3017LAW Study Guide - Final Guide: Central Land Council, Primary And Secondary Legislation, Governor Of Queensland
ADMINISTRATIVE LAW
Questions
1. Access to judicial review (incl privative clauses)
2. Standing
3. Grounds of review
a. Headings for each
b. Dot point law and analyse with sentences
c. Underline cases
4. Remedies
a. ALSO summarise prospects for judicial review, what client should do – advice
(1) ACCESS TO JUDICIAL REVIEW
MUST SATISFY 4 ELEMENTS
Decision of administrative character under enactment not excluded
STATUTORY REVIEW
(a) Decision – s5 + Bond
Types of decisions
- Review of decision
- Review of conduct for purpose of making decision
- Review of failure to make decision
- Key word = decision
Decision capable of review vs preliminary/decision on the way
Australian Broadcasting Tribunal v Bond
ISSUE: Was the decision about Bond not being fit and proper reviewable?
clive palmer of 1980s, very charismatic and in media person. Owned channel 9. series of concerns. ABT needed
to have licence to run a freeview show. And broadcasting licence needed to meet standards and can take away
licence if decided person was no longer fit and proper person. Person = company only for licence this. A current
affairs directing. Using them to investigate other businesses against him. Using power to improper advantage.
Company bond owned was no longer fit and proper. Bond no longer fit and proper and he was the one in
control.
OUTCOME: Decision was not reviewable as it was not under enactment - preliminary
Mason CJ’s judgment is now seen as the lead judgment
- Company needs to be fit and proper person for a licence
- ‘a reviewable decision is one for which provision is made by or under statute…decision which is final or
operative and determinative.’
- A conclusion reached as a step along the way…leading to ultimate decision would not ordinarily amount to
a reviewable decision unless statute provided for the making of a finding or ruling on that point so that
decision would be intermediate decision.
- NEED SECTION – PINPOINT
- PRELIM OR STEPS ALONG WAY NOT REVIEWABLE UNLESS IN ACT
- Conduct is essentially procedural and not substantive in character, therefore prelim decisions not generally
conduct.
- CONDUCT
oS3(5)
oDecisions to refuse legal representation at hearing
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(b) Administrative character – Central Land Council
Analogous of civil dispute where one party against another and applies to a particular person. Applying rules to
specific case.
Minister for Industry and Commerce v Tooheys (1982) 60 FLR 325
ISSUE: How to distinguish between administrative and legislative decisions? Was the refusal to make a by-law
under the Customs Act administrative or legislative?
FACTS: refusal by commissioner of customs to make bylaw under relevant act regarding relaxation of duties
payable on certain goods. Importer ask to bring in these goods but they are currently being taxed too much
and asked for by law to be made to reduce it. Refused to make decision. Tooheys tried to get judicial review.
- Even though created something seemingly legislative, but it only applied to particular item to particular
person it is admin related
OUTCOME: Administrative
REASON: ‘The distinction is essentially between the creation or formulation of new rules of law having general
application and the application of those general laws to particular cases’ per Bowen CJ, Northrop and Lockhart
JJ at 665.
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615
ISSUE: Was the substitution of a new pathology table in the Schedule of the Act administrative or legislative?
FACTS: Schedules/tables that set the amount of rebates for certain pathology procedures. Released table and
QLD medical laboratory said we want more – what is produced is delegated legislation that is tabled in
parliament, minister is delegated of parliament and applies generally to all
OUTCOME: Legislative
REASON: Gummow J questions the distinction in Tooheys’ case between the creation of new rules and the
application of those rules
This decision is more formalistic and looks at the fact that the decision ended with an amendment of a
schedule to a statute - ie part of the statute
The Minister was acting as a delegate of Parliament to change an enactment
Therefore legislative not administrative
Delegated law and goes before parliament then strong suggestion it is legislative
Central Qld Land Council v Attorney-General (Cth) (2002) 116 FCR 390:
ISSUE: Were the Minister’s decisions about whether acts were ‘approved exploration acts’ under the Native
Title Act legislative or administrative?
OUTCOME: Legislative
REASON: Wilcox J (at 408) outlined a number of indicators:
1. Decisions determining the content of rules of general (usually prospective) application (legislative) vs
application of rules to particular cases (administrative)
2. Parliamentary control of the decision (legislative)
3. Requirement for public consultation (legislative)
4. Provision for merits review (administrative)
5. Binding legal effect, particularly in affect on statutory provisions (legislative)
(c) Under enactment – s 3 + s 9 – Tang
- Under an act of parliament or delegation legislation. SHOW SECTION
- S 4(b) provides statutory review for decisions to do with handing out money from parliament or from tax
that are essentially non-statutory – allows review of decisions that are NOT under an enactment but which
still have important implications for public.
Australian National University v Burns (1982) 64 FLR 166
ISSUE: Was Burns’ dismissal ‘under enactment’
FACTS: Burns dismissed by ANU and tried to get judicial review with ANU established under cth law
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HELD = no, no review if dismissal. Dismissed under clause of contract not legislation.
OUTCOME: No it wasn’t
REASONS:
Section 23 ANU Act provided for appointments, not dismissal
Clause 2(b)(ii) of Employment Contract referred to dismissal on medical grounds
While entering into the contract was under enactment (s23), dismissal was under contract
Therefore, not decision was not under the enactment and Burns could not get reasons under s13.
Griffith University v Tang (2005) 213 ALR 724
ISSUE: Was the decision by the Assessment Board made under the GU Act?
FACTS: Tang student at griffith. Uni decided to cancel his enrolment as he was not doing well under phd.
Judicial review – terminate student. Under griffith act
HELD = decision to end was not under the act, termination was under the griffith policy. Policy used to
terminate not the act so NO JUDICIAL REVIEW
OUTCOME: 4/1 majority said NO.
Gleeson CJ (at para 23): ‘The power to formulate those terms and conditions, to decide to enter the
relationship, and to decide to end it, was conferred in general terms by the Griffith University Act, but the
decision to end the relationship was not given legal force or effect by that Act.’
•Gummow, Callinan and Heydon JJ (at para 80; 89): ‘The determination of whether a decision is
“made … under an enactment” involves two criteria:
•first, the decision must be expressly or impliedly required or authorised by the enactment;
and,
•secondly, the decision must itself confer, alter or otherwise affect legal rights or
obligations, and in that sense the decision must derive from the enactment.’
•Kirby J dissented and criticised the majority’s approach for:
•further confusing this area of the law,
•counteracting the remedial purposes of the JRA,
•re-introducing a narrow focus on rights and obligations
•failing to adequately provide an avenue for review for a person who clearly was going to be
adversely affected by the decision
•This case provides an excellent demonstration of different approaches to the court’s role in
balancing individual interests against deference to the exercise of public power.
•Very narrow to show section
•Policy = not section and not under enactment
•THIS IS STATUTORY
•So common law other option not as limited
NEAT Domestic Trading v AWB (2003) 216 CLR 277:
ISSUE: Are decisions of non-govt, non-statutory bodies made ‘under an enactment’?
FACTS: Aust wheat board established under corp act with govt as shareholder and exercised power under
statute. Neat wanted to challenged decision.
HELD = HC you cant do this. When it makes decision it does so as corporation. Stops under statutory but still
can get review under common law
OUTCOME: Despite the statutory basis of AWBI’s powers, its incorporated status under the Corp’ns Law means
that its decision was not a decision under an enactment.
-In this case the HC determined that the ‘private’ status and commercial objectives of AWBI could not be
reconciled with any administrative law obligations.
(d) Exclusions – see table
Queensland = Governor General Decisions ARE reviewable under JRA
Commonwealth = Governor General decisions NOT reviewable under ADJRA
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Document Summary
Decision capable of review vs preliminary/decision on the way. Issue: was the decision about bond not being fit and proper reviewable? clive palmer of 1980s, very charismatic and in media person. Abt needed to have licence to run a freeview show. And broadcasting licence needed to meet standards and can take away licence if decided person was no longer fit and proper person. Using them to investigate other businesses against him. Company bond owned was no longer fit and proper. Bond no longer fit and proper and he was the one in control. Outcome: decision was not reviewable as it was not under enactment - preliminary. Mason cj"s judgment is now seen as the lead judgment. Company needs to be fit and proper person for a licence. A reviewable decision is one for which provision is made by or under statute decision which is final or operative and determinative. ". Prelim or steps along way not reviewable unless in act.
