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ADMIN WK 6,7,8 JUDICAL REVIEW GROUNDS - Coggle Diagram

- - - - Entick v Carrington (1765) 19 St Tr 1030
        Issue: Did the Secretary of State have the power to seize papers that allegedly contained seditious writing? Principle: No. No person can invade private property (i.e. trespass) except by some positive law. There was no such authority in this case. A person has a right to preserve his or her property where it has not been taken away by a public law for the benefit of whole society (i.e. 'the good of the whole')
      - A v Hayden (No 2) (1984) 156 CLR 532
        Issue: Did confidentiality clauses in the contracts of employment of security officers prevent the disclosure of their identity in circumstances where a criminal act was committed?
        Principle: Executive power must be exercised in line with the laws of Parliament and the Constitution. There is a duty to disobey unlawful orders.The e xecutive cannot confer immunity from prosecution
      - Independent Commission Against Corruption v Cunneen (2015) 318 ALR 391
        Issue: Did the term 'adversely affect' (re corrupt conduct)extend to adversely affecting probity or efficacy in the exercise of power? Principle: 'Adversely affect' could not extend to efficacy as this would mean that ICAC would go beyond its traditional coercive powers to criminal matters that had nothing to do with corruption.
  - - - common law approaches assumptions and presumptions
        
        Common law principles guide the courts in statutory construction Akin to a 'common law bill of rights?’ Rebuttable; In some cases, by words or implication In other cases, only rebuttable by clear and unambiguous language
        
        Established freedoms and immunities
        
        Issue: Can a statute override an established common law right? (The common law right in this case was the right against trespass)
        Principle: A statute can only override an established common law right by clear and unambiguous language; orBy implication, but only when it is necessary to prevent statutory provisions from becoming inoperative. There is a presumption that the legislature will not authorise tortious conduct. Coco v The Queen (1994) 179 CLR 427
        
        Issue: Were regulations that prevented people from engaging in conduct that caused 'annoyance or inconvenience' at the World Youth Day legally valid? Principle: Where constructional choices are open (i.e. ‘regulating…the conduct of the public’), an Act should not be construed so as to encroach upon common law rights and freedoms. The right here is freedom of speech, understood as a part of personal liberty. Evans v State of New South Wales (2008) 168 FCR 576
        
        Implied incidental power
        
        Issue: Were tourist facilities and a restaurant necessarily incidental to the authority conferred by the three statutes that provided the authority for the construction of the 'Telecom' tower? Principle: No. Necessarily incidental means activities that are necessary for the fulfilment of performing those acts and matters which are expressly authorised by the statute. It is not enough that the acts (i.e. tourist facilities) are economic or convenient. Kent v Johnson (1972) 21 FLR 177
        
        Issue: Were tourist facilities and a restaurant necessarily incidental to the authority conferred by the three statutes that provided the authority for the construction of the 'Telecom' tower? Principle: No. Necessarily incidental means activities that are necessary for the fulfilment of performing those acts and matters which are expressly authorised by the statute. It is not enough that the acts (i.e. tourist facilities) are economic or convenient. Kent v Johnson (1972) 21 FLR 177
        
        Issue: Are the duties of a Minister restricted to the express words of a statute? Principles: The specific provisions of the statute did not express the limits of the functions imposed on the Minister. Instead, the Minister is clothed with a ‘general authority’ due to individual ministerial responsibility and the responsibility of administering the relevant legislation. Herscu v The Queen (1991) 173 CLR 276
        
        Pecuniary Burdens and Penalities
        
        Issue: Can the Food Controller (a govt Minister) impose a licensing scheme, which diverted funds from one dairy production area to another, without legislative backing? Principle: No. Only Parliament can approve the imposition of pecuniary burdens and penalties. [Attorney-General v Wilts United Dairies Ltd (1921) 37 TLR 884
        
        State of mind and subjective terminology
        
        Principle: A statutory opinion is that of 'a reasonable [man] who correctly understands the meaning of the law under which [he] acts’. If not, the necessary opinion does not exist. R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
        
        Stautory requirements for reasonable grounds
        
        Issue: What is required when a statute prescribes that there must be ‘reasonable grounds’ for a state of mind (i.e. 'If it appears to a justice’)? Principle: The existence of facts to induce that state of mind in a reasonable person. George v Rockett (1990) 170 CLR 104
- - - - Restrictive test (to avoid forcing the decision-maker to consider every relevant fact of which he/she was aware).
        It must be established that the decision-maker had a statutory obligation to consider the matter.
        Often not express so relevant considerations must be obtained by the scope, purpose and subject matter of the statute.
        In regards to an unconfined discretion an obligation to consider a matter should not be readily implied.
        Failure to take into account a relevant consideration can be either:
        A failure to take into consideration a fact that he/she had constructive or actual knowledge of. Have to have an expressed or implied statutory obligation to take it into account; or
        A failure to inquire into relevant matters, i.e. a ‘duty of inquiry’.
    - - To determine if a decision-maker has considered a matter It is often taken on face value - either by assertion by the decision-maker or by mention in the statement of reasons. Sometimes, there has been a more exacting standard applied (i.e. 'proper, genuine and realistic consideration')
        
        Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363ISSUE Did the Minister's decision to adopt a recommendation by a committee not to impose a fee change fail to consider relevant matters? PRINCIPLE/FINDING: It was open to the Minister to adopt a report by the committee without himself considering all of the evidence that was before the committee. Where a Minister adopts the conclusions of the committee, he/she also adopts any errors of law therein, which means the decision is not immune from review. It is up to the decision-maker to decide what are relevant considerations. The grounds of review will only be made out if the Minister is shown not to have taken something into consideration that he/she was statutorily obliged to consider.
        
        Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
        FACTS/ISSUES: Did the Minister fail to take into account relevant considerations when he did not take into consideration submissions by Peko-Wallsend that the proposed Aboriginal land claim adversely affected all - not some - of the land Peko-Wallsend mined upon? Where a departmental officer summarises the facts for the Minister and he/she omits certain facts, can it be said that the Minister did not take into account those facts when he did not know about them (and was entitled to rely on the report of the officer)?
        PRINCIPLES/ISSUES: If there is material in possession of the Minister, received after the report has been made, which shows the position has changed since he made his report, he must take it into consideration. The content of the report was held to be constructively in his possession. This is a decision that the Minister must consider personally due to the effect on the applicants & the fact that there is ‘satisfied’ test in the legislation.
        What is to be taken into account must be determined by the statute. Where considerations are expressly set out in the Act, the court must work out if they are exhaustive or inclusive. Where they are not set out in the Act, relevant considerations must be determined by the subject matter, scope and purpose of the Act. Where the discretion is unconfined, there must be an implication that a certain matter must be taken into account from the subject matter, scope and purpose of the Act. The Minister must take into account the four elements of detriment set out in the Commissioner’s report (directly referred to in the Act) as, although it is not expressly stated in the Act that he is to do so, it can be implied by subject matter, scope and purpose.
        This is especially so when the detriment suffered goes straight to the rights/legitimate expectations of the parties involved. Under the Act, Aboriginals would have the right to veto or charge for mining rights
        
        Tickner v Chapman (Sub nom Norvill v Chapman) (1995) 57 FCR 451ISSUE: Did the Minister fail to take into account relevant considerations when he did not read all of the submissions and two confidential annexures to a report on the potential detriment of a bridge development on a 'significant Aboriginal area’? The Minister chose not to read the annexures because according to the tradition of the Ngarrindjeri people, it could not be read by men. PRINCIPLE: The report was a relevant consideration because the legislation required that the Minister personally consider any 'representations attached to the report’. The Court suggested that the Minister could have requested permission to read the report or appoint a temporary, acting Minister who was female.
        
        Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1ISSUE: Was the wording in a letter from a delegate of the minister indicating that matters had been taken into consideration (i.e. 'has been read', 'has been made aware of') evidence that relevant matters were taken into consideration PRINCIPLE: No. The various phrases were used in a perfunctory ('without real interest') way. Consideration into the merits of the case must be 'proper, genuine and realistic' (Khan, per Gummow J).
        
        Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
        ISSUE: Did the fact that the tribunal decided to give no weight to two letters about the Applicant's religious conversion amount to a failure to take a relevant consideration into account? PRINCIPLE: No. A decision not to accept evidence (i.e. not to phone the numbers on the letter) is a matter for the tribunal. It may be a matter that reasonable minds might differ on but it is not irrational.
- - - - what matters were consdiered
        
        What does it mean to ‘consider’ a matter? It is usually obvious that a matter was considered on the basis of the statement of reasons, administrative material or adoption of an irrelevant policy etc. Sometimes decision makers will look over a lot of material, a lot of which will be irrelevant. It is not a problem that they have looked at irrelevant material, just as long as it was not taken into consideration
        
        was anything taken into account irrelevant
        
        In many cases, what is irrelevant will be obvious from the statute. However, in other cases there will be a need to draw inferences from other features of the legislation, i.e. the language and object of the Act, the nature of the decision and decision maker. Either way, it must be something the decision-maker is 'obliged to disregard’. The absence of reasons cannot of itself provide evidence that there was irrelevant considerations taken into account. But the decision maker cannot complain that when other facts and evidence point to another decision, the court draws the inference that he/she had no rational reason for his/her decision. What happens when the thing that is to be taken into account is broad, like public interest? Usually, the courts will allow a broad discretion (within reason) but in some cases they may look back to the statute or add an external dimension - such as human rights elements.
        
        EFFECT of an irrelevant consideration on the validity of a decision
        
        To invalidate a decision because of an irrelevant consideration, it will generally be required to show that the irrelevant consideration was not insignificant.
        
        Water Conservation and Irrigation Commissioner (NSW) v Browning (1947) 74 CLR 492 ISSUE: Did the Commission's decision to refuse Mr Carbone an irrigation lease take into account irrelevant considerations, being that the land should be kept for returned soldiers, that Italians were not good irrigation farmers and 'enemy born' people (WWII context) should not hold land? PRINCIPLE/FINDINGS: There were no positive indications of relevant considerations in the Act. It is not appropriate for the court to consider the basis for the policy - the Commission is an administrative agency with full discretion, although it is not meant to be arbitrary or completely unlimited.
        It did not appear that the Commission had been prompted by anything but the welfare and development of the irrigation area, which went straight to the scope and purpose of the Act. Therefore, irrelevant considerations were not taken into account.
        
        Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1FACTS/ISSUES: Did the Minister take into account irrelevant matters when he considered the environmental impact of mining on Fraser island?
        PRINCIPLE/FINDING: No. The regulations conferred wide powers. No general criteria emerged to limit the considerations. The Minister is free to have regard to the environmental effect of mining as the discretion is intended to be wide enough to embrace every consideration affecting advantage or disadvantage.
        
        Padfield v Minister of Agriculture, Fisheries and Food (1968) AC 997ISSUE: Did the Minister's decision to not appoint a committee of investigation take into account irrelevant considerations (i.e. policy reasons - the issues were wide, self-government of the industry) PRINCIPLES/FINDINGS:Yes. The Minister must have some duty to exercise his discretion. Where the board acts contrary to the public interest, the Minister must act.
        
        Roberts v Hopwood [1925] AC 578ISSUE: Councils had a wide discretion to pay their employees whatever salaries and wages they thought fit. The council decided to set a wage that paid 4 pounds more to men than women, which in fact was a much bigger wage increase for women. FINDINGS: Where the wages are for people whose salary the ratepayer contributes to, the council must consider what is fair, just and reasonable and is not to be guided by some “eccentric principles of socialistic philanthropy” or feminist principles (i.e. irrelevant considerations).
        There is no rational proportion between what the women are paid and the rates for which they are reasonably remunerated. They are more 'gifts and gratuities'.
        
        Ex parte S F Bowser & Co; Re Municipal Council of Randwick (1927) 27 SR (NSW)ISSUE: Was the adoption of a policy by the council to only allow the erection of Australian-made petrol bowsers an irrelevant consideration? PRINCIPLE Yes. The policy was of general concern and general interest and should only be dealt with by the legislature, not a body exercising limited powers within a limited area.
- - - - what is the authorised purpose
        
        Statutes will often expressly state their purpose. If there is no express purpose, statutory interpretation may be used (i.e. title, structure and text of an Act). Can some categories of statutory power be used for any purpose? For example, can the Governor-General, using his or her power under section 64 of the Constitution to dismiss a Minister, be examined as to whether he or she was exercising that power for an authorised purpose?
        
        what is the actual purpose of the decision
        
        Some decisions will openly state what their purpose is. However, when it is not obvious, evidentiary material must be taken into account, which can be burdensome. This difficulty is conflated when a multi-member group made the decision.
        
        Multiple Purposes What happens when the decision-maker knew that there was more than one purpose for the exercise of power, one or more being improper? Does this make the decision invalid?
        
        cases
        
        Municipal Council of Sydney v Campbell [1925] AC 338 ISSUE: The Sydney Corporation Amendment Act 1905 allowed the council to purchase or resume land for the express purpose of “carrying out improvements in or remodelling any portion of the city”. Was the council's resumption of streets around Martin Place an exercise of power for an improper purpose? PRINCIPLE: Yes. The purpose of the resumption was not for 'improvements' but to ensure that the Council gained the advantages of the consequent rise in the value of the property. 'A body ... authorised to ... take land for specific purposes, will not be permitted to exercise its powers for different purposes' (Duff J)
        
        R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 ISSUE: Was the enactment of a regulation that extended the town boundaries of Darwin to include an area of land that was subject to a land rights claim made for an improper purpose? PRINCIPLE: Yes. The Planning Act 1979 authorised regulations that were 'permitted ... or necessary or convenient ... for carrying out or giving effect to this Act. 'The Administrator enacted the regulation for the ulterior purpose of defeating an Aboriginal land claim (which excluded 'towns'). The authorised purpose was 'planning’. Nb. It made no difference if the power was exercised by a Minister or a representative of the Crown.
        
        Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 ISSUE: The Board was authorised to compulsory resume land for any purpose of the Act. Could it resume land for the purposes of expanding its office space when it would economically benefit from that resumption? Half the title was to be transferred to GIO and a retail area was to be built. The Applicant argued that the Board could build a much smaller building on the block and if not for the deal with GIO, they would not be building this particular development. PRINCIPLE: Would the Board have resumed the land at all if they weren’t able to achieve their ‘improper’ purpose? If not, the improper purpose was the 'true & dominant' purpose and the decision would be invalid. I.e. ‘But for’ the ulterior purpose would the power have been exercised? If the true and dominant purpose was authorized under the Act, the decision would not be invalid.The provision of offices was the primary function, the deal with GIO subsidiary and a means to an end.
        
        Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 ISSUE: Did the Minister for Immigration and Ethnic Affairs exercise his powers to deport Mr Schlieske for the improper purpose of extradition? PRINCIPLE: Although the discretion to deport people is a very wide one, it still must be exercised in accordance with the objects of the Migration Act. Whilst the Minister could take into account relevant considerations such as a person’s criminality, he cannot take into account the fact that person is wanted for his criminality in another country. Extradition is dealt with under a different head of power under the constitution (‘external affairs power’) and has its own operative act. This does not mean that the Australian government cannot deport him - but they must do so for proper purposes.
        
        Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 Issue: Was the Minister's decision to issue a temporary safe haven visa made for an improper purpose? (I.e. to prevent the applicant from applying for a protection visa?) Principle: No, the statutory criterion of 'public interest' is very wide, which requires a discretionary value judgement. Related to high-level policy. Hayne J's (dissent) demonstrates concerns about the broadness of the term 'public interest'.
- - - - s 5(1)(h)that there was no evidence or other material to justify the making of the decision;
        
        Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222. ISSUE: Was the Applicant an unreliable witness? FINDING: The decision was not ‘based on’ the two factors that were non existent. A decision could be said to have been ‘based on’ (s 5(3)(b)) a particular fact only if the decision-maker’s mistaken finding of that fact’s existence was ‘critical’ to the decision. The two factors were not critical to the decision.
      - Section 5(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
      - Alternative ground: Section 5(1)(f) "error of law" (Bond)