1.2 JR Prerequisites

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Course
JSB171
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All Professors
Semester
Spring

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Pre-requisites to Statutory JR Decision/act of the executive must be a “decision to which this Act applies”: s5 ADJR Act (Cth); s20, JR Act (Qld) or “conduct” leading up to such a decision (s6 ADJR, s21 JR)  Justiciability o Public Power  Invoking Jurisdiction under Statute (ADJR | Pt 3 JR): Decision to which this act applies o a “decision” (s5 ADJR | s20 JR) or “conduct” (s6 ADJR | s21 JR) o Of an administrative character o Made under an enactment  Qld—non-statutory scheme or programme o Cth—not a decision of the GG JR s4: decision to which this Act applies means— (a) a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion); or (b) a decision of an administrative character made, or proposed to be made, by, or by an officer or employee of, the State or a State authority or local government authority under a non-statutory scheme or program involving funds that are provided or obtained (in whole or part)— (i) out of amounts appropriated by Parliament; or (ii) from a tax, charge, fee or levy authorised by or under an enactment. ADJR s3: decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition): (a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or (b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment; other than: (c) a decision by the Governor-General; or (d) a decision included in any of the classes of decisions set out in Schedule 1.  Alternative—Invoke Jurisdiction under Common Law (Pt 5 JR) Atkin Formula o Exercise of Public Power or Authority o Decision sufficiently affects the applicant o (residual discretion) Constitution s75 In all matters: … (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction. Judicial Review Act 1991, s43 Application for review (1) An application for— (a) a prerogative order; or (b) a prerogative injunction; must be made by way of an application for review. Andrew Trotter LWB335 Administrative Law JUSTICIABILITY Private power = powers retained or created under private law (eg. power to enforce contracts, arbitration, or the actions of a private club or association) = not reviewable: Griffith University v Tang (decision to expel a student from the PHD program for falsifying evidence  not judicially reviewable) Public Powers = statutory powers or prerogative powers = reviewable • Statutory power—Courts clearly able to review: R v Toohey o Regardless of who makes decision—even where low-ranking public official: R v Toohey; Ex parte Northern Lands Council (1981) (land rights decision made by NT Land Commissioner (under Norther Territory (Self-governing) Act in bad faith with ulterior purpose  irrelevant whether examined by high or low ranking official) o Public authorities, tribunals etc = JR  • Prerogative power— Now subject to review: Ex parte Laine (UKCA) (Home Office non- statutory compensation scheme for crime victims—wife of police officer disputing amt  decision reviewable); Council of Civil Service Unions (HL) o historically unwilling to judicially review: Communist Party Case (ignored by R v Toohey) o includes power on immigration: Ruddock v Valdaris (2001) (keeping illegal aliens out of the country was a prerogative power  reviewable) Areas of Doubt • May refuse judicial review of high level political or policy decision (economic/political/social issues): Council of Civil Service Unions (HL) (Union workplace relations disputes in GCHQ —Thatcher outlawed as affecting homeland security  prerogative decisions judicially reviewable but declined to intervene given political implications) o Decisions made by cabinet: Minister v Peko-Wallsend (inclusion of Kakadu as protected site by cabinet—challenged by mining company  declined to intervene || conflicting opinions between justices as to whether this was all cabinet decisions) o Broader implications must be considered: SA v O’Shea (Cabinet rejecting parole board recommendation, contrary to custom  declined to intervene) • Different approaches—substance or form o UK—look at nature not source of power—Decisions of boards in self-regulating industries: (gov allows to self-regulate, keeps a close eye on them): R v Panel on Take- overs and Mergers, ex parte Datafin plc [1987] 1 QB 815 (Panel independent, not created by statute or gov—rejected complaint that rival companies acting in concert  nature of responsibilities meant performing a public duty → JR  || but no ground to review as no procedural unfairness); adopted by Neat per Kirby J (dissenting) o AUS—source rather than nature of power—Outsourcing of government functions (GOC & GBE)—reviewable if decision comes from a statute, not from company constitution etc: AWB v Neat Domestic Trading (2003) 216 CLR 277 (N seeking to export wheat—refused permission by AWBi (wholly owned subsidiary of AWB)— power in company constitution & Sch2 Wheat Act  not JR  || Minority—in effect acting for government)  Consider nature of particular decision, not general power to make such decisions: General Newspapers v Telstra (Telecom receiving tenders for white pages contract—incorporated as Telstra—statute gave it power to enter into contracts—decision on particular contract made based on Articles of Association  not a public matter → no JR) Andrew Trotter LWB335 Administrative Law D ECISION TO WHICH THIS ACT APPLIES [→Standing | Justiciability] 1. Decision or conduct Decision (s5 ADJR, s20 JR) • Includes— (s5 JR & AJDR s3(2)) (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 • Reports & recommendations → included in ‘decision’: Judicial Review Act, s6; ADJR Act, s3(3) (rarely invoked as narrowly interpreted in caselaw) o Federal interpretation—must be a ‘condition precedent’ to the making of a decision | act must create power to make report/recommendation: Ross v Costigan (1982); Edelstein v Health Insurance Commission (1990) o State interpretation— ‘condition precedent’ not necessary: Resort Management Services Ltd v Noosa Shire Council(1993) (preliminary step taken by a local authority in passing a resolution to amend a town planning scheme  JR ) St George v Wyvill (1994) (requirement that the Commissioner of Police Service Reviews makes a recommendation to the Commissioner of Police—not a ‘condition precedent’  JR ) • ‘Failure to make a decision’ is considered a decision: JR s5; ADJR s3(2) Decision must be— 1. Final or operative—not an intermediate decision • unless a mandatory step under the statute: Bond per Mason J 2. Substantive rather than procedural 3. (Not an intermediate step) ← ABT v Bond (1990) (whether to revoke license under Broadcasting Act—first found (0) that Mr Bond fraudulent, no longer fit & proper → two-step decision (1) that company no longer fit and proper ‘person’ | (2) revocation  (2)=final decision | (1)=mandatory step; but (0)=intermediate finding of fact → JR) ← Rejected old test in Lam v Moss (any preliminary ruling = ‘decision’) because deprives ‘conduct’ of any operation Final or Operative • Not final or operative → JR  o Not determinative of final action: Redland Shire Council v Bushcliff Pty Ltd [1990] (decision to amend a planning scheme, then put to public scrutiny before deciding whether to proceed  merely procedural step in the decision)  ↔ Definitive acceptance or rejection of proposal, even if procedural acts to follow: Noosa Shire Council v Resort Management Services Ltd [1995] (acceptance of proposal to amend planning scheme—only remaining act to amend legislation) o Delegation of decision: Edelsten v Health Insurance Commission (1990) (decision of Minister to refer matter to committee  not final or operative) o Where self-executing statute—no active decision open to the executive: Guss v Deputy Commissioner of Taxation (2006) (liability under statute for tax—steps set out in legislation —only decision as to whether to initiate proceedings  not a ‘decision under an enactment → no JR) o Act which is one factor in reaching a decision, even if turns out to be determinative—eg vote: Hutchins v Deputy Commissioner of taxation (1996) (decision to vote against motion Andrew Trotter LWB335 Administrative Law to accept less than owed at meeting of creditors—motion would otherwise have been carried  but didn’t make decision, just voted || also not made under that power) • Final enough to be a decision → JR  o Initiation of / refusal to initiate proceedings → JR : Schokker v Commissioner of Taxation (1998) (refusal to refer the complaint about alleged breaches of privacy to the DPP—final decision to prosecute would be made by DPP  not merely a step along the way as determinative of outcome) o Decisions leading up to the final decision which have their own effect  Parts of investigation which have an effect and are not merely a step in the process → JR : Salerno v National Crime Authority (1997) (decision to authorise warrant to search premises  effect on private property—not just step in process of proceedings || but not made under enactment)  Setting terms & conditions under which later decision may be made: Chittick v Ackland (1984) (Health Insurance Act give commission power to establish terms of employment—employee fired under those terms  making of terms and conditions a decision under the enactment) • Not final but mandatory step under the statute→ JR : Bond per Mason J (whether to revoke license—two-step decision (1) that company no longer fit and proper ‘person’ | (2) revocation  (2)=final decision | (1)=mandatory step || but intermediate finding of fact not )R Conduct engaged in for the purposes of making a decision: s6 ADJR, s21 JR • ‘conduct’ = Procedures undertaken in the making of the decision: ABT v Bond (1990) (whether no longer fit and proper person  not ‘conduct’ because substantive in nature—question of fact) • Must be conduct for the purposes of making a decision to which this act applies: s6 ADJR, s21 JR • Does not relate to intermediate decisions • Irrelevant whether conduct by final decision-maker: Chan v Minister for Immigration and Ethnic Affairs (1989) for Commonwealth | JR Act s6 • After decision made, conduct not reviewable: NSW Aboriginal Land Council v ATSIC (1995) • Examples— o refusing request to cross examine or adjournment: ABT v Bond (examples given by Mason CJ—finding that not a fit & proper person not ‘conduct’)  Seems generally to be relating to procedures of tribunals & quasi-judicial bodies o failure to take evidence from a witness, and failure to make investigations as required by statute was judicially reviewable ‘conduct’: Courtney v Peters, Marsh, Fee and the Repatriation Commission (1990) o first part of a procedural step before a decision was to be made: Edelsten v Health Insurance Commission (1990) (the action of a delegate of a Minister) Andrew Trotter LWB335 Administrative Law 2. Of an administrative character ↔ legislative or judicial Distinction from separation of powers: Evans v Friemann (1981) Legislative ↔ Administrative: • Consider nature of power—words of statute not conclusive: • Indicia: Central Queensland Land Council Aboriginal Corporation v Attorney-General (2002); Vietnam Veterans Affairs Association of Australia New South Wales Branch Inc v Cohen (1996) o New rule is formulated which has general application ↔ on merits of particular case o changes or determines the law ↔ applies the law; o instrument is binding ↔ provides guidance 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 (2000) • Examples of legislative o City council by-laws: Paradise Projects Ltd v Gold Coast City Council [1994] (By law preventing handing out flyers on roads) o Determining number and type of broadcasting licences available for particular areas: RG Capital Radio Ltd v Australian Broadcasting Authority (2001) o Ability to change a water management plan, where called “subordinate legislation” and Minister given power to enact: Currareva Partnership v Welford [2000] • Illustrations of Distinction o Determining pathology table of service fees = legislative ↔ failure to make decision under the legislation = administrative: Queensland Medical Laboratory v Blewitt (1988) o Determine aeronautical charges payable based on the commercial considerations at time of determination = administrative ↔ by-law power given to same body = legislative: Federal Airports Corporation v Aerolineas Argentinas (1997) o Intermediate decisions in the process of changing a town planning scheme = administrative ↔ final decision is legislative: Resort Management Services v Noosa Shire Council [1995] Judicial ↔ Administrative • Ch III courts, when exercising their judicial powers are not amenable to judicial review: Evans v Friemann; Stuberfield v Webster SM [1996] (magistrate’s ct) • Administrative decisions by courts— o Magistrate conducting committal hearings: Lamb v Moss (1983) (← determine whether sufficient evidence exists to go forward with the trial)  Very rarely would the courts allow judicial review  Public policy against collateral attack on judicial proceedings o Decision to refuse a bill of costs: Legal Aid Commission v Edwards (1982) (notwithstanding that the Registrar’s activities were within the broader framework of the government) o HCA decision to strike a practitioner off the register: Little v Registrar of High Court (1990) • BUT Decision by the Registrar of the High Court to seek a direction as to whether documents were lodged were an abuse of process = judicial power: Letts v Commonwealth (1985) (← exercising the court’s jurisdiction to prevent abuses of power) Andrew Trotter LWB335 Administrative Law 3. Made under an enactment Enactment Commonwealth— (s3 ADJRA) o An Act: (a)  except for Commonwealth Places (Application of Laws) Act 1970; Northern Territory (Self-Government) Act 1978; some legislation relating to ACT o Ordinance of territory (other than ACT or NT): (b) o Instrument (rules, regulations, by-laws) made under Act or Ordinance: (c) o Acts of states/territories set out in Sch3 & instruments under those acts: (d) Queensland— (s3 JRA) o Act; or o Statutory instrument  = document (s6 Statutory Instruments Act 1992) that satisfies two conditions: (s7 Statutory Instruments Act 1992) i. made under an act or other statutory instrument ii. one of the following types: o a regulation o an order in council o a rule o a local law o a by-law o an ordinance o a subordinate local law o a statute o a proclamation o a notification of a public nature o a standard of a public nature o a guideline of a public nature o another instrument of a public nature by which the entity making the instrument unilaterally affects a right or liability of another entity.  Not an Executive Council minute • Document which set out terms and conditions on employment made under the Act = instrument: Chittick v Ackland (1984) (health employee fired for divulging personal information  making of terms and conditions a decision under the enactment) • Deputy Police Commissioner’s contract not a instrument: Blizzard v O’Sullivan [1994] (because it was negotiated, not imposed by the statute) • State Purchasing Policy not an instrument: Concord Data Solutions v Director-General of Education [1994] (because it was not made pursuant to a statutory power to make it) • Not tender guidelines Under an enactment Current test: • Decision expressly or impliedly authorised by the Act o Gleeson CJ: that the enactment gives legal force or effect to the decision • Decision confers, alters or otherwise affects legal rights and obligations, and in that way, be derived from the enactment o Legal rights can arise from statute or general unwritten law o The capacity to affect rights must arise from the statute Griffith University v Tang (2005) (Gummow, Callinan and Heydon JJ, Gleeson CJ agreeing, Kirby J dissenting) (PhD candidate expelled by committee after found to be fabricating lab results —under GUA, s5 university functions to support research/disseminate knowledge | s7 & 8 council Andrew Trotter LWB335 Administrative Law & functions | s11 delegate powers to committee  not under enactment ← entirely consensual arrangement || Kirby J in dissent—power could have come from nowhere else | gravity of case) • Sufficient if enactment gives implied power to make decision: Minister for Immigration and Ethnic Affairs v Mayer (1985) (power to issue entry permit → gives power to determine refugee status (interdependent)  both reviewable) • Source of the power must be in the statute: Glasson v Parkes Rural Distributions (decision of NSW official to demand return of overpayment under Cth petrol subsidy scheme—set up under Cth legislation | decisions to be made in accordance with State legislation  no judicial review under AJDR Art (Cth)) • Self-executing statute not sufficient—need some active decision: Guss v Deputy Commissioner of Taxation (2006) (liability under statute for tax—steps set out in legislation—only decision as to whether to initiate proceedings  not a ‘decision under an enactment → no JR) Other examples, tests & considerations • Other tests— o Decisions must be made in pursuance of, or under the authority of the Act: Chittick v Ackland (1984) (Health Insurance Act give commission power to establish terms of employment—employee fired under those terms  making of terms and conditions a decision under the enactment) o Statute must be the force and effect behind the decision: General Newspapers v Telstra (Telecom receiving tenders for white pages contract—incorporated as Telstra—statute gave it power to enter into contracts—decision on particular contract made based on Articles of Association  not a public matter → no JR); AWB v Neat Domestic Trading (2003) (N seeking to export wheat—refused permission by AWBi (wholly owned subsidiary of AWB) —power in company constitution & Sch2 Wheat Act  not JR  || Minority—in effect acting for government) • Decision must be made under the specific enactment, o not under powers gained because the body gained legal personality under statute: Electricity Supply Assoc. of Aust v ACCC [2001] (publishing decision about operation of TPA provisions  made in pursuance of ACCC’s legal personality, not under any power in act); o not under articles of association—private matter: General Newspapers v Telstra (Telecom receiving tenders for white pages contract—incorporated as Telstra—statute gave it power to enter into contracts—decision on particular contract made based on Articles of Association  not a public matter → no JR); o not under State act rather than Cth act or vice versa: Glasson v Parkes Rural Distributions (decision of NSW official to demand return of overpayment under Cth petrol subsidy scheme—set up under Cth legislation | decisions to be made in accordance with State legislation  no judicial review under AJDR Art (Cth)) • Where power given is very general, specific decisions may not be made under the enactment: Hutchins v Deputy Commissioner of taxation (1996) (power to ‘do anything to recoup tax’ in bankruptcy cases—decision to vote against motion to accept less than owed  decision not made under that power || not a ‘decision’ either) o General provisions prescribing conduct not sufficient: MacDonald Pty Ltd v Hamence (1994) (conduct of the relevant officer) o General power to investigate—specific decision to issue warrant → not sufficient: Salerno v National Crime Authority (1997) (Cth act conferring power to investigate—decision to issue warrant made by SA policemen wrt SA legislation → no ADJR review) • Decisions made under private contract not made under an enactment: o Even where power to make contract comes from statute: ANU v Burns (dismissal on grounds of physical incapacity—provision allowing found in contract—statutory provision allowed to appoint staff  decision made under contract not under enactment); Blizzard v Andrew Trotter LWB335 Administrative Law O’Sullivan [1994] (dismissal of the Deputy Police Commissioner—terms of employment governed by contract: s5.4 of Act  was not made under an enactment but under contract); o Examples  Not to promote: Australian National University v Lewins (1996) (decision not to promote lecturer—made in accordance with university promotion policy—
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