LLAW2213 — ADMINISTRATIVE LAW (JUDICIAL REVIEW) 2019 S1 EXAM NOTES
Exam Format
Question 1 (50%) - 60 mins
Statutory interpretation
→ Understand when you can turn to extrinsic material
→ Understand presumptions
→ BRING IN COPY OF ACTS INTERPRETATION ACT - CL
Strongest grounds of review
→ Don’t talk about ones that don’t apply
→ Only talk about strongest grounds
→ Focus on the ones done in tutes Remedies
→ Often ADJR
→ How the CL assists in interpreting those
Question 2 (50%) - 60 mins
Justiciability
→ Also discuss AD(JR) reviewability
● Is it a decision
● Of administrative character
● Arising under enactment
● And not otherwise excluded from review under the ADJR Act
→ Understand cases that provide factors that determine justiciability
Standing
→ Look at leading cases - how they’re applied and distinguished
Strongest Grounds of Review
Be specific
Use headings and sub-headings
Focus on how best to answer question
Plan answers
Road Map to Judicial Review 1) Is it state or federal?
2) Is the decision justiciable or reviewable?
3) If so, are grounds made out?
4) If so, does the applicant have standing?
5) Has the applicant applied for the right relief?
6) If so, will the court exercise its discretion in their favour and grant relief?
THREE PATHWAYS TO JUDICIAL REVIEW
• AD(JR) Act;
o Must be a 'decision' s3 (1);
o Of administrative character s3(1);
▪ Some decisions are justiciable, and these are primarily ones made by administrators
▪ An administrative decision often involves the adoption of a policy and the application of a general rule to a particular case in accordance with the requirements of policy or expediency
▪ Cannot generally review decisions of other bodies ie Cabinet o Arising under enactment s3(1)(a), definition s3;
o Decision not excluded by ADJR Act (Listed in Schedule 1 or Decision by Governor General)
• s39(b) Judiciary Act 1903 (Cth);
• Constitution 75(v)
JUSTICIABILITY (PT 1)
Most executive actions are conferred under statute. Generally, most decisions made under a statute are potentially reviewable. However, some decisions are made under common law, derived from 'prerogative powers' and only some are reviewable
• A key issue in indicating justiciability has historically been to ask whether the power is derived from a Crown prerogative. If so, the power exercised was historically considered immune from judicial review.
Prerogative Powers
• Often exercised by Governor General (Cth matters) or Governor (State) acting on advice
• Others exercised by Attorney General, others (eg foreign affairs and defence) Commonwealth Executive
• New prerogatives cannot be created
> CCSU Case
• Facts: Prior to 1985, the position was that a prerogative power was immune from review, however that position changed as a result of the CCSU decision (UK case)
• In CCSU The Minister for the Civil Service unilaterally made a decision that employees would not be able to join a trade union due to fear of disruption to the service. The practice until that time had been to consult about such changes
• The union sought judicial review
• Held: The House of Lords held that there was no blanket restriction on review of the prerogative powers
• Some prerogatives eg civil service employment were reviewable
• Others were not, eg: foreign affairs, military/defence matters
o In CCSU it was held there was a right to be consulted and that this had not been done o Prima facie a breach of natural justice (procedural fairness)
Statutory Powers
• Bulk of statutory powers now subject to review
• A traditional view was held that decisions of high-level decision makers (e.g. ministers and governors) were not justiciable due to the status of the decision maker
• High Court ruled that regardless of status of decision maker, courts could review exercise of statutory power > R v Toohey, Ex p Northern Land Council
o The High Court held that the statutory powers of the NT Administrator were in principle subject to judicial review. Why?
o More often involve:
▪ Rights, a duty to exercise a discretion, limited in scope, for a specific or
ascertainable purpose, exercisable by reference to criteria or considerations express or implied by statute
Federal – Prerogative Power under a Treaty
> Minister for Arts, Heritage and Environment v Peko-Wallsend
• Peko Wallsend (PW) mined in Kakadu National Park
• Cabinet made a decision to nominate Kakadu for inclusion on World Heritage List and limited mining
• This Cabinet decision challenged by PW
• CCSU case cited – prerogative not immune from review Decisions by Cabinet are potentially reviewable – however less likely to be justiciable than decisions made by individual office holders
o Relevant factor when determining justiciability is not the source of the power, but the nature and subject matter of the decision
Other Considerations
• 'A 'privative' clause (also known as 'ouster clause') is a statutory provision purporting to exclude the power or jurisdiction of courts to hear and determine judicial review proceedings, to grant judicial review remedies or otherwise to 'call in question' administrative decisions'
• History of resistance from courts regarding such provisions – and will generally apply a restrictive interpretation to such clauses
Privative Clauses
• Some examples of legislative limitations, as identified by the Administrative Review Council (ARC) The Scope of Judicial Review, Discussion Paper, Commonwealth of Australia, 2003: (Not exhaustive)
o Clauses that seek to 'make orders, awards or other determinations final'
o Clauses that forbid 'the courts from granting the remedies traditionally used by them for judicial review, such as certiorari, prohibition or mandamus'
o Clauses that 'expressly' state that judicial review lies only on stipulated grounds
• Generally, a privative clause that seeks to completely exclude judicial review will not be effective (particularly of jurisdictional errors)
• Privative clauses which prescribe time limits for bringing action, or provide for alternatives for judicial review have been accepted by courts
• 'The effect of a privative clause is always a question of statutory construction in the context of the particular legislation'
• Cannot prevent review in case of jurisdictional error
• Cannot oust jurisdiction conferred on High Court by 75(v) of Constitution > Plaintiff S157/2002 v Commonwealth
• State > Kirk v Industrial Court of New South Wales
Facts: Case concerned a decision by the Industrial Court of NSW under the Occupational Health and Safety Act 1983 (NSW) relating to the liability of a farm owner for the death of a farm manager in a workplace accident.
Held: The Industrial Ct found the owner liable. Section 179 of the Industrial Relations Act 1996 (NSW) included a privative clause which provided that a decision of the Industrial Ct ‘is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal’. On its proper construction, s 179 did not prevent the Supreme Ct of NSW from granting certiorari for jurisdictional error. The supervisory role of the supreme court to correct and restrain JE through the grant of prohibition, certiorari and mandamus is a constitutionally protected ‘defining characteristic’ of the Supreme Court. It is beyond the power of a state parliament to remove a defining characteristic pf a supreme court. The privative clause was not held invalid but was read down so as to not prevent review of JE.