TOPIC THREE: GROUNDS OF REVIEW
1. Procedural fairness 2. Initial determination 3. Improper exercise
What are the grounds of review?
Grounds are the bases for arguing that a court should grant relief (e.g. ‘grounds of appeal’ or ‘grounds for a cause of action’
In judicial review, the term refers to the grounds for arguing that a decision has been made in error
Role is to review LAW, not FACTS
Administrators have authority to get the facts wrong Exceptions:
− Jurisdictional fact
− No evidence
− Unreasonableness
For prerogative/constitutional writs you need to show there is a jurisdictional error For statutory judicial review, just need to point to one of the grounds in ss 5, 6, or 7
Establishing one ground is enough to show error Common law and constitutional review grounds
s 75(v) does not mention grounds of review
Distinguishing Fact and Law
Collector of Customs v Pozzolanic Enterprises Pty Ltd
1. The question whether a word or phrase is to be given its ordinary meaning or some technical or other meaning is a question of law
2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact
3. The meaning of a technical legal term is a question of law
4. The effect or construction of a term whose meaning or interpretation is established is a question of law
5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law
BUT in practice, there is little room for ‘pure’ errors of fact in statutory interpretation e.g. meaning and construction
Difference between fact finding process (questions of fact), and then having found the facts, whether those facts fall within the terms of a statutory provision (questions of
law)
Procedural Fairness/ Natural Justice
ss 5 & 6 AD(JR) Act
(1) A person who is aggrieved by a decision to which this act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision
One of the most commonly argued grounds
Concerned with the process/procedure by which a decision is made, rather than the substance of, or the reasoning that led to, the decision
Rationale:
Contributes to better decision-making; helps decision makers made a rational and well-informed decision
Legitimises system of government
Recognises a person’s right to be treated with respect and dignity and to participate in government decisions that affect him or her
Developed in relation to inferior courts Constitutional dimension re ‘judicial power’
Includes requirement of judicial process
‘Defining characteristic of courts’
Impacts on states through Kable and Kirk principles and institutional integrity
but state legislation can abrogate procedural fairness to some extent
How to establish procedural fairness
1. Threshold requirement – is there an obligation of procedural fairness? ; and 2. Statutory exclusion of procedural fairness; and
3. Hearing Rule; or 4. Bias Rule
The Threshold Test: When do the rules of Procedural Fairness Apply?
Historically only required where:
Decision affects legal rights; and
Decision-maker is a court or under an obligation to act judicially e.g. license holder compared with licence applicant
First question to ask – Whether the rules of procedural fairness apply to this decision?
Touchstone of modern understanding of procedural fairness - Kioa v West:
Obligation to afford procedural fairness attached to administrative decisions which affect rights or interests in a direct or immediate way
Main points:
1. Must need to show it’s a right or interest (legitimate expectation no longer part of test)
2. Has to affect individual in a direct way 3. It must not be excluded by statute
Source different but of little practical relevance because implied as a matter of statutory interpretation by common law: Plaintiff s 10
Legitimate expectations has been disapproved by the HCA, while ‘interests’ is broad enough to encompass ‘rights’
Statute conferring a power the exercise of which is apt to affect an interest of an individual in a direct and immediate way is presumed to confer that power on the condition that it is exercised in accordance with the rules of procedural fairness:
Minister for Immigration and Border Protection
Rights, Interests and Legitimate Expectations
‘Interests’ may fall short of legal rights, including proprietary and financial interests and reputational interests, but they are not limited to those traditionally recognised areas
Procedural fairness applies to decisions affecting any of the large and increasing variety of interests affected by the exercise of statutory powers
Concept of ‘legitimate expectations’ is no longer relevant to the
threshold test: Minister for Immigration and Border Protection v WZARH A lot of decisions revolving around the Minister’s dispensing powers under Migration Act 1958 (Cth)
Offshore Processing Case: IMR had no direct legal effect because Minister under Migration Act had to make decision. Procedural fairness applied because IMR process prolonged period in detention and affected right to liberty
Direct and Immediate Effect on Individual Interests
A decision will only attract a duty to accord procedural fairness if it affected rights or interests in a ‘direct and immediate’ way – Kioa v West
‘Affects interest of individual in a manner which differs substantially from the manner in which it is apt to affect the interest of the public’
Like standing, but standing is broader particularly in ‘public interest’ cases e.g. Botany Bay City Council v Minister of State for Transport and Regional Development – may be possible to get standing without demonstrating an actual right to be heard
Why do we impose this limitation?
Efficiency
Decision that effects general public likely to be based more on broad policy factors than individual interests
for example, multi-stage decision-making: Is a person affected entitled to procedural fairness at every stage of the process?
− Not uncommon for final decision to be proceeded by a recommendation of another person or body
− Only final decision affects legal rights but preceding steps may be critical
− Is a person entitled to procedural fairness re proceeding steps?
− Sometimes a statute itself will provide for a multi-stage process e.g. O’Shea statute provided for SA government and council to release an offender on licence on recommendation of Parole Board. Must look at entirety of the process whether procedural fairness was met. If a final decision-maker simply relies on the recommendation it is more likely that the denial of procedural fairness in making that recommendation will affect validity
