Class Notes (808,386)
Australia (1,838)
Law (441)
JSB171 (400)
All (349)

Week 7 - Ground - Procedures required to be observed

4 Pages
Unlock Document

Queensland University of Technology

GROUNDS OF JR – Procedures required by law were not observed State Grounds for Judicial Review: Here it is necessary to examine the following grounds: • [list grounds] Considering each… PROCEDURES REQUIRED BY LAW WERE NOT OBSERVED: The [s5(1)(b) AD(JR) Act (Cth) / s20(2)(b) JR Act (Qld)] provides that procedures that were required by law to be observed [in connection with = (Cth)/ in relation to = (Qld)] the making of the decision were not observed; is a ground for review. Historically this ground at CL provided for a distinction between mandatory and directory decisions; however this distinction is abolished and task is to examine the procedural provision in question and decide whether parliament intended that a decision in violation would be invalid: Project Blue Sky. Here the legislation is [act], specifically, section ________; and the [Applicant] would be arguing that there is an intention in the legislation that contravention results in invalidity. PROCESS: 1. Firstly after looking at the act as a whole the purpose of the act with reference to: Project Blue Sky • Language of relevant section • Scope of statute • Object of the Act appears to be: _________. And therefore; the wording suggests that [procedure] [would/n’t] be required because it is: IF essential pre-condition to exercise: An essential pre-condition before exercising the power, as shown by ________(sections/wording/purpose). IF simply regulating the exercise of power which is conferred elsewhere: Simply a section to regulate the exercise of power which is conferred elsewhere in section ____; because _____(sections/wording/purpose). 2. Secondly… IF procedure is significant or substantive: Here the procedure is significant and substantiative and thus would likely impact on the reasonableness of the decision-making process. Because of this, it is more likely that Parliament required that step to be taken before the valid exercise of the power; and a decision would be invalidated if the requirement is not applied to the letter: Project Blue Sky. IF procedure is merely technical: Here the procedure is merely technical and thus it wouldn’t be likely to impact on the reasonableness of the decision-making process. Because of this it is unlikely that Parliament intended that step be required before a valid exercise of the power; and a decision would be valid even if the requirement is not applied to the letter: Project Blue Sky. 3. Finally it is worthy to note that the statutory action may be a more liberal approach than common law judicial review - the words [in connection with = (Cth)/ in relation to = (Qld)] – suggest a mere relationship between one thing and another, not necessarily a causal relationship between the two things: Ourtown FM v ABT (Davies J). As such, _________. However Minister for HFS v Jadwan does seem to set limits on this expansive approach. ASSISTING ANALOGIES/CONSIDERATIONS: Why NOT Void: a) No rule like quality: Project Blue Sky “ABA would perform duties consistent with it’s treaty obligations” - therefore more administration of power rather than validity. b) Treaty obligations: Project Blue Sky “international conventions and agreement are expressed in indeterminate language and often are more aptly described as goals to be achieved rather than rules” c) Huge Public Inconvenience: Project Blue Sky “if standards created were voided by treaty – scheduling etc.” d) Following procedures that were not required to follow: Minister for HFS v Jadwan “did procedure that wasn’t required to do – was mistaken” Why Void: a) Feedback was important: Scurr v Brisbane CC “therefore full compliance with notice important” b) Huge Public Impact: Scurr v Brisbane CC “big effect on the community with such a development” c) Concerned Public Safety: JJ Richards v Ipswich CC “disposal of commercial/industrial waste” d) Public Inconvenience if not strictly required: Hunter v Melville “could make multiple claims, which was unfair advantage legislation sought to avoid” e) Highly Competitive Industry – Regulation: Hunter v Melville “highly competitive industries require strict regulation” f) Elaborate application: Scurr v Brisbane CC “the more elaborate the application the greater need for detail” N.B. Prescribed Forms: Court will lean away from need to lodge in prescribed form unless there is a very clear legislative intent it be used or unless there is some intrinsically important purpose is to be achieved by it: JJ Richards v Ipswich CC (There is was public safety needs) CASE SUMMARIES: (Full below) • Project Blue Sky: Treaty obligations on Television broadcasting – inconsistent with new standards – NOT VOID • Minister for HFS v Jadwan: Followed wrong procedures to revoke nursing home licence – NOT VOID • Scurr v Brisbane CC: Insufficient particulars for council approval to build shopping centre –VOID • JJ Richards v Ipswich CC: Poorly written application to dispose of commercial/industrial waste –VOID • Hunter Resources v Melville: Marking of ground in mining application in specific intervals –VOID • Minister for HFS v Jadwan: Mistakenly followed wrong procedure – but not required to follow any –
More Less

Related notes for JSB171

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.