LAWS2010: Administrative Law – Revision Notes Judicial Review: Jurisdiction
Topic 3: Jurisdiction i.e. scope of authority
1. Source of the Power: Commonwealth or State Is a Cth or NSW official exercising the power?
i. NSW State Review
• (a) Inherent Jurisdiction
o State Supreme Courts inherited inherent jurisdiction to issue three prerogative remedies (see Kirk)
− Affirmed in Supreme Court Act 1970 (NSW) s23, s65, & s69(3)
→ s23: the Court shall have all jurisdiction which may be necessary for the administration of justice in NSW
→ s69: the court has jurisdiction to grant any relief or remedy by way of writ, whether prohibition, mandamus, certiorari or any other description
− Kirk: defining characteristic of a state Supreme court is the power to review decisions made by state decision-makers on the basis of jurisdictional error
o NO statutory intervention in NSW Common law remedial model & controlling categories of error
− Held in Kirk that JR jurisdiction has two distinct bases: entrenched (remedies for JE) and non-entrenched (remedies for ELFR)
→ 1. Jurisdictional error (JE): only basis for mandamus, prohibition and retrospective certiorari
→ 2. Error of law on the face of the record (ELFR): a basis for prospective certiorari
o Prerogative remedies require an exercise of public power which directly affects legal rights or imposes liabilities
− Kaldas: because the HCA described the scope of entrenched review as linked to the provision of relief via these remedies, it requires an exercise of public power with a legal effect
− Public Power
→ Must be clearly a public actor (member of executive) OR private actor exercising a statutory power
Chase Oyster Bar: private adjudicator’s power/function derived from appointment under statute, compulsory dispute resolution scheme, statutory (not contractual) right to payment
Note: Public vs Private Distinction
Chase Oyster distinguished flexible UK approach in Datafin (recognised JR for ‘public function’ exercised by private body) in AU, need legal/public power for JR
− Legal Effect on Rights & Obligations
→ NOT amenable to JR where only practical effect: Ainsworth, Kaldas, Hot Holdings
e.g. Ainsworth: recommendations of report only impacting business/commercial reputation:
Note reputation protected by general law/attracts equitable remedies such as declaration (but non-JR remedies not entrenched, can be ousted by privative clause: Kaldas v Barbour)
cf Hot Holdings v Creasy: report statutory precondition to action that directly effects rights and obligations (Minister cannot grant mining license until received and considered report)
− ALSO applies at federal level (see below)
o The court also exercises inherent jurisdiction in equity declarations and injunctions may issue to enforce judicial review principles even if JR remedies not available (e.g. Ainsworth)
• (b) Appeal on a Question of Law
o Remedies limited to deciding whether or not has been a legal error, then set aside decision and remit ii. Federal Review: Common Law
• (a) High Court – Constitutional Writs/Original Jurisdiction
o Matters in which mandamus, prohibition or injunction sought against an “officer of the Cth”: s75(v)
− Connotes appointment of individual to a tenured office by the Cth: R v Murray & Cormie; ex parte Cth
→ Must be some LINK between the decision-maker and government has been extended to departmental officials, public servants, independent statutory officers established by federal law, federal judges etc.
− Does NOT include government-owned incorporated entities: Offshore Processing Case (M61)
→ M61: Did not determine whether Wizard People ‘officer of the Cth’, BUT jurisdiction under s75(iii) as Cth was sued/party, AND s75(i) matters arising under a treaty (refugee convention)
Minister appropriate respondent as exercising public power to detain asylum seekers in reliance on contractor’s assessments
o Matter in which the Cth, or person being sued on behalf of the Cth, is a party: s75(iii) o Appellate Jurisdiction: s73
• (b) Federal Courts (NB: No inherent jurisdiction, Cth can remove via ordinary legislation)
o Matters in which mandamus, prohibition or injunction sought against “officer of the Cth”: s39B(1) Judiciary Act o Matters arising under Cth legislation: s39B(1A) Judiciary Act
− Requires a ‘matter arising under any laws made by Parliament other than…a criminal matter’ (e.g. decisions by DPP whether to prosecute, judicial decisions) broad jurisdiction where Cth law is source of the power to take the challenged action OR the rights/liabilities affected by the challenged action
iii. ADJR Act: Federal Review IF YOU CAN GET ADJR, USE IT (widest possible scope, no controlling categories of error)
• Applies to (s5): decisions of administrative character made under an enactment (s3) other than those made by the Governor-General (s3(1)) or express exclusion in Schedule 1
o s5(1)(f): the decision involved an error of law, whether or not the error appears on the record of the decision (does away with controlling categories & extends beyond ELFR) + s16 order for review
o s6(1): act applies where person aggrieved by conduct in the process of making a decision to which the act applies (i.e. doing anything preparatory to making a decision: s3(5))
o s7(1): act applies where persons aggrieved by a FAILURE to make a required decision to which the act applies
• Decision: a substantive determination that is final or operative and determinative, NOT step along the way (Bond) o Mason J in Bond: was decision that satisfied licensee no longer fit and proper person, but only step along the
way re Mr Bond (act says nothing about people who control the licencing companies)
• Administrative Character: Part of administration of the statute o No statutory definition, just uses adjective
− General law test in Cth v Grunseit: legislation creates general rules of conduct for the future, whereas executive authority applies it to particular cases (starting point but not rule, difficult distinction to manage) o Does NOT include legislative decisions or judicial decisions (Roche Products)
− e.g. Roche: decision to alter the entry of a drug on the ‘Poisons Standard’, where the manner of listing determines which conduct in relation to the substance is lawful (consequence here that drug in question could no longer be lawfully advertised to consumers) was a LEGISLATIVE decision
→ cf decision to list a disease under Biosecurity Act, which enlivens a series of administrative powers
→ Multi-factored evaluation, considering factors including whether:
the decisions determined rules of general application, or whether was an application of rules to particular cases
there was a binding effect if the decision simply is binding/final and conclusive on one individual, then more likely to be administrative, but if binding on multiple parties then likely legislative
• Under an Enactment:
o Authoritative statement from joint reasons in Griffith University v Tang that a decision is under an enactment it:
− i. is required or authorised by the enactment, AND
− ii. Derives from the enactment the capacity to affect legal rights and obligations o Does NOT include decisions made under contracts/consensual agreements (Telstra, Tang)
− Legal effect must come from the statute, and not the general law e.g. private decisions of statutory entities with general capacity to enter into contracts (General Newspapers v Telstra)
→ Telstra: even though legislation established the statutory body, source and legal effect of capacity to contract lies in general law, NOT the statute
→ Tang: act may have established university, but authority to exclude & legal effect of that decision derives from the consensual relationship between University & Students
o Does NOT include decisions of non-governmental entities/companies made under legislation/statutory schemes of regulation (NEAT Domestic v AWB)
− e.g. NEAT: private company’s decision to exercise a power of veto to maintain its statutory export monopoly was NOT one made under an enactment for the purposes of the ADJR Act & NOT amenable to JR
→ Source of veto power was company law i.e. empowered by Articles of Association/corporations law (statute did not give them this capacity, but just gave it statutory significance/consequences)
• If fails to meet any of these requirements, then ADJR Act does NOT apply (go back to rely on Cth CL remedial model) o If there is a privative clause, ADJR Act jurisdiction may be ousted may need to rely on entrenched jurisdiction
Limiting Judicial Review Jurisdiction
Topic 12: Privative Legislative2. Has a privative clause attempted to oust or restrict the exercise of judicial review jurisdiction? focus on JE (i) Entrenched Jurisdiction i.e. scope of review protected by the Constitution & cannot be ousted by legislation
• A. New South Wales
o Supreme Court’s jurisdiction to grant prohibition, mandamus, or certiorari for JE: Kirk, Kaldas
− s73 reference to State Supreme Courts, ensuring each state has a body with the characteristics of a supreme court, with the essential characteristic of supervisory jurisdiction exercised through the grant of mandamus, prohibition and certiorari for JE
o HCA has been VERY clear that relief for non-jurisdictional error is NOT an entrenched aspect of JR (see Kaldas)
− Kaldas: relief against state public sector actions that lack legal effect (such as the Ombudsman report) are NOT party of the entrenched measure of review and CAN be ousted by legislation
→ Because the HCA described the scope of entrenched review as linked to the provision of relief via these remedies, it requires an exercise of public power with a legal effect
• ii. Commonwealth (High Court only, NOT FC)
o HCA’s jurisdiction to grant mandamus, prohibition (and certiorari as ancillary remedy) for JE: Plaintiff S157/2002 o Two bases in Ch III that entrench this review of Cth action with a legal effect on account of JE NOTE: do NOT
have identical ambit & may be some uncertainty at the margins
− 1. HCA jurisdiction to grant relief under s75(v) to grant the named remedies against an officer of the Cth
− 2. Judicial power of the Cth unable to be exercised other than in accordance with Ch III
→ i.e. Parliament cannot give a non-judicial body power to conclusively determine the limits of its own jurisdiction, as this would breach the Cth separation of judicial powers
Entrenched review extends to relief for JE and non-judicial bodies exercising Cth jurisdiction
→ NB: This source entrenches review for ANY body or person exercising commonwealth executive power, whereas s75(v) extends only to officers of the Cth
s75(v) may not be sufficient to provide the measure of review required by the separation of judicial power, which means it won’t provide the necessary avenue for review where there is uncertainty as to whether the Cth executive power is being exercised by an officer of the Cth
In these cases, look to other jurisdictions to provide constitutionally-mandated jurisdictional error review (e.g. s75(iii) where Cth is a party)
o Possibility at Cth level that may be some entrenched review for non-jurisdictional error due to reference to injunction (non-JE remedy) sought against officer of Cth in s75(v)
− Mentioned in Plaintiff S157 but has not been resolved/have had no HCA ruling
→ Issues with this:
a) If injunctive relief is available, won’t necessarily amount to instituting review for all non-JE legal errors
b) availability of injunctive relief contingent on variety of reasons at general law, applications for injunction not going to operate as seamless mechanism for review of non-JE errors
− No definitive authority on Kaldas point at Cth level i.e. does the Cth entrenched review extend to actions lacking legal effect?
→ At least open/arguable that s75(v) reference to an injunction might entrench relief against actions that lack legal effect (+ SoP doesn’t have specific association with prerogative remedies that directly
engages requirement for action with legal effect that was so central in Kaldas) (ii) Effect of Privative Legislation
• a. Ouster Clauses
o Clause CANNOT oust/remove the constitutionally entrenched review jurisdiction, but CAN oust non-entrenched (e.g. ADJR Act at federal level, non-JE at state level): Plaintiff S157, Kirk
− If there is a privative clause, focus on the entrenched jurisdiction (i.e. jurisdictional errors) o Ouster clauses in Plaintiff S157 and Kirk formal validity upheld but practically eviscerated
− Application of clause to ‘decisions’ construed to mean ‘valid decisions’ and NOT ‘purported decisions’, preserving judicial review for jurisdictional error (as JE invalidates exercise of power)
→ S157: neither the privative clause nor time limit applied to the decision affected by JE
→ Kirk: clause could NOT validly operate to remove NSW entrenched jurisdiction to review JE errors
− BUT this interpretation NOT available if clause drafted in terms that clearly excludes review for JE
→ e.g. explicitly applies to ‘purported decisions’ (e.g. Bodruzza)
→ e.g. Kaldas: clause stating that ‘the ombudsman shall not be liable whether on the ground of want of jurisdiction or any other ground’ was held to extend to (& oust) proceedings in the supervisory jurisdiction
• b. Regulation (attacks jurisdiction/remedies)
o Scope for parliaments to validly regulate entrenched review jurisdiction is limited & must be compatible with the constitutional purpose of the review jurisdiction: Bodruddaza, Graham
− i.e. provisions which limit or impair judicial review will be invalid in their application to entrenched review if they are, in their practical operation/effect, inconsistent with the place of entrenched review within the constitutional structure
o Strict/Inflexible Time Limits
− Bodruzza: inflexible time (absolute maximum of 84 days from date of notidfication of decisoin which court had no discretion to extend) was invalid in its application to the entrenched review jurisdiction
→ Would produce practical injustice (circumstances re JE often unknown & unknowable until well-after date of notification) & is therefore inconsistent with constitutional right to review
Note: clause applied to ‘purported decisions’ so couldn’t be read down as in S157 o Secrecy Provisions
− Graham: denial of power of ‘a court’ to compel production of certain information invalid in application to entrenched jurisdiction
→ Provision removed any basis for the court to draw inferences adverse to the Minister
Constituted a “substantive curtailment” of the capacity of a court exercising that jurisdiction to discern and declare whether or not legal limits of powers conferred by Act have been obvserved
→ Touchstone: does the law, in its practical operation, deny a court exercising the entrenched jurisdiction the ability to enforce the legislated limits on an officer’s power?
i.e. does it ‘strike at the very hard of review for which s75(v) provides’?
• c. No Invalidity Clauses (attacks grounds of review – see Topic 10)
o Consider the statute to determine if the breach of statutory requirements amounts to jurisdictional error in accordance with Project Blue Sky
− e.g. Palme: failure to give reasons did not amount to jurisdictional error due to the no-invalidity clause (‘failure to comply with this section does not affect the validity of the decision’)
− e.g. Futuris found valid an extremely broad clause providing that any breach of any procedure under the tax act did not result in invalidity (acceptable when read with provision of extensive appeals procedure but somewhat unclear)
→ NB: no invalidity clause held not to apply to a decision made in bad faith or involving CONSCIOUS maladministration of the statutory powers
− See also Plaintiff S157/2002: (hypothetical) clause which protects the validity of a decision which has not complied with any express or implied condition on the power would not likely be given plenary effect &
would read in provisos to reconcile with constitution
→ Hickman provisos: decision is a good faith attempt to exercise power, relates to subject matter of legislation and is reasonably capable of reference to the power
→ Murray-Coldham proviso: clause will not validate decisions that breach inviolable limits on power
→ Case also overturned construing of ouster clauses as if form of no invalidity clauses (indirect enlargement of administrator’s powers)
