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Administrative Law - Coggle Diagram

- - - - Availability
        
        Jurisdiction (can THIS COURT hear this matter)
        
        First distinguish between Cth and State/Territory
        
        High Court (s 75 Constitution)
        
        Federal Court (s 8(1) ADRA Act; s39B and s 44(2A) Judiciary Act
        
        Federal Circuit Court (same jurisdiction as Federal Court, less extensive)
        
        Justiciability (can the court review THIS DECISION), is it appopriate or fit for judicial determination or evaluation
        
        Separation of powers
        
        Judicial powers
        
        Justiciability in the ADJR Act
        Applications for judicial review available under ss5-7 of ADJR Act
        
        5) Review a decision
        
        6) Review conduct
        
        Review a failure to make a decision
        
        Four elements of justiciability
        
        A DECISION
        
        Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
        
        3 more items...
        
        Of an ADMINISTRATIVE CHARACTER
        
        Not legislative or judicial - Burns v ANU (1982) 40 ALR 707
        
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        Not an EXCLUDED DECISION
        
        SOME exclusions
        
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        Made UNDER AN ENACTMENT
        
        Decision takes it legal force from statute - Griffith University v Tang (2005) 221 CLR 89
        
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        Standing (can THIS APPLICANT ask the court to review this decision) A stake or interest in the decision
        
        Standing is needed to avoid frivolous, vexatious and hypothetical actions
        
        There is a need for a "personal" stake in the outcome in order to sharpen the presentation of issues to the court
        
        It is better to tolerate some illegality if the persons most directly affected by some administrative action is not bothered enough to sue themselves
        
        Floodgates arguments and the saving of court resources
        
        Speical interest test
        
        Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114
        Where the alleged interference with the public right is such that some private right of the plaintiff has also been interfered with
        and
        Where no private right is infringed but the plaintifff has suffered "special damage peculiar to himself" from intereference with the public right
        
        ACF v Commonwealth (1980) 146 CLR 493 at 530 - 531
        
        ...an interest, for peresent purposes, does not mean a mere intellectual or emotional concern
        
        "A person is not interested within the meaining of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, i his aactions succeeds or to suffer some disadvatage, other than a sense of grievance or a debt for costs, if his action fails".
        
        "A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi"
        
        "If that were not so, therule requiring special interest would be meaningless. Any plaintiff who feels strongly enough to bring action could maintain it."
        
        Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
        
        A desecration of sacreds sites would be a criminal offence under the Archaeological and Aboriginal Relics Preservation Act 1972 Vic
        
        The High Court held that the Act did not create private rights in the indigenous people concerned, but that the plaintiffs did have a special interest in the matter, beyond that of the public generally
        
        This was because the relics were so significant to the plaintiffs in both a cultural and spiritual snese that the interest was more than mere intellectual or emotional concern
        
        Two limbs
        
        Positive - interest mus be special, in the sense of being different to that of the public at large
        
        Negative - interest must not be 'merely intellectual or emotional'
        
        ADJR Act s 3(4)
        (a) a reference to a person aggrieved by a decision includes a reference:
        (i) to a person whose interests are adversely affected by the decision
        
        Application of Special Interest
        
        Material interests
        
        Davis v Commonwealth (1986) 61 ALJR 32; 63 ALJR 35
        commercial interests in producing articles
        
        Day v Pinglen Pty Ltd (1981) 148 CLR 289
        building work on adjoiining property
        
        King v Goussetis (1986) 5 SWLR 89
        tenant had standing to enforce fire prevention regulations
        
        Environmental groups with commercial interests
        
        Tasmanian Wilderness Society v Fraser (1982) 56 ALJR 763
        borrowing money for the Gordon below Franklin Hydro-electric power station
        did not have standing
        
        Central Qld Speleological Society v Central Qld Cement [1989] 2 QdR 512
        restrain a company from mining activities in and around speaking tube cave
        did not have standing, defendants mine would not impact society's operations of tours
        
        FIDO v Hervey Bay Town Council [1983] 2 QdR 72
        local council approved subdivison at Orchard Beach, Fraaser Isand
        
        Indigenous interests
        
        Davis v Cth (1986) 61 ALJR 32; 68 ALR 18
        Gibbs CJ rejected the submission that "members of a race to whom wrongs had been done in the past" was a ground for standing in a matter that concerned the Bicentannial "celebrations"
        
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        Coe v Gordon [1983] 1 NSWLR 419
        
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        Spiritual Interest
        
        Ogle v Strickland (1987) 71 ALR 41
        
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        Right to Life Association (NSW) Inc v Secretary Dept of Human Services and Health (1994) 128 ALR 238
        
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        Environmental Intereests (no commercial)
        
        Narrow approach - ACF v Cth (1980)
        
        Broader Approach - ACF v Minister for Resources (1990)
        
        More likely to have standing if
        
        3 more items...
      - A ground of review
        
        No evidence
        
        Unauthorised decision
        
        Wednesbury Unreasonableness
        
        Statutory purpose
        
        Relevant and Irrelevant considerations
        
        Natural justice
      - A remedy
        
        Common law
        
        Certiorari
        
        Prohibition
        
        Habeas Corpus
        
        Mandamus
        
        Equitable
        
        Injunction
        
        Declaration
        
        Administrative
        
        Statutory remedy
    - - Merits
        
        Questions of fact and law
      - Judicial
        
        Questions of law
  - - - ADJR Act
        
        s 5(1) and (2)
        
        Associated benefit of reasons for decison etc
        
        Requires Act to apply (ie decision of administrative character made under an enactment)
      - Common law
        
        Developed via case law
        
        Not limited by statute (eg. privative clauses)
      - In this unit
        
        Relevant and irrelevant considerations
        
        Natural justice
        
        Statutory purpose
        
        Unreasonableness
        
        Unauthorised decision making
        
        No evidence
    - - Decision not authorised by the enactment pursuant to which it was purportedly made
      - Taking an irrlevant 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
      - Jurisdictional error
      - Breach of natural justice
  - - - ADJR Act
        
        s 5(1)(h): there was no evidence or other material to justify the making of the decision
        
        s 5(3)
        (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
        Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222
        (b) the person who made the decisioin based the decision on the existence of a particular fact, and that fact did not exist.
        Curragh Queensland Mining v Daniel (1992) 34 FCR 212
    - - Principle of legality
        
        if no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment - Camden CJ in Entick v Carrington
        
        the principle of legality has been applied on many occasions by this court. It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate - French CJ in Momcilovic v The Queen (2011) 85 ALJR 957
      - Types of unautohrised decisions in the ADJR Act
        
        Procedures not followed s 5(1)(b)
        
        Three questions (Project Blue Sky)
        
        Does the Act specify a procedure to be followed?
        
        Types of requirements
        Applications: pension application in writitng Formosa v Department of Social Security
        Decision-making steps: process of consultation QML v Bennett
        Post-decision steps: statutorty requirements to provide reasons - OurTown FM Pty Ltd v ABT (1987)
        
        Was the procedure breached?
        
        What did the decision maker do/not do? Look to the facts
        
        Legal consequences of the breach
        Is it the purpose of the statute, that an act done in breach of the procedure should invalidate the decision? - Project Blue Sky Inc v ABA per McHugh, Gummow, Kirby, Hayne
        
        Three possible answers
        
        Any breach no matter how minor, invalidates action (mandatory procedures)
        
        No breach, no matter how glaring, ever invalidates the action (directory procedures)
        
        Failure to substantially comply invalidates the action
        
        DM did not have jurisdiction to make the decision s 5(1)(c)
        
        Classic formulation: If X exists, Y may do Z
        
        Two ways of reading
        
        X must exist before Y has the power to do Z
        
        Jurisdictional fact, can be reviewed
        
        Y's jurisdiction includes deciding whether or not X exists
        
        Non-jurisdictional fact, not reviewable
        
        Wrong finding of fact is an error within the jurisdiction - merits review instead
        
        Jurisdictional and non-jurisdictional facts
        
        "where X exists", "when X exists", "if X exists" indicates jurisdictional fact
        
        "where in the opinion of the Minster, X exists", If in the opinion of the Minister, X exists" indicates non-jurisdictional face
        
        Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2008)
        
        Paull v Munday
        
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        Decision ont authorised by enactment s 5(1)(d)
        
        Making a decision was an improper exercise of power s (1)(e)
        
        Decision involved an error of law s 5(1)(f)
    - - Procedural Fairness
        
        When does apply?
        
        Four common ways of include procedural fairness
        
        Direct detriment to existing benefit
        
        Adverse allegations and objections
        
        Legitimate expectations of being heard
        
        Legitimate expectations of receiving a benefit
        
        s 5(1)(a) - review on the ground of "a breach of the rules of natural justice occurred in connection with the making of the decision"
        
        Mason J inKiao v West "Par (a) does not impose an obligation to apply the rules of natural justice where, apart from s 5, there is no obligation on a person making a decision to comply with these those rules or any of them"
        
        Common law: Brennan J in Kiao v West - "when the legislature creates certain powers, the court presumes that the legislature intends the principle of natural justice to be observed in their exercise in the absence of clear contrary intention".
        
        may be expressly provided for in statute
        
        is usually implied
        
        can be expressly excluded (but must be very explicit, and read narrowly) - Commissioner of Police v Tanos
        
        Gray J in Workcover Corp of SA v Davey (2011) 110 SASR 173 summarised the factors to be considered if natural justice applies
        
        whether the original decision is preliminary or final
        
        whether the original decision is made in public or private - requirements are more likely to apply to decisions made in public. Reputation at stake.
        
        whether the decision maker must comply with formalities - where the original decision maker is required to follow formal procedures, it can be inferred that the appeal is not the sole source of procedural fairness.
        
        whether the decision is on an urgent nature
        
        whether the breadth f the appeal is limited or is to be heard de novo - if there is a de novo appeal on the merits of the case, it is more likely that the original decision maker does not need to comply with the requirements of procedural fairness, or is required to do so to a limited extent.
        
        whether the appellate body is judicial, internal or domestic - where the appellate body is a court, it is more likely that the right of appeal is intended to limit or exclude the need for the original decision maker to comply with the requirements of procedural fairness
        
        whether the nature of the interest, the consequences for the individual and the subject matter of the litigation suggest that the original decision maker would need to comply with the requirements of procedural fairness.
        
        Content of Procedural Fairness
        
        the critical question isn't whether the principles of natural justice appl. It is: what does the duty to act fairly require in the circumstances of the particular?"
        "what is appropriate in terms of natural justice depends on the cricumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision maker is acting." Mason J in Kioa v West
        
        Rule against bias
        
        General test (Laws v Australian Broadcasting Tribunal): whether a fair minded person might reasonably suspect that the decision maker might not resolve the issue with a fair and unprejudiced mind
        "The question is not whether the decision makers mind is blank; it is whether it is open to persuasion" - Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia (2001)
        
        Bias can be actual or apprehended
        
        4 kinds of bias (Webb v R per Deane J)
        
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        Bias may be tolerated if
        
        it is waived (impliedly by not objecting promptly after the facts become known) - Vakauta v Kelly (1989)
        
        Doctrine of necessity - no decision maker is available because all are tainted by apprehension of bias - Laws v ABT (1990)
        
        Hearing Rule
        
        Required
        
        disclosure of an outline or substance of the information on which the decision is to be based
        
        opportunity to comment on that information and to present the individual's case
        
        Notice that a decision will be made
        
        Generally NOT required
        
        Right to oral hearing - Heatley v Tasmanian Racing and Gaming Commission
        
        Right to representation - Cains v Jenkins
        
        Rules of evidence - ABT v Bond (BUT, see no evidence wk 6)
        
        Right to cross examination- O'Rourke v Miller; Hall v UNSW
        
        Founded in common law principle
        
        Acting judicially
        
        Not acting arbitrarily
        
        Proportionality
        
        Acting without bias or prejudice
        
        Fairness
        
        Detachment/independence
    - - s 5(2)(c) ADJR an exercise of power for a purpose other than a purpose for which the power is conferred
        
        What was the purpose for which the power exercised?
        
        Is a question of fact
        
        Party impeaching proceedings (applicant generally) must prove ulterior motive or object - Duff J in Municipal Council of Sydney v Campbell
        
        Not always straight forward, and onus is on applicant to prove
        
        What was the purpose for which the power was conferred?
        
        Sometimes straightforward - Municipal Council of Sydney v Campbell (1925) AC 338; land acquisition contrary to the authorised purpose
        
        No purpose expressed? infer form a construction of the Act read as a whole - Gibbs CJ in R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170
        
        Multiple, conflicting purposes? - determine hierarchy- Project Blue Sky v ABA (1998) 194 CLR 355
      - If a body is authorised by an enactment to make a decision, it is only authorised by the enactment to make decisions FOR THAT PURPOSE; Latham in Brownells at 119
    - - Irrelevant consideration
        
        s 5(2)(a) taking an irrelevant consideration into account in the exercise of a power
        
        What is an irrelevant consideration? "all corrupt or entirely personal and whimsical considerations, considerations which are unconnected with proper governmental administration" - Stephen J in Murphyores Inc Pty Ltd v Cth (1976) 136 CLR 1
        
        When does an irrelevant consideration invalidate a decision?
        
        Just because there is an irrelevant consideration in the reasoning does not meant the decision was affected by the said consideration. Burchett J in Australian Conservation Foundation v Forestry Commission
        
        The irrelevant consideration must be the "dominating, actuating reason for the decision" Klein v Domus Pty Ltd (1963) 109 CLR 467
      - Failing to consider a relevant matter
        
        s 5(2)(b) failing to take a relevant consideration into account in the exercise of a power
        
        only required when statute expressly or impliedly provides - Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 163 CLR 24
        
        Mason J, "when factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring that discretion. If the statute expressly states the consideration to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider- are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.
        
        Cautions as per Mason in Peko
        
        Limited role of the court in judicial review
        
        Generally for the decision-maker to determine appropriate weight to give to factors
        
        Blurred line between failure to consider a relevant matter, and unreasonableness
        
        Court must substitute its own decision
        
        If expressly required, may be a jurisdictional error
    - - Wednesbury Unreasonableness: When does unreasonableness invalidate a decision
        
        If a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere - Associated Provincial Picture Houses Ltd v Wednesbury Corporation
        
        Not all unreasonable decisions will be invalidated - Minister for Immigration v Eshetu (1999) 197 CLR 611
        
        a challenge on the Wednesbury unreasonable ground is confined to extreme cases involving..."demonstrably absurd decisions" (Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council (2010) 174 LGERA 67
        
        if the result appears to be unreasonable on the supposition that he addressed himself to the right question. correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition - Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
      - Categories
        
        3 paradigm cases of unreasonableness (Gummow J in Fares Rural Meat and Livestock Co v Australian Meat and Livestock Corporation
        
        Capricious use of power
        
        the Act does not proceed upon the hypothesis that the Commissioner will be motivated in the exercise of his powers by improper or collateral purposes - Edelsten v Wilcox
        
        related to statutory purpose
        
        Lack of plausible justification
        
        a court has no power to override the council's opinion on such a matter simply because it considers it to be wrong...An opinion will nevertheless not be valid if it is so unreasonable that no reasonable council could have formed it - Gibbs CJ in Parramatta City Council v Pestell (Brickworks case)
        
        tied to the reasons and process of decision
        
        closely related to relevant/irrelevant considerations
        
        Unjustified unequal treatment
        
        Not all unequal treatment - Sunshine Coast Broadcasters Ltd Duncan
        
        Demonstrated by looking to comparable cases/decisions
      - Fraud and bad faith
        
        Decision will be invalid if it involves fraud of
        
        decision maker
        
        a third party SZFDE v Minister for Immigration and Citizenship (2008)
        
        invalidated on the basis of preserving confidence in the decision making process
        
        Bad Faith
        
        must prove the state of mind of the decision maker (no 'constructed' bad faith) - Heerey and Keifel JJ in Minister for Immigration v SBAN
        
        No comprehensive definition of bad faith but includes
        
        Recklessness or indifference
        
        Absence of honesty
        
        Bias
        
        Finding of bad faith is 'rare and extreme' - SBBS v Minister for Immigration and Indigenous Affairs
      - Judicial review: usually focused on the process of the decision, not the decision itself
      - How bad would a decision have to be before the court would take notice? Chan v Minister for Immigration and Ethnic Affairs
  - - - Discretionary reasons to refuse relief
        
        The conduct/fault of the applicant
        
        Failing to object at first instance
        
        Misleading conduct
        
        Attempting to gain a business advantage
        
        Undue delay
        
        The nature of the administrative action concerned (eg decisions by DPP to prosecute - Lamb v Moss
        
        Decision will be imminently and lawfully remade (in the same way)
        
        Availability of a more appropriate remedy (merits review) - s 10(2) ADJR Act
        
        Relief might be futile
    - - S 16 -On application for an order for review of the decision, the court may (in its discretion) make all or any of the following orders
        
        a) Quashing or setting aside the decision
        
        b) referring the matter to the person who made the decision for further consideration, subject to directions by the court
        
        Limits on s16 - Minister for Immigration and Ethnic Affairs v Coyngham (1968)
        
        Full Federal Court set aside orders of primary judge which compelled decision-maker to remake decision in specific way
        
        d) directing any of the parties to do or refrain from doing any act or thing which the court considers necessary to achieve justice
        
        c) declarations of the rights of parties
      - s 10(1) and (3) provide that rights conferred by the Act are additional to any other rights of review (common law or equitable rights)
        
        Common law rights
        
        Certiorari ' to be made certain
        
        order that the record of a decision be moved into a reviewing court so that it can be quashed
        
        Corrects
        
        Denial of procedural fairness
        
        Jurisdictional error
        
        Errors of law on the face of the record
        
        Only available when a decision has an effect upon rights - Hot Holdings Pty Ltd v Creasy (1996)
        
        Decision must have already been made
        
        Prohibition
        
        prevents an unlawful decision from being made at all
        
        corrects
        
        jurisdictional error
        
        where a body is obliged to afford procedural fairness and has refused to allow a hearing
        
        also requires rights to be affected
        
        mandamus 'to mandate
        
        compels performance of a public that remains unperformed
        
        requires the non-fulfillment or performance of a public duty - Randall v Northcote Corporation (1910)
        If there is no duty to exercise a power (discretionary), power will not issue - Plaintiff M61/2010E v Commonwealth (2020)
        
        can be used alone, but often used in conjunction with other remedies (eg certiarori)
        
        Habeas corpus
        
        command to a public authority to release a detained person in the absence of a demonstration of the lawfulness of the detainment
        
        Equitable Remedies
        
        Injunction
        
        Restrain or compel particular conduct
        
        Can be used at the conclusion of proceedings, or during the prevent decision-maker from implementing the decision while the matter proceeds
        
        Declaration
        
        Statement of the legal rights or duties of parties
        
        Wide scope, but must be used specifically