1.4.2 JR Grounds--Procedural Unfairness

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Course
JSB171
Professor
All Professors
Semester
Spring

Description
Procedures Required to be Followed Decision: s5(1)(b) ADJR | s20(2)(b) JR Conduct: s6(1)(b) ADJR | s21(2)(b) JR A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds: (b) that procedures that were required by law to be observed in connection with the making of the decision were not observed; [→ JE—Jurisdictional Fact (if ~ then the minister may ~)] General Test • Historically—divided procedures into mandatory & directory procedures (now replaced) o → only disregarding mandatory procedures would invalidate Current test—whether parliament would have intended a decision made in violation of a procedure would be invalid: Project Blue Sky Inc v Australian Broadcasting Authority (2000) (HCA) (ABA must act in accordance with Australian treaty obligations: s160 + Treaty with NZ on equal access to markets + ABA standards must be consistent with other sections of act: s122 —set standard that 55% of prime- time broadcasting = Australian content  only regulating power → not void || but interested party could seek injunction to prevent reliance on it) Contrast—  establishes an essential pre-condition to the valid exercise of a function → void o eg “the ABA may make standards provided that they are consistent with Australia’s obligations”: ↔ Project Blue Sky o Consider why procedures required by statute & interaction with purpose of legislation • Eg Requirement to issue health impact statement → reason is to provide factual & expert matrix against which decision made about public health = purpose of act ↨  regulates a decision making power or function which has already been conferred → not void (but person with sufficient interest may seek declaration that unlawful | injunction to prevent reliance of it) o eg “ABA may make standards” + “ABA must perform its functions consistent with Australia’s treaty obligations: Project Blue Sky • Example—requirement to give in writing: SAAP v MIMA (2005) (high water mark) (immigration— Migration Act requires giving written particulars—RRT using video link to applicant, putting daughter’s statements to him orally  condition precedent || even though no actual injustice || also JE) o May not be adopted: Minister for Citizenship v SZIZO (2009) (less willingness to find it will be a condition precedent) • Decision-maker must be bound to follow procedures for claim to succeed: Minister for Health and Family Services v Jadwan Pty Ltd (1998) (Minister followed wrong procedures in Act—for declaring nursing home didn’t meet standards rather than to revoke licence  minister not bound in any case → claim failed) Considerations (cases under old approach—but in substance would have same result) • Degree of importance, effect on community to be taken into consideration: Scurr v BCC (1973) (Application to build shopping centre— public notice not given as required by Town Planning Act Andrew Trotter LWB335 Administrative Law  feedback important—critical process of public notice → void ↔ cf if merely technical matters like size of sign) • Where concerns public safety → probably precondition: JJ Richards & Sons v Ipswich City Council [1996] (Application to dispose of industrial waste written informally—Health legislation prescribed form  mandatory) • Causing public inconvenience | aim of legislation → precondition: Hunter Resources Ltd v Melville (1988) (marking on ground for mining application in specified intervals  measurements prevented multiple claims—aim of legislation to prevent this unfair advantage → mandatory) Statute—may broaden • Statutory wording may be broader—suggests a mere relationship, not necessarily causal connection: Ourtown FM Pty Ltd v Australian Broadcasting Tribunal (1987) per Deane J (stand-alone— questionable authority) (broadcasting licence—required report to minister w reasons to decide whether to grant—argued that two separate powers, one not a precondition to the other  legislation widened scope of ground—even if not a temporal relationship, still sufficient → JR) o JR 20(2)(b) that procedures that were required by law to be observed in relation to the making of the decision were not observed o JR 21(2)(b) that procedures that are required by law to be observed in relation to the conduct have not been, are not being, or are likely not to be, observed o ADJR 5(1)(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed o ADJR 6(1)(b) that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed; Andrew Trotter LWB335 Administrative Law Cases Project Blue Sky Inc v Australian Broadcasting Authority (2000) 74 ALJR 419: • A case relating to whether Project Blue Sky, a NZ television producer • The ABA created standards for television content, which could not be inconsistent with other sections of the Act under s122(4) • ABA created a standard that said by 1998, 55% of broa
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