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Lecture 2

Week 2 & 3 - Judicial Review (Systems & Pre-Requisites)

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
JUDICIAL REVIEW What is Judicial Review? Judicial Review of executive action is the means by which courts determine whether or not administrative bodies and officials have properly respected the boundaries of the powers and functions formally assigned to them. (Broad notion that government holds power on behalf of citizens and must therefore account for its exercise) JURISDICTION OF THE COURTS: At Common Law HIGH COURT: Entrenched original jurisdiction to hear cases of Mandamus or Prohibition or an Injunction in regards to acts of the Commonwealth under s75 Australian Constitution (CANNOT EXCLUDE THIS JURISDICTION): Plaintiff s157/2002 v Cth FEDERAL COURT: Original jurisdiction to judicially review acts of the Commonwealth: s39B Judiciary Act 1903 (Cth) UNLESS: S39B(1) Subject to subsections (1B), (1C) and (1EA)… (1B) If a decision to prosecute a person for an offence against a law of the Commonwealth, a State or a Territory has been made by an officer or officers of the Commonwealth and the prosecution is proposed to be commenced in a court of a State or Territory: (a) the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against the officer or officers in relation to that decision; and (b) the Supreme Court of the State or Territory in which the prosecution is proposed to be commenced is invested with, or has conferred on it, jurisdiction with respect to any such matter. (1C) Subject to subsection (1D), at any time when: (a) a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before a court of a State or Territory; or (b) an appeal arising out of such a prosecution is before a court of a State or Territory; the following apply: (c) the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision; (d) the Supreme Court of the State or Territory in which the prosecution or appeal is before a court is invested with, or has conferred on it, jurisdiction with respect to any such matter. (1D) Subsection (1C) does not apply where a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory. (1EA) If: (a) a civil proceeding is before the Family Court of Australia, the Federal Magistrates Court or a court of a State or Territory; or (b) an appeal arising out of such a proceeding is before the Family Court of Australia or a court of a State or Territory; the following apply: (c) the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person who is or was a party to the proceeding seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related civil proceeding decision; (d) the following court is invested with, or has conferred on it, jurisdiction with respect to any such matter: (i) if the civil proceeding or appeal is before the Family Court of Australia—that court; or (ii) if the civil proceeding is before the Federal Magistrates Court—that court; or (iii) if the civil proceeding or appeal is before a court of a State or Territory—the Supreme Court of the State or Territory. STATE SUPREME COURTS: Originally vested with jurisdiction of the superior courts of record from the UK which had general law power to Judicially Review. Jurisdiction also now housed in Part 5 of the Judicial Review Act 1991 ss 43 and 47. JURISDICTION OF THE COURTS: Statutory Judicial Review FEDERAL COURT: Jurisdiction conferred by: AD(JR) Act 1977 (Cth) N.B. Some minor judicial review conferred on the Federal Magistrate’s Court History: The statutory review programs came about through reforms to the administrative reform frameworks in Australia: • Federally, the Administrative Decisions (Judicial Review) Act 1978 (Cth) was introduced after a review of administrative law which occurred throughout the 1970s • The Act was designed to create a simplified method of judicial review, over the complicated common law model (Streamline + Codify) STATE SUPREME COURT OF QUEENSLAND: Jurisdiction conferred by: Part 3 & 4 of the JR Act 1991 (Qld) N.B. Plus general power of review in s5 History: In Queensland, the Fitzgerald Report stated that it was important to increase the judicial accountability of government officials • The Judicial Review Act 1991 (Qld) was enacted as a result of the report • It maintains substantially the same procedure for review as contained in the federal Act, with some additions • The Act also contains a re-modelled common law procedure for Judicial Review, in Part 5 of the Act PRE-REQUISITES TO STATUTORY JR 1. “DECISION TO WHICH THIS ACT APPLIES”: s5, 6 AD(JR) Act (Cth); s20, 21 JR Act (Qld) Write: Elements: 1.1A a decision(s5 ADJR, s20 JR); or 1.1B conduct (s6 ADJR, s21 JR) 1.2 of an “administrative character” 1.3 “made under an enactment”. 1.1A “A DECISION” Defined in: s3(2) AD(JR) Act (Cth); s5 JR Act (Qld) (a) making, suspending, revoking or refusing to make an order, award or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; or (g) doing or refusing to do any other act or thing; and a reference to a failure to make a decision shall be construed accordingly MUST BE: • Final, operative and determinative; • Substantive rather than procedural; and • Not an intermediate decision on the way to making a final decision, unless that intermediate decision is a mandatory step according to the statute: ABT v Bond (Overruling Lamb v Moss). IF Intermediate Decision: (e.g. deemed/amending/proposing/referring) EXAMPLE ABT v Bond There was a two-stage process under the Broadcasting Act, to decide whether a person would retain their licence; whether that person was no longer a fit and proper person. Then the decision could be made to suspend or revoke the licence - Alan Bond was deemed to be not a fit and proper person, in regards to a settlement between Sir Joh Bjelke-Peterson, which was said to be a bribe. HELD: Not a decision. Per Mason CJ: (at 337) A decision is one that is final or operative, and determinative; It is a substantive decision; This decision gives effect to the statute’s intention, when considering that ‘conduct’, ‘reports’ and ‘recommendations’ can be reviewed; An intermediate decision can be reviewed, only where it is provided for under the statute, so that it can be characterised as a decision under an enactment. Here, question here, that Bond was not a fit and proper person, is not something which would allow for a final, determinative decision – not a decision - only decision was the second step of deciding whether or not to revoke the licence. EXAMPLE Redland Shire Council v Bushcliff Process of deciding to amend a planning scheme, and then putting a proposal to public scrutiny before deciding whether or not to proceed; HELD: the first decision to amend was not judicially reviewable as it was merely procedural; First decision to amend was not determinative of action. EXAMPLE: Noosa Shire Council v Resort Management Services Decision by local authority to accept a proposal to amend a planning scheme; HELD: Was judicially reviewable because it was a final and operative decision – the next step was to amend the legislation. EXAMPLE: Edelsten v Health Insurance Commission Minister/Delegate decision whether to refer a matter to a committee for an inquiry regarding the regulation of medical practitioners; HELD: Decisions to refer were not final or operative; Northrop and Lockhart JJ b/c procedural decision only & Davies J b/c it was conduct engaged in the process of making a decision. IF Decision to initiate proceedings OR immediate interference with rights: EXAMPLE Schokker v Commissioner of Taxation Refusal to refer the complaint about alleged breaches of privacy to the DPP. The decision to prosecute was a decision of the DPP. HELD: Was a sufficiently final decision, because it settled a final determination of the complaint, and was not a mere step along the way. EXAMPLE Salerno v National Crime Authority Decision to authorise a warrant to raid & search premises; HELD: Was a reviewable decision. Even though it related to investigation, the effect of the search warrants was to interfere with the private property and privacy of the person. Was therefore a substantive determination, and not procedural; Was a serious infringement of a person’s right to quiet enjoyment of property. “immediate and drastic consequences for suspect” IF Making a Report or Recommendation: ‘Decision’ includes the making of a report or recommendation before a decision is made: s3(3) AD(JR) Act (Cth); s6 JR Act (Qld). HOWEVER: • FEDERAL INTERPRETATION: Must be a ‘condition precedent’ to the making of a decision which must be stated in the statue: Ross v Costigan • STATE INTERPRETATION: ‘Condition Precedent’ is unnecessary: Resort Management Services Ltd v Noosa Shire Council; St George v Wyvill. EXAMPLE Resort Management Services Ltd v Noosa Shire Council Preliminary step taken by a local authority in passing a resolution to amend a town planning scheme constituted a decision. EXAMPLE St George v Wyvill Requirement that the Commissioner of Police Service Reviews makes a recommendation to the Commissioner of Police was a decision, where there was no requirement for the recommendation being a ‘condition precedent’ in order to be reviewable. 1.1B “CONDUCT for the purposes of making a decision” Conduct means: Mason CJ in ABT v Bond (a) Procedures undertaken in the making of the decision (procedural not substantive) (b) But NOT relate to intermediate decisions (c) Applied particularly to the pre-decisional procedures of tribunals (d) A failure to abide by natural fairness would amount to a reviewable action under the conduct of a party Example – (by Mason CJ): refusing request to cross examine or refusing a request for adjournment N.B. Irrelevant whether final decision-maker was person engaged in the conduct of not: Chan v Minister for Immigration and Ethnic Affairs (Cth); s6 JR Act (Qld). Examples: ARE conduct: • Failure to take evidence from a witness, & failure to make investigations as required by statute: Courtney v Peters, Marsh, Fee and the Repatriation Commission • Failure to provide the first part of a procedural step before a decision was to be made (by Delegate of Minister): Edelsten v Health Insurance Commission NOT conduct: • Deeming an unfit person: ABT v Bond (Because it was substantive in nature) • Where a decision has been made; the conduct won’t be reviewable: NSW Aboriginal Land Council v ATSIC 1.2 Of an “ADMINISTRATIVE CHARACTER” Must be administrative rather than legislative or judicial; with a distinction drawn from the separation of powers under the Constitution: Evans v Friemann. Here, [action complained of] can be distinguished from a [legislative & judicial] decision because … [distinguish indicia of each]. INDICIA of LEGISLATIVE DECISION v administrative decision N.B. Must consider the statute that grants the power – words not conclusive so look at the nature of the power: Central Qld Land Council v AG as per Wilcox at 213; Vietnam Veterans v Cohen. Legislative Indicia: o Formulation of new rule with general application: Hamblin v Duffy; Central Qld Land Council v AG. o Changing/Determining the law: Vietnam Veterans v Cohen o Parliamentary control over the relevant decision: Central Qld Land Council v AG. o Public consultation: Central Qld Land Council v AG. o Binding and not providing guidance: Vietnam Veterans v Cohen o General application and not particular case: Vietnam Veterans v Cohen Administrative Indicia: o Provisions for merits review: Central Qld Land Council v AG; Vietnam Veterans v Cohen. EXAMPLES: Legislative Actions: o City Council By-Law preventing handing out flyers on roads: Paradise Projects Ltd v GC City Council per Thomas J. o Minister exercising delegated legislative power (such as making a determination as to the table of service fees which can be charged for pathology services): Queensland Medical Laboratory v Blewitt. N.B. Failure to make a decision under the legislation would be administrative. o Prepare licence plan area to determine number and type of broadcasting licences available for particular areas: RG Capital Radio Ltd v ABA o Ability to change a water management plan, where called “subordinate legislation” and Minister given power to enact: Currareva Partnership v Welford o Where bodies have the same status as parliament, their decisions will be legislative and will not be amenable to judicial review: Corrigan v Parliamentary Criminal Justice Commission Administrative Actions: o Determine aeronautical charges payable (based on the commercial considerations at time of determination): Federal Airports Corporation v Aerolineas Argentinas. N.B. If by-law power given to the same body would be legislative. o Intermediate decisions in the process of changing a town planning scheme, even where final decision is legislative: Resort Management Services v Noosa Shire Council INDICIA of JUDICIAL DECISION v administrative decision Chapter III courts, when exercising their judicial powers are not amenable to judicial review: Evans v Friemann. Furthermore very rare for courts to allow judicial review because of public policy against collateral attack on judicial proceedings EXAMPLES Judicial Actions: o Decision by the Registrar of the High Court to seek a direction as to whether documents were lodged were an abuse of process was a judicial power, as it was exercising the courts jurisdiction to prevent abuses of power: Letts v Commonwealth Administrative Actions: o Magistrate conducting a committal hearing (as only determine whether sufficient evidence exists to hold trial): Lamb v Moss N.B. o Decision to refuse a bill of costs by the Family Court of WA was an administrative decision, notwithstanding that the Registrar’s activities were within the broader framework of the government: Legal Aid Commission (WA) v Edwards o Decision of the HCA to strike a practitioner off the register was an administrative decision: Little v Registrar of the High Court 1.3 “MADE UNDER AN ENACTMENT” A) Definition of enactment: [apply below]. Commonwealth: s3 AD(JR) Act (Cth) (a) an Act, other than: (i) the Commonwealth Places (Application of Laws) Act 1970; or (ii) the Northern Territory (Self-Government) Act 1978; or (iii)an Act or part of an Act that is not an enactment because of section 3A (certain legislation relating to the ACT); or (b) an Ordinance of a Territory other than the Australian Capital Territory or the Northern Territory; or (c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section 3A; or (ca) an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; or (cb) an instrument (including rules, regulations or by-laws) made under an Act or part of an Act covered by paragraph (ca); or (d) any other law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act; and, for the purposes of paragraph (a), (b), (c), (ca) or (cb), includes a part of an enactment. Schedule 3—State, ACT and NT Acts, and parts of such Acts, that are enactments for the purposes of this Act Queensland: s3 JR Act (Qld) enactment means an Act or statutory instrument, and includes a part of an Act or statutory instrument. Acts Interpretation Act 1954 (Qld), s15: In an Act, a reference to the enactment of an Act or the passing of an Act is a reference to the fact of the Act’s having received the royal assent. Statutory Instruments Act 1992 s6 An instrument is any document. s7 (1) A statutory instrument is an instrument that satisfies subsections (2) and (3). (2) The instrument must be made under— (a) an Act; or (b) another statutory instrument; or (c) power conferred by an Act or statutory instrument and also under power conferred otherwise by law. (3) The instrument must be of 1 of the following types— • a regulation • an order in council • a rule • a local law • a by-law • an ordinance • a subordinate local law • a statute • a proclamation • a notification of a public nature • a standard of a public nature • a guideline of a public nature • another instrument of a public nature by which the entity making the instrument unilaterally affects a right or liability of another entity. (4) However, to remove doubt, an Executive Council minute is not itself a statutory instrument. IF instrument: Section 3 of the [AD(JR) or JR] Act includes instruments in the definition of enactment. The basic test is that an instrument must affect the rights of the parties (ie apply to everyone for the future) and not be negotiated: Blizzard v O’Sullivan. Here, ____. Examples: o Qld - Deputy Police Commissioner’s contract not a instrument because it was negotiated, not imposed by the statute: Blizzard v O’Sullivan o Qld - State Purchasing Policy was not an instrument because it was not made pursuant to a statutory power to make it: Concord Data Solutions v Director-General of Education o Cth - Document which set out terms and conditions on employment made under the Act was an instrument in Chittick v Ackland B) Made under an enactment Current test was formulated in Griffith v Tang. (Gummow, Callinan and Heydon JJ, Gleeson CJ agreeing, Kirby J dissenting) The decision MUST: 1. Be expressly or impliedly authorised by the Act (Gleeson CJ – that the enactment gives legal force or effect to the decision) 2. Itself, confer, alter or otherwise affect legal rights and obligations, and in that way, be derived from the enactment. (Legal rights arise from statute and common law – BUT the capacity to affect rights must arise from the statute) EXAMPLE Griffith University v Tang Candidature for doctorate of philosophy was terminated by the Internal appeals committee set up by Griffith Uni; after found a falsification of laboratory results. Claimed a breach of natural justice/procedural fairness; Decision said to be made under Griffith University Act, which had: • s5 – functions of university to support research, disseminate knowledge • s7 – council • s8 – council as a governing body • s9 – delegate powers to appropriate committee HELD: (1 Instance QCA): decision must have been made under an enactment – GU had powers only from the Act, did not have any prerogative powers, so must have been made under the enactment. HELD: (HC): decision was not one that was under an enactment - did not affect legal rights of Tang as relationship between Tang and GU was entirely consensual – no right to continue. [NOTE - Kirby J Dissent]: where there is no contractual or other source of the power, must be made under the enactment. Given that the decision happened in the statutory context and GU could not have made the decision without the statute, it is made
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