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Week 8 Law, Fact and Evidence See Section 6 of Lecture Notes for quick…
Week 8
Law, Fact and Evidence
See Section 6 of Lecture Notes for quick summary
No Evidence
Judicial Review - Common Law
three instances when the lack or absence of evidence (i.e. no evidence) is a ground for judicial review at common law
Indicates that the proper exercise of the power has not arisen:
R v Australian Stevedoring Industry Board
; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; and
lack or absence of evidence to satisfy an essential statutory element of the decision can indicate that the proper exercise of the decision-maker’s power has not arisen.
Amounts to serious irrationality or illogicality which gives rise to jurisdictional error or Wednesbury unreasonableness:
Buck v Bavone
(1976) 135 CLR 110; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
The lack or absence of evidence to satisfy an essential statutory element of the decision can appear “so unreasonable that no reasonable authority could properly have arrived at it” and give rise to a ground for judicial review
Minister for Immigration and Citizenship v SZMDS
(2010) 240 CLR 611, Crennan and Bell JJ adverted to “an allegation of illogicality or irrationality (which) provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact.”
Minister for Immigration v Eshetu
(1999) 197 CLR 611, Gummow J also said: “(T)he issue whether a statutory power was enlivened turns upon the further question of whether the requisite satisfaction of the decision-maker was arrived at reasonably.”
Constitutes an error of law:
Minister for Immigration v Eshetu
(1999) 197 CLR 611.;
Gummon J stated that “the absence of evidence is an error of law”.
Mason CJ in
Australian Broadcasting Tribunal v Bond
(1990) 170 CLR 321 also pointed to “the traditional common law principle that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law.”
Judicial Review - AJR Act
S 5(1)(h) provides that a person who is aggrieved by a decision to which the ADJR Act applies may apply for an order of review in respect of the decision “that there was no evidence or other material to justify the making of the decision.”
This provision is qualified by s 5(3) which provides that the ground “that there was no evidence or other material to justify the making of the decision” shall not be taken to be made out unless:
• There was no evidence or other material from which the decision-maker could reasonably be satisfied that a particular matter required by law to be established was established
• A particular fact on which the decision is based did not exist: s 5(3)(b). This can be simply expressed as “reliance by the decision-maker on a non-existent fact”
EVIDENCE AND ADMINISTRATIVE FACT-FINDING
AAT
• The tribunal shoulders the responsibility of being reasonably satisfied on each component issue.
• The standards of proof that apply in civil litigation do not apply in administrative decision-making
• A tribunal can accept as evidence a finding of fact made by a court in another case.
• (T)here is no doctrine of administrative estoppel. As a consequence, a government agency is not generally bound by its own earlier decisions, findings of fact, advice and representations
Australian Broadcasting Tribunal v Bond
(1990) 170 CLR 321 on evidence in decision-making is highly informative
Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.
• A tribunal that is not bound by the rules of evidence can receive any material submitted by the parties and in any form
JUDICIAL REVIEW OF FACT-FINDING ERRORS
it is beyond the scope of judicial review to examine administrative decisions for factual correctness or factual errors. These properly belong to merits review.
Australian Broadcasting Tribunal v Bond
(1990) 170 CLR 321, “(I)t is said that ‘(t)here is no error of law simply in making a wrong finding of fact’.”
there are instances when fact-finding errors are judicially reviewable
• Breach of natural justice;
• Decision not authorised by the enactment pursuant to which it was purportedly made;
• Taking an irrelevant consideration into account;
• Failing to take a relevant consideration into account;
• Reliance by a decision-maker on a non-existent fact;
• Wednesbury unreasonableness;
• Failing to base a decision on logically probative evidence;
• Failing to satisfy a jurisdictional fact; and
• Jurisdictional error