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Contents
TOPIC 1: INTRODUCTION ... 10
GENERAL ... 10
WHAT IS ADMINISTRATIVE LAW ... 10
STATUTORY INTERPRETATION ... 10
MECHANISMS TO KEEP GOVERNMENT ACCOUNTABLE ... 10
WHO IS THE EXECUTIVE ... 11
ACCOUNTABILITY ... 12
ADMINISTRATIVE LAW VALUES ... 13
INFERIOR COURTS ... 15
TOPIC 2: INTRODUCTION TO JUDICIAL REVIEW, JUSTICIABILITY AND STANDING ... 16
INTRODUCTION TO JUDICIAL REVIEW ... 16
REVIEWS VS APPEALS VS REHEARINGS ... 16
APPELLATE VS ORIGINAL JURISDICTION IN COURTS ... 16
JUDICIAL REVIEW VS MERITS REVIEW ... 17
QUESTIONS OF LAW VS QUESTIONS OF FACT ... 17
JUDICIAL REVIEW PROBLEM-SOLVING STEPS ... 18
CAN WE APPEAL? ... 18
SOURCES OF JUDICIAL REVIEW ... 19
CONSTITUTIONAL CONSIDERATIONS ... 23
CHOOSING AVENUE OF REVIEW ... 24
ADVANTAGES / DISADVANTAGES OF JUDICIAL REVIEW... 25
RESTRICTIONS ON JUDICIAL REVIEW ... 25
JUSTICIABILITY ... 26
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INTRODUCTION ... 26
FOCUS ... 27
RULES FOR JUSTICIABILITY ... 27
JUSTICIABILITY IN STATUTORY JUDICIAL REVIEW (Adjr act) ... 28
STANDING ... 28
INTRODUCTION ... 28
ROLE OF ATTORNEY-GENERAL ... 28
TRADITIONAL TESTS BASED ON REMEDIES ... 29
CONTEMPORARY APPROACH – SPECIAL INTEREST TEST ... 29
STANDING UNDER ADJR ACT ... 31
STANDING FOR MERITS REVIEW ... 31
STANDING FOR FOI AND ANTI-CORRUPTION ... 32
INTERVENERS ... 32
AMICUS CURIAE ... 33
POLICY CONSIDERATIONS ... 33
TOPIC 3: INTRODUCTION TO GROUNDS AND PROCEDURAL FAIRNESS ... 34
INTRODUCTION ... 34
GENERAL ... 34
STATUTORY GROUNDS UNDER ADJR ACT ... 34
CL AND CONSTITUTIONAL GROUNDS ... 34
FACT VS LAW ... 34
PROCEDURAL FAIRNESS – INTRODUCTION AND THRESHOLD QUESTION ... 35
INTRODUCTION ... 35
JUSTIFICATION FOR PROCEDURAL FAIRNESS... 35
IMPACT OF PROCEDURES IN THE STATUTE ... 35
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UNDER THE ADJR ACT ... 36
THRESHOLD QUESTION – DOES PROCEDURAL FAIRNESS APPLY? ... 36
HEARING RULE ... 39
INTRODUCTION ... 39
CONTENT OF HEARING RULE ... 39
NOTICE ... 40
DISCLOSURE ... 40
OPPORTUNTY TO PRESENT CASE IN RESPONSE ... 41
PRACTICAL INJUSTICE ... 41
BIAS RULE ... 42
ACTUAL BIAS ... 42
APPREHENDED BIAS ... 42
GENERAL RULES ... 43
CONSEQUENCES OF BREACHING PROCEDURAL FAIRNESS ... 45
TOPIC 4: GROUNDS OF REVIEW – SCOPE OF POWER ... 47
IMPROPER DELEGATION ... 47
UNDER THE ADJR ACT ... 47
GENERAL ... 47
CONCEPTS ... 47
PROCEDURAL ERROR ... 48
UNDER THE ADJR ACT ... 48
GENERAL ... 48
STEPS ... 48
MISCONCEIVING SCOPE OF POWER ... 50
UNDER THE ADJR ACT ... 50
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GENERAL ... 50
PRECONDITIONS OF POWER ... 51
UNDER THE ADJR ACT ... 51
GENERAL ... 51
STEPS ... 51
SUBJECTIVE OPINIONS ... 52
TOPIC 5: GROUNDS OF REVIEW – IMPROPER EXERCISE OF POWER ... 54
NO EVIDENCE RULE ... 54
UNDER THE ADJR ACT ... 54
UNDER THE CL ... 54
FACT/LAW DISTINCTION ... 55
JURISDICTIONAL ERROR ... 55
FRAUD ... 55
UNDER THE ADJR ACT ... 55
GENERAL ... 56
IMPROPER EXERCISE – RELEVANT AND IRRELEVANT MATTERS ... 56
UNDER THE ADJR ACT ... 56
GENERAL ... 56
FAILURE TO CONSIDER RELEVANT MATTERS ... 57
CONSIDERING IRRELEVANT MATTERS ... 58
IMPROPER EXERCISE – IMPROPER PURPOSE ... 59
UNDER THE ADJR ACT ... 59
GENERAL ... 59
AUTHORISED OR PROPER PURPOSE ... 59
ACTUAL PURPOSE ... 59
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EXAMPLES ... 60
MULTIPLE PURPOSES ... 60
IMPROPER EXERCISE – BAD FAITH ... 61
UNDER THE ADJR ACT ... 61
GENERAL ... 61
INTERACTION WITH OTHER GROUNDS ... 62
IMPROPER EXERCISE – UNREASONABLENESS / IRRATIONALITY ... 62
UNDER THE ADJR ACT ... 62
GENERAL FEATURES ... 62
WHEN DOES IT APPLY?... 63
WEDNESBURY UNREASONABLENESS ... 63
LI UNREASONABLENESS ... 63
IRRATIONALITY / ILLOGICALITY ... 64
IMPROPER EXERCISE – FETTERING DISCRETION ... 64
UNDER THE ADJR ACT ... 64
GENERAL PRINCIPLES ... 64
ACTING UNDER DICTATION... 65
INFLEXIBLE APPLICATION OF POLICY ... 65
IMPROPER EXERCISE - UNCERTAINTY ... 66
UNDER THE ADJR ACT ... 66
GENERAL ... 66
TOPIC 6: REMEDIES ... 68
INTRODUCTION ... 68
PREROGATIVE / CONSTITUTIONAL WRITS ... 68
CERTIORARI ... 68
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PROHIBITION ... 69
MANDAMUS ... 70
EQUITABLE REMEDIES ... 71
GENERAL HISTORICAL PRINCIPLES of equity ... 71
IN PUBLIC LAW ... 71
INJUNCTION ... 72
DECLARATION ... 72
STATUTORY REMEDIES ... 73
UNDER THE ADJR ACT ... 73
NO DAMAGES ... 74
CHOOSING REMEDIES ... 74
CONSIDERATIONS ... 74
REMEDIAL DISCRETION ... 75
TOPIC 7: JURISDICTIONAL ERROR AND PRIVATIVE CLAUSES ... 77
JURISDICTIONAL ERROR ... 77
INTRODUCTION ... 77
WHY DOES IT MATTER? ... 77
DEFINITION OF JURISDICTIONAL ERROR ... 77
IDENTIFYING JURISDICTIONAL ERROR ... 79
DEBATES ABOUT JURISDICTIONAL ERROR ... 82
GETTING AROUND JURISDICTIONAL ERROR ... 83
LIMITS ON JUDICIAL REVIEW ... 84
PRIVATIVE/OUSTER CLAUSES ... 84
NO-INVALIDITY CLAUSES ... 87
NON-COMPELLABLE POWERS ... 88
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RESTRICTIVE TIME LIMITS ... 88
RESTRICTING INFORMATION ... 89
TOPIC 8: MERITS REVIEW AND ADMINISTRATIVE TRIBUNALS ... 90
GENERAL ... 90
INTRODUCTION ... 90
NATURE OF MERITS REVIEW ... 92
WHICH DECISIONS ARE SUITABLE FOR MERITS REVIEW?... 93
INTERNAL AND EXTERNAL MERITS REVIEW ... 94
JUDICIAL REVIEW AND APPEALS FROM MERITS REVIEW DECISIONS ... 95
ADMINISTRATIVE REVIEW TRIBUNALS ... 96
INTRODUCTION ... 96
WHAT IS A TRIBUNAL? ... 96
CONSTITUTIONAL ISSUES ... 97
STATUS OF TRIBUNAL DECISIONS ... 98
TRIBUNAL DESIGN ... 99
THE AAT (ADMINISTRATIVE APPEALS TRIBUNAL) ... 103
STATE AND TERRITORY ADMINISTRATIVE TRIBUNALS ... 106
TOPIC 9: OMBUDSMEN AND INFORMATION DISCLOSURE ... 108
THE OMBUDSMAN ... 108
ORIGINS ... 108
INQUIRY JURISDICTION AS INVESTIGATIVE AGENCY ... 108
POWERS AND PROCESSES ... 109
OUTCOME OF INVESTIGATIONS ... 111
INDEPENDENCE AND IMPARTIALITY ... 111
FOURTH BRANCH OF GOVERNMENT ... 112
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PROTECTING INFORMATION ... 112
GENERAL ... 112
INFORMATION DISCLOSURE ... 113
FREEDOM OF INFORMATION ... 113
REASONS FOR DECISION ... 117
REVISION ... 120
STEPS TO JUDICIAL REVIEW PROBLEM QUESTION ... 120
NON-JUIDICIAL REVIEW MECHANISMS ... 124
GENERAL ... 124
MERITS REVIEW ... 124
OMBUDSMAN ... 125
FOI ... 125
REASONS ... 125
57 - If statute does not direct what must and must not be considered, this is for the DM to decide
(Peko-Wallsend)
Considerations not mentioned are likely “permissible” considerations
- Weight accorded to each consideration is for the DM (Peko-Wallsend 1986: Letter not taken into account)
If excessive or inadequate weight is placed on a relevant factor, this is an issue of unreasonableness
- NB: May overlap with jurisdictional fact
FAILURE TO CONSIDER RELEVANT MATTERS
- Applies when statute states you must take something into account
Relevant and irrelevant matters can be implied from the subject matter, scope and purpose of the Act if nothing express in statute (Peko-Wallsend 1986: Letter not taken into account)
o Letter went to “detriment” which was expressly stated as a relevant consideration
o Ordinarily if there is an exhaustive list of matters to take into account, this means that there are no other ‘relevant matters’
Consideration of factors must be based on the most recent and accurate information (Peko-Wallsend 1986: Letter not taken into account)
o If there are changes showing the report is erroneous or incomplete, this must be taken into account
DM must put his mind to figuring out which submissions he should personally read, and which ones are capable of summary (Tickner v Chapman: Secret women’s business) - Must materially affect the decision in the sense of depriving the applicant of the possibility of
a successful outcome (Peko-Wallsend 1986: Letter not taken into account)
Example: D’Amore v Independent Commission Against Corruption (substantial evidence that she did NOT misunderstand)
- Steps
1) The statute required a relevant factor to be taken into account o Can be implied
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2) The factor was not taken into account
o Mere omission of a matter from reasons does not necessarily mean it was not considered (Minister for Immigration v SZGUR)
3) Failure to consider it was significant enough to have materially affected the decision in the sense of depriving the applicant of the possibility of a successful outcome
CONSIDERING IRRELEVANT MATTERS
- Applies when statute says you must not take something into account (Commissioner of Taxation v Pham)
Relevant and irrelevant matters can be implied from the subject matter, scope and purpose of the Act (Peko-Wallsend 1986: Letter not taken into account)
o If there is a list they “may” consider, it’s less likely this list is considered exhaustive
Not enough that the factor appears ‘unconnected’ (Murphyores)
o If the nature of the power is broad, barely anything would be an irrelevant factor
- Irrelevant matters (Murphyores)
Corrupt considerations
Personal considerations
Whimsical considerations
Considerations unconnected with proper government administration
- Must materially affect the decision in the sense of depriving the applicant of the possibility of a successful outcome (Peko-Wallsend 1986: Letter not taken into account)
Example: Sekhon v Director of Quarantine (only one of several matters relied on) - Steps
1) There is an irrelevant matter that the statute stated must not be taken into account
2) DM did take the matter into account
3) The irrelevant consideration materially affected the decision in the sense of depriving the applicant of the possibility of a successful outcome
