Week one: introduction

What is administrative law?

Administrative law is about challenging decisions and actions taken by official authorities. Usually those of executive government and can be other public government bodies. This mainly is about avenues, mechanisms, tools, techniques and bodies for the members of society where they would be individuals or corporate entities or other organisation to challenge decision that affect them or directly or to which they object. Political battleground.

For example, governments cutting off benefits.

Page one of the textbooks.

wherever there is a man who exercises authority, there is a man who resists authority

Oscar Wilde

Administrative law in the news?

Traditional owners on South Australia's Eyre Peninsula have won a legal challenge to stop the federal government building a nuclear waste facility near Kimba.

The government had planned to store low and intermediate level radioactive waste at the proposed facility.

Barngarlatraditional owners applied for a judicial review in the Federal Court,arguing the facility would interfere with a sacred site.

They also said they were not properly consulted about the plan before it was approved in 2021.

Justice Natalie Charlesworth ruled there was apprehended bias in the decision-making process in selecting the site due to "pre-judgement".

Are these administrative law issues? If so, why? What are the legal issues?

Administrative law contexts

Policy dictates (e.g. dole)

Administrative necessity (e.g. unis)

Economic interests (e.g. Peko)

Political pressures (e.g. war)

Expanding executive power

(e.g. national security)

Privatisation (e.g. Telstra)

Curtailing judicial review

Human rights laws?

What is administrative law?

Generally public law the relations between the individual or company and the state

But public-private distinction not rigid

Procedural fairness extends into private law (e.g. unions)

NB: Impact of privatisation

Haneef v Minister for Immigration

Case hinged on one word!

Minister applied invalid character test

Under Migration Act s 501, Minister reasonably suspected Haneef had association with people involved in terrorism: Haneefs cousins

S 501 does not define association

Minister misinterpreted association

Completely innocent people could fail

improper purpose not proven

Case studies in statutory interpretation

See also Mutitjulu and Malaysian solution cases [Head Ch 1]

Common law inadequacies

Legal review only

Limited grounds

Limited powers

Technical remedies

Expensive, slow

No right to reasons

The New Administrative Law

Steps by courts to extend

and regularise judicial review

e.g. expansion of procedural fairness

2. Legislation to simplify judicial review, e.g. the ADJR Act

3. Non-judicial review, through tribunals, Ombudsmen and FOI

Five factors led to change:

(1) welfare state

(2) demand for recognition of basic rights

(3) perceived loss of parliamentary power

(4) demand for access, uniformity, flexibility and certainty

(5) application of international law via UN Covenants

Since 1980s ... backlash

MERITS vs LEGAL REVIEW

Courts only review legality, not merits

Only procedural, not substantive, fairness

Courts may set aside a decision, but not re-make it: e.g. Green v Daniels

Tribunals generally have same powers as original decision-maker

But merits review includes legality!

Merits review possible disadvantages

Tribunal powers

may be limited

Facts or law may have changed

Tribunal can decide afresh

Constitutional framework

Parliamentary rule

Parliamentary sovereignty

Rule of law

Separation of powers

SEPARATION OF POWERS

Theoretically, three arms of government :Legislative

Judicial

Executive

Reflected in the 1901 Australian Constitution

But incomplete separation of powers

Cabinet members must be in parliament

Cabinet usually controls parliament

Executive exercises legislative power via delegated legislation

Tribunals exercise quasi-judicial powers? But part of executive!

Parliamentary sovereignty

Administrative law cannot challenge legislation, only use of powers granted by legislation!

Separation of powers contrast

Judiciary more strictly protected from interference than the legislature

Brandy v HREOC: Human

Rights Commission cant enforce

Same strictness not applied to delegation of legislative power to executive: Victorian Stevedoring and Meakes v Dignan

Moves to curtail judicial review

Standing

Jurisdiction

Justiciability

Privative or ouster clauses

Limits of grounds of review

Conclusive certificates

Not invalid clauses

Time limits

No duty to exercise clauses

Tailoring discretion: satisfaction, broad, narrow

Privatisation

Executive discretion can be broad

Still bound by law

Criteria important

Even if subjective

Green v Daniels

Administrative law: a shifting politico-legal landscape!

The federal tribunal system changed in 2016, due to legislation to incorporate all tribunals within the AAT

Now calls for Labor

government to replace

(stacked) AAT

Tutorial questions

Week 1

Head p 38 Q 3:

The New Administrative Law:

Key features? An improvement?

p 54 Q 7: What is merits review?

Key cases for Week 1

Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40

Green v Daniels (1977) 3 CLR 66

Quiz 1:

Administrative Law Quiz 1 (correct answers underlined)

1.Where do the federal administrative law tribunals belong in the separation of powers?

a)Judicial

b)Executive

c)Legislative

d)Administrative

2.The difference between judicial review and merits review is: (pick the correct answer)

a)Judicial review can overturn a decision while merits review cannot

b)Judicial review can allow fresh evidence at the time of hearing while merits review must only look at the evidence the administrative decision maker had at the time of the decision

c)Judicial review is more expensive, generally slower and does not have the power to re-make decisions

d)Tribunals cannot decide the legality of a decision, only its merits

3.The changes to the Administrative Appeals Tribunal include the amalgamation of: (pick the correct answer)

a)The Migration Review Panel, Land and Environment Court and Social Security Appeals Tribunal

b)The Migration Review Tribunal, Social Security Appeals Tribunal and the Classification Review Board

c)The Administrative Appeals Tribunal, Social Security Appeals Tribunal and the Migration Review Tribunal

d)Refugee Review Tribunal, Social Security Appeals Tribunal and the Information Commissioner

4. The Administrative Appeals Tribunal can conduct merits review of: (pick the most correct answer)

a)Decisions made by federal ministers, departments and agencies under an enactment

b)Decisions made by federal and State ministers and agencies under an enactment

c)Decisions made by administrators, excluding Ministers

d)Decisions made under delegated legislation only

5.Which of the following statements is true about AAT procedure?:a)The AAT must be fair, just, economical, informal and quick

b)Most cases proceed to a formal hearing

c)Procedural fairness is not required in the AAT

d)The AAT is bound by the strict rules of evidence

6.Jurisdiction to go to the AAT is determined by: (pick the correct answer)

a)Whether the matter is administrative

b)The legislation under which the original decision was made

c)S25 of the AAT Act, which gives jurisdiction to all Federal decisions

d)Whether the agency that made the decision has a policy to refer matters to the AAT

7.The New Administrative Law was largely influenced by the following factors: (pick the correct answer)

a)A recognised need to protect national security

b)The demand for social security to be a privilege, not a basic right

c)The demand for greater transparency, consistency and certainty in decision making

d)The need to combat judicial activism

8.In Haneef v Minister for Immigration and Citizenship [2007] FCA 1273, the court held: (pick the correct answer)

a)It is for the executive to determine the reach of the words of Parliament

b)The Ministers interpretation of association was so broad that anyone would fail to meet the test

c)The Ministers visa decision was impugned by an improper purpose

d)The executive should have exclusive responsibility over all matters involving national security

9.In Green v Daniels (1977) 51 ALJR 463, Karen Green successfully challenged a decision by the Director General of Social Security to deny her benefits by arguing: (pick the correct answer)

a)Discrimination against school-leavers

b)An inflexible policy was applied which was inconsistent with the eligibility criteria set down by Parliament

c)The Director General should exercise his discretion given her circumstances

d)The Director-General had failed to give her an opportunity to be heard

10. In Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 the court held: (pick the correct answer)

a)The executive did not have the power to make laws, due to the separation of powers

b)Delegatus non potest delegarethe delegate cannot delegate

c)There should be a stricter approach to the separation of the legislative and executive powers than to the legislative and the judicial powers

d)Effective government would be impossible without delegated legislative power

Week two: non-judicial review

Possibilities (not always):1. Review by original decision-maker2. Approach MP or minister3. Internal review within agency4. Review by tribunal: AAT or NCAT5. Ombudsman or FOI

Administrative law in the news?

Is this about administrative law?

If so, why andhow?

What avenues of legal/non-legal review were open?

Which avenue achieved the result?

AAT to be replaced

The federal government plans to introduce legislation in 2023 to replace the AAT with a new tribunal:

https://www.ag.gov.au/legal-system/new-system-federal-administrative-reviewIt has established a review panel, which has published an issues paper:

https://consultations.ag.gov.au/legal-system/administrative-review-reform-issues-paper/user_uploads/public-issues-paper-new-system-federal-administrative-review.pdfAttorney-General Mark Dreyfus said the AAT had taken up to two years to make decisions, particularly formigrationandNDISmatters.

Over the previous three years,40 per cent of AAT appointments had political ties. That was eight times the level of political appointments made under the Howard, Rudd and Gillard governments.

ATT problems

Dreyfus: Cannot have confidence in AAT at present

Almost 90 former Liberal MPs, candidates or staffers appointed 2013-22 (of 320 AAT members)

FOI documents: Asylum seekers almost twice as likely to be rejected if they come before a tribunal member appointed by the former Coalition government

28% of claims were successful when the applicant had legal representation, compared with 4% for those who did not.

Saturday Paper: https://www.thesaturdaypaper.com.au/news/politics/2022/07/23/odds-stacked-against-justice-politicised-aat

Key features

a transparent and merit-based appointments process

additional capacity to enable rapid resolution of existing backlogs

consistent funding and remuneration arrangements to respond flexibly to fluctuating case numbers

improved accessibility of merits review by providing additional support services and emphasising early resolution where possible

a single, updated case management system to address critical business risks

procedural efficiencies to ensure efficient resolution of cases.

https://www.ag.gov.au/legal-system/new-system-federal-administrative-review

tribunals amalgamated

Administrative Appeals Tribunal amalgamated with Migration

Review, Refugee Review and

Social Security Appeals Tribunals

from 1 July 2015.

AAT Fact sheet:

http://www.aat.gov.au/AAT/media/AAT/Files/Brochures/The-Amalgamated-AAT-What-is-changing-and-what-is-staying-the-same.pdfAAT structure

Eight Divisions:

Freedom of Information

General

Migration and Refugee

National Disability Insurance Scheme

Security

Social Services and Child Support

Taxation and Commercial

Veterans Appeals Division

Official rationale

part of government's overall aim

to attain greater efficiencies in Australian Public Service and provide a single body for external merits review. The overall objective of fair, just, economical, informal and quick will remain.

Two-tier review?

AAT Fact Sheet:

The two levels of merits review that existed for the SSAT are still available. People dissatisfied with a decision made by the AATs Social Services & Child Support Division in relation to most Centrelink decisions and some child support decisions can apply for a second review in the AATs General Division.

New procedures?

AAT Fact Sheet:

The AAT has new practice directions, guides, guidelines and forms.

In general, however, the review processes that applied in the AAT, MRT, RRT and SSAT prior to 1 July 2015 have been preserved.

Issues of concern?

Fees

Independence

Second review on papers

But tripartite support

(Senate report)

Fees (indexed)

$1,011 standard

$100 concession

$3,153 for Migration

$1,940 for Refugee

None for Centrelink, NDIS, Vets, Compo and related FOI

Shades of ART plan

Water down review?

Impact on quality?

Less right to appeal?See Head pp 61-4

Administrative law values? [Head pp. 4-5]

Administrative Review Council (axed in 2015):

lawfulness

fairness

rationality

openness (transparency)

efficiency

ARC: essential for public confidence in decisions

political expediency?

Potential conflicts exist, e.g. efficiency vs. fairness

Key changes introduced with tribunals

Review on merits,

not just legality

A right to obtain reasons for decisions

Review of policy?

AAT Act: some key sections (1)

Jurisdiction

25: AAT may review decisions made in the exercise of powers conferred by an enactment (currently more than 400)

Standing

27: Applicant must be a person whose interests are affected by the decision

Reasons

28: A person entitled to apply for review of a decision mostly may apply for a written

statement of the reasons (not SD)

AAT Act: some key sections (2)

Representation

32: A party may appear in person or be represented (except SSCSD)

Procedure

33: AAT shall proceed with as little formality and technicality as possible

39: Reasonable opportunity to present case and make submissions (except SSCSD & SD)

Powers

43: AAT may exercise power and discretion of original decision-maker

AAT objectives: fair and quick

AAT Act s 2A [Head pp 65-7]:

Tribunal must pursue objective of providing review that is fair, just, economical, informal and quick

These objectives may conflict: e.g. sacrificing procedural fairness for economy

Added objectives

AAT Act s 2A:

[Head p 65]

Accessible

Proportionate

Promote public trust in AAT

Added provisions

33(1AB) all parties must assist

38AA continuous disclosure

34D & 42C: power to revoke or vary

42B: dismiss for no reasonable prospect of success or abuse of process

Must read the

legislation!

Sometimes, must exhaust tribunal avenue before judicial review: e.g.

NSW Breeding (2001) 53 NSWLR 559

In class:

These are questions to ask when answering problem questions:

Is this about administrative law?

If so why and how?

What avenues of legal and non-legal review were open?

Which avenue achieved the result?

Chapter 3 question 6: what is discretion?

The power to make it limited within the limits of the law.

Green v Daniels: (from chapter 3 &6)

Still bound by law

Criteria important

Even if subjective

But outcome: return to make decision again

Page 363 state of mind satisfies

(for words involved in Green v Daniels see D&J 363-4)

Chapter 4 question 3: AAT amalgamation

AAT structure:

Eight divisions:

Freedom of information

General

Migration and refugee

National disability insurance scheme

Security

Social services and child support

Taxation and commercial

Veterans appeals division

Chapter 4 question 4: Main AAT sections

Jurisdiction

25: AAT may review decisions made in the exercise of powers conferred by an enactment (currently more than 400)

Standing

27: applicant must be a person whose interests are affected by the decision

Reasons

28: a person entitled to apply for review of a decision mostly may apply for a written statement of the reasons (not SD)

Tutorial questions for Week 2

Head p54, Q 6: What is

discretion? (see the words involved in Green v Daniels)

Head Ch 4, Q 3: AAT amalgamation

Head Ch 4, Q 4: Main AAT sections

Key cases and materials for Week 2

Green v Daniels (1977) 3 CLR 66

AAT Act sections on standing, jurisdiction, procedures and powers (remedies)

Week three: ombudsman and freedom of information (FOI)

Administrative law news?/

Defence department stonewalled FoI requests on politicians use of RAAF VIP jet fleet, says Greens

The Greens senator David Shoebridge requested details about the aircrafts use through freedom of information laws last month.

In a decision on 10 July, the OAIC was scathing of the departments approach to the FoI and ordered that it meet its original statutory deadline for responding to the request, which was 2 July.

https://www.theguardian.com/australia-news/2023/jul/20/defence-department-stonewalled-foi-requests-on-politicians-use-of-raaf-vip-jet-fleet-says-greensFOI Senate inquiry

On 28 March 2023, the Senate referred an inquiry into the operation of Commonwealth Freedom of Information (FOI) laws, to the Legal and Constitutional Affairs References Committee. The reporting date is7 December 2023.

Terms of Reference

The operation of Commonwealth Freedom of Information (FOI) laws, with particular reference to:(a) the resignation of the Commonwealth Freedom of Information Commissioner and the resulting impacts;(b) delays in the review of FOI appeals;(c) resourcing for responding to FOI applications and reviews;(d) the creation of a statutory time frame for completion of reviews; and(e) any other related matters.

OAIC survived (just!)

The Freedom of

Information Amendment

(New Arrangements) Bill 2014, which proposed the closure of the Office of the Australian Information Commissioner (OAIC), was withdrawn.

OMBUDSMEN ADVANTAGES

Informal, free, easy

Flexible redress, systemic approach

No strict standing rule

DISADVANTAGES

Discretionary

No control by applicant

No binding decisions

Starved of resources

High level of dissatisfaction

Ombudsman Act 1976 (Cth)

Functions: s 5 Complaints and investigations

Jurisdiction: ss 3, 3A, 5 Limited to administrative

NB: Ministers excluded

NB: discretion s 6

Standing: s 6 No formal rule but sufficient interest discretion

Grounds: s 15 [See list Head pp 84-5]

Powers: ss 9, 13, 14 Investigative powers

s 15(2) Recommendations (NB compensation)

ss 15-17 Reports

Accountability: Not to individual, but parliament (s 19 Annual Report)

Appointment: ss 21,22. By G-G for up to seven years. Removal s 28. Query: Allan Asher quit in 2011.

A Freedom of Information process flowchart and accompanying summary information, including statutory timeframes where relevant, is available on the Office of the Australian Information Commissioner website at: https://www.oaic.gov.au/freedom-ofinformation/freedom-of-information-guidance-for-government-agencies/freedom-ofinformation-reviews/summary-of-the-freedom-of-information-review-processFrom 1 July 2016, the Australian Information Commissioner resumed the investigation of complaints about agency actions relating to the handling of FOI matters.

The Information Commissioner can decide not to investigate a matter as a complaint if the alternative ofInformation Commissioner reviewis available.

Guardian Australia investigation January 2019 (will this change under Labor?)

FOI refusals at their highest level since records began in 2010-11

More than 2,000 FOI requests took three months longer than the statutory time frame to finalise

FOI teams shrank in at least 20 government departments or agencies

Use of practical refusal grounds to block FOI requests reached record highs, increasing by 163% in a year

The Office of the Australian Information Commissioner chronically understaffed, despite an expanding remit and a 72% increase in the number of complaints received about FOI

https://www.theguardian.com/australia-news/2019/jan/02/how-a-flawed-freedom-of-information-regime-keeps-australians-in-the-darkOfficial FOI objectives

Increase public scrutiny and accountability

Increase public participation in policy-making and government processes

Provide individuals with access to personal information

FOI LAWS - ADVANTAGES

Access to personal files

Some access to public information

Agencies required to publish reports

DISADVANTAGES

Charges

Confined to known documents

Many exemptions

Public interest limits

FOI reform changes 2009-10

Cth

>Abolish exclusive certificates

>Information Commissioner

NSW

>Government Information (Public Access) Act (GIPA)

>Information Commissioner

Open standing!

Freedom of Information

Act 1982 (Cth) (FOI Act) s 11 enshrines a right of every person to obtain access to documents held by the federal government, subject to exemptions, irrespective of the persons reasons for seeking access

FOI main changes

>Stronger objects: 3(4) >Powers to facilitate access

>No conclusive certificates

>Information Commissioner

>Stricter exemptions

>Public interest factors

>Onus always on govt.

>Purely factual material not exempt

Federal FOI exemptions

33 national security, defence or

international relations

34 Cabinet documents

37 Law enforcement & public safety

38 secrecy provisions of other Acts

42 legal professional privilege

45 material obtained in confidence

46 contempt of Parliament or court

47 trade secrets or commercially valuable information

47A Electoral rolls & related documents

Public interest conditional

exemptions

47B Commonwealth-State relations

47C deliberative processes

47D financial or property interests of Commonwealth

47E certain operations of agencies

47F personal privacy

47G business

47H research

47J the economy

Public interest factors (FOI 11B)

Factors favouring access

>promote the objects of this Act

>inform debate on matter of public importance

>promote effective oversight of public expenditure

>access to personal information

S 11B Irrelevant factors

>embarrassment or loss of confidence in government

>could result in misunderstanding document

>high seniority

>confusion or unnecessary debate

Guidelines

(s 93A)

Agency or minister must have regard to Information Commissioner guidelines

FOI Act review mechanisms

>Internal review (52-54E)

(not compulsory)

>Information Commissioner (54F-55ZD)

>IC may make preliminary inquiries (54V)

>IC may decline or refer to AAT (54W)

>IC decision reviewable by AAT (57-67)

(must go to IC first)

>Appeal to Federal Court on law (56-56A)

FOI Act and statutory interpretation

34: dominant purpose

47C: purely factual material

47J: substantial adverse effect by....

11B: result in confusion or unnecessary debate

Government Information

(Public Access) Act 2009 (NSW)

>Presumption for disclosure (s 5)

>Mandatory proactive release of open access information (6(1))

>Proactive release of government information unless overriding public interest(7, 8)

>Access unless overriding public interest (9)

>Act overrides other secrecy provisions (11)

>General public interest for disclosure (12)

>Agencies to advise & assist (16)

GIPA Exemptions

>Public interest considerations against disclosure (Schedule 1): >Cabinet information; Contempt; Legal professional privilege etc)

Review

>Application process (41-64)

>Reviewable decisions (80)

>Internal review by agency (82-87)

>Review by Information Commissioner (89-99)

>Referral of agency decision to NCAT (s 99)

>Review by NCAT (100-111)

>Ombudsman not to investigate related conduct (124)

Common law right to reasons?

No: Public Service Board of NSW v Osmond (1986 HC)

But note statutory provisions (e.g. AAT and ADJR Acts)

Also:

discovery and interrogatories versus public interest immunity

RATIONALE FOR REASONS

Per Kirby J in Ex parte Palme

>encourage careful examination

of relevant issues

>provide guidance for future like decisions

>promote acceptance of decisions

>facilitate work of supervising courts

>encourage good administration

>promote real consideration of issues

>guard against arbitrariness

>increase public confidence

* No mention of empowering applicant

Questions for Week 3

Head Ch 5

Q1: key sections in the Ombudsman Act (Cth)

p.117 answer the three main functions complaints, investigation or government investigation.

Q3: effectiveness of the FOI Act (Cth)

Q4: should there be a common law right to reasons?

Q5: problem question covering FOI Act (Cth) and rights to reasons

Notes on Q5: Issue 1: Access via FOI

Practical refusal? S 24

Exemptions? S 45 confidence?

Conditional exemptions? S 47F privacy?

S 47C deliberative processes?

Guidelines 6.77: exception for expert reports does not include social sciences

Public interest factors FOI Act s 11B

Check recent IC, AAT cases

Issue 2: Reasons?

Common law no: Public Service Board v Osmond (1986)

But see PMCH Act s 10(7):

If the Minister refuses to grant the permit, the Minister shall, within the prescribed period after the decision is made, cause to be served on the applicant notice in writing of the refusal, setting out the reasons for the refusal.

Also AAT s 28 & ADJR Act ss 13-14, but note s 13 exemptions & s 13A A-Gs certificates, also Schedules 1 & 2.

Week four: delegated legislation

Questions for Week 4

Head chapter 6: Questions 2, 3 and 4

Cases and legislation to read for Week 4 questions:

New South Wales v Commonwealth (2006) 229 CLR 1

Legislation Act 2003 (Cth)

Combet v Commonwealth (2005) 224 CLR 494

Administrative law in news?

Disorganized developments Pty Ltd v South Australia [2023] HCA 22 (2 August 2023)

A case on strict approach to delegated legislation and a broader application of procedural fairness to the proclamation of at least some types of regulations that affect certain individuals.

High court majority held: (1) regulations purportedly making land prescribed place upon which it was unlawful for members of criminal organisation to enter afforded to the property owners.

What is delegated legislation?

Difficult to define, except broadly

The transfer of law-making power

Variety of labels, including:

disallowable instrument

regulation

by-law

proclamation

rule

ordinance

university statute

WESTERN SYDNEY UNIVERSITY ACT 1997 (NSW)

S 40 By-laws

The Board may make by-laws, not

inconsistent with this Act, for or with

respect to any matter that is required

or permitted to be prescribed

or that is necessary

or convenient to be prescribed

for carrying out or giving

effect to this Act

and, in particular, for or with

respect to the following:

the management, governance and discipline of the University, (z)

Delegated legislation: two-step process

1. Is the delegated legislation within the power of the parent Act?

2. Is the decision authorised

by the delegated legislation?

Primary and delegated legislation

A fundamental difference

Courts cannot impugn legality of statutes, except on constitutional grounds

Courts decide if delegated legislation authorised by parent Act

Any constitutional limit? (1)

Meakes v Dignan (1931)

Regulations relating to preferential employment of unionists on waterfront

Act said regulations would have force of law notwithstanding other Act

Held: no breach of separation of powers

Any constitutional limit? (2)

Plaintiff S157/2002 v Commonwealth (2003)

* Parliament cannot

delegate almost unlimited power

* Can delegate power with respect to a particular head in Constitution s 51

Any constitutional limit? (3)

NSW v Commonwealth (2006)

Majority sanctioned WorkChoices regulation-making clauses, despite saying it was undesirable

Minister can outlaw basic workers rights and conditions

Regulations can specify

prohibited content

Regulations can even amend Act itself

Kirby J: Borders on abdication of Parliament's responsibilities

Judicial review of delegated legislation

Austral Fisheries

Courts decide if authorised by parent Act

May declare uncertain, unreasonable, or for improper purpose

Fisheries management plan statistically impossible

Legislation Act 2003

Legislative Instruments Act 2003 (Cth) became Legislation Act 2003 (Cth) (LA) in 2016.

The LA requires (1) public consultation in making delegated legislation, (2) registration in the Federal Register of Legislation, (3) tabling in both parliament houses within six sitting days and (4) a 10-year sunset clause.

Check the parent Act!

However, the parent or

enabling legislation, under which a legislative instrument is made, can modify or override these requirements, so always check the parent Act. In other words, the LA largely provides default requirements, which operate where the enabling legislation is silent.

3 different legal consequences of LA breaches

s 15K: legislative instrument not

enforceable unless registered [valid

but not enforceable]

s 19: fact that consultation does not occur does not affect validity or enforceability of instrument

s 38(3): if legislative instrument is not laid before both houses of parliament within six sitting days, or is disallowed by Parliament, it ceases to have effect, as if it had been repealed from that time

You will find the Federal Register of Legislation on-line at: https://www.legislation.gov.au/Legislative instrument

defined in LA s 8

An instrument made under an Act is a legislative instrument if the parent Act specifies that it is a legislative instrument or if it is registered as a legislative instrument.

By s 8 (4), instrument is also legislative instrument if:

made under a power delegated by Parliament; and any provision of the instrument:

(i) determines the law or alters the content of the law, rather than determining particular cases or particular circumstances in which the law is to apply; and

(ii) has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right

The LA also declares

certain kinds of rules

to be not legislative

instruments and allows the enabling legislation to declare an instrument not to be legislative, and therefore exempt from the LA requirements (see ss 8-10 of the LA)

FOI Act Guidelines exemption

For example, FOI Act s93A(3) states that Guidelinesare not legislative instruments

Hence, FOI Guidelines are exempt from Legislation Act requirements, but still legally binding

Notifiable instruments

The LA introduced new category: notifiable instrument. Not legislative instruments, but may be placed on Register if considered important for public accessibility or centralised management reasons.

Examples include commencement, amendment and repeal instruments. Instruments can become notifiable instruments in 3 ways: by registration, prescription by regulation under the LA or declaration in the relevant enabling legislation.

Publication (registration) rules

Delegated legislation must be published (now registered)

Golden-Browne v Hunt

Watson v Lee

Lack of publication renders regulation inoperative, not invalid

(not enforceable s 15K)

Tabling requirement

What happens if

Government fails to table?

Totally void or merely invalidated?

LA s 38(3) indicates second outcome: failure has effect of repeal from end of tabling period

Case study: Maritime Union of Australia v Minister for Immigration and Border Protection [2016] HCA 34 [Head pp 131-3]

High Court effectively imposed some limits on use of ministerial determinations and other forms of delegated legislation to thwart legislation.

The saga involved repeated bills and regulations by Liberal-National government to overturn Labor governments extension of visa requirements to offshore oil and gas industry.

Court held determination was invalid

because it purported to negate

the effect of the Act.

New web address for Senate scrutiny committee

The Senate Standing Committee for the Scrutiny of Delegated Legislation assesses delegated legislation against a set of scrutiny principles that focus on compliance with statutory requirements, the protection of individual rights and liberties, and principles of parliamentary oversight.

https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation

COVID emergency exemption controversy

On 16 March 2021, the Senate Standing Committee for the Scrutiny of Delegated Legislation tabled its report on the exemption of delegated legislation from parliamentary oversight. The report made 11 recommendations.

Media release: There are over 31,000 legislative instruments currently in force. However, last year 17.4 per cent of legislative instruments were exempt from disallowance.

Recommendation 1: The committee recommends the Legislation Act 2003 be amended to require all exemptions from disallowance and sunsetting to be in primary legislation.

On 16 June 2021 the Senate resolved: delegated legislation should be subject to disallowance and sunsetting to permit appropriate parliamentary scrutiny and oversight unless there are exceptional circumstances

Statutory interpretation

Much administrative law is about statutory interpretation

>decision-makers may exercise only powers conferred on them by law

>must be substantial compliance with procedures prescribed by law

Therefore:

>read legislation carefully

>interpret it critically

Haneef v Minister for Immigration

[Head pp 9-13]

Case hinged on one word!

Minister applied invalid character test

Under Migration Act s 501, Minister reasonably suspected Haneef had association with people involved in terrorism: Haneefs cousins

S 501 does not define association

Minister misinterpreted association

Completely innocent people could fail

On the decisive importance of statutory interpretation, see also Mutitjulu and Malaysian solution cases [Head

pp 13-15]

Combet v Commonwealth (2005)

High Court divided three ways

By 5-2, permitted use of budget funds to finance advertising campaign

Four judges held spending was not limited to specified outcomes

Gleeson CJ found advertising campaign came within one stated outcome

McHugh & Kirby JJ dissented: expenditure had no rational connection to outcomes

CARDINAL RULES

>Check jurisdiction

>Check statute

>Read statutes critically. Do not

assume legality

>Apply literal, golden and purpose rules

>Apply maxims, ejusdem generis & noscitur a sociis

>s15AA preference to promoting purpose of Act

>s15AB(1) reference may be made to extrinsic materials

CARDINAL RULES (cont)

Two presumptions:

Statutes not intended to invade common law rights

democratic rights, such as liberty, free speech

property and contract rights

B. Minimise discrepancy between domestic and international law

Presumptions are rebuttable but courts will require clear expressions of parliamentary intent

Presumptions and

fundamental rights

World Youth Day case:

Head pp 140-2

Critical importance of detailed interpretation

Annoyance was key word

Fundamental freedom of speech

Limited victory, however

What is fundamental right?

Community values?

Tutorial questions for Week 4

Head chapter 6:

Q2: Implications of Work Choices case

Q3: Legislation Act 2003

Q4: Three-way split in Combet case

Cases and legislation to read for Week 4 questions:

New South Wales v Commonwealth (2006) 229 CLR 1

Legislation Act 2003 (Cth)

Combet v Commonwealth (2005) 224 CLR 494

Week five: jurisdiction, justiciability and standing

Tutorial questions for Week 5

Head chapter 7:

Questions 1, 4, 5 (problem question)

Cases and legislation to focus on for Week 5 questions (in addition to the overall readings set out in the Learning Guide):

Constitution s 75

Plaintiff S157

ACF case (1980)

Whats in the news?

8 august 2023 official government response to parliamentary committee injury

Welcomes recommendation that decisions regarding armed conflict are fundamentally a prerogative of the executive powers.

How do this weeks topics relate to the assignment?

Jurisdiction

Justiciability

Standing

Quiz 2 is on

Week 3 &4

Flow chart for judicial review

Head 144-5

Jurisdiction

First issue to consider:

Federal or state?

Superior courts have inherent jurisdiction

ADJR Act and State legislation provide

statutory jurisdiction

Also specific acts, e.g. AAT and FOI Acts

Federal courts

Most cases go to Federal Court, via ADJR Act or Judiciary Act s 39, including High Courts constitutional jurisdiction (see below)

High Court can refer matters to Federal Court, via Judiciary Act s 44

Federal Circuit Court (FCC) can hear some applications under ADJR Act (ss 5-8) and certain appeals from AAT (AAT Act s 44AA)

Federal Court can transfer some appeals from AAT to FCC

FCC can review someMigration Act decisions

High court jurisdiction

Constitution s 75

= Original jurisdiction:

(iii) where Commonwealth is party

(v) where Mandamus, prohibition or injunction sought against Commonwealth officer

Jurisdiction cannot be removed without referendum

Ouster clauses ineffective (Plaintiff S157)

High Court can grant all writs (constitutional writs): Ex parte AalaJason Donnelly, was to appear in High Court, seeking original jurisdiction for an application for certiorari alone unders 75(v) of Constitution (but Samoan detainee would have had to wait months)

JUSTICIABILITY

No strict political questions doctrine

But courts may avoid sensitive political decisions

Prerogative powers (war, treaties)

No review of Attorney-General's intervention

Must be a matter, not hypothetical

Non-justiciable prerogative war powers

August 2023 official government response to parliamentary committee inquiry

Welcomed recommendation that decisions regarding armed conflict are fundamentally a prerogative of the Executive exercised by the PM and cabinet national security committee.

However, the government rejected a proposal that such decisions be formally made in the name of the Governor-General, as commander in chief of the armed forces under section 68 of the Constitution, particularly in conflicts not approved by the UN

Committee report: such decisions of the Governor-General are not justiciable, unlike a ministers direction

https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Foreign_Affairs_Defence_and_Trade/Armedconflict/Government_Response

Changing face of justiciability?

Hicks v Ruddock [2007] FCA 299:

David Hicks sought a writ of

habeas corpus instructing government to ask the US to release him

Tamberlin J refused to summarily dismiss on the grounds that courts should not interfere in negotiations between two countries

The concept of a forbidden area arguably states the position far too generally where executive power is vested by s61 of the Australian Constitution

R(Miller) v the Prime Minister [2019] UKSC 41: Unlawful Prorogation in Brexit crisis

Supreme Court unanimously held that the prorogation of Parliament had been unlawful and was null and void.

Justiciability

[Every] prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie. (at [38])

Standard of lawfulness

"(...) a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course." (at [50])

Remedy

It was for Parliament to decide what would happen next. In response, Johnson said he would not prevent Parliament from meeting.

Influence in Australia?

Although Australias (written) constitutional arrangements differ from those in the UK, the Millerapproach, despite being controversial, is likely to be influential in Australia, both in relation to justiciability and proroguing parliament.

National security cases

Justiciable, but courts unlikely to overturn decisions

Church of Scientology Inc v Woodward:

Security a fluctuating concept

How can a court evaluate?

Note:

A v Hayden

OSullivan v Parkin

Leghaei v Director General of Security

Stewart v Ronalds [2009] NSWCA 277

Tony Stewart dismissed at Governors pleasure Constitution Act

>Not justiciable

>No procedural fairness

required

Aye v Minister for Immigration [2010] FCAFC 69 (2 to 1 majority)

UWS student barred

Visa ban a political matter

Foreign policy interests

Internment not justiciable?

STANDING

Check the relevant Act

E.g. FOI Act every person or EPBC Act s 487 engaged in environmental activities

2. ADJR Act or state equivalent: person aggrieved

3. Common law: special interest

2015 standing controversy

George Brandis attacked lawfare and vigilante litigation by environmentalists (s 487 of EPBCA)

Proposed to revert to ADJR Act

No amendment passed to repeal s 487

STANDING

ACF v Commonwealth (1980): no open standing

special interest not intellectual or emotional concern

EVOLUTION OF COMMON LAW STANDING

Onus v Alcoa: community values and beliefs

ACF v Minister for Resources: public perception

Government funding as a criteria?

>Prerogative writs: strangers can sue?

THREE TROUBLING STANDING CASES

Vardalis (Tampa)

McBain (IVF and Catholic Church)

Combet (WorkChoices ads)

See: Head 160-3

MORE OPEN STANDING: FOR OR AGAINST?

1. Current law

2. Issues

Head 160-70

Standing problem (Question 5)

a. No: see Batemans Bay

b. At common law Ms Brown yes: commercial interest; Ms Black unclear, but first check the legislation. Ms Black might qualify if club is large or receives government funding!

c. Yes, seek certiorari: see Re Smith; ex parte Rundle

Cases and legislation to focus on for Week 5 questions (in addition to the overall readings set out in the Learning Guide):

Constitution s 75

Plaintiff S157

ACF case (1980)

Questions for week 6Head chapter 8 Q 2: Is each regulation valid? [Must answer!]

Head chapter 9 Q 2: Are the councils decisions valid?

Cases to focus on for Week 6 questions (in addition to the overall readings set out in the Learning Guide):

King Gee Clothing

Vanstone v Clark

Yes "Because, as this Court has held, the constitutional writs of prohibition and mandamus are available only for jurisdictional error and because s 474 of the Act does not protect decisions involving jurisdictional error, s 474 does not, in that regard conflict with s 75(v) of the Constitution and, thus, is valid in its application to the proceedings which the plaintiff would initiate."

Week six: ultra vires and procedural fairness

Two main grounds for judicial review:

Ultra vires (beyond power)

Procedural fairness (natural justice): hearing and bias rules.

Two grounds but may overlap

Ultra vires road map

1. Simple ultra vires: examine parent Act and regulations

2. Procedural ultra vires

3. Broad ultra vires: Eight headings

4. Status of irregular decision: open to review?

Simple or substantive ultra vires

Ascertain meaning of Act

Examine breadth of regulation or decision

Decide whether 2 authorised by 1

High court split on national interest test

This High Court case again shows the centrality of ultra vires, as well as the capacity of judges to split over its application. (NB The WSU law schools Jason Donnelly appeared as a barrister for ENT19).

InENT19 v Minister for Home Affairs[2023] HCA 18 the court split 4/3 on the proper construction of the Migration Regulations 1994 (Cth), sch 2,cl 790.227which specifies the national interest as a criterion for the grant of a specified class of Safe Haven Enterprise Visa (SHEV). The plaintiff came to Australia as an unauthorised maritime arrival and applied for a SHEV once he was able to do so. After making the application he was convicted of people smuggling, which led to the Minister taking the view that it was not in the national interest, percl 790.227, to grant a protection visa to a person convicted of such an offence.

The majority concluded that the Ministers decision was invalid. It was an accepted premise that the plaintiffs conviction meant that he failed the character test. All other criteria for granting the visa were satisfied. Being satisfied as to those criteria and disavowing the character ground under the Migration Act, s501, but then concluding that the visa should be refused under s65because it was not in the national interest undercl 790.227were inconsistent with one another.

The majority concluded: [106] As has been said, cl 790.227 was not intended to be a trump card for the Minister to use to refuse the visa under s 65 without needing to consider, or be constrained by, any of the other criteria and powers relevant to the decision. Unlike s 501 of the Act, cl 790.227 is not a special visa refusal power conferred by the Act. It is a positive visa criterion in the Regulations to be satisfied for all grants of a protection visa by the Minister and delegates alike. It cannot be treated as if it were a personal dispensing power. The Decision should be quashed.

For discussion see: Douglas McDonald-Norman, The Trump Card: ENT19 v Minister for Home Affairs [2023] HCA 18 on AUSPUBLAW (7 July 2023) <https://www.auspublaw.org/blog/2023/7/the-trump-card-ent19-v-minister-for-home-affairs-2023-hca-18/>

Two key cases

London County Council v Attorney-General

Council could operate tramways not buses

Shanahan v Scott

No power can go outside the field of operation which the Act marks out for itself

Liberal or literal approach

Paull v Munday

strict and legalistic approach

presumption of protecting private property

a polluting company

Regulation and prohibition

Melbourne Corporation v Barry

power to regulate does not include prohibit

presumption in favour of protecting freedom of assembly

A contrasting approach

Foley v Padley

ban on Hare Krishna in Rundle Street Mall

3 to 2 majority on legal technical grounds

conditional prohibition OK

specifying powers and uncertainty

King Gee Clothing

prices order did not fix and declare or specify

Vanstonev Clark

determination did not specify misbehaviour

misbehaviour must relate to fitness for office

Procedural ultra vires

Procedural pre-requisites for decision must be met

Not the same as procedural fairness!

Statute might impose procedural rule that exceeds natural justice

Mutitjulu case

Guiseppe v Registrar of Aboriginal Corporations

Act required reasonable period

Held: one day not reasonable period

Reasonable for court to decide

But PF not breached: no adverse allegations

Mandatory or directory?

Mandatory: invalid

Directory: not fatal

Parent Act may specify

Project blue sky

Rejected elusive mandatory/directory distinction

Determine intent of legislation

Public inconvenience should be weighty factor

Although mandatory/directory distinction was sidelined in Project Blue Sky, courts have effectively retained it, as end result of statutory interpretation

Gageler and Keane JJ in Weiv Minister for Immigration and Border Protection (2015):

there remains utility in maintaining the traditional terminological distinction between an "imperative" (or "mandatory") duty, and a "directory" duty

Another procedural ultra vires case in the High Court, applying both Project Blue Sky and Wei: (No reference to mandatory/directory distinction)

Forrest & Forrest v Wilson [2017] HCA 30 at [82]-[90]

(Non-compliance with prerequisites for mining lease application ruled invalid)

Parent Act may say a procedural failure does not affect the validity of decision

But in Commissioner of Taxation v Futuris Corporation Limited, the High Court ruled that could not protect deliberate failures to administer the law according to its terms

Hard case in Mt Druitt?

Formosa v Secretary, Department of Social Security

Imposed strict compliance on individual

Not entitled to pension

Not told to apply in writing

Act said a claim shall be made in writing

Hindmarsh Island Bridge Case

Norvill v Chapman

Minister failed to sufficiently meet notification and consultation requirements in Heritage Protection Act

Extended ultra vires

Improper purpose

Irrelevant and relevant considerations

Unreasonableness and irrationality

Uncertainty

No evidence

Inflexible application of policy

Acting under dictation

Sub-delegation

Improper purpose

Not a moral judgment

Was power used for a purpose not authorised by Act?

Parramattas Civic Place

R & R Fazzolari Pty Limited v

Parramatta City Council [2009]

Council entered public-private

partnership with GroconLocal Government Act 1993 (NSW), a Council could not acquire land the purpose of re-sale (s 188(1)).

NSW Court of Appeal: council acquired the land for public purpose

High Court: but that ruling did not address the question posed by s188(1). French CJ also cited presumption on property rights.

NSW government, however, drafted legislation to give local councils explicit powers to undertake such developments.

Partly proper purpose

Thompson v Randwick Municipal Council

Would power have been exercised but for improper purpose?

Darwin land case

R v Toohey (Aboriginal Land Commissioner)

Review possible against Administrator

Town Planning Act misused to defeat Aboriginal land claim

Court can look behind words of regulation

Ultra vires relevant to assignment?

Simple?

Procedural?

Extended?

Week seven: extended ultra vires

Improper purpose

Irrelevant and relevant considerations

Unreasonableness and irrationality

Uncertainty

No evidence

Inflexible application of policy

Acting under dictation

Sub-delegation

IRRELEVANT AND RELEVANT CONSIDERATIONS TWIN

REQUIREMENTS:

take into account all relevant considerations

do not take into account irrelevant matters

IRRELEVANT AND RELEVANT CONSIDERATIONS

The legislation might state what factors are relevant

(e.g. FOI Act)

Usually, however, these must be implied from the legislation as a whole

Roberts v Hopwood

notoriously political case

socialistic philanthropy

equality of the sexes

For accommodating approach and importance of statutory material:

Plaintiff M-64-2015 [2015] HCA 50

High Court unanimously rejected argument that Ministers delegate wrongly considered the limited number of places in the Special Humanitarian Programme (SHP) and the priorities set by the government within the SHP.

A more recent case on irrelevant considerations

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17

(Visa revoked under Migration Act s 501 character test)

By taking into account the fact that Mr Thornton had beenchargedwith offences committed when he was a child for which no convictions were recorded (at para. 74, per Gordon and Edelman JJ), the Minister had relied on an irrelevant consideration

Minister for Aboriginal Affairs v Peko-Wallsend

distinction between entitled and bound to consider

Note: Mason Js 5 points, (a) to (e) [D&J 403-5]

Gwandalan v Minister for Planning [2009]

Nothing expressly prevented Minister from taking other matter into account

But found in the subject-matter, scope and purpose of the statute some implied limitation: Peko Wallsend

MOU and deed inconsistent with statutory scheme

Therefore, Minister took into account irrelevant considerations

UNREASONABLENESS AND IRRATIONALITY

Wednesbury unreasonableness:

so unreasonable that no reasonable decision-maker, acting according to law, could have made it

Previous restrictive approach in Australia

Minister for Immigration and Multicultural Affairs v Eshetu

Gleeson CJ and McHugh J : illogical

Kirby and Gaudron JJ : no logical basisUNREASONABLENESS: TWO HIGH COURT VICTORIES

Chan (1989): Minister

misconstrued

persecution in China

A new approach?:Minister for Immigration and Citizenship v Li [2013] HCA 18: Refusal to adjourn visa hearing was unreasonable (Wednesbury test not the final word!)

Minister for Immigration and Citizenship v Li [2013] HCA 18

Unreasonable if the decision lacked an evident and intelligible justification

Not confined to decisions regarded as irrational

(Tribunal acted unreasonably by refusing to adjourn hearing to allow applicant to seek a reconsideration of her trade qualifications)

On unreasonableness see: Minister for Immigration and Border Protection v SZVFW [2018]

HCA 30 (8 August 2018)

Kiefel CJ at [11]: Statements such as that

made in the Wednesburycase, that a

decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion ofunreasonablenessmay be arrived at in every case. But it serves to highlight the fact that the test forunreasonablenessis necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (8 August 2018)

Also: Edelman J at [134]

The precise content of

reasonableness will be based

upon the context, including the scope, purpose, and real object of the statute

(Tribunal did not act unreasonably when it exercised discretion to reject protection visa review when applicants twice failed to appear)

Unreasonableness update

As foreshadowed in Head, starting at p 201, the post-Licase law shows thatunreasonablenessremains strict but depends entirely on the statutory and factual context.

DVO16 v Minister for Immigration and Border Protection [2021] HCA 12illustrates the importance of the legislation, while Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16[2020] HCA 46 shows the importance of the facts.

While there has been a dramatic rise in the number of cases that raiseunreasonablenesssinceLi, the vast majority still fail. Cases in whichunreasonableness succeeded, includingDUA16andABT17 v Minister for Immigration and Border Protection [2020] HCA 34, involved decision-making processes that denied applicants a fair and reasonable opportunity to put their case (which is also an issue of procedural fairness, but that ground is sidelined by the Migration Act code of procedure).

See: Boughey, Janina --- "Legal Unreasonableness: In Need of a New Justification?" [2022] UNSWLawJl 5; (2022) 45(1) UNSW Law Journal 113

Irrational fact-finding

Ex parte Applicant S20/2002

Distinction between Wednesbury unreasonableness (exercise of discretion)

and irrationality or illogicality (fact-finding)

Kirby J: elusive distinctions

Categories?

Discrimination

Parramatta City Council v Pestell

Reasonable inquiries

Prasad v Minister for Immigration

Disproportionality

South Australia v Tanner

Others?: Implausible, capricious, unequal

Not the same as statutory reasonableness!

e.g. Guiseppe (Multitjulu case)

UNCERTAINTY

King Gee Clothing v Commonwealth

Dixon J ruled out uncertainty as a ground

Simple ultra vires instead

Racecourse Cooperative Sugar Association v Attorney General

Vague measures did not determine and declare

price, as required by Act

But ADJR Act lists uncertainty in ss 5(2)(h), 6(2)(h)

NO EVIDENCE

no cogent or probative evidence

Pochi, Bond, RajamanikkamRejected English no sufficient evidence test

Jurisdictional fact doctrine

erroneous decisions on facts on which jurisdiction depends are fatal

R v Australian Stevedoring Industry Board

INFLEXIBLE APPLICATION OF POLICY

Green v Daniels

Hindi v Minister for Immigration:

proper, genuine and realistic consideration

ACTING UNDER DICTATION

Conflicting judgments : R v Anderson; Ex parte Ipec-Air

Ansett Transport Industries

SUB DELEGATION

No delegation, unless Act provides

But: alter ego or Carltona principle

OReilly v State Bank of Victoria Commissioners

Extended ultra vires relevant to assignment?

Improper purpose?

Relevant/irrelevant considerations?

Unreasonableness?

Inflexible policy?

Week 8 break

Week 9 procedural fairness (natural justice)

PROCEDURAL FAIRNESS (NATURAL JUSTICE)

Two major strands:

fair hearing

unbiased decision

Two further strands?

3. logically probative material

4. reasons for a decision

Chameleon-like?: Brennan J

From a full-blown trial into nothingness

Procedural fairness

The doctrine is one of common law. It is an underlying right said to exist to the extent that it is not clearly extinguished by statute.

A classic test:

Kioa v West (1985), Mason J:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention.

A new classic test?

(Legitimate expectation discarded):

Minister for Immigration and Border Protection v WZARH [2015] HCA 40, per Kiefel, Bell and Keane JJ:

[I]n the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful [It] may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made.

Procedural fairness extends in some circumstances to private bodies such as clubs and professional associations.

NATURAL JUSTICE OR PROCEDURAL FAIRNESS?

Although the terms are often used interchangeably, the more modern term is arguably both broader and thinner.

Modern rationale

Fairness: opportunity to be heard

Rule of law: transparent, equal and certain decision-making

Good administration: better decisions

Method of approach

Two inter-related questions:

Whether duty to observe PF exists

Content of duty in the circumstances

Whether duty exists

Expressly provided for, or excluded or limited by legislation?

Implied on general principles or recognised category?

Excluded by another factor?

STATUTORY PROVISIONS

Legislation may specifically include or exclude PF

e.g. Migration Act 1958 (Cth)

See: Ex parte Miah (2001)

Commissioner of Police v Tanos (1958):

Legislative intent to exclude PF must be very clear

The common law and legislation interface

The legislation may determine whether the duty to provide procedural fairness exists and, if so, what it requires on the facts of the case. Procedural fairness may involve an interplay between the common law and legislation.

Ex parte Miah [2001] HCA 22,

per Gleeson CJ and Hayne J:

The true construction of the statute will determine not only whether the rules of natural justice apply, but also what those rules require.

IMPLICATION OF DUTY: GENERAL PRINCIPLES

Interest is legally recognised or substantial

Power is not political or highly discretionary

Decision has serious consequences

Durayappah v Fernando (1967)

Broader approach embraced

FAI Insurances Ltd v Winneke (1981)

High Court adopted legitimate expectation

FAI had no legal right but legitimate expectation

Governor in Council no barrier

Hearing delegated to appropriate minister

Kioa v West (1985)

Tongan family won residence status

Underlying right to procedural fairness, more flexible than natural justice

Prejudicial statements require a hearing

NB: Impact on migration law

Widening scope?

Three 2005 decisions

NAIS v Minister

Delay of five years was denial of PF

Applicant VEAL of 2002

RRT denied PF by not disclosing adverse letter

SAAP v Minister

PF breached in situation not envisaged by procedural code under Migration Act

Narrowing scope?

Three 2009 decisions

Minister v Kumar

Legislation should not be interpreted to frustrate its administration

Minister v SZIZO

Failure to meet notification requirement not necessarily unfair hearing

Minister v SZIAI

Refugee was given opportunity to respond to uninvestigated information

Minister for Immigration and Border

Protection v SZSSJ [2016] HCA 29

High Court curtailed the VEAL principle by unanimously rejecting arguments by two asylum seekers that they were denied procedural fairness when the department failed to provide them with full details of a data breach that had resulted in their personal details, and those of almost 10,000 other asylum seekers, being posted on the departments web site

Breach not relevant

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

High Court further curtailed

(distinguished) the VEAL principle

[9] AAT breached PF

[29] applicant must be told of procedural change

[62] but no JE because not material, unlike VEAL: not deprived of possibility of successful outcome (2 to 3 split)

VEAL update

Wilson Transformer Company Pty Ltd v Anti-Dumping Review Panel [2022] FCAFC 4 (21 January 2022)

[VEAL was applied, but emphasising the protection of confidential information]:

the procedure adopted by the Panel had the effect of disclosing the substance of the conference, without disclosing the details of information passed on by the Commissioners staff to the Panel which was commercial-in-confidence... There was no procedural unfairness.

Procedural fairness update

Procedural fairness decisions in the High Court generally continue to revolve around the troublesome issue of jurisdictional error and its requirement for applicants to prove that a denial of PF was material. (The issue arises in this form because of the privative clause in the Migration Act.) Here is another example:

Nathanson v Minister for Home Affairs [2022] HCA 26 (17 August 2022)

KIEFEL CJ, KEANE AND GLEESON JJ:

[1] The Tribunal's error in failing to afford the appellant procedural fairness involved jurisdictional error only if that failure was material to the Tribunal's decision. Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome. The appellant bore the onus of demonstrating that the denial of PF was material in this sense. [SZMTA cited]

[2] Applying these principles, the appellant discharged his onus of demonstrating that the Tribunal's denial of PF deprived him of a realistic possibility of a different outcome the appellant was not required to articulate a specific course of action which could realistically have changed the result.

[15] In upholding the visa cancellation, the AAT took no steps to draw to the appellant's attention that the Minister had raised a new issue, namely, that the evidence of domestic violence was to be viewed "very seriously," as per a 2019 Ministerial Direction on the application of the character test in s 501 of the Migration Act.

IMPLICATION OF THE DUTY: PARTICULAR CATEGORIES

undertakings by the administrator

acts or conduct by the administrator

international covenants

dismissals

where reputation at stake

investigations

Undertakings

Haoucher v Minister for Immigration (1990)

Minister said AAT decisions would be overturned only in exceptional circumstances

Minister for Immigration and Ethnic Affairs v Teoh (1995)

Rights of the child covenant ignored

Teoh doctrine thrown into doubt by Re Minister; ex parte Lam (2003)

Majority took restrictive view of legitimate expectation produced by Convention on Rights of the Child

Undertakings still important

NAFF of 2002 v Minister (2004)

PF denied when RRT broke promise to give further opportunity to respond, even though no statutory obligation

Acts by administrators

Other conduct, including long-standing practices, may give rise to entitlements to PF

Council of Civil Service Unions v Minister (1985)

Thatcher Government should have consulted unions

Dismissals from office

Person cannot be disciplined or removed from post without hearing

Jarratt v Commissioner of Police for NSW (2005)

Investigations

Annetts v McCann (1990)

PF will apply generally to investigations

Subject to factors, including:

specific charges

(2) whether findings have any legal effect

Investigations and reputations

Ainsworth v Criminal Justice Commission (1992)

CJC report commenting adversely on Ainsworth group

Where reputation might be adversely affected, must provide PF

Preliminary decisions

Similar considerations apply

PF now more widely required

Laws v Australian Broadcasting Tribunal (1990)

Hearing required to even hold inquiry

Contrast: Edelsten v Health Insurance Commission (1990)

Legislation had detailed procedure

EXCLUSIONARY FACTORS

where effective appeal provided

political decisions

policy or rule-makingmaking interim decision only

necessity, secrecy, national security

How is this weeks

topic relevant to the assignment?

Procedural fairness or natural justice (hearing and bias rules?)

FOI Act?

Outline answer to theory question: Head Ch 11 Q 1 on Kioa (1985) and WZARH (2015)

Explain both the immediate decisionthe right to be informed of adverse informationand the much broader impact(1) judicial review of visa decisions (reversing previous High Court stance) and (2) wider more flexible scope of PF.

Then emphasise the even broader proposition in the arguably new classic statement 30 years later.

That is a more sweeping proposition, freed from the problematic legitimate expectation doctrine, although note the focus on the legal framework, i.e. the relevant parent legislation.

See the quotes from the two cases on p. 227 of Head (also in the PowerPoints).

Week 9 outline answer on PF problem: Ch 11 Q 4

(a) Yes, in principle, as per WZARH, reinforced by fact that Dawn has been in business for 10 years (compare FAI) and Ministers undertaking of fairness (Haoucher and NAFF)

(b) (NB leave aside the issue of bias, for week 11).

Not for reasons (Osmond)

Yes for adverse material (Kioa and VEAL) (explore VEAL more next week)

Maybe for oral hearing (WZARH, Chen and Li Shi Ping) (explore more next week)

(c) Council only recommends, but see Annetts v McCann, Ainsworth and Laws. (Impact on Dawns reputation and livelihood?) Is Ministers decision a political one as per SA v OShea? (Note also Miah and McHughs factors)

Week 10 hearing and bias rules

PF EXCLUSIONARY FACTORS

effective appeal provided

political decisions

policy or rule-makinginterim decision only

necessity, secrecy

& national security

Where appeals provided

Two conflicting arguments:

Decision-maker does not need to act fairly because injustice can be rectified on appeal

Existence of appeal may show important interests, especially where applicant faces expense and inconvenience

Outcome might depend on type of appeal: full or only legal issues

Twist v Randwick (1976)

If legislature adopted specific appeal scheme, court would not vary it, even if not full and complete

Courtney v Peters (1990)

AAT review did not strip Veterans Review Board of duty to provide procedural fairness.

NB: expense and delay involved in AAT appeal

7 factors outlined in Ex parte Miah (2001)

Original decision: preliminary or final?

Made in public or private?

Formalities required for original decision

Urgency of original decision

Appellate bodyjudicial or internal

Breadth of appealde novo or limited?

Nature of interest and subject matter

NB: Kirbys comment on RRT

Political decisions

South Australia v OShea (1987)

Distinction between expert decision of Parole Board, where the Act expressly secured procedural fairness, and political decision made by Governor in Council

Political decisions

South Australia v OShea followed in:

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31 (D&J 473)

Per plurality: A senior official standing at the peak of the administration of a statute is not required to provide PF in every case where the applicant had access to merits review

Note: 9 significant characteristics

Note also: Minister had non-compellable powers to be exercised in public interest

Stewart v Ronalds (2009)

Stewart dismissed at Governors pleasure Constitution Act

Not justiciable

No procedural fairness required

Policy and

rule-making

Conceptual and practical problems arise:

difficulty of ensuring all affected persons can be heard

(b) rule or policy might be overturned on basis of individual concerns

Minister for Arts v Peko-Wallsend (1987)

Cabinet decision to include Kakadu National Park on World Heritage List was complex and sensitive, involving competing interests

Queensland Medical Laboratory v Blewett (1988)

Power to determine pathology services tables affected a broad range of medical practitioners and patients

Secrecy, urgency and necessity

Some powers urgent, e.g.

destroy dangerous animals

quarantine infectious diseases

forcibly enter premises in fire or

natural disaster

Council of Civil Service Unions (1985)

No obligation to provide hearing, if enough evidence for reasonable decision-maker to conclude it would prejudice national security

Doctrine of necessity

Explored in Laws v Australian Broadcasting Tribunal (1990)

Judge who has some interest in case can sit when no judge without such interest is available

CONTENT OF

HEARING RULE

Range from court-style hearing to just written submission

Factors that point to duty to provide PF will also affect substance of hearing

May also be affected by individual traits (e.g., how articulate or educated)

Right to be notified of hearing?Graham v Baptist Union of NSW (2006)

Church not obliged to tell minister time and date of disciplinary hearing

Young CJ : Justice in this sort of case is not to be meted out in coffee spoons.

Written submissions suffice?

May be:

Barratt v Howard

But perhaps not if credibility is issue:

Chen and Li Shi Ping [Head p. 238]

Right to know matters to be considered

Must be told of prejudicial material and be given opportunity to respond: Kioa v West

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