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ADMIN WEEK 4/5, what is it: courts ensure that decisions and actions of…

- - - - NEED FOR A 'MATTER'
        
        Re McBain; Ex parte Australia Catholic Bishops Conference (2002) 209 CLR 372. Issue: Did the application by the Catholics Bishop Conference to quash the decision amount to a 'matter' as required by s75(v) of the Constitution? Principle: No. There was no 'real and immediate' controversy about rights, duties or liabilities to be determined by the Court. Hypotheticals do not give rise to a matter and the Bishop's Conference had no more than a theoretical interest.
        S
        
        Source of the power
        
        Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. Issue: Can courts review a decision where the source of its powers are prerogative powers and not a statute?. Principle: Yes, powers derived from the common law (i.e. prerogative powers) can still have consequences for the rights, obligations and legitimate expectations of individuals. However, in cases such as national security where policy considerations must be weighed up by the executive, the judiciary is ill-equipped to deal with such matters.
        
        case of council of civil service unions the minister for the civil service opened up rogative powers to judicial review leaving justiciabililty to be determined by reference to the subject matter of the decision in question
        
        Subject matter of the decision
        
        Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274. Issues: Should courts be able to review decisions made by Cabinet in circumstances where an individual is not accorded natural justice? If so, are there any restrictions regarding the subject matter of the decision? Principle: Cabinet decisions are not immune from judicial review per se. However, complex policy matters (e.g. environment, international relations) may make such a decision inappropriate for judicial review, regardless of whether a party suffers detriment and is not accorded natural justice.
        
        Applicants wanted to challenge a federal cabinet movement to protect the kakadu national park because they had mining interests and they thought that interest would be hindered
        
        s 75(5) relates to an officer of the Cth
        
        officer or authority of the Cth????
        
        the federal court has held that the relevant factor when determining justiciability is not the source of the power but the nature and subject matter of the decision minister for arts V pico Wallsend. For example in this case the whole subject matter of the decission involved complex policy questions relating to the environment which is beyond review by the court.
        
        Subject matter of the decision Include decisiones relating to removal of a minister from office, appointment to judicial office appointment of Queens council decisions concerning deployment of armed forces nature of these powers places them within the exclusive provenance of the executive.
        
        Hicks v Ruddock (2007) 156 FCR 574. Issue: Did the fact that the decision not to intervene with Mr Hick's detention was based on foreign affairs and/or diplomatic negotiations make it non-justiciable?. Principle: No. Rather than exclude areas totally from judicial review, justiciability should be decided upon the ability to examine the grounds of review on which the application was based.
        
        Status of the decision-maker
        
        '[T]he courts will, at the instance of a litigant, examine the exercise of powers so granted [by statute], determining whether the exercise is within the scope of Parliament's grant of power. This will be so whether the grant of power be to the representative of the Crown, to a Minister of the Crown or to some other body or person.'R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
        
        in the 1980s the courts began to reject the traditional view fat decisions made by ministers etc were non justiciable.
        
        FAI Insurance V winneke Governor General acting on advice of ministers was required to accord procedural fairness when deciding to renew an approval to insure workers compensation liability in Victoria. O'Shea free South Australia= the exercise of a statutory power by the governor in council made on the advice of cabinet was reviewable
        
        cabinet decisions are less likely to be non justiciable because of their highly political nature
    - - Courts maintain integrity and strengthen supervisory role by stepping back- 332
      - No such thing as a power that is absolutely non-justiciable.
      - To say that an exercise of power is no justicicivable means that there are within very broad outer limits, no other judicially enforceable limits on the power.
  - - - A statutory provision that attempts to exclude the power or jurisdiction of courts to hear and determine judicial review proceedings or to grant remedies.
        further barries where parliament attmpets to ensure certain government decisions are not challenged in the court
      - Plaintiff 157/2002 v Commonwealth (2003) 211 CLR 476.Issue: Was the privative clause in s 474(1)(c) of the Migration Act inconsistent with s75(v) of the Constitution? Principle: No. The Hickman principles (i.e. bona fide, relates to subject matter, reasonably capable of reference to the power) do not expand the power. Parliament did not intend on cutting down the jurisdiction of the courts. The power of courts to review a decision that is based on a jurisdictional error is guaranteed by the Constitution. This decision, which was infected by jurisdictional error, was 'no decision at all'
        
        the courts will try and re construe the rpivate cause ineffective- here they said the power of the courts to review will be based on jurisdicitonal error
        
        Read it down so words like decions and court in legislation are interpreted in the lens of whether parliament would mean that in terms of availability of judicial review
        
        high courts
      - Kirk v Industrial Court of New South Wales (2010) 239 CLR 531Issue: Did a privative clause in a NSW Act prevent the Supreme Court from judicial review? Principle: No, judicial review is a 'defining characteristic' of a supreme court. Juriscitional errors were not protected by privative clauses.
        
        state courts
    - - Express statutory provision which makes clear that breaches of certain provisions in the same Act are not invalid. Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146
    - - A conferral of statutory power with no duty to either exercise the power or consider exercising the power. Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
    - - Imposing a time limit to commence judicial review proceedings. Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14
    - - Restricting decisions and procedural information can interfere with the ability to judicially review a decision. Graham v Minister for Immigration and Border Protection (2017) 91 AJLR 890
- - - - '/Decision'
      - 'conduct'
        
        ADJR ACT, S 3
        (2) In this Act, a reference to the making of a decision includes a reference to:
        (a) making, suspending, revoking or refusing to make an order, award or determination;
        (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
        (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument
        (d) imposing a condition or restriction;
        e) making a declaration, demand or requirement;
        (f) retaining, or refusing to deliver up, an article; or
        (g) doing or refusing to do any other act or thing;
        and a reference to a failure to make a decision shall be construed accordingly.
        (5) A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation
        ADJR Act, Schedule 1
        Categories of decisions that are excluded from review (e.g. security intelligence bodies
        
        BOND: Issue: Can action taken as part of pending proceeding be reviewable as 'decisions' or 'conduct' under the ADJR Act?
        Principle: A 'decision' generally, but not always, is one that is final, determinative and operative. A 'step along the way' to a decision is not reviewable. A decision is a substantive determination provided for by the statute. 'Conduct' is procedural in nature. 'Action taken'.
        The decision that Mr Bond would not be found fit and proper was not reviewable.
        Australian Broadcasting Tribunal v Bond (1990)170 CLR 321
        
        RIGHT TO LIFE: Issue: Was a request to the secretary to take action to prevent a clinical trial of an 'abortion drug' because it was not in the public interest, reviewable under the ADJR Act?
        Principle: Yes. Public interest was something that the secretary was statutorily mandated to consider.
        Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50
        
        KELSON: Issue: Was an inquiry by the Merit Protection and Review Agency into workplace harassment at the Australian War Memorial a reviewable decision under the ADJR Act?
        Principle: Yes. It is a decision that affects the rights and obligations of an individual and does not involve a fragmentation of the decision-making process.
        Kelson v Forward (1995) 60 FCR 39
        
        ELECTRICITY SUPPLY: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230
        Issue: Are media releases that state a legal position reviewable decisions for the purpose of the ADJR Act?
        Principle: No. The 'decisions' did not determine rights or obligations. They had no consequences, nor the 'quality of finality'. Instead, they were 'opinions'.
        
        EDELSTON:Edelsten v Health Insurance Commission (1990) 27 FCR 56
        Issue: Were a preliminary investigation and a report into whether Dr Edelsten was claiming Medicare benefits for excessive services reviewable under the ADJR Act?
        Principle: No. The investigation and report did not affect Dr Edelsten's rights or legitimate expectations. Whilst they may affect his reputation, they are no more than steps that may lead to an ultimate, operative determination (early stage of investigation).
        
        YUSA BATTERIES:
        Century Yuasa Batteries Pty Ltd v Federal Commissioner of Taxation (1997) 73 FCR 528
        Issue: Is a letter of demand sent to Yuasa notifying it that it had incurred a late penalty and demanding payment an 'ADJR-reviewable' decision
        Principle: No. The legislation does not make provision for the Commissioner to make a determination regarding the applicant's liability. The letter of demand is therefore, not a substantive determination
      - 'Decision.. of an administrative character':
        
        ROCHE PRODUCTS: Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451
        Issue: Was a decision to remove a weight control drug from the Poisons Standard administrative in character, and therefore reviewable under the ADJR Act?
        Principle: No. Deciding the nature of a decision is an evaluative task that does not depend on one single consideration. The decision here was legislative (and therefore, not reviewable) because it. Determined future lawfulness; Was a part of a national system of control.Applied to the substance in general; Included broad policy considerations.Involved public consultation No merits review Required to be published
  - - - Common law v statutory review
        
        stautory schemes: The Commonwealth now has an all-inclusive statutory framework for judicial review (Administrative Decisions (Judicial Review) Act 1977) ('ADJR Act')
        
        Federal Court
        
        Judiciary Act 1903 (Cth), ss 39B(1), 39B(1A)
        (1) ... the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
        (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
        (a) in which the Commonwealth is seeking an injunction or a declaration; or
        (b) arising under the Constitution, or involving its interpretation; or
        (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
        
        Judiciary Act 1903 (Cth), s44(2A)(2A) Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia.
        
        Associated & Accrued Jurisdiction
        
        Associated:
        Conferred by s32 of the Federal Court Act.To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters (the core matters ) in which the jurisdiction of the Court is invoked.'The conferral of jurisdiction in another, different, federal matter in respect of which jurisdiction could be, but has not been, conferred.’Declined in importance since s39B(1A)(c) of the Judiciary Act.
        
        Accrued:
        An 'inherent' (i.e. common law) power of a superior court to settle a controversy by dealing with all the issues that arise out of 'common transactions and facts'.
        Can include non-federal matters
        Example: An ADJR matter and a tort matter (e.g. wrongful imprisonment) heard together.
        
        Under s 474, Migration Act 1958 (Cth) decisions under the Act are final, so only limited jurisdiction (476A).
        Does not preclude original jurisdiction of HC
        
        Appeals from the AAT: ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 44
        Appeals to Federal Court of Australia from decisions of the Tribunal
        
        Appeal on question of law
        (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
        
        The Federal circuit court
        
        ADJR Act 1977, ss 5, 6, 7
        5(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:
        
        s476, Migration Act 1958 (Cth)
        (1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
        (2) The Federal Circuit Court has no jurisdiction in relation to the following decisions]
        (a) a primary decision;
        (b) a privative clause decision;
        
        STATE SUPREME COURTS
        
        S77(iii) Constitution:Vests state courts with federal jurisdiction
        
        JUDICIARY ACT 190
        2ss39(2) & 68 implement s77(iii) by conferring federal jurisdiction regarding civil and criminal matters.
        Implied power to grant an injunction
        
        Federal Court Act (Cth): S32A deals with pending Federal Court applications ‘in chambers’
        
        Jurisdiction of Courts (Cross Vesting) Act (Cth) 1987: Vests state supreme courts with the jurisdiction of other supreme courts.
        
        HIGH COURT
        
        S73 Constitution (Appellate): ‘Question of law of public importance’ (s35A(a)(i) Judiciary Act)
        ‘Interests of the administration of Justice’ (s35A(b) Judiciary Act)
        
        S75 Constitution (Original): IN all matters:S75(v) Where a 'constitutional writ' is sought ...against an officer of the Commonwealth
        S75(iii) Commonwealth is a party,
        
        Judiciary Act 1903 (Cth): S30 – original jurisdiction for constitutional interpretation
        S32 – remedies not granted by the High Court's original jurisdiction
        S33 – habeas corpus, prohibition, mandamus and quo warranto
        S35 – Appeals from State courts
        
        common law: Originates in the inherent jurisdiction of superior courts of record to grant prerogative writs in order to enable a court to determine whether a public sector body (i.e. a public sector agency or an inferior court) is complying with the limits imposed by law
        
        STATE SUPREME COURTS
        
        State Judicial Review Schemes, which arise from Supreme Courts' position as superior courts.
        NSW: Declared in Supreme Court Act 1970 (NSW) s 23. Administrative Law Division.
    - - Ground review= Grounds= reason. The grounds for arguing that an administrative decision has been made in error.
        
        Errors of law v questions of fact (i.e. usually must be an error of law, however errors of law can involve errors of facts)
        
        A court in judicial review may review errors of law but generally not errors of fact
        'The critical nature of the line drawn ... between factual and legal matters varies with the purposes it serves.' (McHugh & Gummow JJ in Applicant s20/2002)
        If a person seeks judicial review, he or she must make out a 'ground of review'.
        
        Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR280.
        
        The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.. .
        
        The ordinary meaning of a word or its non-legal technical meaning is a question of fact.. .
        
        The meaning of a technical legal term is a question of law.. .
        
        The effect or construction of a term whose meaning or interpretation is established is a question of law...
        
        The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.. .
        
        There is no comprehensive list of grounds of review. However, some principles such as fairness, lawfulness and rationality may be identified.
        A ground of review is linked to the power to make the decision (i.e. statutory or executive
        
        COMMON LAW: The High Court has jurisdiction to issue remedies (e.g. s 75(v)), but the grounds for those remedies are not listed in the constitution
        The principles that underpin grounds of review are found in the common law (i.e. the cases)
        The decisions of inferior courts and administrative decision-makers can be reviewed
        To make out a ground of review there must be a jurisdictional error
        
        Jurisdictional error Where a decision-maker has gone beyond the limits of their powers ... where he or she does something that he or she is not entitled to do
        May arise in different ways. For e.g., a decision-maker may ask the wrong question, ignore relevant material, rely on irrelevant material or breach natural justice.
        Traditionally, jurisdictional error has been defined more narrowly in relation to inferior courts than administrative tribunals (Craig v South Australia)
        In Australia, jurisdictional error has constitutional significance. S 75(v) ensures the availability of judicial review for jurisdictional error (Plaintiff s157)
        A decision that is found to be affected by a jurisdictional error will be void
        
        Error within jurisdiction:Where a decision-maker incorrectly decides something which he or she is authorised to decide. The 'authority to go wrong. '
        Will not make the decision void. Instead will be set aside (if there is a statutory appeal) or certiorari will apply
        Where a decision-maker incorrectly decides something which he or she is authorised to decide.
        
        Error on the 'face of the record' : what is the record?= document that initates the proceedings, the pleadings, the adjudication, BUT NOT the evidence, the reasons the transcripts
        
        STATUTORY:The ADJR Act, and its State and Territory equivalents, provide statutory grounds of review.
        Most of these mirror the common law grounds, although some are 'catch-all' grounds which are designed to cover any ground of judicial review.
        The content of statutory grounds of review are found in the common law.
        
        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;
        See also s 6, which relates to conduct.
        No need to make out a jurisdictional error