEW OF RULE-MAKING Advise on the validity of a regulation if:
(A) The client wants to challenge a regulation; or…
• Result: the regulation is ultra-vires, making the decision invalid.
• The grounds for challenge are below.
(B) The client wants to challenge a decision authorised by a regulation.
• Result: the decision may be tainted by JE.
• The grounds for challenge are covered in unauthorised purpose, unreasonableness and uncertainty.
Prior to examining the grounds of review, X may argue that the regulation is not authorised by the Parent Act. Therefore, the regulation is ultra-vires the Parent Act, making the decision invalid.
(1) A regulation will be ultra-vires if it extends beyond the power delegated by the Parent Act (i) Cannot make something an offence unless it is a purpose of the Parent Act
Shanahan: A regulation will be necessary or expedient for the administration of the Parent Act, or for the carrying out of the object of the Parent Act, if the regulation elaborates a plan or purpose which the main provisions of Parent Act has outlined.A regulation will be invalid if extends beyond the scope or general operation of statutory power delegated by the Parent Act.
• Delegated statutory power will not support attempts to widenthe purposes of the Act, to add new and different means of carrying them out or to depart from or vary its ends
• Here, the Regulation was invalid because it was “not confined to the same field of operation as the provisions of the Act”, as the Act delegated the power to make regulations necessary or expedient for the administration of the Act (for collective marketing of Vic agricultural products), but the regulation instead made it an offence to store eggs in a certain way.
*Could also give rise to Improper Purpose ground of review*
(ii) Difference between regulating and prohibiting
Swan Hill: A regulation will be invalid if extends beyond the scope of statutory power delegated by the Parent Act. Dixon J emphasised that the delegated power to make rules that “regulate” and “restrain” an activity does not extend to “prohibiting” that activity.
Swan Hill: Dixon J also emphasised that the social purpose of the delegated power is important to determining the scope of the delegated power.
• Where the delegated power concerns a socially positive activity (such as building - an indispensable part of community life), it is unlikely that the delegated power would support a regulation that completely prohibited the activity unless there was clear express authorisation from the Parent Act to do so.
• But where the delegated power concerns a socially negative activity (such a smoking), it may be possible to say that the delegated power would support a regulation that completely prohibited the activity. It would be appropriate to see if the object of the Parent Act was to significantly restrict/eliminate the activity (e.g. restrict sales of tobacco). In such a case, the regulation may be valid.
(B) PROCEDURAL FAIRNESS GROUNDS OF REVIEW
A breach of PF is a matter for judicial review at common law and under the ADJRA s5(1)(a).
(1) Is PF owed?
(1) PF is required as a matter of implication
Per authorities such as Kioa and Plaintiff S10, as X’s [personal interest] has been adversely affected by the exercise of administrative power by PSDC, there is a common law presumption that X is owed PF.
• Kioa (per Mason J): Interests that are sufficient to constitute an interest for the purposes of PF include:
o Livelihood o Proprietary rights o Personal liberty o Status
o Reputation
Kioa (per Brennan J): There is a general presumption that PF is owed when an administrative action affects an individual’s interests alone, or is likely to affect an individual’s interests in a manner that is substantially different from how it is likely to affect the public’s interests generally.
(2) PF can be required by bodies completing a review process, advisory report or recommendation If an individual’s interests may be adversely affected by the ZZZ, the body is required to afford the individual PF.
1) Review process
SZSSJ: Where a review process completed by a private firm is instigated by a Minister to assist the Minister in making a decision under statute, the private firm is required to afford PF if an individual’s interests may be adversely affected by the review process.
2) Advisory report
Ainsworth: An investigative body that makes an advisory report, rather than decisions, is required to afford PF if an individual’s interests may be adversely affected by the advisory report or recommendation.
3) Recommendations
O’Shea: If a statute provides for the facts relevant to a decision to be evaluated by a board, and for the board to make a recommendation to the decision-maker based on those facts, the board must provide PF to the concerned individual (as the individual’s interests may be adversely affected by the recommendation of the board).
(2) Has PF been excluded?
(A) Exclusion by express words
Kioa; WZARH: PF can be expressly excluded by the clear manifestation of statutory intention.
1) A ‘code of procedure’
Miah: The HC majority held that ‘code of procedure’ within a statute that limits an aspect of PF (i.e. states that there is only particular information that must be disclosed to an applicant) is insufficient to exclude the common law requirements of PF.
• McHugh J: The use of the term “code” is too weak of a basis to infer that Parliament intended to
(4) JURISDICTIONAL ERROR / INVALID DECISION (1) Is there JE?
The practical significance of the distinction between JE and non-JE in judicial review proceedings:
(1) If the enabling statute contains a privative clause – the clause cannot validly exclude or frustrate the constitutionally entrenched measure of review for JE.
(2) In review on the common law remedial model – the remedies for non-JE are more limited than the remedies for JE.
JE (Hossain; SZMTA): An error of law will amount to a jurisdictional error where it is jurisdictional in nature and material, such that the error has deprived the plaintiff of the possibility of a different outcome
If it is material: it is a jurisdictional error à decision is invalid (the court may grant all remedies) If it is not material: it is a non-jurisdictional error à decision is still valid (the court may grant equitable remedies, possibly certiorari operating prospectively)
(2) The status of decisions tainted by JE / invalid decisions (due to breach of statutory requirements):
A jurisdictional error / invalid decision exists (due to breach of statutory requirements):
(1) Absolute theory
According to the absolute theory, the purported decision was a legal nullity from the time it was made (Bhardwaj).
(2) Relative theory
Alternatively, under the relative theory, the decision is legally effective up until the time it is held invalid by the court. At that point, it no longer has legal effect (Bhardwaj). The relative view of invalidity appears more suited to a system of administrative law where judicial remedies are discretionary (Ousley, per Gummow J) and is more consistent with the ADJRA.
Consider which theory is more logical or convenient with reference to the empowering statute (Bhardwaj).
(3) ADJRA s16:
ADJRA s16: Allows the court to control the timing of the legal effect of decisions as required by the facts of the case
A non-jurisdictional error / error of law / error of law caught by a No Invalidity Clause exists:
Where there is a non-jurisdictional error (or an error protected from tainting a decision as invalid due to the operation of a no validity clause), the decision is not invalid and still continues to have legal effect.
However, per Project Blue Sky, the court can still issue remedies such as a declaration that the breach was unlawful, injunction to prevent any further action based on the unlawful decision and potentially certiorari operating prospectively.
