JUDICIAL REVIEW
1. THE DECISION(S)?
1. What is the Decision(s)?
o Carefully read the facts regarding this. A number of actions by DM may constitute different decisions under the Act.
2. Who is the DM?
o Is this person authorised to make the decision under the Act? See Grounds.
3. Conduct or Failure to make a decision? See sections 6-7 ADJR.
2A. JURISDICTION OF COURTS FOR JR
Commonwealth or NSW Act?
COMMONWEALTH ACT
1. COMMON LAW BASES:
s75(v) Australian Constitution for High Court of Australia (‘HCA’) JR jurisdiction.
s39B(1) Judiciary Act for Federal Court of Australia (‘FCA’) JR jurisdiction.
3 elements to establish s75(v) and s39B(1) JR jurisdiction:
1. Matter: Must directly affect an immediate right, duty or liability. Must be a real legal issue, not a mere hypothetical or theoretical interest: Re McBain; Ex parte Australian Catholic Bishops Conference (2002) per Hayne J.
2. Writs (or remedies): Must be seeking either Writ of Mandamus, Writ of Prohibition, or Writ of Certiorari: s 75(v) Aust. Constitution; Ex parte Aala (2000) (for Certiorari).
3. Officer of the Commonwealth:
a. Minister:
b. Government employee: Most likely officer, especially where exercising powers under statute, or delegated by Minister.
c. Authority:
o Where Authority created by statute and exercises statutory powers under the Act – officer of the Cth: NEAT v AWB (2003) – need to look to the source of the power. There is an “institutional nexus” between the Authority and the government.
o Where Authority not created by statute – problematic.
If all 3 elements are likely satisfied, the HCA and FCA have JR jurisdiction based on s75(v) and s39B(1) respectively.
2. ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT (‘ADJR’) BASES:
s8(1) for Federal Court of Australia (FCA) JR jurisdiction.
s8(2) for Federal Circuit Court of Australia (FCC) JR jurisdiction.
Steps to follow:
1. s8 ADJR: FCA and FCC have jurisdiction to hear and determine applications made under the Act.
2. Need a “decision to which this Act applies”
a. s5 ADJR: person who is aggrieved by a decision to which this Act applies.
b. s6 ADJR: person who is aggrieved by certain conduct - person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies.
o Conduct is to be read narrowly.
o Essentially procedures along the way, focussing on the actual conduct of proceedings NOT intermediate conclusions reached en route to final substantive decisions – mere steps in the deliberative process and reasoning.
c. s7 ADJR:
o (1)(a): person has a duty to make a decision to which this Act applies, o (1)(b): there is no law that prescribes a period within which the person is
required to make that decision; and
o (1)(c): the person has failed to make that decision.
3. s3(1) ADJR defines a “decision to which this Act applies”. 3 elements:
(1) a Decision: Must be final, substantive and operative in nature: ABT v Bond
o Preliminary investigations and reports are NOT reviewable decisions under the ADJR Act, even though they are envisaged by statute: Edelsten v Health Insurance Commsssion o These investigations and reports are only reviewable if they are a ‘condition precedent
to the making of a reviewable decision’ – must make this decision before the matter can proceed: Edelsten v Health Insurance Commsssion
o To be read narrowly – look to the wording of the legislation and statutory context.
(2) of an Administrative Character: Federal Airports Corporation v Aerolinas Argentinas o Legislative character: creation of a general rule of conduct without reference to
particular case; decision of general application Factors indicating legislative character:
o Creates new rules of general application o Has binding legal effect
o Has to be publicly notified in gazettes o Made after wide consultation
o Incorporates or has regard to wide policy considerations o Cannot be varied or amended by executive
o Can be reviewed by parliament
o Administrative character: application of general rule to a particular case
o Consider source and function of DM’s power – e.g. government corporation, so fees and charges easier to change: Federal Airports Corporation v Aerolinas
Argentinas
o Excludes decisions of ‘legislative’ or ‘judicial’ character: Griffith University v Tan
(3) made under an Enactment: DM’s decision-making power comes from a legislative source (enactment) – must expressly or impliedly be required or authorised by the enactment:
Griffith University v Tang. Enactment means one of the following:
o 3(1)(a): An Act, other than …
o 3(1)(b): an Ordinance of a Territory other than the ACT or the NT.
o 3(1)(c): an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance.
o s3(1)(ca): an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3;
o s3(1)(cb): an instrument (including rules, regulations or by-laws) made under an Act or part of an Act covered by paragraph (ca);
o 33(1)(d): any other law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act;
other than:
(c) a decision by the Governor-General; or
(d) a decision included in any of the classes of decisions set out in Schedule 1 (see attached notes).
As all 3 elements likely satisfied, FCA and FCC have ADJR JR jurisdiction.
NSW ACT
section 23 Supreme Court Act 1970 (NSW) – very broad Common Law JR jurisdiction 23 Jurisdiction generally
The court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.
COURT JURISDICTIONAL BASIS SUMMARY
High Court
o Original jurisdiction under s75(v) Constitution (derives from common law)
Federal Court
o s39B of the Judiciary Act 1903 (Cth) – common law basis o ADJR (Statutory jurisdiction)
Federal Circuit Court
o ADJR (Statutory jurisdiction)
NSW Supreme Court
o s23 Supreme Court Act 1970 (NSW) - Common Law jurisdiction.
2B. JUSTICIABILITY
Justiciability is about the appropriateness of a question for judicial resolution: ‘the suitability for, or amenability to, judicial review of particular administrative decision or class of decisions. Ought/Should the court hear this matter?
Classic examples of non-justiciable areas:
o prerogative power (non-statutory executive power) o national security policy & defence
Council of Civil Service Unions v Minister for the Civil Service (CCSU)
Minister for Arts, Heritage and Environment v Peko Wallsend
Hicks v Ruddock and Others [2007] FCA 299
Justiciability is NOT the same as Jurisdiction. It is an impediment to JR jurisdiction.
MERITS/LEGALITY DISTINCTION (A SEPARATION OF POWERS QUESTION)
only concerned with the lawfulness of a decision, NOT its merits: Green v Daniels
3. STANDING
COMMON LAW BASIS
1. ‘Special interest’ in the subject matter of the action: ACF v Cth (1980).
A private or financial interest (e.g. private proprietary rights, contractual right etc. – interference with a private right, such as a road or highway).
More than a “mere intellectual or emotional concern”
To show more than a mere intellectual or emotional concern, courts have emphasised factors such as: Northcoast
Prior involvement in the particular matter?
Group recognized or funded by government?
Whether group represents a significant strand of public opinion?
Consider how many members do they have?
Peak body in a particular area?
However, characterization as a significant public interest group alone is not sufficient: ACF v Cth; Right to Life (1995)
Expertise of the organization?
Examples of ‘special interest’
Yes
o Union’s interest in decision to permit Sunday trading – special interest:
Shop Distributive
o Members of indigenous group in preventing construction on land containing religious relics of which group was custodian – special interest: Onus v Alcoa o Private company that conducted a funeral benefit fund interest in preventing
a statutory authority from setting up a similar and competitive fund – financial interest: Batemans Bay
No
o interest of Right to Life Association in govt decision to refuse to cease trials of abortion drug – mere intellectual, philosophical or emotional concern: Right to Life Association (1995)
Words have been interpreted liberally in recent times – enabling rather than restrictive:
Bateman’s Bay (1998); Northcoast (1994); Environment East Gippsland (2010).
2. Remedy Sought
Writ of Mandamus, Prohibition and Certiorari – further secures party’s standing at common law.
3. Zone of Legislation
Does the Applicant’s special interest fall within the ‘zone’ of the ‘subject matter of the action’? Right to Life Association (1995)
ADJR BASIS
s3(4)(a) ADJR: ADJR test of a ‘person aggrieved’ involves:
(i) a person whose interests are adversely affected by the decision; or
(ii) in the case of a decision by way of the making of a report or recommendation--to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation;
s3(4)(b) a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.
Except for the remedy requirement, ADJR standing test has been applied consistently with the common law standing test: Right to Life Association (1995)
EX-OFFICIO & EX-RELATIONE
Role of the Attorney General to intervene (either ex officio or ex relatione)
O Ex Relatione: legal proceeding filed by AG, on behalf of the government, upon the instigation of a private person who needs the state to enforce their rights and the public.
o Ex officio: AG’s ability to initiate proceedings by virtue of their office/position.
4. GROUNDS OF JUDICIAL REVIEW
4.1. HEARING RULE (PROCEDURAL FAIRNESS): 5(1)(A) ADJR
s5(1)(a): that a breach of the rules of natural justice occurred in connection with the making of the decision;
1. HR Threshold: When does Procedural Fairness apply?
a. When a person’s “rights, interests, or legitimate expectations” have been adversely affected in a “direct and immediate way”: Kioa v West (1985) b. common law duty on ADM to act fairly: Kioa v West (1985)
c. A legitimate expectation exists where a person seeks renewal of some benefit (e.g. a license) in circumstances where no right to success exists, but they have
‘more than a hope of success’: FAI Insurance (1981)
o Constructive LE that DM would make decision in accordance with the International Covenant on the Rights of the Child – child’s best interests test – case later criticised: Minister for Immigration v Teoh (1995) o Lam argued he had LE that Dept. of Immigration would contact his children
and their carer (based on the letter sent to him earlier). Held (by majority) NO breach of LE as did not deprive the applicant of any opportunity to advance his case. Very narrow construction of LE – must have actual
expectation. Mere fact that a LE is disappointed will not amount to a breach of the HR – must result in ‘unfairness’ or ‘practical injustice’: Ex Parte Lam
2. Exclusion? Has the legislature showed an intention to exclude the obligation to observe PF requirements?
a. Must have ‘plain words of necessary intendment’, insufficient to have ‘indirect references, uncertain inferences or equivocal considerations’: Ex Parte Miah (2001); Saeed v Minister for Immi (2010)
3. Content of the Hearing Rule in context: Fair procedures are appropriate and adapted to a particular case: Mason J in Kioa v West. In each situation consider:
o Statutory framework (exclude PF? Miah, Saeed)
o Circumstances concerning individual decision to be made o Subject matter of the decision
o Nature of the inquiry o Rules of the tribunal
Generally, three minimum requirements of the Hearing Rule:
(1) Prior Notice: Simply notice that is prior to the decision and adequate in the circumstances.
(2) Disclosure (e.g. CRS allegations): Specificity of complaint is disclosed in
sufficient particularity to enable the person affected to know the case they have to meet – must disclose all credible, relevant, and significant allegations: Kioa v West (Brennan J); Applicant VEAL
(3) Opportunity to be heard: May either be a written submission or oral hearing:
Russell
ADM needs to satisfy all three minimum requirements!
4. Generally, not necessary to show that the breach had a material impact on the decision, or that a different decision might have been reached. Rather, a person is entitled to relief UNLESS the court is satisfied that the breach would have had no bearing on the outcome (i.e. reversal).
a. Note – ‘unfairness’ or ‘practical injustice’ requirement of Ex Parte Lam.
SUMMARY OF CASES
o Rightso to be notified of possibility of an adverse decision?: e.g. Teoh
o to have adverse material disclosed, or at least notice it will be disclosed: e.g. Kioa, Miah, VEAL
o to make submissions in response: e.g. Kioa, Miah, VEAL, Teoh o Interests
o Kioa: esp. discussion of licenses (per Brennan J)
o Legitimate Expectations (behaviour or undertakings that may give rise to LE)
o Regular practice of behavior, LE that this behavior would continue: CCSU v Minister for Civil Service.
o Nature of the application: FAI Insurance (ie licenses)
