Administration Law Combined Notes

(1) SCOPE OF ADMINISTRATIVE LAW
Review by Executive itself

WHAT IS PUBLIC LAW?
3 main types of Executive (administrative) review:
Internal review (conducted by individual Departments);
Private law is characterised as a dispute between 2 private
External merits review (conducted by an independent
citizens (although many private matters involve the
Panel/Tribunal);
government as a party, eg. contractual dispute).
these bodies are set up by statute, and usually have
Public law is characterised by:
power (conferred by statute) to undertake full merits
the government being a party to a dispute; and
review.
grounds of review & remedies which are not generally
tribunals are subject to further review/appeal to the
available against private bodies (ie. it is concerned with
Courts on questions of law.
the control of powers which are inherently governmental
Review
by Ombudsmen.
or public in nature, in the sense that only government
unlike
tribunals, Ombudsmen do not have power to
possesses such powers).
change a decision; they only recommend.
WHAT IS ADMINISTRATIVE LAW?

Scope? Administrative law involves review of the exercise of
public power by public bodies.
Public bodies means the Executive branch of government
(which implements the elected governments policy). Public
bodies include:
Government departments;
Statutory authorities;
Ministers; and
Cabinet.
So administrative law includes review of:
Social Security decisions;
Immigration & deportation decisions;
Taxation;
Environment law;
Grants & funding decisions; and
Dismissal of public officers.
The Executive exercises certain powers:
Statutory powers (powers conferred by statute)
In admin law, we are concerned with the exercise of
a power already lawfully conferred on the
government, rather than the validity of that conferral
different from constitutional law.
Prerogative powers (powers once exclusive to the
Sovereign, eg. powers to sign treaties & declare
war/peace, prerogative of mercy)
Common law powers (eg. contractual powers, power to
own property)
Statutory & prerogative powers are public powers are
within the scope of admin law.
The role of admin law is:
To ensure that the Executive does not go beyond the
scope of its powers;
To ensure that policy is implemented fairly, rationally
and impartially;
To encourage openness in government; and
To encourage public participation in policy-making.
WHO REVIEWS EXECUTIVE ACTION?

Accountability to Parliament
There are various forms of Parliamentary review:
Presentation of Annual Reports by Departments &
Statutory Authorities;
Investigations by Parliamentary Committees;
Queries by MPs;
Questions asked in Parliament;
Reports by AGs and Ombudsmen.
In theory, Ministers are responsible to Parliament. But in
practice, it is impossible for Ministers to adequately supervise
all that is done by bodies they are responsible for.
Judicial Review
Judicial review is:
essentially limited to review of procedure by which
administrative decisions are reached (ie. review of the
decision-making process to see if it has conformed with
the principles of fairness, rationality & legality); and
seldom concerned with the substantive outcome of the
decision made (ie. the merits).
Additional Measures
Freedom of Information legislation confers a right of access to
information held by government agencies, subject to certain
exemptions. This may give access to valuable evidentiary
material to challenge a decision.
TYPES OF REVIEW
Merits Review (conducted by tribunals)
The tribunal takes no account of the original decision. It starts
from scratch, hearing the evidence anew, deciding the facts,
and interpreting & applying the statute for itself.
When it makes a decision, that decision stands in place of the
original decision under review.
Legalities Review (conducted by courts)
Legalities review is limited to questions of law.
The court does not start from scratch; it does not rehear
all the evidence. Rather, it just examines the procedures
followed by the original decision maker, to ensure that
they were fair and reasonable.
So it is a review of the processes used to make a
decision, not a review of the substantive outcome of
the decision.
When a court finds that incorrect procedures were used by the
original decision-maker, it will not (generally) substitute its
own decision; rather, the original decision is declared void,
and the matter is remitted back to the decision-maker.
When the original decision-maker re-decides the matter,
this time following the correct procedures as determined
by the court, it may reach the same decision as that
originally reached.
Review by Ombudsmen
Statute confers power on Ombudsmen to investigate various
forms of administrative malpractice.
However, unlike tribunals and courts, they have no
coercive powers cannot enforce any conclusion they
reach about an error.
(1) SCOPE OF ADMINISTRATIVE LAW

Although the remedies of certiorari & declaration are not
mentioned, the High Court is usually willing to grant either
Judicial review was originally an inherent common law
where appropriate.
jurisdiction claimed by superior Courts.
The HC can (in most cases) remit cases commenced within s
Judicial review is constitutionally limited to questions of
75(v) jurisdiction to, and only to, the Federal Court (s 44
legality. This means courts will only examine the process
Judiciary Act 1903; s 9 ADJR Act).
by which an administrative decision was made.
The grounds of review involve a challenge to the
Federal Court
rationality or fairness of the decision-making process (ie.
ADJR Act confers judicial review jurisdiction on the Federal
legalities), rather than a direct challenge to the
Court (s 8).
substantive outcome of that process (ie. merits).
S 3(1): The Act applies to a decision of an
The remedies do not transgress into the merits of the
administrative character made under an enactment,
administrative decision.
OTHER THAN a decision by the GG or a decision
[listed] in Schedule 1.
Remedies available
So only Cth exercises of statutory power can be
Prerogative Writs (only available against public bodies &
reviewed under the ADJR Act.
their exercise of public power, ie. statutory or prerogative
This overrides the common law principle of
powers)
justiciability.
Certiorari: To quash a decision, making it void and of no
Standing is granted to a person aggrieved by a decision
legal effect.
(s 5), conduct (s 6) or failure to make a decision (s 7).
Appropriate where the flawed decision-making
Person aggrieved means a person whose interests
process has been completed.
are adversely affected (s 3(4)).
Prohibition: An order that the government body does not
This picks up common law rules of standing.
proceed with a particular course of action.
Interested persons can apply to be made a party to an
Appropriate where the flawed administrative process
existing application (s 12(1)).
has not been completed yet.
The grounds of review are set out in ss 5, 6 & 7.
Mandamus: A mandatory order that a government body
These grounds are essentially the common law
do something.
grounds, with the exception that any error of law (not
Usually issued with certiorari to direct the following
just jurisdictional errors) is reviewable under the Act.
of proper procedures.
S 5 is used where the decision has already been
Equitable Remedies (broader in scope & more flexible than
made. S 6 is used where the decision has not yet been
prerogative writs)
made. S 7 is used where an administrator failed to
Declaration: A declaration that the decision is legally
make a decision when there was a duty to make the
flawed and thus void.
decision.
Technically, it has no coercive effect; but in practice
The Federal Court can order flexible remedies: broadly
it is treated the same as certiorari.
defined order of review (s 16).
Injunction: Can be prohibitory or mandatory.
Persons who can apply for review under s 5 have a right
Can cover same ground as prohibition & mandamus.
to obtain reasons for the administrative decision (s 13).
[ie. can obtain reasons for decisions reviewable under the
Judicial Review Jurisdictions
ADJR Act]
At SA level, there is only 1 source of judicial review
At common law, no right to reasons exists.
jurisdiction: the Supreme Courts inherent jurisdiction as laid
Availability of reasons gives the applicant a tactical
out in Rule 98.
advantage for challenging the decision (easier to
At Cth level, there are 4 sources of judicial review
prove ground of review).
jurisdiction: one for the High Court (s 75 Constitution), two
The right does not apply to decisions listed in
for the Federal Court (ADJR Act, s 39B Judiciary Act), and
Schedule 2.
one for the Federal Magistrates Service (~ADJR Act).
S 39B Judiciary Act 1903 (Cth) confers an additional judicial
review jurisdiction on the Federal Court.
State Supreme Court
It vests the same jurisdiction which s 75(v) Constitution
confers.
State Supreme Courts have inherent common law
Designed to overcome the more limited jurisdiction of the
jurisdiction to review:
ADJR Act.
State administrative decisions; and
Cth administrative decisions (s 76 Constitution; Judiciary
Federal Magistrates Service
Act 1903 (Cth)), although today Cth legislation restricts
this possibility to very limited circumstances.
This is a new Cth court created in July 2000.
The procedure for judicial review in the SA SC (laid down in
It has ADJR Act jurisdiction.
Rule 98 of the Rules of the Supreme Court) makes available
Matters may be remitted between it & the Federal Court.
the remedies of prerogative writs, declarations and
injunctions.
JUDICIAL REVIEW
MERITS REVIEW JURISDICTION
High Court
s 75 Constitution: The High Court has original jurisdiction in
matters:
(v) where mandamus, prohibition or injunction are sought
against an officer of the Cth; or
(iii) where the Cth (or person on Cths behalf) is a party.
All merits review jurisdiction are conferred by statute.

In SA, there are merits review tribunals exercising limited
jurisdictions in the State. Also, District Court has limited
merits review jurisdiction.
Cth specialist merits review bodies (eg. Social Security
Appeals Tribunal) & AAT.
(2) CONSTITUTIONAL FRAMEWORK OF ADMINISTRATIVE LAW

Administrative law is precisely about the courts control of the
The Judiciarys job is to settle disputes according to law,
executive, and the proper level of such control (ie. the
including keeping the other branches of government
appropriate degree of judicial deference to administrative
within their constitutionally allotted roles.
action which claims a democratic mandate).
There is a system of checks & balances between these 3 arms
Balance is always being struck in the courts decisions
of government.
between their concern for individual rights & freedoms, and
The SOP doctrine provides that:
the recognition that elected government takes action in the
Only the independent courts can finally determine
overall public interest.
disputes about the legality of governmental action (ie.
Admin law is a policy subject, because:
judicial power); and
In every substantive area, there are difficult decisions to
Only the executive can administer actions (ie. executive
be made by admin decision-makers which the courts will
power).
second-guess;
This is the legalities/merits distinction.
Beneath each court decision are basic policy issues about
the extent to which an elected government is entitled to
Rule of Law (red light theory)
intervene in citizens lives on the basis of its democratic
3 meanings of the ROL:
mandate.
Principle of Legality: If government interferes with
individual rights & freedoms, it must show a source of
Red & Green Light Theories of Admin Law
legal authority (ie. statutory power, prerogative power or
Red light theories accept that government is necessary, but
contractual power).
believe that governmental power should be limited as much as
Statutes can give administrators sweeping powers
possible need to constantly scrutinise government.
this principle alone does not protect individual rights
Primarily concerned with protecting individual rights &
& freedoms.
freedoms.
Restriction of Discretionary Power: Courts develop
Focus is on courts & judicial review.
implied limits on the exercise of discretionary power.
Green light theories believe that government has a mandate
These implied limits include the common law
& the role of admin law is to help them carry out policy.
grounds of review: administrators must act
Primarily concerned with ensuring that genuine collective
reasonably, they must take account of relevant
public goals are achieved.
considerations & not of irrelevant considerations, and
Focus is on public participation (eg. FOI Act).
they must act fairly by according procedural fairness.
Red light theories dominate. But a balance must always be
So the courts recognise the necessity for wide
sought courts can & do go too far.
discretionary powers in modern government, but
limit unnecessary discretionary power.
One Law for All: There is one law for both government
3 Constitutional Principles
& citizen.
3 basic principles define the scope of judicial review, &
This means that government cannot be above the
underpin administrative law doctrines:
law, and should enjoy no unnecessary
Parliamentary supremacy;
immunities/privileges.
Separation of powers; and
Courts
assert
that they can intrude into the admin process,
Rule of law.
because the ROL requires that:
individual rights & freedoms are preserved;
Parliamentary Supremacy (green light theory)
governmental power is only exercised lawfully; and
Parliament is the supreme source of legal authority. It
essentially the same principles apply to government as to
follows that:
any other entity.
Parliament can make/unmake any law;
When combined with the SOP doctrine, the rule of law states
Statutes override common law; and
that only courts supervise the legality of admin action.
Prerogative powers can be abrogated/replaced by statute.
In theory, the Executive is firmly under Parliaments control.
Tensions: Practical application of the constitutional
Dicey said the reason for Parliamentary supremacy is because
principles
Parliament represented the will of the people, which is the
The 3 constitutional principles underlie fundamental
highest source of legal authority (people sovereignty) No
principles of admin law.
court can invalidate an Act.
The 3 principles often conflict tension.

The doctrine also underpins:
Statutory interpretation rules; and
A tradition of judicial deference to the will of Parliament.
But in Australia, it is a limited doctrine (because of
Constitution having certain heads of power).
Separation of Powers
SOP is implicit in the Constitution @ Cth level.
Rationale? SOP preserves individual liberties by dispersing
power through different hands:
The Legislatures job is to make laws of general
application.
The Executives job is to carry out the governments
business, by exercising powers granted to it by the
Legislature.
Statutory interpretation & common law rights

Ultra vires principle: Admin action must be within power
(statutory or common law).
To determine whether it is UV, courts interpret statutes.
When interpreting statutes, courts say they defer to
Parliament. But they interpret statutes in light of the existing
common law (and therefore the individual rights, freedoms &
liberties recognised by the common law) Courts imply a
legislative intent that common law rights & freedoms are to be
preserved.
So although courts recognise parliamentary supremacy by
acknowledging that Parliament can confer extensive power on
the executive, they also uphold the rule of law by subjecting
such power to implied limitations.

But courts have said that Parliament can remove individual
Kinds of decisions which courts will not review (b/c of SOP
rights & freedoms if it uses clear & unambiguous language.
& competence), even if there is a clear legal error:
Merits of an admin decision-making process;
Decisions involving high-level policies, eg. budget, tax,
Privative cluses
national security;
A privative clause is a statutory clause that expressly purports
Appointment of QCs.
to exclude judicial review.
Note:
Justiciability
goes against the rule of law, which requires all
Courts limit the operation of privative clauses, by asserting
admin
decisions
to
be
reviewable by courts.
that the clause is only intended to protect a decision which is
made in accordance with admin law principles. Any other
type of decision is not a decision at all; rather, it is a nullity.
This argument is plausible for jurisdictional errors only.
CASES
Eg 1 (jurisdictional error): Workers compensation
tribunal grants a divorce. Court says this action is outside
Roberts v Hopwood
its jurisdiction there is nothing for the privative clause
Unreasonableness; relevant/irrelevant considerations.
to protect.
*s 62 Metropolis Management Act allowed a Council to give
Court conforms to legislative will supported by
its servants such wages as [it] may think fit.
Parliamentary supremacy.
*s 247(7) Public Health Act gave the Auditor power to
Court (not executive) determined whether the statute
disallow any [payments] contrary to law, and surcharge the
gives the tribunal power to act supported by
amount on the Councils decision-maker.
Separation of Powers.
*During 1922, the cost of living fell from 176% to 82% above
Court requires tribunal to conform to the express
the pre-war level, but the Council did not lower the minimum
limits of their power supported by Rule of Law.
wage of its lowest grade of workers.
Eg 2 (non-jurisdictional error): Workers compensation
*The minimum wage was higher than elsewhere, and was the
tribunal resolves a compensation claim, but fails to take
same for males and females.
account of a relevant consideration. Here, the privative
*Auditor argued that the payments to the employees were not
clause is clearly intended to protect the decision. But the
wages, but were gratuities contrary to law. Therefore, the
Court says the privative clause doesnt work.
Auditor disallowed the extent by which the amount exceeded
Court is in conflict with the Parliamentary intent
legality, and surcharged that excess upon the Councils
not supported by Parliamentary supremacy.
decision maker.
Court (not executive) determined whether the statute
General principle: A body charged with the administration for
gives the tribunal power to act supported by
definite purposes of funds contributed by persons other than
Separation of Powers.
the members of that body, owes a duty to those contributors to
Court requires tribunal to conform to the implicit
administer (1) in a businesslike manner with reasonable care,
limits on their power supported by Rule of law.
skill and caution, and (2) with regard to the contributors
interests.
Legality/Merits Distinction
The Councils funds were not contributed by its members
Courts say that they can intervene where a decisions legality
but by taxpayers; and it fixed the wages without regard to
is in issue (because of rule of law & SOP), but not where the
external aids (eg. trade union rates, cost of living), instead
decisions merit is in issue (because of SOP & expertise of
relying on eccentric principles of socialistic philanthropy
administrator) some judicial deference to the original
& feminism it breached the duty the payments were
decision-maker.
contrary to law.
While tribunals (part of Exec) must determine questions
Also, the words think fit must be construed to mean
of law, they cannot do so in a final/binding way.
reasonable Council must award reasonable wages.
This is a distinction between:
There is no rational proportion between what the Council paid
questions of law (which are legalities) & questions of fact
its women employees, and the reasonable remuneration for
(which are merits);
their services much of the wages to women were gratuities
substantive outcome of an admin decision-making
the disallowance and surcharge were rightly made.
process (merits) & the actual process used to reach that
outcome [eg. whether within power/jurisdiction, or made
Analysis
by fair & reasonable procedure] (legalities); and
Administrative decision? The Councils decision to fix a
the weight attributed to the considerations (merits) &
high wage rate for its lowest grade workers, male & female.
unreasonable weight attributed to a particular factor
Grounds of review? The wages decided were contrary to law,
(legalities). The difference between the two is only a
because (1) the wage rate for women was unreasonable, and
matter of degree.
(2) the Council (when deciding) took into account factors that
Can be hard to determine where the line is. Yet courts
were not relevant (eg. social philanthropy & feminist
determine this with no one checking on them.
ambition) and ignored factors that were relevant (eg. union
rates, cost of living).
Justiciability
Justiciability is the suitability of a decision for judicial review.
Evaluation
Generally, justiciable decisions are admin decisions
This judicial review can be criticised:
reached by applying clear & pre-existing standards to the
The statute only said as the Council may think fit, yet
facts (ie. determinative decision-making processes).
the judge implied a requirement of reasonableness. This
Generally, non-justiciable decisions are admin decisions
implication seems to conflict with legislative intent.
reached by the creation of standards (ie. policy
What does reasonable mean? It means different things
decisions).
to different people Its based on opinions. Eg. the

Council thought the wages were reasonable in light of its
Evaluation
socialistic principles, but the judge thought it was
This case is about the timing of court intervention. It requires
unreasonable.
applicants to wait for a final operative decision (the last decision in
Also, unreasonableness is more about merit than legality.
the statutory scheme) before challenging an admin action it is a
The judge should not be reviewing merit.
sympathetic approach to the administration green light.
The judge said the Council needed to take some factors,
but not others, into account. Yet the statute says nothing
about these factors.
Shop Distributive v Minister for Industrial Affairs
Therefore, its hard to see the appropriate level of judicial
Ultra vires; standing.
intervention with these 2 grounds of review.
*Shop Trading Hours Act regulated the closing times of shops
This case is an example of red light theory.
in shopping districts.
*s 13 allowed the Governor to alter closing times by
proclamation, only where the Minister had certified that a
ABT v Bond
majority of interested persons desired it.
Scope of judicial review under the ADJR Act.
*s 5 gave the Minister power to issue certificates which
*Statute provided, as an essential preliminary to the ultimate
exempted shops from complying with the Act.
decision of revoking/suspending a TV licence, for a finding
*The Minister issued certificates under s 5 exempting some
on whether the licensee is a fit & proper person.
shops between 11am & 5pm on Sundays.
*ABT found that Bond was not a fit & proper person; and
*A trade union (which had many members employed as shop
because of his influence over the licensee companies, they too
assistants in the shopping district) applied for a declaration
were not fit & proper persons to hold licences.
that the certificates were invalid + injunction.
*These findings were steps along the way to the final
Standing? Sunday trading would impact the times shop
operative decision to revoke/suspend the licences.
assistants in the area work [ie. the shop assistants were
*Bond sought review of these findings under the ADJR Act,
affected more significantly than the rest of the public]
pleading that the findings were either reviewable decisions
those shop assistants have a special interest in the decision
or otherwise conduct.
union had standing to apply for orders.
Principles
Ground of review? Ultra vires. Upon interpretation of the
A reviewable decision under ADJR Act is:
Act, legislature could not have intended s 5 to give a power to
exercised under statute;
lay down an alternative trading hour regime to the Act,
of an administrative character;
because:
a substantive determination (not procedural
s 13 already provides a means of altering trading hours
determinations; otherwise there would be little scope for
that affords protections to interested persons. Legislature
review of conduct); and
could not have intended s 5 to bypass the s 13 protections.
(1) a final & operative decision, or (2) an essential
The Act does not envisage partial exemptions (ie.
preliminary step required by statute [ie. a decision
exemptions confined to certain hours on a particular day).
reached as a step along the way [of reasoning leading] to
Why? The s 4(1) definition of exempt shop does not
an ultimate decision which is required by statute].
refer to trading hours, but to other considerations like
Reasons why decisions must be final? Although ADJR
floor area and nature of goods/services offered for sale.
Act is a remedial statute ( broad view required), if
This case is an example of a statutory power (s 5) being impliedly
decision did not involve finality, there would be a
confined by the rest of the Act. Red Light.
fragmentation of the processes of administrative decisionmaking, and maybe inefficiency of the administrative
process (eg. in terms of cost & time). [ie. can frustrate
Minister for Immigration & Ethnic Affairs v Teoh
ABT by seeking review of every step]
Procedural fairness in relation to ratified Conventions.
A reviewable conduct is procedural (not
*Australia ratified a Convention, which states that: if an
substantive/factual) in character.
administrative decision affects children, the best interests of
Reason for such a narrow view of conduct? Policy
the child shall be a primary consideration.
reasons (admin efficiency) and also decision is already
*Teoh applied for a permanent entry permit.

defined narrowly.
*The policy instructions state that, for grant of resident status,
SO: in relation to conduct, the complaint is that the process of
the applicant must be of good character; and that one basis of
decision-making is flawed; in relation to a decision, the
assessment is whether the applicant has a criminal record.
complaint is that the actual decision was erroneous.
*While his application was pending, he was convicted of
Decision
importing heroin 6 years imprisonment.
Ultimate decision here = decision to revoke/suspend licence.
*The Immigration Review Panel recommended that Teohs

The finding that the Licensees were not fit & proper persons,
application be rejected in view of [Teohs] criminal record.
was only an intermediate decision. BUT the intermediate
*Teoh sought Federal Court review.
decision was required by statute [as an essential preliminary to
Principles
the ultimate decision]. And the decision was on a matter of
Ratification of a Convention is the executives statement that
substance. Thus, this finding is a reviewable decision.
it will act in accordance with the Convention. This statement
The finding that Bond was not a fit & proper person, although
creates a legitimate expectation (absent statutory/executive
a preliminary step to the ultimate decision, was not required
indications to the contrary) that administrative decisionby statute [it was only a relevant step because the Licensees
makers will act in conformity with the Convention.
happened to be controlled by Bond] an unreviewable
If the decision-maker purports to make a decision inconsistent
decision.
with a legitimate expectation, procedural fairness requires that
the persons affected should be given notice & an adequate

opportunity to present a case against the taking of such a
Judicial review conflicts with objectives of admin law,
course.
because:
Admin law involves continuing relationships. But
Decision
Since Art 3.1 requires the best interests of the child to be a
Judicial review is event-specific: it is geared to dealing
primary consideration, but the delegate & Panel made their
with serious breakdowns in relationships, or brief
decisions without doing so, and the delegate did not give Teoh
relationships between parties unknown to one another.
any notice or adequate opportunity to argue, there was a want
Admin law relates to the prospective operation of public
of procedural fairness quash & remit.
policy & involves many interests. But The judicial process is geared to resolving disputes
between private parties about private rights, and
Evaluation (practical effects)
determines the answer in the particular case.
Good for applicants: The case allows the applicant to rely on
Judicial intervention depends on the initiative of
the promises of the Executive. If the Executive chooses to
parties to define the issues, which usually ignore
disregard its promise, then it must notify the applicant & give
outside interests.
time to argue why they shouldnt disregard it.
Courts deprive themselves of assistance from the

Bad for government: The case also means that the Executive
administrator or outside interests.
needs to read all relevant ratified treaties & conventions
The
private disputes in judicial process leave the public
before making an administrative decision.
interest
at a disadvantage.
BUT there is an exception: No legitimate expectation arises
Judicial review focuses on the legalities does not
from a ratified convention, if there are statutory/executive
address the content/correctness of administrative
indications to the contrary.
decisions does not really protect the individual.
So case is both red light (by requiring notice where
Judicial review involves criteria and technicalities that

legitimate expectations are not fulfilled), and green light (by
only lawyers understand. Also, theory of jurisdictional
allowing an exception of contrary statutory/executive
error involves value judgments.
indications).
Judicial review is pathological (ie. it says what is wrong,
without giving feedback on what should be done). It is
aimed at detecting & preventing mistakes, but this does
ARTICLES
not equate with administrative success.
Problems caused by Judicial Review
Walsh (Green Light)
Courts are incapable of dealing with policy statements,
He argues: Admin review system is too cumbersome; Judiciary
circulars & directives.
should not interfere with the executives budgetary decisions.
Administrators consider Courts hostile to them dont
An efficiently functioning admin review system can:
give reasons.
Help the economy (by providing for equitable resolution
Court does not elaborate principles of admin law
of disputes & protection of rights, at a reasonable cost &
administrators forced to act on their own.
expeditiously); and
Courts are substituting their views for expert, specialist
Protect civil liberties.
tribunals. Yet they dont know all the various interests at
But our admin review system, while protecting individuals
stake.
from bad decision-making, is too costly because provisions
Who is responsible for the problems?
for appeals against admin decisions require complex &
Lawyers trained mainly in resolution of private
cumbersome admin procedures to be followed:
disputes.
The review processes (eg. FOI, Ombudsman, AAT,
Courts/judges turn everything into question of law &
HREOC) require administrators to document reasons for
forget about costs/effectiveness, and are only generalists
their decisions.
(not specialists).
The cost of review process is high.
Administrative Law Scholars failed to highlight
Excessive consecutive appeals increase legal costs & time
problems in the area, and focused on judicial
of resolving disputes.
pronouncements.
He believes in restricting access to legal aid by people who
Law reform bodies materials produced are too
litigate against the government.
doctrinal, focus is too much on improving judicial review.
Walsh gave 4 examples of the capricious nature &
Future of Judicial Review
considerable cost of some Tribunal & court determinations.
Courts must accept that in this area, they are dealing with
His final sentence: ultimate power over spending public
institutions of Government with which they share power
money must reside with those who have the ultimate
courts need to defer to administrative expertise.
responsibility for procuring it in the hands of the elected
Court should interfere only where general principles of
government.
law are involved.
Bouchard (Green Light)
He argues: Admin laws purpose is to assist fair & efficient
policy implementation Courts must defer to administrative
expertise.
Bouchards definition of Admin Law: Admin law provides
a framework of rules for all relationships between the
administration and the bearer of rights & obligations. Meant
to assist in the fair & efficient implementation of public
policies.
Pearce (Red Light)

He identifies complaints against judicial review, and then
criticises those complaints (often on grounds of the rule of
law). Although he thinks the Court must uphold the rule of
law, he recognises that Courts must also work with the Exec.
There are views that the courts impose pedantic & expensive
requirements, and are a costly obstacle to proper
management. While sometimes true, overall they challenge
the rule of law.

The heart of the tension between Executive & Judiciary is
Conclusion: The courts have shown a lack of sympathy &
that, the Executive measures efficiency by output of decisions,
understanding for the Executives functions, and the Exec has
while the Judiciary looks more closely at individual outcomes.
struck back. The real sufferers of this battle are the members
of public. The arms of government must recognise that each
has a role to perform, and that each is better equipped to carry
Executives complaints about judicial review (& rebuttal of
it out than the other.
them):
Failure to appreciate admin difficulties
Judges pay no heed to the effect of their decisions on
executive decision-making.
Insistence on costly procedures.
BUT the court is only stating what the law requires.
Invasion of Executive domain
Courts are increasingly prepared to find ways around
privative clauses, interfere with policy decisions, and
intervene on the unreasonableness ground.
BUT again these arguments challenge the rule of law
the court is simply carrying out its constitutional duty to
interpret & apply legislation.
Vagueness of grounds of review
The grounds of review are not stated with enough
particularity to give the decision-maker sufficient
guidance on making valid decisions.
RC/IRC ground: The factors are unknown until the court
pronounces them.
Error of law ground: Difficult distinction between error of
law & of fact.
Unreasonableness ground: Circular & vague.
conceded that there is justification for this complaint.
Pedantic attitude to procedural requirements
Natural justice ground of review does not give better
decisions. The remade decision often produces the same
result as the original only delay & cost are added to
the decision-making process.
BUT statute requires the procedure to be followed
Exec cannot simply ignore it because its inconvenient
AND procedural fairness gives individual rights [ROL].
Inconsistent interpretations of legislation
Differently constituted court interprets legislation
differently.
BUT the Exec is just as likely to adopt different
interpretations.
Executives responses
Executive introduced ss 15AA & 15AB AIA to try to require
courts to take into account extrinsic materials.
Executive converts policy into legislation (eg. put factors in
regulations).
Executive limits opportunity for lawyers to be involved in the
Tribunals processes lower costs & faster. But, Executive
has more influence over tribunals (eg. tenure).
Even if the agency knows its wrong, it denies liability in hope
that the complainant may not pursue the claim because of the
costs involved.
Agencies ignore court/tribunal rulings if its considered to be
a hindrance to its admin practices.
Judiciarys possible responses
1) Recognise Executives difficulties, and tailor decisions
accordingly. Eg:
Accept agencys reasonable interpretation of ambiguous
statutory terms.
Receive evidence on the impact of procedural demands.
State what might be relevant/irrelevant considerations.
Prospective overruling: indicate that a particular
interpretation applies only in relation to future decisions.
2) Impose penalties for failure to follow rulings.
Court must uphold the rule of law. Theres doubt about whether
courts are doing enough to ensure that the Executive adheres to
the ROL.
(3) LAW, POLICY & DISCRETION

Tension between Executive & Court
Discretion
The Exec wants overall efficiency ( implements its
policies), but the Courts want to protect individual liberties
Discretion is a choice given to Executive decision-makers
( frustrates some of Execs policies).
as to the way they exercise power.
Ie. Conflict = Effective implementation of public policy
Advantage: Provides flexibility to achieve the best
(ie. needs of the many) v Preservation of individual
decision in an individual case.
rights, freedoms & liberties (ie. needs of the one).
Disadvantage: Decisions can be inconsistent, arbitrary &
Who is charged with striking the balance?
unjust against rule of law.
Executive government thinks that they set the balance,
Rule of law: Exercises of power must have a source of
because an elected govt claims a mandate for their policy
authority discretionary powers be legally checked &
program (or even a general right to govern in anyway
controlled.
they want). [If this view is accepted, admin law has no
Courts take a balanced approach to control of discretion:
role.]
Our grounds of review confine discretion:
Under the transmission belt theory, Parliament enacts
Procedural fairness
the law, and then the Executive faithfully carries it out.
Relevant/irrelevant considerations (eg. Roberts)
But in reality, it is the Executive which decides on
Unreasonableness (eg. Roberts)
legislative changes (since the government has majority in
Statutory interpretation (eg. Shopping hours case)
the Lower House).
No such thing as absolute discretions (Padfield)
In fact, the Judiciary has the final say on the balance. It
Courts imply limits on discretions.
upholds the rule of law.
But our grounds of review also preserve discretion (eg.
ALS v Minister).
Policy controls the exercise of discretion by decision-makers.
CASES
Policy
2 types of policy: broad level (overall govt aims & objectives)
& lower level* (govts interpretation of statute; directions on
how to exercise discretion under specific legislation).
Policies are desirable because they:
Improve consistency;
Improve fairness to individuals;
Achieve the purpose of the power;
Minimise unnecessary inconvenience;
Give upper Exec control over lower Exec.
Admin law comes into play when government implements its
policy in individual instances.
Executive & Judicial control of policy (a dynamic relationship)
How the Executive controls policy:
Policy manuals;
Ministerial statements of policy;
Unwritten policy: day-to-day practice.
How the Judiciary controls policy (its rules):
Policy must be consistent with the statute;
Policy cannot be applied inflexibly to all cases must
consider whether there is anything special about the
particular case which warrants a departure from the
general rule. The consideration need not be long/detailed,
but must exist. (eg. Green v Daniels: no consideration of
departure from general rule in particular cases invalid)
Policy is not binding on government (no estoppel).
Executives response to courts frustrating policy by review:
Putting/clarifying policy in the Act (eg. Social Security;
Tax);
Changing discretions into rules (eg. Migration Act);
Immunising policy from review;
Statutory powers to issue policy guidelines & directions
gives policy statutory force (eg. ADC v Hand, ALS v
Min);
Shift of use from statutory power to contractual power
(because courts scrutinise common law powers much
less, & privity limits range of ppl who can pursue a
contractual remedy).
Judicial attitudes to policy & the relationship between them and

the retention of discretion.
Green v Daniels
Policy contradictory to statute (invalid).
*s 107: A person is qualified to receive an unemployment
benefit if he :
(a) is 16;
(b) is residing in Australia, and satisfies the DirectorGeneral that he is likely to remain permanently;
(c) satisfies the DG that he:
(i) is unemployed;
(ii) is capable & willing to undertake work which, in
the DGs opinion, is suitable to that person;
(iii) has taken reasonable steps to obtain such work.
*Pl registered for employment at the CES a day before she
finished her final school year, and returned a month later to be
told that she could not receive unemployment benefits until
the end of the vacation, 22 Feb.
*ss107(a) & (b) are not disputed.
*Policy manual stated that as a general rule, school leavers
do not satisfy the eligibility conditions [(i) & (iii)] for
unemployment benefits until the end of the school vacation.
Preliminary matters:
Despite the phrase as a general rule, the policy was
applied as an inflexible rule (which prevented the Pl &
others like her from being considered for employment
benefits before 22 Feb).
The policy did not introduce irrelevant factors into the
decision-making process, because the fact that a school
leaver applies during holidays will bear upon the question
of whether he is truly an intending entrant into the
workforce.
The DG can provide guidelines indicating how he will be
satisfied. However, they must not be inconsistent with the
statutory criteria.
Are the statutory criteria + instructions inconsistent? Yes. The
policy requirement prevented school leavers who satisfy all
criteria in s 107 from getting unemployment benefits during
the school holidays. The requirement is not, in truth,
concerned with satisfying the DG; rather, it was designed to
cure a particular abuse.

In relation to criterion (i): The instruction makes sure that
2) The Commission shall provide information to the
the applying school leaver has no intention of returning
Minister as they may reasonably require from the
and is thus unemployed, by waiting until the end of the
Commission;
holidays. But this is done at the cost of being wrong in
3) The Commissions representatives must attend certain
the case of all applicants who actually have no intention
meetings to discuss the reorganisation of the Dept &
to return. Any method producing erroneous results of this
other bodies required for the formation of the ATSIC.
magnitude is clearly unacceptable as a way to satisfy the
*The Commission sought a declaration that the directions
DG.
were invalid (ie. Ultra vires).
Also, there are better ways of learning the applicants
Were the directions ultra vires?
intention to satisfy the DG (eg. applicant making a
The adjective general indicates that the direction must not
declaration of intent).
be directed to a particular case, but applied generally.
In relation to criterion (iii): The instruction as to what
A general direction is similar to a binding guideline.
involves reasonable steps cannot impose an arbitrary
It sets the structure of activity or decision-making.
time before the criterion is to be regarded as satisfied, in
It may require the Commission to undertake an activity of
the case of only one class of applicants (ie. school
a specified character.
leavers). [ie. reasonable steps should not be determined
It may not direct its attention to a specific case arising for
with respect to an arbitrary time]
decision before the Commission.
The desire to prevent abuse by dishonest school leavers
Directions 1,2,3 were general, because they were not
cannot override the statutory criteria of eligibility in favour of
directed to a particular case or even to the content of views
a requirement that finds no place in the legislation, and that
expressed by the Commission. They were just directions as to
denies benefits to the great body of honest school leavers
courses of activity empowered by s 9.
the instruction was erroneous.
Do the directions infringe the limitation imposed by s 11(2)?
The DG (by his delegate) applied the erroneous test to
(ie. did they direct the content of any advice, information or
determine Pls eligibility during the holidays Remedy =
recommendation given by the Commission to the Minister?)
declaration that the DG should have considered all the
No, because on construction, the directions did not make the
circumstances of the Pls claim.
Commission agree with the Ministers views in its
Cannot give declaration that she was entitled to the
advice/recommendation (ie. The Commission was allowed to
unemployment benefits during the school holiday period,
express its own views).
because that would be the court usurping the DGs power
In Directions 1 & 3, if the words required to facilitate
of attaining satisfaction. [ie. reviewing merits]
the formation of the ATSIC were read as requiring the
Commission to positively facilitate and promote the
reorganisation, then they necessarily require the
Analysis
Commission to give certain advice to the Minister they
The court is preserving some discretion (ie. policy instructions
breach s 11(2) invalid. BUT the judge chose to
cannot confine discretion as to DGs satisfaction in a way that
interpret Directions 1 & 3 as requiring the Commission to
is inconsistent with the statutory discretion given).
only co-operate & give information they did not
Actually, there is no strict inconsistency between policy &
infringe s 11(2).
statute in this case, because the policy says as a general rule.
Also, co-operate could be interpreted to mean

Instead, the administrator (DGs delegates) simply did not
positively giving advice and recommendations in favour
consider the statutory criteria as required ground of review
of forming the ATSIC, which would breach s 11(2). BUT
is inflexible application of policy.
it was in fact interpreted loosely, so as to not require a
The court will look at the substance of the policy (ie. even
particular advice/recommendation no breach of s
though the policy said as a general rule, the court treated it
11(2).
as an inflexible rule because it was applied that way)
The Directions should be read in such a manner as to maintain
their validity. To so read them is merely to read them in
context.
Aboriginal Development Commission v Hand
General Directions (valid).

*Discretionary Power: s 9(1): The Commission has power
to:
(c) co-operate with [government bodies] and with other
persons & organisations concerned with Aboriginal
development;
(d) collect information relating to the performance of
the Commissions functions.
*Power to give directions: s 11(1): The Commission shall
exercise its powers in accordance with general directions
given by the Minister.
*s 11(2): The Minister cannot give directions relating to the
content of any advice, information or recommendation that the
Commission may give to a Minister, Dept or [govt] authority.
*Directions: The Minister gave directions pursuant to s 11,
that:
1) The Commission shall co-operate with the Minister in
relation to the proposed reorganisation of the Dept &
other bodies required to facilitate the formation of the
ATSIC.
ALS v Minister for Aboriginal Affairs

Directions determining outcome of particular cases (invalid).
*s 14: ATSIC has power to make grants & loans for the
Aborigines interests.
*s 12(1): The Commissioner shall exercise its powers in
accordance with general directions given by the Minister.
*The Minister gave directions to ATSIC under s 12(1) that:
1) ATSIC was not to make a grant/loan unless it has
made available certain financial information to the
Special Auditor (appointed by the Minister), and 3 weeks
has elapsed;
2) ATSIC was not to make a grant/loan if the Special
Auditor notifies both the Commission & the Minister that
the receiving body is not a fit & proper body to receive
public money unless the Minister notifies the
Commission that the grant/loan should be made anyway.
3) If the Special Auditor notifies ATSIC & the Minister
that the issue requires further consideration, then the
making of the grant is stayed.

Direction 2 was not general & so was invalid, because the
Discretion is constrained by explicit/implicit organisational
direction went beyond setting up a general process, and
rules [eg. policies, quotas, time limits]. Such rules are
conferred power & discretion on the Special Auditor to
imposed by organisations b/c:
override ATSICs discretion in respect of particular
they promote consistency minimise criticism from
applicants.
superiors.
It allowed the Special Auditor to effectively veto
decision-making procedures make staff more
ATSICs grant in particular cases It takes away
accountable.
discretion conferred to the Commission, and gives it to
rules offer guidance important for efficiency.
someone Parliament has not conferred the power on.
they permit ready repetition of the decision process
It did not require ATSIC to merely follow objective
without deciding a new case afresh.
guidelines; rather, it required ATSIC to follow what the
Special Auditor subjectively considers is not a fit/proper
Analysis
body.
Hawkins view diminishes Davis argument that discretion
Directions 1 & 3 are subsidiary to Direction 2 the other
threatens the rule of law. When Davis said there was too much
directions are beyond power.
discretion, he was looking from a lawyers viewpoint.
Remedy = declaration that the directions were not general,
Hawkins thinks that in the real world, the constraints on
and are of no effect.
discretion are not just legal ones there are also
Under s 12, the Minister could set up a procedural process,
organisational constraints discretion is actually much more
and give directions as to priorities to apply. But the Minister
constrained.
cannot command ATSIC how to determine the outcome of its
decision to grant.
Altman
Padfield v Minister of Agriculture
If Parliament confers discretion, it must have intended the
discretion to be used to promote the policy & objects of the
Act. The policy & objects are determined by construing the
Act as a whole by the courts.
no unfettered discretion.
ARTICLES
Davis
He argues: There is too much discretion.
Reasons for the continued increase of discretion?
Legislatures are not experts do not know what the
standards are best way is to allow the administrators to
invent answers as they are confronted by each concrete
case they dont advance rules.
Discretion is desirable for individualised justice.
Discretion Flexibility Ability to respond to
individual cases & complexities of modern govt.
We have allowed discretionary power to grow beyond what is
necessary. Too much discretion.
We need to eliminate unnecessary discretion & find the
optimum degree of control.
Ways to achieve the optimum degree:
Eliminate unnecessary discretionary power:
By: fixing the boundaries of discretion.
Better control of necessary discretionary power:
By: structuring (eg. plans, policy statements, rules,
open findings/rules/precedents) & checking (both
admin & judicial supervision & review).
[structuring = preventative, checking = corrective]
Analysis
Can criticise that Davis did not define the optimum amount of
discretion, as he spoke of it in general terms (a bit circular too:
optimum amount = when theres no unnecessary discretion).
Instead, in reality, the optimum amount of discretion is
defined by the statute. Davis overlooks this.
Hawkins
He argues: There is not too much discretion.
He argues that currently, discretion is inconsistent with the

rule of law.
Rule of Law has 2 important elements:
Fair notice: State must establish a well-defined zone of
freedom. [no retrospective law]
Legal accountability: Any exercise of power by state
must be authorised by a pre-existing system of
authoritative legal norms. [Govt has to show some source
of legal authority for all its actions]
These 2 principles are important because they secure
individual freedom, by preventing illegitimate use of power.
Is discretion inconsistent with the Rule of Law?
Currently:
Admin decision makers exercise extensive discretionary
powers, guided by the vaguest of standards.
Judicial review is relaxed: substantial deference is
accorded to the judgments of administrators, on grounds
of their alleged expertise.
People can be deprived of property/liberty by
administrator without court hearing.
These developments make nonsense of the idea that the state
is legally accountable for its actions.
So: Too much discretion arbitrariness, uncertainty, no fair
notice of what to expect against rule of law.
Does admin law provide a response to the threat of discretion
to the rule of law?
Much of the states activity in denying liberty & property
remains subject to due-process guarantees.
The vague standards that guide administrators still operate
within a broader framework of rules that constrain the
administrators powers.
Although judicial review is relaxed, it still constrains state
power.
(4) MERITS REVIEW & THE AAT

consideration of the exercise of a discretion/duty) do not
control the substantive outcome.
Legality/Merits Distinction (based on SOP)
The Court does NOT substitute its own opinion as to the
Executive makes substantive admin decisions (ie. determine
correct substantive outcome of the decision-making
the merits).
process; it merely requires a fresh decision to be made by
Judiciary ensures that decisions are made according to law (ie.
following correct procedures.
determine whether the decision-making process is legal, fair
Although if review is granted because of

& reasonable).
unreasonableness or improper purpose, it will be hard
in practice for the decision-maker to make the same
Full Merits Review
decision as that originally made it interferes with the
Merits review is undertaken by administrative tribunals (and
substantive outcome.
sometimes courts).
Merits review is created by statute.
Statutory Appeal
In essence, merits review is a fresh decision:
4 general types of appeal rights:
The original decision is disregarded.
Appeal on question of law only
The reviewing body stands in the shoes of the original
This is the only kind of appeal right which can be
decision-maker will consider afresh all relevant
validly conferred to a court exercising federal
questions of law & fact, and re-make the original
judicial power (b/c of constitution).
decision.
Difference from common law judicial review = any
The new decision will take the place of the original
(not just jurisdictional) error of law.
decision.
Eg. appeal right from AAT to Federal Court (s 44

It re-examines the SUBSTANCE (merits) of the original
AAT Act).
decision.
Appeal
in the strict sense
Note: the relevant statute may give less than full merits review.
No further evidence is admitted, and changes to the
law are disregarded. The appellate body only
Grounds of review & Remedies
intervenes where there has been an error in the
Ground of review = simply that the original decision was
decision-making process, or a finding of fact that is
wrong or a different decision would be more
clearly wrong.
correct/preferable.
Appeal by re-hearing
No burden of proof (subject to contrary statutory intent).
The appellate body can hear new evidence.
Remedy = re-make the decision correctly & substitute it in
Absent new evidence, the original findings of fact
place of the original decision.
cannot be overturned unless the original decisionmaker made an error.
Judicial/Legalities Review
Re-hearing de novo (full merits review)
Legalities review is undertaken by superior courts.
A complete fresh start.
Legalities review is created by common law.
This is the typical appeal right for AAT review,
It examines the PROCEDURE by which the original
although some statutes may confer lesser appeal
decision was made (ask: was the procedure
rights to the AAT.
unlawful/unreasonable/unfair?). It does not re-examine
As the AAT re-makes the decision, it is not confined
the substance (merits) of the original decision.
to evidence before the original decision-maker or
decisions given by the original decision-maker.
Grounds of review
Coal & Allied Operations v AIRC: The nature of a statutory
appeal depends on the terms of the statute conferring the right
The grounds of review (illegality, unreasonableness,
of appeal.
unfairness) are essentially procedural in nature.
appeal usually means appeal in the strict sense;
Eg. denial of procedural fairness: The decision was
Provisions conferring power to take new evidence
reached without a directly affected individual being first
appeal by way of re-hearing is intended;
given an opportunity to state their case; or the decision Provisions conferring a wide range of discretionary
maker was biased. These complaints are about the
remedial powers a hearing de novo is intended.
process, not that the decision was wrong in substance.
Eg. ultra vires: An administrator has acted in excess of
The AAT
the express/implied limits of their power. This complaint
is about the legality of the process, not the substantive
Jurisdiction
decision itself.
But some grounds of review are very close to saying that the
The AAT has jurisdiction to review a particular decision,
decision was wrong (ie. a review of the merits).
only if the statute (under which the decision was made)
Eg. unreasonableness: No reasonable decision-maker
provided actual authorisation for AAT review.
could have made that decision.
S 25(1): An enactment may provide that applications may
The burden of proof is on the applicant to show a legal error.
be made to the AAT:
(a) for review of decisions made in the exercise of
Remedies
powers conferred by that enactment; or
(b) for review of decisions made in the exercise of

Remedy = order administrator to make a decision according to
powers conferred (or that may be conferred) by
law.
another enactment having effect under that
Certiorari (to quash a procedurally flawed decision),
enactment.
prohibition (to prevent making of a procedurally flawed
Jurisdiction is limited to review of statutory powers.
decision) & mandamus (to compel a procedurally proper
The relevant Act may:

give the AAT full merits review power;
Procedure during hearing
limit AAT review to particular decisions made under the
S 33(1): The proceeding is conducted with as little formality
Act, rather than all decisions made under the Act;
& technicality as possible. The AAT is not bound by rules of
impose pre-conditions upon review (eg. prior review by a
evidence.
lower level specialist tribunal, like the SSAT).
S 32 allows representation, which includes legal
Meaning of decision [defined in s 3(3)]
representation.
ABT v Bond: The AAT can only review final &
S 40 gives the AAT power to summon witnesses & administer
operative decisions.
oaths.
Collector of Customs v Brian Lawlor: There need not be a Legal Constraints on AATs flexibility
legally effective decision; a purported exercise of power
Since the AAT is in the same position as the original decisionis enough.
maker, it can be reviewed by the Courts.
S 25(5): decision includes failure to make a decision.
S 44(1): A party to a proceeding before the Tribunal may
appeal to the FCA, on a question of law, from any
decision of the Tribunal in that proceeding.
Standing
So
the
AAT must follow rules of procedural fairness etc.
Standing for the AAT is wider than that for judicial review.
Also,
although
rules of evidence dont apply, the AAT has to
S 27(1): Applications may be made by any person whose
make
a
correct
&
preferable decision (Drake). Reaching such
interests are affected by the decision.
a
decision
involves
correctly ascertaining the correct facts
S 31(1): The Tribunal decides whether the interests of a
rules of evidence remain in the background.
person are affected by a decision. If it decides that the
Social Constraints on AATs flexibility: AAT looks like a court.
interests of a person are affected by a decision, this
AAT members are usually Federal court judges.
decision is conclusive.
Usually barristers represent parties adversarial.
s 44(2): If the Tribunal decides that the interests of a
AAT has court-like powers.
person are not affected by a decision, the person may
appeal to the FCA from this decision.

S 27(2): An organisation/association is taken to have interests
affected by the decision, if it relates to a matter included in the
objects/purposes [before the decision was made: subs (3)].
S 30(1A): The AAT may, in its discretion, allow any other
person whose interests are affected by the decision to be made
a party to the proceeding.
Powers (also advantages/disadvantages of AAT review)

S 43: AAT can affirm, vary, substitute or remit the decision.
This amounts to full merits review power (Drakes case).
Limits on AAT powers:
The AATs powers may be limited by the statute
conferring jurisdiction.
The AAT cannot conclusively determine questions of
law.
AAT decisions cannot form binding precedents.
Re Scott: Good administration involves consistency
the AAT follows its own decisions, except where
(a) the later case is more fully argued, or (b) the first
decision is manifestly wrong.
AAT does not have jurisdiction to State decisions and
some Cth decisions.
Procedure
Right to access information
S 28(1): If a decision is reviewable by the AAT, a person
entitled to apply for such review may request the decisionmaker to give reasons for the decision. Reasons include:
Findings on material questions of fact;
Evidence upon which the findings were based;
Actual reasons for the decision.
[note: there are exceptions]
S 37: The relevant decision-maker must lodge with the AAT
(a) findings on material questions of fact, and (b) any
document relevant to the AATs review of the decision.
Pre-hearing procedures
S 33(1A) provides for directions hearing.
S 34 provides for pre-hearing conferences.
S 34A provides for mediations (if parties consent).
Purpose = narrow issues + encourage settlement.
Role of Policy in AAT review

Drake v Min Immigration: The AATs function is to
independently determine the correct & preferable decision on
the material before it. (subject to statute)
Although govt policy is a relevant consideration in
reaching such a decision, the AAT cannot limit itself to
determining whether the original decision conformed to
government policy.
CASES
Collector of Customs v Brian Lawlor Automotive
AAT Jurisdiction: Legally ineffective decisions can be
reviewed.
*Collector of Customs decided to revoke a warehouse licence
held by B under the Customs Act.
*Schedule provides that applications may be made to the
Tribunal for review of a decision by the Minister.
*B applied to the AAT for a review of the decision to revoke.
*AAT held that (i) there was no actual power of revocation;
and (ii) the AAT had jurisdiction to review.
*B appealed to the Federal Court, arguing that: there was no
power of revocation no power to make the decision
decision was not made in the exercise of powers conferred
by that enactment AAT had no jurisdiction to review that
decision.
Bowen CJ (majority)
AAT Act was intended to have a wide operation s 25(1)(a)
meant decision made in purported exercise of powers
conferred by the enactment.
Otherwise, if s 25 only allows the AAT to review a
legally effective decision, the AAT would be very
restricted in its power to decide questions of law.
So the AAT has jurisdiction to review a decision if the
decision purports to have been made in the exercise of
powers conferred by an enactment, whether or not as a
matter of law it was validly made, [and the Act confers
review rights on the AAT].
There was a decision in fact, purported to be made in the
exercise of powers conferred by the Customs Act AAT had
jurisdiction to entertain the application & deal with it +
applicant had standing.

Deane J (minority; but consistent with a strict reading of s 25)
Decision
Where the Act confers no relevant power at all, the decision is
The AATs reasons indicate that it failed to make an
not made under the Act AAT has no jurisdiction to review
independent assessment & determination, [it simply checked
it.
whether the Ministers decision was consistent with govt
The usurpation of power cannot be reviewed by the AAT;
policy] it therefore failed to properly perform its function
otherwise, part of Cth judicial power would be conferred
of reviewing the Ministers decision.
on an admin body.
Remedy = quash AATs decision & remit the matter to it for a
rehearing.
Analysis
Summary
This case means:
the AATs jurisdiction to review a decision under a
This case is about the relevance of govt policy on the AATs
statute is to be interpreted broadly.
decision.
For the AAT to have jurisdiction, the decision doesnt
Govt policy is a relevant consideration the AAT takes into
have to be legally effective, as long as its purported to be
account. In reality, policy usually determines the outcome.
made under an Act.
BUT AAT cannot use it to mechanically determine the
What counts as a purported exercise of powers?
outcome. Instead, the AAT has to make its own assessment of
The existence of the statute & its conferral of a power is
the matter & reach a correct/preferable decision.
necessary.
If the decision bears no relationship to the Act, then
pointing to the Act is not enough.
Bowens view is not logically superior to Deanes. But
Bowens view was adopted presumably because of policy
reasons.
Is broad AAT jurisdiction good? Yes, because:
AAT Act is intended to operate widely;
AAT can cure legal issues that would otherwise go to
court saves court time.
It makes administrators more careful.
Drake v Minister for Immigration
The AAT must make a correct/preferable decision on the
material before it (subject to statute).
*s 12 Migration Act: Where an alien has been convicted &
sentenced to imprisonment for 1 yr or longer, the Minister
may order deportation of that alien.
*Drake was convicted of possessing drugs.
*Minister for Immigration decided under s 12 Migration Act
to deport Drake.
*Drake applied to the AAT for a merits review, but AAT
affirmed the Ministers decision.
*Drake appealed to the Federal Court pursuant to s 44 AAT
Act, arguing that the Tribunal attached such importance to the
Ministers policy statement that the Tribunal failed to exercise
its own independent judgment.
Issue = Was the AATs decision the correct or preferable one
on the material before it? [ full merits review]
Principles
Ordinarily, an administrative officer with discretionary power
is entitled (in the absence of statutorily defined
criteria/considerations) to take into account govt policy as a
relevant consideration [provided its not inconsistent with the
statute or its objects].
But the AAT must (in the absence of specific statutory
provision) determine whether the decision made was
correct/preferable on the material before it, rather than
merely determine whether the decision conformed with govt
policy.
Ie. The AAT must independently assess all the
circumstances [to reach its own correct/preferable
decision], rather than abdicate its functions by applying
govt policy uncritically to the facts.
Even if the Tribunal reaches the same conclusion as the
application of the policy, the Tribunal should make it
clear that it has considered the propriety of the policy,
and indicated the considerations which led it to that
conclusion.
(5) PRECONDITIONS TO POWER & FACTS/LAW DISTINCTION

Questions of law
Facts/Law distinction
Do the facts (as found) fall within/outside the statutory limits?
What is the meaning of legal words in a statute?
The facts/law distinction is due to the separation of powers:
Marbury v Madison: Constitutionally, only courts can
ultimately determine Qs of law.
Questions of Fact/Law in Statutory interpretation
Courts have no expertise in finding Qs of fact
Overall statutory interpretation is a question of law (eg.
Executive determines Qs of fact.
whether the word is used in a technical legal sense, or an
The facts/law distinction is important because it determines
ordinary English language sense).
what Courts can review, and therefore what decisions the
Word is defined in the statute, or is given a specific legal
administrator must get correct.
meaning in a previous judicial decision technical.
Overall statutory context indicate that a specific legal
Merits review of Qs of fact & law
meaning is intended technical.
If the word is used in a technical legal sense, its meaning [&
In merits review of an admin decision, the tribunal stands in
application to the facts] is a question of law.
the shoes of the original decision-maker & re-decides both
If the word is used in an ordinary English language sense, its
Qs of law & fact:
meaning [& application to the facts] is a question of fact.
The true meaning of the relevant statutory provision (Q of
But if the administrator gave an ordinary word a meaning
law);
to that is unreasonable (ie. a meaning so unreasonable
The relevant facts, including primary facts & secondary
that no reasonable administrator could have supposed
conclusions of facts (Q of fact);
such a meaning to have been intended by Parliament)
How the interpreted statute applies to those facts (can be
an error of law.
Q of law/fact).
So, courts will not interfere with an administrators
Since a tribunal is an Executive body:
reasonable interpretation of an ordinary word (even
Its determination of Qs of law is not final & conclusive.
though they might not agree with the administrators
It will freely replace the original decision-makers
particular interpretation).
judgement on Qs of fact.
Reason why meaning & application of ordinary words are Qs
of fact & therefore usually unreviewable?
Judicial review of Qs of law
Practicality: If the meaning of every single statutory
In judicial review of an admin decision, the Court readily
phrase is classified as a question of law, the potential for
substitute their opinions on Qs of law. Examples of Qs of
judicial intervention would be enormous.
law:
Intent of Parliament.
Was the correct statutory test applied? (statutory
interpretation)
Was the procedure fair?
Was the decision-maker within its power?
Did the decision-maker exercise its power reasonably?
Judicial review of Qs of Fact

Courts generally cannot review Qs of fact.
Why? Determinations of Q of fact are merit outcomes
The Court will show considerable deference to an
administrative determination of fact, and will challenge it
only in extreme cases.
Only 3 ways a Court can review/determine Qs of fact:
Courts can directly review facts that are essential
preconditions to the administrators power/jurisdiction
(ie. jurisdictional facts).
Why? Courts must review jurisdictional facts in
order to determine the legal question of whether the
administrator had power to act.
Court can determine facts that relate to the process by
which the original decision was made.
Why? If a ground of review is argued, Courts often
must determine additional facts that relate to the
process by which the original decision was made.
Courts can indirectly review substantive conclusions of
fact that are unreasonable or based on no evidence.
What constitutes Qs of fact & Qs of law?
Questions of fact
Questions of Primary Fact: who did what, where & when?
Questions of Secondary Fact: what inferences may be drawn
from primary facts?
What is the meaning of ordinary words in a statute?
Preconditions to Existence & Exercise of Power

As a matter of statutory interpretation, statutes may contain
certain preconditions to power:
Factual preconditions (jurisdictional facts): The
statute requires certain facts to exist in order for the
power to exist.
Ground of review = show the jurisdictional facts did
not exist at the time.
Procedural preconditions: The statute requires certain
procedures to be carried out prior to the exercise of
power.
Ground of review = show the procedures have not
been carried out.
Subjective preconditions: The statute makes the
existence of the power dependent on the administrators
subjective opinion that certain facts exist.
[Ground of review = unreasonableness only.]
Distinguish preconditions to power from requirements during
exercise of power.
Jurisdictional facts
To make a fact jurisdictional, the Act must do 2 things:
1) it must condition the power on the facts existence
(objectivity); and
2) it must condition the validity of the decision-makers
act upon that existence (essentiality).
Factors on whether a particular question of fact is
jurisdictional (& therefore reviewable by courts):
Statutory language makes the fact a precondition, not a
mere procedure jurisdictional.
Project Blue Sky: Language used assumes that power
already exists not jurisdictional.

Enfield v DAC: Provision directly stipulates that the
S 160(d): The ABA is to perform its functions
fact is a precondition jurisdictional.
consistently with Australias international obligations.
ABT v Bond: Statute required administrator to decide
*ABA determined (pursuant to s 122) a Standard which
a fact (fitness) before the power to revoke flows
contained cl 9: Australian programs must comprise at least
jurisdictional.
50% of broadcasts.
Project Blue Sky v ABA: Fact was a procedure not
*Trade Protocol: Australia should give NZ programs access
jurisdictional.
rights in its market no less favourable than Aust programs.
Objective language v Subjective language: Objective
*NZ companies argued that the making of the Standard was
language supports the conclusion that the fact is
inconsistent with the Protocol.
jurisdictional (Enfield v DAC).
S 122, when read with s 160(d), is intended to have a legal
Acts factual requirements are drafted subjectively in
meaning: it gives the ABA power to determine Standards only
some places, and objectively in others.
to the extent that they are consistent with s 160.
AHC v MIM: A power of consideration was
Did the making of the Standard breach s 160?
objective.
The Standard, by giving Australian programs at least 50% of
The fact is pivotal /central to the design of the statutory
broadcasting time, makes it harder for New Zealand programs
scheme jurisdictional.
to compete NZ programs have less favourable access rights
Enfield v DAC: Whether special industry or
than Aust programs cl 9 is inconsistent with the Protocol
general industry was a choice between 2 different
breach of s 160(d).
regulatory schemes jurisdictional.
Was the Standard invalid?
Statute provides detailed public consultation &
Principle: Whether an act done in breach of a condition
consideration procedures not jurisdictional (AHC v
regulating the exercise of a statutory power is invalid, depends
MIM).
on legislative purpose.
Inconvenience of making admin decisions conditional
Factors why the Standard in breach was not intended to be
upon a courts view of the facts not jurisdictional.
invalid:
Project Blue Sky v ABA: Invalidity would seriously
Language: S 160 assumes that the ABA already has
inconvenience people who relied not
power it regulates the exercise of functions already
jurisdictional.
conferred on the ABA, rather than imposes essential
Facts that incorporate strong value judgement not
preliminaries to the exercise of its functions.
jurisdictional.
Subject matter: Many international conventions &
AHC v MIM: Whether a place had
agreements are expressed in indeterminate language (eg.
aesthetic/historic/scientific/social significance, or
described as goals rather than rules). Also, the obligations
other special value was a political & value-laden
here did not have a rule-like character (ie. could not be
question [better decided by admin] not reviewable
easily identified & applied). Rather, they were matters of
by court not jurisdictional.
policy.
Enfield: Whether a development is special/general
Consequences: Invalidity of acts done in breach of s 160
industry (ie. how smelly it is) is assessable by expert
is likely to result in (1) much inconvenience to members
witnesses jurisdictional. Distinguish from AHC
of the public who have acted in reliance on the ABAs
because there, expert witnesses cant decide whether
conduct; (2) Licensees having difficulty in ascertaining
the place was aesthetic etc.
whether the ABA was acting consistently with
Whether the facts exist has a strong impact on common
obligations imposed by s 160; and (3) loss of investor
law rights & liberties jurisdictional.
confidence.
Criticism of courts review of jurisdictional facts:
But an act done in breach of s 160 is unlawful. So a person
If a fact is jurisdictional, its the courts (not admins)
with sufficient interest can sue to obtain an injunction
opinion of the facts existence that counts. But is the
restraining action based on the ABAs unlawful action.
court any better at finding whether these facts exist? No!
[This means that all the people who acted in reliance on
the Standard are safe. But the unlawful Standard cannot
be relied on in future.]
Effect of non-compliance with statutory requirements
Project Blue Sky v ABA: Non-compliance with procedures

will not necessarily lead to invalidity of a decision. Whether
there is invalidity depends on statutory interpretation.
If there is no invalidity, people who relied on the
unlawful decision can get injunctions against the
regulator.
Factors indicating intent of invalidity:
Statutory language makes the fact an essential
preliminary?
Subject matter is determinate & rule-like?
Consequences of invalidity?
CASES
Project Blue Sky v Australian Broadcasting Authority
Validity of legal error.
*Broadcasting Services Act:
S 122: ABA must determine standards to be observed by
broadcasting licensees.
Evaluation
This is a Green Light decision, because it considered the
impact on the administrator. The remedy was sensitively
handled. Even though the admins decision was unlawful, it
was not invalid if Parliament did not intend it to be.
Australian Heritage Commission v MIM
Jurisdictional fact.
*Australian Heritage Commission Act:
s 23(1): Where the Commission considers that a place
not in the Register should be recorded as part of the
national estate, it shall enter that place in the Register
[subject to ss 23 & 25].
s 23(2): AHC must not do so unless a public notice of its
intention to do so was given, and due consideration was
given to any objections that were received.
s 4(1): The national estate consists of places that have
aesthetic/historic/scientific/social significance, or other

special value for future generations & present
[Note: this is not a jurisdictional fact, because power does
community.
not depend on it; it is merely a step along the way to
*AHC decided to enter an area of land in the Register,
deciding the rate.]
pursuant to s 23.
*Issue = Is the meaning of business a question of fact/law?
*Q of fact = Whether the place is a national estate. Issue =
Principles
is this a jurisdictional fact?
1) Whether the facts fall within the statutory provisions
Whether the place is a national estate is a nonproperly construed [ie. overall statutory interpretation], is a
jurisdictional Q of fact, because:
question of law. SO: Whether a word is used in a technical
The detailed public consultation & consideration
legal sense or an ordinary sense, is a question of law.
mechanism suggests that Parliament did not intend the
2) The meaning of an ordinary word is a question of fact. [The
AHCs decision to record a place to be subject to judicial
meaning of a legal word is a question of law.]
review provided the AHC conducts itself in accordance
3) Whether the material before the court reasonably admits of
with the law.
different conclusions as to whether the facts fall within the
[Courts dont undertake the public consultation
ordinary meaning of the words as so determined, is a question
procedure not equipped to decide it.]
of law.
[Also, the political value judgement in s 4 is best decided
4) If different conclusions are reasonably possible, the
by the Commission non-jurisdictional fact]
decision of which is the correct conclusion, is a question of
fact [to be decided by the administrator]. [Courts cannot
change it.]
Corporation of the City of Enfield v Development
[5) Whether the facts fall inside the conclusion(s) reasonably
Assessment Commission
possible, is a question of law]
Jurisdictional fact.
Application
*ss 32 & 33 Development Act forbids development unless the
business in Act has an ordinary meaning. It denotes
DAC grants consent.
activities done for the purpose of profit on a continuous &
*s 35(3)(a): A special industry development must not be
repetitive basis. This is a question of fact.
granted consent, unless the Council concurred & DAC gave
Hs activities would amount to a business under any

public notice.
reasonable ordinary meaning of business that the decision *DAC determined that the proposed development was
maker uses It was unreasonable for the primary judge to
general industry rather than special industry s 35(3)(a)
conclude that there was no business, as all the essential
did not apply DAC decided to give consent without public
characteristics required of a business were present:
notice.
Transactions were entered into on a continuous &
*On appeal, Debelle decided on expert evidence that the
repetitive basis, for the purpose of making profit.
development was special industry s 33(3)(a) applied
The appellant sought customers by advertising.

DAC exceeded its powers by acting without Councils
The land was put to its best potential use, the pastures
consent.
were improved, and facilities including fences were
*But Full Court the Q of fact was non-jurisdictional.
provided for use.
*Q of fact = Whether the development is special/general
industry. Issue = is this a jurisdictional fact?
Whether the development is special/general industry is a
reviewable jurisdictional Q of fact, because:
The fact is central/critical to the statutory scheme. How
the consent power [s 35(3)] works will depend on this
fact. It is the turning point that leads to 2 different
statutory schemes:
If general industry, not many procedures for consent
DAC can consent.
If special industry, totally different & more onerous
procedures for consent Council can veto DACs
consent, and need public notice.
The fact is phrased in objective language.
The fact is phrased as a precondition that prohibits s 35(3)
consent without Council concurrence [[special industry]
must not be granted].
If the court is in doubt upon a particular factual matter, it
would be open to the court to resolve that doubt by giving
weight to any determination upon it by the Commission.
Hope v Council of City of Bathurst
Question of law or fact?; Unreasonableness.
*Hs land was used to regularly agist other peoples cattle,
there were fences & troughs, and 90% of the land was pasture
improved. H advertised for agistment.
*s 118(1) defined rural land (in which lower rates applied)
to mean land used for carrying on the business of grazing.
*Land & Valuation Court decided that H had no business
lower rates did not apply.
Sharp Corp v Collector of Customs

Question of fact or law?
*Sharp imported toner kits, which had components
classifiable under 2 different tariff headings.
*r 3 of General Rules for Interpretation: When composite
goods are classifiable under 2 or more headings:
(b) Classify them as the component which gives them
their essential character.
(c) If no essential character, then classify mechanically.
*AAT decided that no component gave the Kit an essential
character, because the components serve different functions
AAT applied r 3(c) mechanically AAT classified the Kit
under the heading that had higher tariffs.
*Collector appealed to the Federal Court under s 44(1) AAT.
*Issue = Is meaning of essential character a Q of law?
AATs classification of the toner & other components under
different headings is a reasonable finding of fact.
Principle
When words are used in their ordinary English sense, then (1)
the meaning of those words, and (2) whether the facts fall
within the meaning (there being a different conclusion
reasonably open), are ordinarily questions of fact for the
administrative decision-maker.
Decision
essential character is a well-known expression that has an
ordinary meaning whether the Kit has an essential
character, and what that essential character is, is a Q of fact
[determined by the AAT].
The AATs conclusion of fact was reasonable.
(6) BARRIERS TO ACCESS: JUSTICIABILITY & STANDING

Constitutionality: Courts should not encroach on areas
in which the legislative & executive branches of govt are
JUSTICIABILITY
responsible.
Justiciability = suitability of an exercise of Executive power
Judicial competence: (a) Judges do not have training for
for judicial review.
certain decisions, and (b) courts are better at applying
If non-justiciable, court wont even review legalities.
clear pre-determined standards to facts (ie. determinative
It is a limit to the rule of law, which suggests no such
decisions) than balancing a multitude of interests (ie.
immunity from review.
polycentric decisions).
Generally, political/policy decisions are non-justiciable.
Key factors of justiciability:
The ADJR Act displaces the common law test for
Position of decision-maker & nature of power?
justiciability. Rather, any decision of an administrative
Individualised effect?
character made under an enactment can be reviewed.
Policy decision / Determinative decision?
Policy decision = weighing of many competing
REMOVAL OF AUTOMATIC IMMUNITIES FROM
policies. Largely a matter of merits + Courts lack
expertise + Usually politically sensitive nonREVIEW
justiciable.
Determinative decision = application of reasonably

Status of Decision-maker
clear standard to facts as found. Court has expertise
There is no automatic immunity from review merely because
justiciable.
the decision was made by Ministers (Padfield; Murphy Ores),
Subject matter?
Crowns Representative (Re Toohey; FAI v Winneke) or
Ground of Review?
Cabinet (SA v OShea; Peko-Wallsend).
SA v OShea
Examples of non-justiciable decisions
*GG, acting on Cabinets advice, decided not to release a
CCSU v Min Civil State: National security decisions are nonprisoner.
justiciable.
The fact that it was in substance a Cabinet decision did
*Minister decided (under prerogative power) to ban
not, in principle, affect justiciability prisoner could
unionship at a spy centre without prior consultation.
challenge on ground of procedural fairness.
*There was established practice that the union will be

But Cabinet decisions are usually political may
consulted on important alterations in the terms &
impose substantive limits on review.
conditions of staff employment legitimate expectation
[Parole Board hearing & Cabinet decision were parts of a
of consultation.
single decision-making process since O had a fair
*Union sought review on procedural fairness ground.
hearing before the Parole Board, and no new material was
The decision is not immune from judicial review simply
before the Cabinet, O had received a fair hearing overall
because it stemmed from a prerogative power.
O failed.]
But the Ministers decision was in the best interests of
national security non-justiciable.
Review of Statutory powers
Minister for Arts v Peko-Wallsend: Polycentric (ie. complex
Fettered powers are always reviewable (for ultra vires).
policy) decisions, & treaty implementation decisions, are non Padfield: A formally unfettered power must be used in a way
justiciable.
which is consistent with the purpose of the Act, as determined
*PW held mining interests in land.
by courts unfettered discretions may be justiciable.
*Cth cabinet decided (under prerogative power) to place
the land on the World Heritage list, which would have the
Review of Prerogative powers
effect of confining mining operations.
Prerogative powers = conduct of relations with foreign
*PW commenced proceedings on the basis that there was
powers, extradition decisions, power to grant pardon, power to
denial of procedural fairness.
proceed by ex-officio indictment, power of AG to
The mere fact that a decision is made by Cabinet, and/or
grant/withhold AGs fiat, appointment of judges/QCs.
is an exercise of prerogative power, does not exclude
Historically, courts could examine whether a prerogative
judicial review.
power exists, but could not review the manner of its exercise.
The Cabinets decision was non-justiciable, because:
CCSU case; Peko-Wallsend: Prerogative powers are not
Subject-matter: The decision was made in the
automatically immune from judicial review.
implementation of a treaty;
But some decisions made in the exercise of such powers
Polycentric decision: In making the decision, Cabinet
may be immune from review because of their subject
was weighing up effects on: PW, international
matter.
relations, treaty obligations, environmental
considerations, impact on Aboriginals, economic
Review of Contractual powers
effect on Australia. This is a complex political
decision best left to Cabinet.
Caselaw: A government contract is governed by the same
[Criticise: The ground argued was procedural fairness,
private law as any other contract govt contracts do not
not a policy issue. This was all the court had to decide
involve exercise of public power not reviewable.
the fact that the decision was a policy one was irrelevant.]
But can argue that the govt is increasingly using contractual
Church
of Scientology v Woodward
techniques to implement its policies should be reviewable.
National security decision made under a limited power
Also, voluntary contracts are very similar to statutory rights.
(ie. power to collect information relevant to security
only), was justiciable.
JUSTICIABILITY
Coutts v Cth
2 reasons why a decision might not be suitable for judicial
review:

Decision made under employment power for armed
But motivation of Pl was to simply put financial strain on
services (formerly PP, but now in regulations) was nonits competitors commercial interest is not enough.
justiciable.
Batemans Bay v Aboriginal Community BF: The Court
Re Ditford; exp DCT
appears willing to give standing to a Pl who shows a sufficient
Decision made under Bankruptcy Act, to extradite a
effect on his interests, even where the interest is commercial.
person from Germany back to Australia, was justiciable
*Ap (Bateman) & Res were competitors in a limited
(despite subject matter being foreign relations).
market (funeral benefits to abos within NSW).
McCrae v A/G
*Ap (Council) granted Ap (Bateman) approval which
Decision not to re-appoint certain magistrates was
caused financial detriment to Res commercial interests.
justiciable.
This case involved a purely legal issue in which the Pl
Waters v A/G
had a clear special interest over that of the public at
Decision not to appoint a QC despite recommendations,
large standing.
was non-justiciable.
Standing in Public Interest Litigation
Criticism on Justiciability
If the whole community is affected, who has a special
Peko-Wallsend is wrong.
interest?
The Pl only asked the Court to look at whether there was
Attorney-Generals role:
denial of procedural fairness. The Court could do this
The A/G has standing to sue to protect a public right.
without redetermining the complex policy decisions.
The A/G can give a fiat (consent to relator action). A/Gs
Therefore, the Courts reason for choosing not to review
decision whether to give a fiat is non-justiciable.
the decision should not be the fact that the decision was a
A body may bring a public interest action, if the body has a
complex policy one.
special interest (for common law review) or is a person
The Court essentially said that since the decision involved
aggrieved (for ADJR review).
merits, it cannot review anything, even the legalities.
Although judges say that standing under the ADJR Act is
Also, courts engage in complex policy decisions all the
to be construed liberally, in line with the remedial intent
time! Eg. Teoh.
of the Act, they have not taken a more open approach
We should get rid of justiciability, and just rely on legalities/
(probably because the common law itself has become
merits distinction to determine what courts can review.
more liberal in granting standing) no real significant
distinction between CL & ADJR standing.
Eg. Judges cite ADJR standing cases to support
common law standing.
STANDING
Standing = question of who can bring an action to challenge

the administrative decision.
Standing requires a special interest: the Pls interests must
be affected in a way over & above the way the decision
affects the public.
Personal/Private Standing
A plaintiff may have standing if the decision directly
interferes with his common law rights to life, liberty &
property.
Howes v Vic Railways: Actual financial loss (eg. lowering of
property values) may give standing.
*Depreciation in house value due to Vics decision
gave standing.
Day v Pinglen
*Building of townhouses that would block Pls view of
Sydney Harbour gave standing.
Exp Helena Valley v State PC: Indirect effect on a right (eg.
effect on residential amenity) may give standing.
*SPC decided that rezoning land from Rural to
Urban was not a substantial alteration to the planning
scheme less rigorous procedures applied.
The individuals living in land adjoining the rezoned land
had standing, because the enjoyment of their land would
be detrimentally affected (even though the value of their
land would not be diminished).
Commercial Interests
R v Comm of Customs exp Cooke: Courts are unwilling to
allow judicial review to be used as a tool to prevent/hinder
competitors.
Pls financial interest was burdened by the decision more
than other members of the public.
Basic position
ACF v Cth: A mere intellectual/emotional concern, or a strong
belief that the law should be observed, is not enough to give
standing.
*Pl challenged Ministers approval of a Qld tourist
development before making a final Environmental Impact
Statement (which was clearly in breach of admin
procedures).
ACF had no standing.
Gibbs: A mere intellectual/emotional concern, or a strong
belief that the law should be observed, is not enough to
give standing A person only has a special interest if he
is likely to gain some advantage (other than mere
satisfaction) if his action succeeds, or to suffer some
disadvantage (other than grievance/costs) if his action
fails.
Mason: A Pl will generally have standing, when he can
show actual/apprehended damage to his proprietary
rights, business interests, or perhaps social/political
interests.
Courts have developed 3 ways to distinguish ACF v Cth & find a
special interest/person aggrieved in public interest situations:
1) Vocational Special Interest
If the Pls vocation closely relates to the subject matter, then
that Pl has a special interest an interest greater than the
interest of the public at large.
Onus v Alcoa: A Pl has standing, if there is a close
relationship between the Pl and the subject matter.
*Aboriginal custodians of relics challenged Decision to
allow aluminium smelter, which would interfere with
Aboriginal relics on the land.

The custodians, despite having no proprietary interest in
s 65K: After the conference, the Commission must
the land, had standing.
recommend to the Minister.
Stephen: special interest involves an assessment of the
*Minister declared that certain smokeless tobacco
importance of the Pls concern with, & the closeness of
products were unsafe (pursuant to s 65C(5)).
the Pls relationship to, the subject matter.
*US Tobacco requested a conference under s 65J.
Sutton v Warringah
*Commission invited AFCO to attend the conference
*Councillor challenged Councils unlawfully decision to
(under s 65J), as its presence was considered by the
delegate powers to a sub-committee.
Commission to be appropriate.
Councillor was granted standing to challenge the
*At the conference, AFCO challenged US Tobaccos
decision.
material & views.
Ogle v Strickland
*US Tobacco sought review of the Ministers decision to
*Customs Regulation 13: A film shall not be registered if,
declare the goods unsafe & therefore call the conference.
in the opinion of the Board, the film is blasphemous.
*AFCO sought to be joined in the proceedings under s 12
*Censorship Board approved registration of an imported
ADJR Act.
film.
The mere fact that AFCO made submissions to ban the
*Priests sought review of the decision under ADJR Act.
goods is not enough, as many other organisations made
[The opinion of the Board is a jurisdictional fact
submissions too [similar to ACF].
priests are arguing that no reasonable person would have
But AFCO has a sufficient interest, because the decision
thought that the film was not blasphemous (a legalities
challenged has benefited AFCO in a special way the
argument)]
special interest arose when the Commission invited AFCO
Lockhart: A necessary incident of the priests vocation
to attend conference, because AFCO can then insist that
was to repel blasphemy they were persons
the Commission take into account its views in the
aggrieved.
conference when making a recommendation.
Also: If the Board found that the film was
blasphemous, the importers would clearly be a
3) Representative Standing
person aggrieved [pty interest]. So, if the Board
A body which is best placed to represent the interest of a
found that the film was not blasphemous, somebody
section of the community that is specifically affected by the
should have standing too priests must have
decision, has standing to challenge it.
standing (because nobody else would have standing).
Shop Distributive v Min Industrial Affairs: An Union has the
Fisher: Concerns of committed Christians in general were
same interests as its members.
only intellectual/emotional, but the priests vocation
ACF v Minister for Resources
extended their interest beyond that.
*Minister issued a 17 yr woodchip export licence, which
[But consider what if there was no organised Christian
would involve logging within the National Estate.
group? Then maybe no standing. Is this fair?]
*Minister had to decide if there was a feasible & prudent
alternative to logging within this area.
2) Participation in a Statutory Process (Objector Status)
*ACF argued Min didnt consider this.
A person who has participated in a statutory process has a
ACF had a special interest in relation to the particular
right to see that the process is conducted according to law.
forests under threat (unlike in the 1st ACF case), because:
Sinclair v Mining Warden: Participation in a statutory process
The forests were part of the National Estate were
will give standing to challenge the conduct of those
of national interest ACF, a national organisation,
proceedings.
had a special interest in their preservation.
*Regulations required the Warden to hear any objections
Public perceptions of the need to protect the
to applications for a sand mining licence, before
environment had increased community expected a
forwarding a recommendation to the Minister.
body like the ACF to concern itself in this issue.
*Pl presented strong objections, but the Warden did not
**ACF was now established as the main body for
consider them.
protecting the environment. It was recognised by
Standing was taken for granted.
govt & received govt funding (though still a private
Gibbs: Distinguishable from ACF v Cth, because the
body). It was not a busybody. If the ACF does not
admin procedures violated in ACF (though derived from
have a special interest in the forests, there is no
statute) were not themselves of statutory force & hence
reason for its existence.
conferred no rights sufficient for standing. [not
North Coast Env Council v Min Resources: The more
convincing]
organised & recognised the body is, the more likely it can get
[Appears that you need objection in person, rather than
representative standing.
mere written objection, to have standing.]
*Minister decided to grant an export licence to a
US Tobacco v Min Consumer Affairs: A Pl has standing if the
sawmilling co, for the export of woodchips from NSW
Pl participated in a statutory process that leads up to the
forests.
decision being challenged.
*NC sought reasons for the Ministers decision to grant
*TPA:
the licence, under s 13 ADJR Act.
s 65C(5): Where goods may cause injury, the
*Issue = Whether NC was a person aggrieved by the
Minister may declare the goods to be unsafe.
Ministers decision (ss 13, 5).
s 65J: [If the Minister does so,] he must invite
Factors suggesting special interest and therefore person
suppliers of goods of that kind to request the
aggrieved:
Commission to hold a conference. The Commission
NC is the peak environmental organisation in the NC
may invite any person it considers as appropriate
region. Its activities relate to the areas affected by the
to be present at the conference.
licence;
Cth gave regular financial grants;

State allowed NC to represent environmental
manipulate bodies actions against them by ceasing to
concerns on advisory committees;
fund them]
NC had conducted projects & conferences, & made
submissions on environmental matters NC had a
Analysis
keen interest in woodchipping operations for a # of
Can interpret this case as saying: Mere special interest is not
yrs;
enough; must have a special interest within the purposes of the
There is no other conservation body with a greater
relevant Act.
interest/commitment to the issue NC is well Right to Life is hard to reconcile with other standing cases:
placed to represent the public on conservation issues.
If apply North Coast, then RTL should have standing
[Note: Although govt funding is a factor in favour of
because there is no-one better to represent the publics
standing, lack of funding should NOT disqualify
interests. Lack of govt funding should not matter.
standing. If only govt funded bodies have representative
Analogous to Ogle v Strickland, because RTLs vocation
standing, then effectively excluding all representative
is to defend the right of life against abortion.
bodies that the govt does not financially influence.]
Also, the case gives a lot of judicial discretion as to standing.
Executive Council of Australian Jewry v Scully: The
representative body need not have its operations confined to
Reform
the geographical region affected by the decision.
ALRC 1985 Report: Recommended abolishing standing
*S distributed anti-Jewish material in Launceston,
requirements, leaving courts with simple discretionary power
Tasmania.
to exclude Pls who were merely meddling.
*Council & Exec VP of Council in Sydney made a
ALRC 1996 Report: Any person should be able to commence

complaint to HREOC.
& maintain public law proceedings, unless:
Someone in Sydney can represent Tasmanian Jews. It is
the relevant legislation indicates a contrary intention; or
artificial to separate a State body from a National body.
the litigation would unreasonably interfere with the
ability of the person having a private interest in the
Statutory Zone of interests
matter, to deal with it as he wishes.
Statute can modify the common law standing position.
Rationales underpinning current special interest rules:
Courts are increasingly interpreting standing according to the
Decreases review of decisions that fall within the sphere
purpose of the statutory scheme (eg. Who did P intend to be
of govt.
able to challenge this decision?, What interests was it
[but court can refuse to consider political questions
intended to protect?).
on basis that they are non-justiciable]
Under the zone of interests test, the Pls concern has to be
Prevents litigation brought only to delay/frustrate
within the concerns of the Act in order to have standing.
competitors commercial arrangements.
Right to Life Assn v Dept of Health: Pl has standing only if
[but in practice, competitors can delay competitor
there is a relationship between (a) the subject matter of the
by arguing anything, not just standing. Also, court
decision (from the relevant Acts objects), and (b) the matters
has general powers to manage the litigation process]
that the Pl alleges.
Ensures capable plaintiffs represent the public interest, &
*Permission granted for importation & clinical trial of an
no futile litigation.
abortion inducing drug was subject to the drug being used
[but plaintiffs who have no interest in the matter
in compliance with legislation.
may still be capable. Also, court can address this
*Therapeutic Goods Act regulations Item 3(e)(ii): The
issue by managing litigation process]
drug cannot be used, if the Secretary becomes aware that
They act as a filter. If abolish, then a flood of litigants
the trial would be contrary to the public interest.
will go to court undermines certainty of govt decision *RTL advised Secretary that the trials were contrary to
making.
State laws against procuring abortions, and were thus
[But (a) in practice, costs & risks of pursuing a
contrary to the public interest. But Secretary refused to
claim is enough deterrence; (b) if illegal, why should
stop the trials.
it go unchallenged?; (c) TPA & NSW Environmental
*RTL sought review of the decision not to stop 3 trials.
legislation had open standing, yet there were not
RTL was not a person aggrieved by the decision:
excessive litigants].
The Secretarys decision was made under the TG
(not mentioned:) There are cases where unlawful
Act. Its objects are to establish quality, safety,
administrative action is not of public concern.
efficacy and timely availability of therapeutic
[but any kind of unlawfulness by public bodies is
goods. RTLs arguments were not based on quality
automatically of public concern]
etc; rather, they were based on the trials being
Arguments in favour of relaxing/abolishing standing rules:
contrary to law & loss of life.
They inappropriately impose private litigation rules on
Not sufficient that RTL was incorporated since 1984,
matters of public law. Should not need to show private
is a successor, and has objects concerned principally
grievance in order to remedy a public wrong.
with protection of life from moment of conception.
Public illegality is a matter of public concern should
RTL has no greater interest than any ordinary
not limit who can complain.
public member. There is only intellectual,
Against rule of law.
philosophical & emotional concern. There is no
Substantive issues are not looked at by courts.
advantage likely to be gained, or disadvantage likely
Inconsistent.
to be suffered, in the proceeding. The most it can
special interest is meaningless by itself it is a flexible
achieve is satisfaction of correcting a wrong decision
concept that gives courts too much discretion.
& winning a contest.
The fact that the govt does not fund RTL is not a negative
factor. [presumably because otherwise, the govt can
(7) & (8) PROCEDURAL FAIRNESS

Rights means legal rights (Eg. proprietary right).
Interest is very broad (Eg: personal liberty, status,
NATURE OF PROCEDURAL FAIRNESS
preservation of livelihood & reputation, financial
Rules of procedural fairness regulate actual conduct of the
interest). Same as the standing test.
decision-maker, while other grounds of judicial review (eg.
Legitimate expectation fills the situation where the
irrelevant consideration, act for improper purpose) regulate
decision does not deprive of a legal right or interest (eg.
the process of reasoning.
renewal of licence) procedural fairness applies even if
Whether judicial review is available for breach of procedural
the decision takes away something you have not got, as
fairness (in particular, the hearing rule) is approached through
long as you legitimately expected to get it.
a 2-stage analysis.
Value of Procedural Fairness
Procedural fairness is valuable because of:
Instrumental importance: fair procedures help achieve the
purposes of substantive rules/principles achieve the
right outcome.
Intrinsic benefits: participation, justice is seen to be done,
equal treatment, psychological contributions, democratic,
gives people respect & dignity.
Rules of PF create tension between administrative efficiency,
and fairness to the Pl. The more procedures required, the more
difficulty to the administrator (more red light).
1) WHEN DOES PROCEDURAL FAIRNESS

APPLY? (SCOPE)
Kioa v West: Procedural fairness applies to an administrative
decision which has a direct & immediate effect on rights,
interests or legitimate interests of an individuals; subject to
clear contrary statutory intent.
If there is sufficient interest for standing, then usually
procedural fairness applies (Bropho).
Direct & immediate effect
This means individualised decision-making. The decision
must be about individuals. Broad, high-level policy decisions
do not have an individualised effect.
So procedural fairness can only be implied if the decision
affects an individuals interest in a way substantially
different to the way it affects the public at large.
Eg. SA v OShea: Even though the decision not to release
a sex-offender was in the public interest, and was thus a
highly political decision, it included considerations
personal to OShea (ie. the Parole Boards report on him)
procedural fairness applied.
Salemi: The decision must directly affect the person
individually, not simply as a member of the public or class of
public. An administrative decision of the latter kind is a
policy or political decision not subject to judicial review.
Kioa: Decisions which only indirectly affect the
rights/interests/expectations of individuals include:
Decision to impose a tax;
Decision to impose general charge for services.
The test for procedural fairness is narrower than the test for
standing:
WA v Bropho: An interest which attracts principles of
natural justice will always give standing; but a grievance
that gives standing does not always involve a legitimate
expectation that is protected by principles of natural
justice.
Representative standing cannot be translated into
application of procedural fairness.
[Justification? If a decision affects a large number of people, it
would be impractical to give each a hearing]
Rights, interests or legitimate interests
Kioa v West (Mason):
Contrary statutory intention

Cases show that judges are reluctant to say that Parliament
did not intend procedural fairness to apply a shift in focus
to content of procedural fairness (Kioa v West).
Ainsworth v CJC: Could not use expressio unius maxim
to impliedly exclude procedural fairness.
Exp Miah: Specification of certain procedures (Code)
& right of appeal to Tribunal, were insufficient to exclude
procedural fairness.
Kioa v West: A strong manifestation of contrary statutory
intention is needed to exclude procedural fairness.
Procedural fairness may be excluded where its application
would be inconsistent with the statutes operation or
purposes.
But the court allows Parliament to exclude procedural fairness
expressly & clearly (eg. Migration Act successfully removed
procedural fairness).
2) WHAT DOES PROCEDURAL FAIRNESS

REQUIRE? (CONTENT)
A) Hearing rule: Fair Hearing
Procedural fairness requires a fair hearing.
A fair hearing may require:
Disclosure of the adverse material;
Opportunity to rebut adverse allegations;
Adequate notice (More time);
Oral hearing;
Legal representation;
Cross-examination of adverse witnesses.
Notice of adverse information influencing decision making
Kioa v West: The administrator must notify the affected
person about adverse information in the administrators mind,
that is prejudicial to the persons interests (including reasons).
How much the person needs to know, depends.
Put another way, the administrator must give the Pl a
reasonable understanding of the adverse allegations
which could influence its decision-making.
Kioa v West: Even adverse information that is not
crucial/decisive of the decision, must be disclosed to the Pl (if
its in the decision-makers mind).
*Information that the applicant was consorting illegal
immigrants was not decisive of the decision to deport (b/c
not in the reasons given).
Held: K should have the opportunity to reply to the
prejudicial allegations denial of PF.
Exp Miah: Even adverse information that is in the public
domain, must be disclosed (if its in the decision-makers
mind).
Reasonable opportunity to prepare defence
Exp Polemis: The affected person must be given a reasonable
opportunity to reply to the case made against him. What is a
reasonable opportunity, depends on what his argument is.

Kioa v West; Russell v Duke of Norfolk: The procedures
The decision-maker has previously expressed views about
required depends on the circumstances of the particular case
a case, or announces preliminary views during a case
(ie. are flexible). Relevant circumstances include:
(Livesey v NSWBA) [ie. has prejudged the case];
The nature of the inquiry;
The decision-maker conducted the matter in an
The subject-matter; and
unjudicial way (Damjanovic v Sharpe Hume);
The rules under which the decision-maker is acting.
The decision-maker has a close relationship with a party;
Pl bears the burden of proving that the decision was unfair
and
because it did not involve a procedure required by fairness.
The decision-maker acts as prosecutor & judge (Stollery v
Test is to ask:
Greyhound Racing).
What is Pls defence argument to the allegation? Possible
Test = [Given the remarks made, relationship etc] would a
responses:
fair-minded observer reasonably think that there might be
Wrong facts: The alleged event never happened.
bias?
Wrong interpretation of statute: The allegation is
Preconceptions:
false/mistaken need to X-examine.
Livesey v NSWBA: A fair-minded observer might entertain a
Poor credibility: The allegers are biased or dislike
reasonable apprehension of bias by reason of prejudgment, if
me need to X-examine.
a judge hears a case at 1st instance after he has, in a previous
What procedures are necessary in order to make Pls
case, expressed clear views about:
case? Why?
a question of fact which constitutes a live & significant
Were those procedures adopted in the hearing? No
issue in the subsequent case; or
denial of PF.
the credit of a witness whose evidence is of significance
on such a question of fact.
Vakauta v Kelly: Ostensible bias does not exist merely
B) Bias rule: Impartial decision-making
because a judge has preconceived views about the reliability
Basic rule: The decision-maker must have an impartial mind
of the evidence of a particular medical witness, even if the
open to persuasion during the hearing, actually & in
judge discloses the existence of such views in the course of
appearance.
dialogue.
It applies to judges, and also administrators (but with less
Distinguish preconceived views about reliability of
stringency).
medical witnesses, from preconceived views about
Rationale of bias rule = to maintain public confidence in
credibility of non-expert witnesses.
the integrity of decision-makers.
2
exceptions
to the ostensible bias rule:
The rule against bias is flexible (because of reasonable in
Waiver
of
right to object
ostensible bias test).
Vakauta
v Kelly: Where a party is aware of a right to
3 categories of bias: Actual bias, Deemed bias, Ostensible
object
on
grounds of apprehended bias, but fails to do so
bias.
prior to the decision, then the party has waived that right
to object. (cant wait for final judgment and then attack it)
Actual Bias
Good or bad rule? Depends on whether it enhances the
Courts are reluctant to find actual bias:
purpose of the bias rule (ie. public confidence).
because it destroys public confidence in the justice
Its Good because: If counsel is forced to object
system, and the whole point of the bias rule is to make the
during the trial, the judge can correct himself by
decision-maker look trustworthy; and
declaring that although he has preconceptions of the
NOT because it is hard to determine the subjective state
witnesses, he is open to persuasion on the evidence
of mind of the decision-maker (we do it in criminal law
(Vakauta v Kelly). Also saves time. Thus, improves
all the time).
public confidence.
Its Bad because: The bias rule (esp. ostensible bias)
Deemed Bias
is for the benefit of the community, not just the
Dimes v Grand Junction Canal: Where the decision-maker
individual individual should not be able to waive
has a direct financial interest in the outcome of the decision,
away the communitys interest in the bias. Also,
he is deemed to be biased.
waiver defeats the purpose of a hearing, which is
*Court of Chancery affirmed orders made in favour of a
supposed to be free from bias in all cases. Thus,
canal company, in which the Lord Chancellor (who sat on
damages public confidence.
the appeal) held shares.
Rule of Necessity
*There was no evidence that the Chancellors decision
Laws v ABT: Because statute can override common law,
was actually affected by the shareholding.
the bias rule cannot:
The HOL set aside the decree.
Stop a body set up to do statutory functions from
Ebner v OTB: If the decision has no effect on the financial
performing those functions; or
interest of the decision-maker, then there is no deemed bias.
Frustrate the intended operation of a statute.
(The outcome of the decision would not affect the price
Deane: But the rule does not apply where its application
of the shares that the judge owned no deemed bias.)
would involve positive & substantial injustice; and when
it applies, the rule does so only to the extent that necessity
Apprehended Bias
justifies.
Usually no issue of necessity, because a body has lots of

Livesey v NSWBA: There is ostensible bias if a fair-minded
delegates, and there are changes in members over time.
observer would reasonably apprehend that the judge is not
bringing an impartial mind to the issue.
Grounds for a reasonable apprehension of bias include:

The CJCs functions & responsibilities are so important that
proceedings includes any step, no matter how informal, in
relation to its functions & responsibilities proceedings
Kioa v West
includes reporting s 3.21(2)(a) requires procedural fairness
Scope & content of Procedural Fairness.
for the report.
*K applied for an extension to his temporary entry permit.
Even if proceedings does not cover any step, procedural
*After the permit expired, K remained in Australia allegedly
fairness is presumed by common law to apply in the situations
because his home country was devastated by a cyclone.
not specifically dealt with by the Act.
*Minister decided to refuse Ks applications for entry permits,
The expressio maxim does not displace this presumption,
because of certain allegations about K that were not put to K.
because the Commissions nature & its functions &
*K argued that the Ministers decision to refuse his
responsibilities are such that Parliament did not intend it to act
application breached procedural fairness.
unfairly.
Threshold:
Appellants argument #2: Procedural fairness not denied in
[The deportation order clearly affected the interest of K
the entire process
(personal liberty) in an individualised way.]
Appellants argued that although CJC was not procedurally
The Migration Act as amended required the administrator to
fair, the committee could intervene to ensure fairness in the
give reasons for his decision statute did not displace the
processs entirety, there is fairness.
obligation to comply with procedural fairness requirements.
Principle: Where a decision-making process involves different
Content:
steps, procedural fairness is satisfied if the entire process
Procedural fairness requires the administrator to bring to a
entails procedural fairness.
persons attention the critical factor on which the admin
But the CJC & Committee had separate processes no
decision is likely to turn, so that he may have an opportunity
guarantee that the Committee will intervene to correct CJCs
of dealing with it.
unfairness CJCs unfairness = denial of procedural
Procedural fairness demands that K should have the
fairness.
opportunity of replying to allegations which were extremely
Anyway, in practice: the report is already publicly available &
prejudicial to K. There were 2 such matters:
appellants reputation has been damaged denial of
The comment that: had K been genuine, he would have
procedural fairness.
sought a decision on his application rather than change
his address without notifying the Dept.
Annamunthodo v Oilfields Workers Trade Union
The comment that: Ks concern for illegal immigrants &
No notice.
his active involvement with others seeking to circumvent
*Pl was charged with offences against certain union rules,
Australias immigration laws, must be a source of
under which Pl could only be fined, but not expelled from the
concern.
union.
The other materials which K complained of consist of policy
*Pl was given a hearing, but he chose not to attend the
& undisputed statements, which does not call for a chance to
adjourned hearing.
reply.
*At the adjourned hearing, the council expelled him under a

Appeal allowed, deportation quashed order.
rule he had NOT been charged under.
Obiter: In the case of a prohibited immigrant who intends to
[The decision to expel directly & immediately affected an

remain without lawful right and evades authorities, procedural
interest, being the union membership procedural fairness
fairness does not require giving of advance notice of the
applied. Issue = content of it]
deportation order.
Since Pl could not be expected to know that the expulsion rule
would be used, fairness requires that the Pl be given notice
Ainsworth v Criminal Justice Commission
that the expulsion rule might be used to expel him.
Contrary statutory intention (Scope).
When the Council at the adjourned hearing desired to proceed
*CJCs report criticised Ainsworths conduct, and
under the expulsion rule, they should have adjourned the
recommended against Ainsworth participating in the gaming
hearing again so as to give him notice of the fresh charge.
machine industry.
They failed to do so natural justice breached.
*Ainsworth group was not given an opportunity to be heard in
Pls appealing of the expulsion was not affirmance of the
opposition to the reports recommendation.
expulsion. He could still complain of a want of natural justice.
*S 3.21(2)(a) required CJC to act fairly in proceedings.
*Appellants commenced proceedings alleging breach of
Ex parte Polemis
procedural fairness, arguing that:
PF required more time to prepare.
the Act obliged the CJC to comply with procedural
*Pl had notice that he was charged for oil polluting.
fairness; or
*Pl was given only 5.5 hours to prepare his case. Judges
the duty arose under the general law, and was not
refused his adjournment application.
excluded by the Act.
*Magistrate heard the charge & found him guilty.
Held:
The judges refusal of adjournment was a breach of natural
The report adversely affected reputation [a sufficient interest
justice: Pl was not given a reasonable opportunity to prepare
to attract procedural fairness] of an individual [Ainsworth] in
his defence [that the pollution was not from his ship], because:
a direct & immediate way prima facie, procedural fairness
He had no time to prepare supporting evidence (eg. oil
applies.
samples, witnesses, state of weather);
Appellants argument #1: Statute requires fairness in
He had no time to read the prosecutors report of samples;

proceedings excludes fairness if no proceeding, and
He had poor English.
reporting is not a proceeding
Irrelevant that, in hindsight, there was no merit in Pls case.
Appellants argued the expressio unius est exclusio alterius
If procedural fairness requires adjournment, then it must be
maxim: If a statute specifically requires fairness in 1 area, it
given, even if Pl was sailing away that day and may not
does not require it in all other areas.
HEARING CASES

return. Anyway, the judges could have got the Pl to place a
There were no legal issues [eg. difficult statutory
deposit.
interpretation] involved;
Pl was facing no charge;
There were no witnesses to cross-examine.
Chen Zhen Zi v Minister for Immigration & Ethnic Affairs
PF did not require oral hearing in all cases.
ORourke v Miller
*Refugee = person who has a well-founded fear of
persecution, is outside the country of his nationality, and is
PF did not require cross-examination or confrontation.
unable to seek protection in that country.
*2 members of public complained that a probationary
*An applicant has a right to have a primary decision on
constable (Pl) on duty was drunk.
refugee status reviewed by the Refugee Status Review
*Commissioner put the allegations to Pl, who replied that the
Committee.
witnesses were wrong.
*Pl argued that procedural fairness required an oral interview
*Pl wanted to confront/cross-examine the 2 witnesses, but
in every RSRC review, because:
Commissioner did not allow it.
1) Refugee status contained subjective element (fear) &
*Commissioner decided (with power) to sack Pl anyway.
objective element (well-founded). Must interview to
Pl, as probationary constable, had a legitimate expectation that
assess subjective element.
his appointment would be confirmed the decision to
2) Process of determining refugee status involves
terminate his appointment affected his legitimate expectation
judgments on political, religious, racial & human rights
procedural fairness applied.
situation in a foreign nation. The review officer could
Pl was told about what was alleged against him, and was
misunderstand these.
given a fair opportunity to state his defence procedurally
3) Applicant may need to rely on interpreter, and may not
fair.
give a full written account of their case in fear of it being
Procedural fairness did NOT extend to require Commissioner
disclosed to his country
to allow Pl to confront/cross-examine the witnesses, because:
4) A correct decision is important to applicant & family.
**There was no reason why the witnesses (who were
5) No oral hearing meant that the review officer cannot
strangers to Pl) concocted their story;
test the applicants credibility.
Some of the Pls statements lent credence to that story;
Not disputed that rules of PF applied.
It is very important to the public that persons whose
The Court held that the Pls arguments only required oral
character is doubtful, should be kept out of the police
hearings in some, not all, cases:
force.
1) Dont need interview if objective element not satisfied
[Implicit reasoning could be: If require the witnesses to be
already.
cross-examined, then it deters people from reporting police
2) Misunderstanding will not necessarily be eliminated by
misconduct. We dont want this PF does not allow crossoral interview.
examination]
3) Some applicants have an adequate command of
[Can criticise this decision: The credibility of witnesses are in
English. Also, the same apprehension & mistrust (if any)
issue cross-examination is necessary. But can argue that
will still exist in oral interview.
credibility was not really in issue, because there was no real
4) Mere importance does not compel an oral interview.
issue of fabrication. Anyway, the facts are special (importance
5) In some cases, credibility is not an issue.
of police).]
SO Rules of natural justice do not require an oral hearing in
every application for refugee status. However, they may
National Companies and Securities Commission v News
require an oral hearing in a particular case, where:
Corporation
**credibility is in issue [eg. if applicant asserts factual
PF did not require trial procedures.
well-known info, then credibility is not in issue oral
*NCSC held a hearing to investigate its suspicion that News
hearing not needed];
Corp committed certain offences. Only if the investigation
the applicant is disadvantaged by being limited to
showed something wrong, would NCSC lodge proceedings in
submissions in writing.
the Supreme Court.
A green light decision. Court is sympathetic to the administrator.
*s 38(1): At a hearing:
(a) the proceedings shall be conducted with as little
White v Ryde Municipal Council
formality & technicality, and with as much expediency,
PF did not require legal representation at hearing.
as possible;
*Neighbours complained of Pl keeping 30 cats.
(b) the Commission is not bound by rules of evidence;
*Council recommended to prohibit Pl from keeping more than
(c) the Commission may permit a person to intervene;
2 cats at a time.
(d) the Commission shall observe rules of natural justice.
*Pl was informed that he had 4 days to represent to the
*The Commission proposed to conduct the hearing as follows:
committee as to why the resolution should not be given effect.
Commission can summon any witness;
*Pl requested to have his lawyer present at his hearing, but
Each witness may have legal representation during
was refused.
examination, who may re-examine;
*At Pls hearing, Pl alleged that there were no unsanitary
Each witness will be provided with a transcript of his
conditions, he was only keeping the cats temporarily, and they
evidence;
killed rats.
If the Commission proposes to publish any matter adverse
*Council confirmed its decision.
to any person, it will afford that person an opportunity to
Pls hearing was fair. Here, fairness did not require legal
be heard & call evidence on such matter before
representation at the hearing, because all that was involved
publication.
were simple factual matters which could be stated without
*The Commission disallowed News request for trial
skills of a trained advocate:
procedures:

News & its legal representatives to be present throughout
applicant may be unaware) and which could be decisive
the whole hearing;
against the application;
News to intervene in proceedings;
This disclosure is stronger where the material concerns
Its lawyer to cross-examine witnesses at hearing;
circumstances that have changed since application date,
News to call evidence in reply;
and is being used after considerable delay.
News to make submissions to the Commission before it
It is even stronger if the material is equivocal or contains
makes any findings.
info that the applicant could not reasonably have expected
to be used.
Statute requires trial procedures?
The Commissions investigation will comply with rules of
Here, the new information was decisive of the claim, and was
natural justice, if it proceeds to:
totally new, was considered 13 mths after date of application,
Allow each witness called to give evidence to be legally
and M could not have reasonably expected this information to
represented, with freedom for that representative to
be used against him (since both parties were arguably
examine the witness;
unwilling to offer M protection). The delegate did not inform
Provide a transcript of his evidence.
M he would use the election results, nor offer M an
Procedural fairness does NOT require the hearing to be treated
opportunity to comment breach of procedural fairness.
as a court trial, because:
Defs 2nd argument
Hearing in the statute is not used in a technical sense
Def argued that because the Act gave a right to full de novo
that requires court trial procedures; it is an ordinary word
review by the Tribunal, Parliament intended to limit
which must take its meaning from its context in the Act.
requirements of natural justice at the stage where a delegate is
The nature of the investigation is such that:
examining the application.
There is no charge or direct legal consequence;
Factors relevant in determining whether a right to full review
No issue can be determined;
excludes/limits rules of natural justice:
The hearing is designed to discover facts; and
Preliminary/Final original decision: The more final the
The procedure is not adversarial, but inquisitorial.
decision is, the more likely natural justice applies.
The statutory framework recognises need for expedition.
Here, the decision was final natural justice.
News Corp can cross-examine & call evidence if
Public/Private original decision: If private decision, it is
proceedings are subsequently brought in the Supreme
less likely that natural justice applies (because reputation
Court.
not affected as much).
At the hearing, the NTSC is unlikely to fail to call News
Here, the decision was private no natural justice.
Corps witnesses case will probably be made known
Formalities required for original decision.
during the hearing.
Here, the requirement to give reasons made it harder
to say that an appeal right was intended to limit
natural justice requirements natural justice.
Ex Parte Miah
Urgency
of original decision.
Exclusion/modification of procedural obligations by statute:
Here,
there was no urgency natural justice.
How clear contrary statutory intention has to be.
Judicial/Internal appellate body: If the appellate body
*M, a Bangladesh national, applied for a protection visa on
is a court, it is easier to infer that the right to appeal was
the basis that he was a refugee.
intended to limit/exclude rules of natural justice at the
*After the date of application, the delegate received new
earlier level.
information that the Bangladesh government changed. The
Here, the appellate body is a Tribunal natural
delegate thought that the ousting of the BNP meant people
justice.
were more tolerant delegate considered it decisive against
De
novo/Limited
appeal: If de novo, easier to infer that
Ms application.
natural justice was intended to be excluded/limited.
*Delegate did not inform M of the new material and give him
Here, there was de novo no natural justice.
an opportunity to respond to it before deciding to refuse.
Nature of interest; Consequences for individual,

Procedural fairness applied?
Subject matter of legislation.
Legislation was not intended to exclude common law
Here, nature of interest = personal security;
procedural fairness requirements, because:
Consequences = serious threats; Subject matter =
there are no clear words to that effect;
international obligations towards vulnerable citizens
the subject matter of the Act;
natural justice.
the Act implemented international obligations.
Balancing
these factors, the right to appeal to the Tribunal is
Content of procedural fairness requirements?
NOT intended to exclude/limit natural fairness.
Defs 1st argument
Denial of procedural fairness is grounds for relief under s
Def argued that use of the word Code in the heading of
75(v).
subdiv AB excludes any procedural fairness requirements
outside subdiv AB.
But this is a weak reason. Eg: Parliament could not have
BIAS CASES
intended to exclude bias/corruption rules.
Examples of material that would NOT require comment by
Laws v Australian Broadcasting Tribunal
the applicant include:
Non-adverse country information;
No ostensible bias (prejudgement); necessity.
Favourable/corroborative information in the public
*In Laws broadcast, he criticised expenditure on Aboriginal
domain; and
welfare. Complaints were made to the ABT.
Information based on circumstances described in the
*Relevant provisions:
application.
S 119(1) Broadcasting Act: Where a person broadcasts a
An applicant must be given an opportunity to comment where
program in respect of which the program standards were
the delegate proposes to use new material (of which the
not complied with, the Tribunal may, by direction,

prohibit or restrict the persons presentation of
So only the 3 members are disqualified from the inquiry.
broadcasts.
S 119(2) required the Tribunal to call upon the person to
Vakauta v Kelly
show cause why it should not act under subs (1) before so
Ostensible bias (prejudgement); waiver.
acting.
*During a trial, the judge criticised evidence given by the
S 17: A pre-condition to the exercise of s 119 powers is
Defs medical witnesses in previous cases, including:
the holding of an inquiry into the proposed exercise of
that unholy trinity;
powers.
the GIOs usual panel of doctors who think you can do a
*3 Tribunal members discussed the complaints with the
full weeks work without any arms or legs;
manager & director of 2GB, but not Laws.
the doctors views are almost inevitably slanted in
*Decision 1: 3 Tribunal members decided that the
favour of the GIO by whom they have been retained,
broadcasting of Laws programme breached a racial
consciously or unconsciously.
vilification standard.
*Defs counsel did not object to the remarks.
*Decision 2: The Tribunal decided to hold an inquiry
*In a reserved judgment, the judge:
(required by s 17) to decide whether there is any breach of the
said that the evidence of the doctor was as negative as it
standard, and if so, what the penalty should be under s 119.
always seems to be and based as usual upon his non *A Tribunal representative gave a radio interview, in which
acceptance of the genuineness of any plaintiffs
she repeated the substance of the Tribunals first decision.
complaints of pain; and
*Laws sued the Tribunal and the representative for
prefaced concessions made by the doctor with Even Dr
defamation arising out of the interview.
Lawson thought.
*In its defence, the Tribunal pleaded that what was said in the
During the trial
interview was of substantial truth & related to a matter of
Ostensible bias? Yes. The remarks show an adverse attitude
public interest.
to the expert witnesses would have led a fair-minded
*Laws argued that the representatives statements reflect the
observer to reasonably apprehend that the judge might not
corporate view of the Tribunal members, and that in filing &
have an unprejudiced mind.
maintaining its defences to the action the Tribunal members
But Dawson no apprehensive bias because alerting the
have asserted that Laws contravened RPS 3 all Tribunal
parties to a preconception assists an impartial approach.
members are disqualified from participating in any future
The judge can still assess the evidence fairly.
inquiry as to Laws non-compliance.
Waiver? By not objecting to the judges remarks, the Def
Decision 1 valid?
waived any right to appeal against an adverse decision on the
The Tribunal was only authorised to conduct a preliminary
ground of what had been said at the hearing.
investigation to decide whether it should hold a formal
Reserved judgement
inquiry.
Ostensible bias? The observations made about the doctor in
The 3 members went beyond this, by deciding the matter in
the judgement (in the context of remarks made during the
strong terms ultra vires decision.
trial) amounted to ostensible bias, because they would lead a
[Laws himself was not given a chance to talk to the Tribunal
reasonable or fair-minded observer to conclude that the judge
about the complaints denial of PF]
was heavily influenced by views he had formed on other
Decision 1 disqualified the 3 ABT members from inquiry?
occasions rather than by an assessment based on the case in
The 3 ABT members preliminary investigation amounted to
hand.
positive findings of contraventions of the radio standard,
Waiver? No. Since the judgment was reserved, there was no
which would lead an objective bystander to reasonably
opportunity for Def to object to its contents.
apprehend that they had pre-determined whether Laws had
failed to comply with the standard the 3 members were
Damjanovic v Sharpe Hume & Co
disqualified from participating in the inquiry.
Ostensible bias (prejudgement & other conduct).
Interview disqualified all ABT members from inquiry?
*D (Pl) sued for forgery & improper payment of a cheque.
The interview & its content was not necessarily done on
*Vukic (who had no legal qualifications) represented D, who
behalf of the individual members not all members are
knew little English.
disqualified.
*Before evidence in the forgery proceedings was completed,

Defence disqualified all ABT members from inquiry?
Gibb DCJ decided the case based on the improper payment of
Actual bias? No, the defences filed do not constitute
the cheque.
assertions that the matters pleaded are true/correct.
*Her Honour decided not to believe Pl in that proceeding.

Deemed bias? If the action succeeds, the government will
A reasonable bystander would have apprehended bias,

ensure that the Tribunal has funds to meet the verdict an
because:
observer will not suppose that the members who participate in
The judge stated in her judgment that she disbelieved D
the inquiry would have any material interest in resolving the
on the basis of evidence he gave not only in the present
relevant issues.
case, but in the other cases; [prejudgement] and
Apprehended bias? A fair-minded observer would know that
The judge fell short of acceptable judicial behaviour, by

filed defences do NOT amount to assertions of belief &
saying shut up; sarcastically referring to Ms Vukics
therefore prejudgement observer would conclude that the
spectacular silence; and sarcastically & critically
other members would bring an unprejudiced & impartial mind
commenting how very convenient. [other conduct]
to the inquiry no apprehended bias.
Waiver?
No, because D & Ms Vukic did not know of their
[Criticism: But its unsatisfactory that a fair-minded
right
to
object.
Anyway, the judge revived the matter in her
observer would know that defences are not assertions of
judgement
in
the
findings she made about Ds credibility in
belief (too technical). Also, defences should be assertions
the
forgery
cases.
of truth/correctness]
Order: A new trial before a judge other than Gibb DCJ.
Necessity: Even if apprehended bias attaches to all members,
the necessity rule allows a member to participate in inquiry.
(9) ULTRA VIRES ABUSE OF DISCRETION

Ultra vires means beyond power. Administrator has no power
to take that action.
ABUSE OF DISCRETION
Ultra vires doctrine: An administrator must act within the
These are rules which relate to the manner in which a
limits of powers which have been conferred on them, by
discretionary power is exercised.
statute or common law.
Padfield v Min of Agriculture: No such thing as an unfettered
discretion. Even formally unconfined & absolute discretions
Narrow ultra vires
may be reviewed for abuse of discretion.
(where an administrator goes beyond the express limits of their
Differences between irrelevant consideration ground, and
power)
improper purpose ground:
Irrelevant consideration ground is easier to establish,
Simple ultra vires
because it doesnt matter that other relevant
Ss 5(1)(d) & 6(1)(d): Review is available where the decision
considerations are taken into account. No but for test
was not authorised by the enactment in pursuance of which it
(dont have to show the irrelevant consideration
was purported to be made.
determined the outcome).
This occurs where the administrator lacks the power to act as
But success in establishing the improper purpose ground
they did (as a matter of statutory interpretation).
is more useful, because when the power is exercised
Swan Hill Corp v Bradbury: Regulations authorising intrusion
again, it will be much harder for the administrator to
into common law rights & freedoms are likely to be construed
reach the same conclusion (due to the but for test). If
narrowly by the courts.
succeed on irrelevant consideration ground, then the
A statutory power to make regulations regulating
administrator can still arrive at the same conclusion
building activity, did not authorise regulations which
easily.
prohibited that activity entirely.
Improper purpose
Procedural ultra vires
Ss 5(2)(c) & 6(2)(c): Review is available where an
Ss 5(1)(b) & 6(1)(b): Review is available where the
administrator exercises a power for a purpose other than a
procedures that were required by law to be observed in
purpose for which the power is conferred.
connection with the making of the decision were not
Padfield: A discretionary power may only be exercised in
observed.
pursuance of the purpose for which it was originally conferred
This occurs where the administrator has the power to act as
(even if the power is expressed on its face to be unfettered).
they did only after following a certain procedure (a
precondition), and the administrator purported to exercise the
Establishing this ground of review
power without following the procedure.
1) Authorised purpose? (a matter of statutory construction:
Look for preconditions things you need to do before
question of law).
(not during) you make the decision.
Ask: What is the purpose for which the power is intended
Project Blue Sky: Whether invalidity flows from nonto be exercised [or for which the power was conferred]?
compliance with statutory requirements, is a question of
What purposes are consistent with the Act?
legislative intent.
Sometimes the power expressly states its purpose.
Norvill v Chapman
If not express, then the purpose must be implied from (i)
Difference between procedural UV & procedural fairness:
the object of the Act, or (ii) if no objects clause, the Act
If have statutory steps & didnt do them, then use
as a whole (eg. Woollahra Council v Min for Env).
procedural UV.
The power is read down to its intended purposes.
If dont have a hearing, or an adequate one, then use
2) Actual purpose? (a matter of evidence: question of fact).
common law procedural fairness.
Ask: What were the actual purposes for which the power
was exercised? Are they consistent with the purposes of
Wide ultra vires
the Act?
(where an administrator goes beyond the implied limits of their
Established using documentation (letters, minutes),
power. These limits are implied by common law)
interview transcripts, cross examination.
If the power is exercised for multiple purposes, ask: But for
Abuse of discretion
this unauthorised purpose, would the same decision still have
been made?
Acting for an improper purpose (or bad faith);
If yes, the decisions valid.
Failure to take account of a relevant consideration;
If no, the decisions invalid.
Taking account of an irrelevant consideration;
[Note: Need cross-examination to be sure of answer. But
Unreasonableness.
if the proper purposes are enough to justify that decision,
then probably fail but for test ground fails]
Failure to exercise discretion
So, real question is: Is the power actually exercised for a
Improper delegation of a discretion;
purpose that is consistent with the statute?
Acting under dictation;
Motive is irrelevant. Eg. Sydney Municipal Council
Inflexibly applying a policy;
(motive is to make profit lower rates, but still improper
Improperly fettering a discretion by contract/estoppel.
purpose).
Examples
Sydney Municipal Council v Campbell (true purpose was to
make profit)
*Council had power to compulsorily acquire land:

for the purpose of making or extending streets; or
If the statute expressly states relevant considerations,
for the purpose of carrying out improvements or
the court must decide [by interpretation] if they are
remodelling any portion of the city.
exhaustive or merely inclusive.
*Council decided (under 1st power) to acquire:
If the statute does not expressly state relevant
land necessary for extension of Martin Place; and
considerations, they must be implied from the subject
adjacent land not necessary for the extension of the
matter, scope and purpose of the Act.
street.
Failure to take into account a relevant consideration will
*After the acquisition, Council said that the 2nd
not invalidate the decision, if the factor is insignificant
acquisition was made using the 2nd of its compulsory
and the failure to take into account could not have
powers.
materially affected the decision.
*Council minutes revealed that the purpose required by
The weight given to various considerations is generally
statute was lacking, and was only invoked as an
for the decision-maker (not the court) to determine.
afterthought.
However, if a factor has been given far too much
The adjacent land was not being acquired for either of the
weight, or far too little weight, the decision may be
given statutory purposes, because the purpose of the
reviewed if the decision is unreasonable.
acquisition was to make profits from expected future
For irrelevant considerations:
increases in land value once the street was extended
Irrelevant considerations are considerations that a
(established from Councils minutes) improper
decision-maker is legally bound to NOT take into
purpose.
account.
(Irrelevant that the Council had a good motive)
The irrelevant considerations are implied from the subject
Shop Distributive v Min Industrial Affairs (authorised purpose
matter, scope and purpose of the statute (even where the
= to exempt particular shops totally; actual purpose = to
discretionary power is in its terms unconfined).
exempt all shops partially)
Taking into account an irrelevant consideration will not
*Legislation limited shop opening hours. Its purpose was
invalidate the decision, if the factor is insignificant and
to protect shop assistants so they wont be called to work
would not materially affect the decision.
all hours.
*s 14(3) provided that shops were to be closed on
Establishing this ground of review
Sundays, except otherwise provided in the Act.
1) What is a relevant/irrelevant consideration? (Q of law
*s 5 gave the Minister power to issue certificates to
statutory interpretation)
individual shops, to exempt them from s 14(3).
If the Act expressly states them, then they may be
*s 13 allowed the Governor to alter closing times by
exhaustive or merely inclusive (depends).
proclamation, after some consultation procedures.
If the Act does not expressly state them, then must imply
*Minister decided to adopt Sunday trading by issuing
them from the subject matter, scope and purpose of the
certificates under s 5, rather than by s 13 proclamation.
Act.
The s 5 power was conferred for the purpose of
Always link to the purposes of the Act ask: Does
exempting particular shops totally from the legislation,
this consideration have nothing to do with the
not to provide a partial exclusion for all shops from 11-5
purposes of the Act?
on Sundays only the s 5 power was used for an
2) Was it in fact considered? (Q of fact evidence)
improper purpose invalid.
Also, if it were possible to use exemption certificates to
Unconfined discretionary power
alter trading hours, then protections given by s 13 could
Padfield v Min of Agriculture: Even in the case of
be bypassed. This cannot be the legislatures intention.
unconfined/absolute discretions, there are some matters which
Woollahra Council v Minister for Environment
are irrelevant and must not be taken into account.
(political embarrassment was held to be an irrelevant
Relevant & Irrelevant Considerations
consideration)
Ss 5(2)(a)-(b) & 6(2)(a)-(b): Review is available where the
Peko-Wallsend: The exact determination of these matters
administrator:
depends upon the subject matter, scope and purpose of the
(a) takes an irrelevant consideration into account in the
statute.
exercise of a power; or
(b) fails to take a relevant consideration into account in
Confined discretionary power (ie. express relevant considerations)
the exercise of a power.
Identification of legally relevant/irrelevant considerations
There are some considerations that the decision maker is free
R v Hunt; ex parte Sean Investments: The specified factors are
to take into account or ignore.
not necessarily exclusive.
Min for Aboriginal Affairs v Peko-Wallsend: Every statute
*s 40AA(7) National Health Act conferred a discretion to
implies that the decision is to be made on the basis of the most
fix fees chargeable by Private Nursing Homes, having
current material available to the decision-maker.
regard to the costs necessarily incurred in running the
An update on a relevant consideration is itself a relevant
home.
consideration.
Since this costs factor is the only one mentioned by the
statute, it is necessarily a fundamental factor in the
Principles
determination of fees.
For relevant considerations (Min for Aboriginal Affairs v
However, costs necessarily incurred is not an exclusive
Peko-Wallsend):
factor the decision-maker could have regard to other
Relevant considerations are considerations that a
factors, such as those which show the fees are excessive
decision maker is legally bound to take into account.
or unreasonable.
The relevant considerations are determined by
Sean Investments v McKellar (certain non-express factors are
construction of the statute conferring the discretion.
not irrelevant considerations)

*The Minister made his decision under s 40AA(7) [same
[A decision is not unreasonable simply because the Court or
as above], giving reasons that included (i) the costs
reasonable person would have made a different decision.]
necessarily incurred in running the home, (ii) the effect
*Act allowed a cinema licence to be granted subject to
upon the patients, and (iii) a concern that rents would not
such conditions as the Authority thinks fit to impose.
be unduly subsidised.
*The condition attached was that no children under 15
Considerations (ii) & (iii) were not irrelevant to the
should be admitted to Sunday performances.
Ministers exercise of the statutory discretion.
This condition was NOT unreasonable.
The relevant factors, and the weight to be given to them,
Some judicially recognised forms of unreasonableness are:
will vary from case to case.
Phosphate v EPA (economic concerns are not relevant
Discrimination without justification
considerations)
Parramatta CC v Pestel
*s 20(6) Environmental Protection Act gave EPA power
*Statute: The Council has power to determine a special
to grant licences subject to such conditions it thinks fit.
rate where specified works would be of special benefit
*EPA, after having regard to environmental
to a portion of its area.
considerations only, licensed a factory subject to a
*The Council, by purporting to exercise this power,
condition that there be no release of sulphuric gas when
levied a special rate on an industrial area, to raise revenue
an offshore wind was blowing.
to provide amenities of special benefit to the area (eg.
*The company argued that other factors, in particular
roads, kerbing, guttering, drainage).
economic consequences to the community of imposing
*Only industrial sites were levied; 90 residential purposes
the condition, should have been considered.
were not levied.
Environmental factors were obviously relevant.
The Council could not reasonably have concluded that the
But the other factors were not relevant:
work only benefited industrial sites. The improvements
There was no indication in the Act that either
by the Council benefited industrial & non-industrial sites
economic concerns or the public interest were to
alike it was unreasonable to levy some sites and
be taken into account.
exempt others.
The Acts sole and only purpose was to reduce
Sunshine Coast Broadcasting v Duncan
pollution to specified levels. It was not to minimise
*A guideline said that applications for the right to service
pollution consistent with the maintenance of
an area should be refused, if the area is already
commercial activity. (the Act did not contemplate
adequately serviced by other stations.
some balancing of considerations)
*On the basis of this guideline, a stations application was
The Board was comprised entirely of experts in
refused, while 8 other stations applications were
environmental matters; there were no members
accepted.
chosen for their financial/industrial expertise.
Lack of consistency unreasonable.
Whether failed to take into account a relevant consideration
[Also a relevant consideration (the public interest) was
ACF v Forestry Commission
not adequately considered.]
*Commission decided that certain areas of forest were
definitely not qualifying areas for World Heritage
Decision is out of proportion to the goal to be achieved
Listing.
R v Barnsley Corp; ex parte Hook (minor incident)
*The Act required the Commission to identify any such
*H, a stallholder, was caught urinating in a side street
areas as soon as practicable, presumably so that they
when the toilets were closed.
could be logged.
*The Council decided to revoke his licence to trade in the

*ACF argued that it was a relevant consideration that the
market.
identified areas had a relationship with existing World
The decision to revoke was unreasonable, because it was

Heritage areas, which the Commission did not consider.
disproportionate to the offence: H was deprived of his
The relationship of the identified areas to an existing
source of livelihood, because of this minor incident.
World Heritage area, WAS a relevant consideration.
[Also invalid for breach of natural justice]

However, the relationships have been considered (by
Fares
Rural Meat v Australian Meat & Livestock Corp (long
inference), because:
term
purpose)
The Commission had refused, with respect to a
*Act gave power to revoke an approval to engage in live
number of other areas, to say they were definitely of
stock, only for the purposes of promoting, controlling,
no value on precisely this ground. It was unlikely
protecting & furthering the interests of the Australian live
that the Commission would have regard to such
stock industry.
factors in one case, and then ignore them in the next.
*The applicants approval was revoked after Saudi

This was an interim report which was required to be
Arabia rejected its shipment.
prepared quickly; thus, a large amount of detail was
[The decision was invalid for failure to accord procedural

not to be expected the report did not have to
fairness]
expressly consider it.
However, since the purpose for which the power had to
be exercised is the long term best interests of trade, the
Unreasonableness
decision was not disproportionate to that purpose (even
Ss 5(2)(g) & 6(2)(g): Review is available where an exercise of
though the applicant was likely to suffer substantial
power is so unreasonable that no reasonable person could
commercial losses).
have so exercised the power.
Wednesbury: A decision will be reviewable where no
Limited duty of inquiry
reasonable person/body/administrator could have made that
Prasad v Min Immigration and Ethnic Affairs: Where material
decision.
which is central to a decision to be made is easily available,
failure to obtain that material before reaching the decision

would be unreasonable (if a reasonable decision-maker would
purpose is the maintenance, preservation and defence of
have obtained that material).
national parks against outside encroachments.
*The Department rejected Ps application for permanent
[Thus, the broad ss 151 & 152 powers are read down to this
residency, because of a suspicious marriage.
authorised purpose]
This suspicion was based on inconsistent answers
Actual purpose?
that the Ps gave in interviews.
The actual purpose of the development is inconsistent with the
[The decision is invalid, because of a failure to take into
purposes authorised by the Act, because:
account the relevant considerations of 8 statutory
Documentation showed that the schools offer was the
declarations from various persons declaring that they
trigger for the application.
knew the Ps as a happily married couple.]
The school proposed was private and not public.
It was unreasonable of the decision-maker not to make
Its curriculum related to business matters and had nothing
further inquiries to investigate the discrepancies.
to do with the parks [eg. botany/horticulture].
The schools use of public buildings and land would
restrict the public enjoyment of the park for some time.
Unreasonable application of statutory words to facts [where theres
Thus, the powers conferred by ss 151 & 152 do not extend to
discretion, eg. satisfied]
the grant of the licence invalid licence.
Chan Yee Kin v Minister for Immigration: A decision may be
The good motive of the Minister & Director in saving money

unreasonable because the decision-maker misconceived the
on park improvements was irrelevant.
legal concept involved.
*C claimed refugee status. The grant was dependent on a

well founded fear of persecution.
*Minister decided that C did not have a well founded
fear of persecution.
*C had been detained and interrogated in China, been
listed in public as an opponent of the State, had been
exiled, and had been detained for some months after
unsuccessful attempts to escape.
The Ministers decision was unreasonable, because given
the accepted facts and the meaning of the phrase, no
reasonable decision-maker could have reached the
conclusion that C did not have such a fear.
Austral Fisheries: Delegated legislation may be invalid on the
ground of unreasonableness, if it leads to manifest
arbitrariness, injustice or impartiality.
*Delegated legislation was made, which reduced quotas
of every boat in the industry, except one boat which had
its quota doubled.
*The stated objectives of the delegated legislation were to
develop a fair & equitable process of allocation, to reflect
existing market shares for fish, and to minimise
disruption to the industry.
Held unreasonable delegated legislation was
invalidated.
CASES
Woollahra Council v Minister for Environment
Improper purpose.
*National Parks and Wildlife Act:
s 151(1)(f): The Minister may grant licences to
occupy/use national park lands.
s 152: The Minister may grant licenses to carry on
business within a national park.
*A private business school proposed to renovate and lease a
building in a national park.
*Minister & Director (under ss 151 & 152) granted the school
a licence to use the building, and to carry on its business there.
*They were motivated in reaching their decisions by the
opportunity to restore the building & improve the surrounding
land, at no cost to the government.
Authorised purpose?
Since the power does not expressly state the authorised
purposes, these purposes must be derived from the general
structure of the legislation.
preservation, care, control and management of
national parks kept appearing in the Act The Acts overall
Minister for Aboriginal Affairs v Peko-Wallsend

Implied relevant consideration; implied delegation.
Aboriginal Land Rights Act:
*s 50(1)(a): If the Aboriginal Land Commissioner finds
that Aboriginal applicants for land are traditional owners,
he must recommend the land grant to the Minister.
*s 50(3)(b): The Commissioner must comment in his
report on the detriment to persons that might result, if the
claim were acceded to.
*s 11(1)(b): Where the Minister is satisfied that the land
grant should be made, he must recommend that to the
GG.
*The Commissioner held an inquiry into Aboriginal claims,
and PW made vague submissions about the location of
uranium it discovered in the block.
*The Commissioner recommended a grant of 10% of the
block. He commented on the detriment that a grant might have
on the companies, but was unaware that the whole deposit lay
within the 10% block recommended for grant.
*After the Commissioners report, PW informed the Minister
of the deposits real location by submission.
*A successor of the Minister, without reference to PWs
submission, decided to recommend to the GG that the grant
should be made. The Minister was in fact unaware of the
companies submissions.
1) Is PWs submission a relevant consideration?
The purpose of s 50(3) (requirement of Commissioner to
comment on detriment) must be to ensure that the Minister
considers detriment when making his decision under s 11
the Act implies detriment to be a relevant consideration in
deciding under s 11.
Furthermore, the Ministers consideration of detriment must
be based on the most recent & accurate information that he
has at hand. Since PWs submission is the most recent
information on detriment, PWs submission is a relevant
consideration.
2) Was it taken into account?
No evidence that Minister took it into account.
The Minister could not have impliedly delegated
consideration of PWs submission to someone else, because:
he did not use his express power to delegate;
the Ministers function under the section is a central
feature of the statutory scheme (its importance evidenced
by the preliminary procedures, eg. Holding an inquiry
under s 50);
the exercise of the power has important consequences;
and

the power (s 11) requires that the Minister is satisfied
Such failure cannot be cured except by publication of a
(ie. personal to Minister).
fresh notice invalid.
Minister failed to take into account express relevant
considerations:
Edelston v Wilcox
1) Each representation attached to the report is a relevant
Implied relevant considerations; unreasonableness; PF.
consideration.
*s 218 ITAA: The Commissioner may issue a notice requiring
2) The Minister did not take these representations into

a person who owes money to a taxpayer, to pay the
account, because (i) the Minister only had 1 day to make
Commissioner that money as is sufficient to pay the tax debt.
his decision, and could not have considered the report and
*E, a doctor, received payments from the HIC under the
representations within that time; and (ii) he did not have
Medicare scheme.
physical access to the representations.
*The Commissioner:
The obligation to consider is personal to the Minister, and
issued a notice (under s 218) requiring the HIC to pay to
cannot be delegated (s 31).
it 100% of the money they owe to E, until an amount of
Although he could receive assistance of his staff, as
tax due was satisfied;
long as he still considered.
revoked the notice and issued new notices, requiring
The
statute does not imply that the obligation to consider
payment of only 45% of the money; and
is
subject
to confidential information Minister was
revoked the notices, and issued fresh notices requiring
obliged
to
take the secret womens business into
payment of 100% of the money.
account.
*E sought ADJR review of the Commissioners decisions to
revoke the 2nd notice, and to issue the 3rd notice.

S 218 was not intended to be used to extort money from
friends/relatives, or to punish a TP who used permissible
means for the limitation of his liability to tax, or to obtain
payment of tax payable by other persons.
Commissioner failed to take into account 2 relevant
considerations:
1) It was a relevant consideration that the payments from
the HIC constituted 96% of Es income, and were
required to meet part of his living expenses and the
expenses of his practice. 2) This consideration was not
taken into account, because the Comm only projected a
previous years figures.
1) It was also a relevant consideration that there was a
genuine ongoing dispute. 2) The Comm ignored this.
The decision to substitute notices relating to 100% of the
amount of payments, was so unreasonable that no reasonable
person could have so exercised the power.
There was a breach of natural justice, because E was not
given an adequate opportunity to submit that the
recommendation should not be taken.
Thus, the decisions to revoke & issue notices were invalid.
Norvill v Chapman
Procedural UV; Express relevant considerations.
*Aboriginal Heritage Protection Act:
S 10(1): Where the Minister (a) receives an Aboriginal
application seeking protection of a specified area, (b) is
satisfied , and (c) has received a report and has
considered the report & any representations attached to
the report, then he may make a declaration in relation to
the area.
S 10(3): Before submitting the report, the reporter shall
publish a notice (i) stating the purpose of the application,
and the matters required to be dealt with in the report; (ii)
inviting interested persons to furnish representations; and
(iii) specifying an address to which such representations
may be furnished.
*The Minister exercised s 10 to effectively ban construction
of a bridge over the area.
There was procedural ultra vires, because the reporters
published notice did not adequately state the purpose of the
application:
For the purpose of the application to be stated, it is
necessary to specify the area over which protection is
sought, and to identify the injury/desecration
apprehended. Neither was adequately stated.
(10) ULTRA VIRES PRESERVATION OF DISCRETION

Roncarelli v Duplessis
*Licensing Commission had sole responsibility for the
PRESERVATION OF DISCRETION
grant & withdrawal of licences.
These are rules which relate to the agent who is exercising the
*Premier directed the Commission to withdraw the liquor
discretionary power.
licence of Pl, which the Commission did.
Broad principle: If Parliament has conferred a discretion on a
The Commissions decision was void.
particular decision-maker:
Only that decision-maker may use the discretionary
Direction/Policy simple ultra vires
power; and
Formulation of policy rules/guidelines serves 2 important
The powers discretionary nature must be preserved.
aims:
Sub-doctrines:
1) Consistency of decision-making. This is particularly
important where many administrators exercise the same
Failure to Act (s 7: unreasonable delay in making the
discretion.
decision)
2) Easier decision-making. Administrators dont have to
Failure to perform a non-discretionary duty remedy = order
consider afresh every case.
mandamus or mandatory injunction.
However, policy rules/guidelines must still allow the
This ground of review is also available where the time limit
administrator to respond to particular needs of a given case
for making the admin decision has been exceeded.
(because statute, by conferring discretion, demands this).
If no express time limit, review is available for
Basic position: Despite the legal principle that discretion must
unreasonable delay.
not be fettered, administrators are entitled to formulate policy
Thornton v Repatriation Commission: Test of reasonable
guidelines to assist them in exercising their own discretion
delay is objective.
but not until they are deprived of any real discretion.
Deferring a decision to the outcome of a High Court
appeal on a similar matter not unreasonable.
Where there is statutory power to issue directions/guidelines
An express power to formulate directions/guidelines for use
Rule against delegation
by other decision-makers in exercising their discretionary
Rule against delegation: There is a presumption against the
powers, shows that Parliament intends the discretion to be
delegation of discretionary power. Prima facie, the power has
constrained to some extent.
to be exercised by the person to whom it is conferred.
Fine differences in statutory wording affect the scope of a
Express powers to delegate override this rule.
power to issue directions, and the degree to which those
If express delegation is used, the power must be exercised
directions may constrain the exercise of discretion.
within the limits of the express delegation. If not, then
ADC v Hand
ultra vires.
NSW Aboriginal Legal Service v Min Aboriginal Affairs
Carltona: Powers to delegate may be implied where
Riddell v DSS
administrative necessity requires it.
Smoker v Pharmacy Restructuring Authority
OReilly v Comm of State Bank of Vic (lots of times the
discretionary power would be exercised implied power to
Where there is no statutory power to issue directions/guidelines
delegate)
Rendell v Release on Licence Board: Policy guidelines must
*ITAA:
be consistent with the legislation conferring the discretion.
s 264: The Comm of Tax may require persons to give
Rendell v Release on Licence Board (policy not to release
such information as the Comm required, and also to
prisoner until served minimum 10 yr gaol; but statute required
attend & give evidence & produce documents.
consideration of individual circumstances policy
s 8: The Comm may delegate the power under s 264
inconsistent with Act invalid decision)
to Deputy Comms.
Re Findlay (policy not to release prisoners in all but the most
*Notices under s 264 were issued by an Investigating
exceptional cases consistent with Act policy valid)
Officer.
*Deputy Comm had authorised the Investigating Officer
Inflexible application of policy in exercising a
to issue notices of this sort & stamp on them the Deputys
discretionary power (ss 5(2)(f) & 6(2)(f))
signature.
S 5(2)(f): Review is available for an exercise of a
*Issue = did Deputy Comm have implied power to subdiscretionary power in accordance with a rule/policy without
delegate?
regard to the merits of the particular case.
Lots of cases in which the power to issue notices would
Inflexible application of policy = applying policy guideline
be exercised the express power to delegate to the
like a rule to reach a decision, without considering individual
Deputy Comm was insufficient for the day-to-day
circumstances of a particular case.
operation of the Department Deputy had implied
The minimum content of the rule against inflexible
power to delegate.
application of policy is:
Peko Wallsend (Ministers function was central to the
British Oxygen v Minister of Technology: Policy
statutory scheme, evidenced by the preliminary procedures,
guidelines can be used, provided that the decision-maker
thus requiring a personal decision no implied power to
is always willing to listen to anyone with something new
delegate)
to say.
Secretary DSS v Alvaro (factors)
The degree to which policy guidelines may control discretion
in advance, depends on:
Acting under dictation (ss 5(2)(e) & 6(2)(e))
The nature of the entitlement/right which the statute
Ss 5(2)(e) & 6(2)(e): Review is available for an exercise of a
confers. If, once the statutory criteria are satisfied, there
personal discretionary power at the direction of another
is no legal entitlement (ie. only a hope of receiving any
person.

benefit), then policy guidelines can be applied more
*His application was refused on the basis of a policy
inflexibly.
statement (against queue-jumpers), before his application
eg. Green v Daniels (once the statutory criteria are
was considered on its merits.
satisfied, legal entitlement to unemployment benefits
Since Tang was the spouse of an Australian citizen, he
follows unlawful to automatically apply policy
was (under s 6A(1)(b)) entitled to have his case
guideline without regard to individual merits).
considered on the merits & not pre-emptively rejected on
The matters relevant to the exercise of the discretion.
the basis of the policy unlawful to merely apply the
If the decision on the merits turns primarily on the
policy without considering the application on the merits,
individual circumstances of the applicant, then policy
as the statute requires.
guidelines cannot be applied as inflexibly.
[Note: The fact that he is a queue-jumper might still be a
eg. Tang v Min of Immigration, Cumbairux v Min
relevant consideration in assessing the merits
Immigration (immigration decisions turn primarily
application could still be refused.]
on individual circumstances of the applicant
Re Findlay: If the discretionary power is likely to be exercised
unlawful to apply policy inflexibly)
primarily for policy reasons unrelated to the individual
eg. Re Findlay (parole decisions turn primarily on
circumstances of the applicant (eg. public interest), then the
policy reasons unrelated to the individual
decision is more capable of being regulated by guidelines.
circumstances of the applicant lawful to apply
policy inflexibly)
So look at the relevant considerations in exercise of the
Fettering discretion by representations (estoppel)
discretion.
Min Imm v Kurtovic: Estoppel is not available against a
The more personal they are, the less scope there is for
government decision-maker in its exercise of public powers.
policy guidelines to control discretion in advance
This rule against estoppel does not apply to exercise of
(Chambairux).
the governments private (eg. contractual) powers.
But if the personal circumstances are not such important
But Ansett Industries v Cth: A contract with Government
considerations (eg. public interest is more important) then
cannot fetter a statutory power.
there is more scope to make policy to control in advance
Theoretical reason for the rule against estoppel:
(Re Findlay).
If an administrator does not a power, they cannot give
themselves that power by falsely representing to a 3 rd
Examples
party that they possess it, because that would be against
Green v Daniels (administrator applied general policy like a
Parliaments intention.
rule inflexible application of policy)
Equally, if an administrator has a power, but mistakenly
*Social Security legislation provided that a person
claims that they have no such power, estoppel cannot take
(subject to age & residence requirements) would be
away that power because statute has conferred that
eligible for unemployment benefit, when the Director
power.
General of DSS was satisfied that (i) they were
Practical reason for the rule against estoppel:
unemployed, (ii) willing & able to undertake suitable
If estoppel can fetter discretion, administrators would
work, and (iii) had taken reasonable steps to obtain work.
refuse to take the risk of giving any
*The Department applied a policy guideline, which said:
opinions/undertakings at all in response to inquiries. This
As a general rule people who leave school and register
would be inconvenient to the public.
for employment within 28 days prior to the end of the
school year, or at any time during the long vacation, will
CASES
not be in a position, until the end of the school vacation,
to satisfy the conditions of eligibility for unemployment
Secretary, Dept of Social Security v Alvaro
benefit.
Implied delegation; decision.
People who are legally entitled under the statute, may be
*Social Security Act:
denied benefits because they have not satisfied the 12
Power 1 (s 1224): If money was paid because of a false
week waiting period imposed by the policy the policy
statement, and is not repaid, the amount is a debt due to
guideline effectively introduced an extra criterion for
the Cth.
eligibility it is inconsistent with the statutory criteria
Power 2 (s 1237): The Secretary may waive the debt.
(since applied inflexibly as a rule) ultra vires
Delegation power (s 1299): The Secretary may formally
invalid.
delegate any of its powers to an officer.
Also: If the policy was only a guide, the Dept applied it
*A made false statements to the DSS, and consequently
inflexibly, by automatically imposing the waiting period
received payments under the Act.
on Green without giving her an opportunity to establish
*An officer in the Department decided that A was indebted to
her eligibility according to the statutory criteria.
the Cth (pursuant to s 1224).
Tang v Min of Immigration: If the decision turns primarily on
*An authorised review officer affirmed the decision, and
the individual circumstances of the applicant, then the
decided not to waive the debt (under s 1237).
decision cannot be reached by simply applying policy
*Neither powers were expressly delegated to the decisionguidelines without considering the merits of the case.
makers. Issue = can they be impliedly delegated to someone?
*s 6A Migration Act: Prohibited non-citizens should not
*A appealed to the AAT, which decided it had no jurisdiction
be considered for an entry permit, unless they fall into an
to review the decisions because there was no valid decision
exceptional category. One of these was that they were the
(since neither the officer nor review officer held valid
spouse of an Australian citizen.
delegations from the Secretary under s 1299).
*Tang, married to an Australian citizen, applied for
*Secretary appealed to the Federal Court under s 44(1) AAT
permanent residency.
Act.
Decision

The AATs review jurisdiction extended to review of
*Minister made a determination: The Secretarys power
decisions made in purported exercise of powers (even where
must be exercised in the following circumstances only
the decision is not legally ineffective) matter should be
*R asked that recovery of his debt be waived under s 1237
remitted to the AAT.
because of extreme financial hardship.
*On appeal, the AAT decided not to waive the debt by
Can the decision-maker make decisions without a formal
applying the Ministers direction.
delegation of power from the Secretary?
Parliament could not have intended that the Secretary
Is the determination valid?
personally perform all the functions necessary to carry the Act
The determinations purpose & effect was to limit the very
into effect; some of the functions must be performed by
wide discretion conferred on the Secretary by s 1237(1).
authorised officers. Does this include the 2 powers?
The directions were inconsistent with the statute, because:
For s 1224: The power can be impliedly delegated to an
The statutory language:
authorised officer, because:
Subs (3) refers to the Secretarys power and subs
A decision under s 1224 only involved ascertainment of
(2) stated in exercising the power statute
facts from objective evidence;
regards the Secretary as exercising the power
The power is not discretionary (no may). The result
authorises directions which affects the manner of its
automatically follows; and
exercise, but will leave the power itself intact.
The decisions correctness could be tested against
Therefore, s 1237(3) gives the Minister power to give
evidentiary material.
general guidance to the Secretary only, leaving him
In short, it is a straight-forward decision that does not require
free in any particular case to depart from the
much thought.
guidance.
For s 1237: The power cannot be impliedly delegated to an
The determination, by stating precise rules dictating
authorised officer, because:
the result of all applications, is not giving guidance
The power is a discretionary power (may);
in the exercise of the power, but is attempting to
It is vested expressly in the Secretary;
deny the existence of the power inconsistent with
The exercise of the discretion significantly affects rights
statute.
& liabilities of people liable under s 1224; and
The legislative history: A predecessor of s 1237 did not
The discretion is likely to be exercised to implement
allow the Ministers to give directions. If Parliament
broad policy objectives under the Act.
intended the Minister to circumscribe the Secretarys
power, the language would have addressed the ambit of
the power itself rather than simply its exercise.
Rendell v Release on Licence Board
Therefore,
since the AATs decision was based on the invalid
Dictation (no express power to issue guidelines).
determination,
its decision involves an error of law and must
*Decision-making process:
be
set
aside.
The
matter is remitted to the AAT.
Statute required the Release on Licence Board to consider
the individual circumstances of an application, and advise
the Minister.
The Minister then looks at the public interest
(deterrence), and advises the Executive Council.
*Life-term prisoner applied to the Board seeking
consideration of his release on licence.
*The Board decided to reject the application, by saying that
the Government would not recommend release of a life-term
prisoner until [he] served a minimum of 10 years in gaol. It
will be noted that this is a minimum.
The minute & correspondence was proof that the Board
exercised its discretion by applying a policy rule adopted by
another body without regard to the particular circumstances of
the prisoner (as required by statute) unlawful decision.
The Board never considered the merits of the application.
Boards repeated use of minimum shows that it applied
the governments policy because it felt it had no
alternative.
Also, a practical consideration: If the Board considers it
appropriate in a particular case to recommend release
before 10 years, its recommendation would discharge its
functions of offering its best advice to the Minister.
Riddell v Secretary, Dept of Social Security
Ultra vires direction (express power to issue directions).
*s 1237 Social Security Act:
(1) The Secretary may waive the Cths right to recover a
debt.
(2) In exercising its power, the Secretary must act in
accordance with directions issued under (3).
(3) The Minister may give directions relating to the
exercise of the Secretarys power.
Smoker v Pharmacy Restructuring Authority

Guideline not ultra vires (express power to issue guidelines).
*National Health Act:
s 99K(1) gives the Pharmacy Restructuring Authority
power to make a recommendation with respect to
applications for approval of premises as pharmacies.
s 99K(2): In making a recommendation under s 99K(1),
the Authority must comply with the relevant guidelines
determined by the Minister under s 99L.
s 99L(1): The Minister must determine the guidelines
subject to which the Authority is to make
recommendations under s 99K(1).
*Ministers determination, para 3(a): approval of a
pharmacist shall not be recommended in respect of premises
located within 3 kms [of an already approved pharmacist].
*S applied for approval. The premises for which approval was
sought was within 3 kms of other pharmacists the
Authority considered itself bound to comply with para 3(a)
Secretary decided against recommending an approval.
Guideline valid?
The Ministers guidelines were more properly described as
rules which circumscribe the Authoritys discretion.
Legislature intended to authorise the Ministers guidelines,
because:
Statutory language:
S 99K is expressed in terms of function rather than
discretionary power (distinguishable from s 1237 in
Riddell, which conferred a broad discretion).
The mandatory language of s 99K(2), that the
authority must comply with the relevant guidelines,
suggests that the guidelines are to be mandatory (ie.
rules).

[The Ministers directions were essential to the
consider, and (2) the decision did not turn much on individual
statutory scheme, because the Minister must issue
circumstances, but on the public interest (eg. deterrence,
them: s 99K(2)].
retribution, public confidence in the system, and consistency
Legislative history: The provisions and guidelines
of treatment between prisoners).
originated from an agreement reached between the
Minister & the Pharmacy Guild, which contemplated that
the Minister could radically limit the Authoritys
discretion Parliament would have intended the
Authoritys discretion to be circumscribed by the
Ministers guidelines.
Thus, the guidelines were valid Authority was correct in
applying para 3(a) in refusing the application.
Differences:
Discretion. In Riddell, the power conferred a broad
discretion, while in Smoker, the power was expressed in
terms of function.
Mandatory language. Riddell: must act in accordance
with; Smoker: must comply with.
Importance of directions to the statutory scheme.
Riddell: Minister may give directions. Smoker: Minister
must give directions.
Legislative history.
Chumbairux v Min for Immigration
Inflexible application of policy (no express power to issue pcy).
*s 6A(1)(b) Migration Act: An entry permit shall not be
granted unless he is a spouse, child or aged parent of an
Australian citizen.
[Once satisfied, then Minister has discretion whether to
grant permit, and must consider the merits]
*Departmental Policy: The marriage must be considered to
be genuine and ongoing before consideration may be given.
*C married an Australian resident, and applied for resident
status on the ground of his marriage.
*His application was refused, and he requested
reconsideration.
*Minister did not consider that C had an ongoing marriage
applied the policy decided not to reconsider Cs
application. No attention was given to any particular
circumstances of C.
C was a spouse under s 6A(1)(b). Thus, his application for
reconsideration should be considered on its merits.
Cs application for reconsideration was not considered on its
merits, and was rejected on an erroneous view that C had to
have an ongoing marriage before he was entitled to have the
merits of his case considered invalid decision.
Re Findlay
Policy not ultra vires (no express power to issue policy).
*ss 60(1) & (2) Criminal Justice Act: Home Secretary may
refer cases of prisoners to the Parole Board for advice, and
may release a prisoner on licence if the Parole Board
recommends it.
*New Policy adopted by Home Secretary: Home Secretary
will refuse to exercise his power for certain classes of
offenders, in all but the most exceptional cases.
*Home Secretary agreed to continue allowing the Parole
Board to see all cases, on the understanding that the Boards
reviews would take account of the new policy.
*Parole Board considered the applicants cases in light of the
new policy.
The policy is valid, because it expressly allowed for
exceptional cases (unlike in Rendell).
The policy can be applied inflexibly to the applicants, because
of (1) the complexity of issues which the Secretary must
(11) JURISDICTIONAL ERROR

Jurisdictional error is relevant where the decision-maker
Jurisdictional error in Australia
under review is an inferior court or admin tribunal [ie. a
Craig v SA accepts that some errors of law made after the
decision-maker with conferred jurisdiction rather than
initial & correct assumption of jurisdiction by a decisiondiscretionary power]
maker, will be sufficiently serious as to take that body
All errors by individual decision-makers (public
outside its jurisdiction jurisdictional error.
servant Minister) are jurisdictional errors.
Where the decision-maker is an administrative
Jurisdictional errors are reviewable; non-jurisdictional
tribunal, there is a presumption that an error of law at
errors are non-reviewable.
any stage will be jurisdictional, and hence reviewable.
2 types of jurisdictional error:
Where the decision-maker is an inferior court,
Excess of jurisdiction (purporting to exercise a
considerable deference is paid to the inferior court a
jurisdiction which does not in fact exist
large category of non-jurisdictional errors of law which
certiorari/prohibition);
cannot be reviewed.
Refusal of jurisdiction (not exercising a jurisdiction
which in fact exists mandamus).
Craig v SA: Jurisdictional errors are:
CASES
All errors of fact/law made in the preliminary stage;
and
Anisminic v Foreign Compensation Commission
(If administrative tribunal) all errors of law made past
*Applicants property in Egypt was sequestrated. Pl sold it
the preliminary stage; and
to TEDO.
(If inferior court) some errors of law made past the
*Applicant applied to the Foreign Compensation
preliminary stage; and
Commission claiming that they were entitled to participate
Never errors of fact made past the preliminary stage.
in the Egyptian Compensation Fund.
Whether a question is preliminary, depends on statutory
*Relevant provisions:
interpretation.
Art 4(1) Foreign Compensation Order: A claim is
This means that some errors of law made past the
established if the applicant satisfies the Comm of the
preliminary stage (ie. in the course of exercising
following matters: - (1)(b)(ii) [the applicant] and
jurisdiction correctly assumed) are non-jurisdictional, and
any person who became successor in title of such
therefore non-reviewable against the rule of law.
person were British nationals .
Foreign Compensation Act: The determination by the
Classical doctrine of jurisdictional error
Commission of any application made to them under
Only errors made at the preliminary/threshold stage (ie.
this Act shall not be called in question in any court of
when jurisdiction to determine a matter is initially
law.
assumed/declined) are jurisdictional errors reviewable
*Commission rejected Pls claim, because TEDO was the
errors.
applicants successor in title, and was not a British national.
Eg. jurisdictional fact errors concern preliminary
*Applicant brought action, arguing that the Commission
questions upon which the very existence of a
misconstrued the Order in finding that TEDO was their
jurisdiction depends reviewable.
successor in title.
Errors (of fact/law) made in the course of the exercise of a
Privative clause applied?
jurisdiction properly assumed, would never be
The privative clause only protects valid determinations; not
jurisdictional errors non-reviewable errors.
a purported determination which is invalid.
Thus, a reviewing Court would defer to the
What is Jurisdictional error?
administrators determination of questions (even qs of
Some errors of law made by tribunals in the course of
law) if they arise in the course of exercise of
proceedings (past the preliminary stage) are jurisdictional
jurisdiction.
errors. A non-exhaustive list of such errors:
Deciding in bad faith;
Rationale
Making a decision it had no power to make;
Courts should defer to decisions of admin bodies which are
Failing to comply with natural justice;
non-jurisdictional, because of:
Misconstruing the provisions giving it power to act;
Constitutional reason;
Refusing to take into account a relevant consideration;
Expertise;
Taking into account an irrelevant consideration.
Speedy issue resolution.
But there are still some non-jurisdictional errors of law.
Presumably, minor errors are still non-jurisdictional.
Expanded theory of jurisdictional error
Is the purported determination a nullity?
[Successor in title is a technical legal phrase Q of law]
Anisminic v Foreign Compensation Commission rejected
Successor in title means a successor of the original owner
the classical view that jurisdictional errors can only be
who has the owners hope/expectation of receiving
made in the preliminary stage.
compensation.
Some errors of law made during the exercise of a
There can only be a successor in title where the title of
jurisdiction correctly assumed, will cause loss of that
the original possessor has passed to his successor, so that
jurisdiction. These are jurisdictional errors (Lord Reid
the original possessor of the title can no longer make a
gives a non-exhaustive list of examples).
claim.
Practical effect = to expand scope of judicial review of
This can only happen when the original owner ceases to
inferior courts & admin tribunals, to that which have
exist the provisions with regard to successors in title did
always applied to individual decision-makers.
not apply where the applicant is the original owner & still
in existence.
(11) JURISDICTIONAL ERROR

Since the Applicant is the original owner, the Commission
To rely on irrelevant material; or
had no right to take into account the ground in Art
In some cases, to make an erroneous
4(1)(b)(ii) their decision was a nullity.
finding/conclusion;
and the tribunals exercise or purported exercise of power
is thereby affected.
Craig v SA
Inferior
courts
*C was charged with offences.
Lord
Reids speech in Anisminic v FCC applies to
*District Court judge Russell found that:
administrative
tribunals only, not to inferior courts an
C was unable to obtain legal representation through no
inferior
court
does
NOT commit jurisdictional error
fault of his own; and
whenever
it
addressed
the wrong issue or asked itself the
C could not receive a fair trial without representation.
wrong question.
*Applying Deitrich v R, he stayed the proceedings.
The ordinary jurisdiction of a court encompasses authority
*State sought a certiorari quashing the stay order.
to decide questions of law & fact involved in matters which
*Full SA Supreme Court made the order. Russell
it has jurisdiction to determine.
misconstrued the reference in Dietrich to fault, because
An inferior court falls into jurisdictional error if it:

he failed to refer to certain facts:
1) Mistakenly asserts/denies the existence of
C was granted legal assistance & received inheritance
jurisdiction; or
of $20,000;
2) Misapprehends/disregards the nature/limits of its

C broke bail; and
functions/powers, where it correctly recognises that
C bought a car and lost it.
jurisdiction does exist.
*C appealed to HC.
Examples
of such error:
*State argued that that the trial judges finding was a
Where
the court purports to act outside the general area
jurisdictional error, or an error of law on the face of the
of
its
jurisdiction,
by entertaining a matter outside the
record.
theoretical
limits
of
its functions & powers.
Was there jurisdictional error?
Eg.
a
civil
inferior
court heard & determined a
Arguably, there was no error of law at all.
criminal
case.
HC indicated that neither the judges stay order, nor
Eg. the court purported to make an order which it
his failure to refer to all the facts, was enough to show
lacked power to make (eg. ordering specific
a misunderstanding of Dietrich on the issue of fault.
performance when its remedial powers are strictly
Even if Russell misinterpreted Dietrich, it would not be a
limited to damages).
jurisdictional error.
If
it
does
something which it lacks authority to do (eg.
The trial judge possessed jurisdiction to hear & dispose
if
it
purported
to act in the absence of an essential
of Cs application for a stay of proceedings (Dietrich).
condition
of
the
jurisdictions existence).
That jurisdiction encompassed the identification and
Where
the
court
disregards or takes account of some
determination of relevant questions of law and fact,
matter that the statute requires to be taken into account
including whether Cs inability to obtain legal
or ignored as a pre-condition of the existence of any
representation is through no fault of his part.
authority to make an order/decision in the
Regardless of whether it is a question of law, or mixed
circumstances of the case.
Q of law & fact, any error would be within the trial
If it misconstrues that statute and thereby misconceives

judges jurisdiction.
the nature of its function or the extent of its powers.
[Also no error on the face of the record.]
Examples
of errors of law committed by an inferior court
Thus, the Full Court could not order certiorari set aside
(in
the
course
of exercising its jurisdiction) that do not
Full Courts order + dismiss States application for judicial
ordinarily constitute jurisdictional error:
review of Russells order.
Mistake in identifying relevant issues, formulating
What is jurisdictional error?
relevant questions and determining what is & what is
A critical distinction exists between administrative
not relevant evidence; and
tribunals & inferior courts. Rationale:
Failure to take into account relevant considerations, or

Inferior courts are constituted by persons with formal
taking into account irrelevant considerations, in
legal qualifications or legal training. They are part of
determining a question within jurisdiction.
the hierarchical legal system.
[So
for
inferior courts, the distinction between
Admin tribunals are commonly constituted by persons
jurisdictional/non-jurisdictional errors of law remain
without formal legal qualifications or legal training.
critical]
They are not part of the ordinary hierarchical judicial
structure.
Tribunals
HC approved Lord Diplocks presumption (in Re Racal
Communications) that jurisdiction of administrative
tribunals does not extend to the authoritative determination
of questions of law any error of law made by an admin
tribunal, at any stage, is presumed to be a jurisdictional
error.
An administrative tribunal makes a jurisdictional error if it
falls into an error of law which causes it to:
Identify a wrong issue;
To ask itself a wrong question [ie. apply a wrong
statutory test];
To ignore relevant material;
Criticism
Criticisms of rationale for the distinction:
Legal expertise: Most tribunals contain legally trained
members;
Hierarchical legal system: It can be hard to separate
admin tribunals from the hierarchical legal system (eg.
those with a statutory appeal);
Separation of powers doctrine: Does not exist in States.
Also, hard to distinguish between administrative & judicial
bodies.
(12) PRIVATIVE CLAUSES & CROWN IMMUNITY

Examples of what can/cannot be protected by privative clauses
NAAV v Min for Immigration: Where there is a relevant
PRIVATIVE CLAUSES
privative clause:
Privative clause = legislative provision intended to exclude
Breaches of natural justice are not reviewable;
judicial review, in whole or in part.
Non-performance of important antecedent acts needed
They bring the Parliament and Courts directly into conflict:
prior to a decision being made, are reviewable.
On one hand, Parliament should be able to exclude
Wang (failure to give reasons as required by Migration Act,
courts, because:
was such a fundamental defect that the privative clause will
statute overrides common law judicial review; and
not protect it)
the exclusion is a matter of political merits for
Parliament to decide (SOP).
On the other hand, Courts should not be excluded from
CROWN IMMUNITY FROM STATUTES
review, because:
the rule of law requires irrational/unfair/unlawful
The Crown is presumed (as a matter of statutory
government behaviour to be controlled by the Courts.
interpretation) not to be bound by statutes of general
In practice, courts continue to review unlawful administrative
application. This presumption can be displaced by
decisions despite apparently clear privative clauses, by
express/implied words.
reading down the clauses:
S 20 Acts Interpretation Act (SA): An Act passed after June
If Parliament has conferred an expressly limited
1990 will, unless the contrary intention appears
jurisdiction/power on a decision-maker, it intends the
(expressly/impliedly), bind the Crown, but not as to impose
exercise of power only within those limits. The Courts
any criminal liability on it.
gives effect to Parliaments will by enforcing those limits.
It expressly retains the Bradken principle.
Even if there is no express statutory limit to
Bropho v WA: Can infer Parliaments intention that the Crown
jurisdiction/power, Courts impose implied limits (eg.
be bound, from the content & nature of the legislation.
procedural fairness, abuse of discretion etc), saying that
(WA Govt was bound by Aboriginal Heritage Act to
they are enforcing the implicit statutory intent of
negotiate with Aboriginals, because 93% of WA was
Parliament. BUT this argument is weak the implicit
Crown land and if the Crown was not bound, the Act
intent of Parliament would contradict the express
would be nugatory Act intended Crown to negotiate
privative clause.
with Aboriginals)
There are good reasons for excluding judicial review: If every
BHP v Bradken: If a contractor has a contractual relationship
decision made by administrative bodies can be appealed,
with the Crown, and the Crown is not bound by a statute, that
justice can become lengthy and costly, and there would be no
contractor is also immunised (otherwise the Crowns interests
need for the admin bodies in the first place.
would be prejudiced).
Judicial review is entrenched in the Constitution (s 75). But
*Qld Railways Commissioner (the Crown) contracted to
the High Court recently held that this entrenchment did not
buy all its steel from BHP without a tender process
prevent the Cth from validly legislating to exclude many of
restraint of trade breach of TPA.
the grounds for judicial review (including PF, RC/IRC,
Qld Crown was not prescribed by the TPA to be bound
unreasonableness) of Migration Act decisions.
it could enter into contracts in restraint of trade.
At State level, judicial review is not entrenched. So state
If BHP were not given immunity also, the Crowns
privative clauses are more likely to work better.
capacity to enjoy such contracts would be prejudiced
BHP also immune.
Current treatment of privative clauses
Bridgetown/Greenbushes Friends of the Forest v CALM
Dept of Conservation was not bound by Wildlife
Review of serious jurisdictional errors (eg. grossly in excess
Conservation Act it could clear trees without concern
of jurisdiction) cannot be excluded. But review of less serious
for habitat protective provisions of the Act.
errors of law may be prevented by privative clauses.
The 3 lumber companies in contract with CALM to
The expansion of jurisdictional error means fewer errors are
acquire timber and haul it away, were not bound by the
non-jurisdictional, and hence fewer errors are capable of being
Act either.
excluded.
Atyeo v Aboriginal Lands Trust (Health Act (requirements of
Nevertheless courts treatment of privative clauses is
clean water & human waste removal) did not apply to Crown
inconsistent.
land)
Principles
Remedies
R v Hickman; ex parte Fox & Clinton: Statutory provisions
Mandamus, certiorari & prohibition are traditionally
conferring a limited jurisdiction must be read with the
unavailable against the Crown.
privative clause.
So, if the decision-makers the Crown, seek equitable
A purported exercise of power protected by a privative
remedies rather than prerogative writs.
clause, is valid provided it (a) is a bona fide attempt to
Do not sue the Crown directly; make AG the nominal Def.
exercise the power, and (b) appears on its face to be
within power.
Darling Casino v NSW Casino Control Authority: The
Hickman principle still applies at State level. But there is no
constitutional protection of judicial review at State level, so
privative clauses are not as strong.
(12) PRIVATIVE CLAUSES & CROWN IMMUNITY

Analysis
CASES
Hickman principle is primarily a rule of construction &
compromise: It requires inconsistent jurisdiction and privative
clauses to be read together, and gives both clauses meaning.
R v Hickman; Ex parte Fox
As a result of reading them together, the privative clause
*National Security (Coal Mining Industry Employment)
expands jurisdiction of the decision-maker to include
Regulations (Cth):
bona fide attempts reasonably capable of reference to the
r 14(1)(a): Subject to Regulations, a Local Reference
power relating to the subject matter.
Board shall have power to settle disputes {as to any local
Only fairly major errors will be outside the 3 provisos &
matter likely to affect the amicable relations of employers
so be unprotected by the privative clause.
& employees} in the coal mining industry.
Overall effect: Since jurisdiction is expanded, less errors

r 4: industrial dispute and local matter are defined in
of law are jurisdictional errors less reviewable errors.
relation to the coal mining industry.
So,
privative
clauses do NOT exclude review; they only
r 17: A Local Reference Boards decision shall not be
expand
jurisdiction.
challenged, appealed against, quashed or called into
Cant exclude review, because cant override s 75(v)
question, or be subject to prohibition, mandamus or
Constitution.
injunction, in any court on any account whatever.
In Hickman, the privative clause did not expand the tribunals
*The Board was asked to determination a dispute in relation
jurisdiction enough to cover the actual decision (the Boards
to the application of an award to lorry drivers.
decision didnt fit in the 3 provisos) invalid decision.
*The Board decided (under r 14) to make an order that F was
engaged in the mining industry, and were required to pay their
Darling Casino v NSW Casino Control Authority
drivers the minimum wages and conditions prescribed in the
award.
*Casino Control Act (NSW):
*F sought a writ of prohibition against the Boards chairman,
s 18: The Authority is to determine an application.
prohibiting further proceeding upon the order.
s 12: The Authority must not grant a casino licence unless
satisfied that the applicant, and each close associate, is a
Issue
[Dispute and coal mining industry are jurisdictional facts]
suitable person.
[There was a dispute]
s 13: A person is a close associate, if he holds any
Fs lorry operations do not fall within the natural meaning of
relevant financial interest in the applicants casino
coal mining industry.
business, and is (in the opinion of the Authority) to
The privative clause must be taken into account in
exercise a significant influence over the casino business.
ascertaining what the true limits of the Boards authority are.
s 155: Except as otherwise provided in this section, a
decision of the Authority under this Act is final and is not
Principles
Hickman principle: A privative clause is interpreted as
subject to appeal or review. The section then provides
meaning that no decision by the body shall be invalidated,
for appeal to the Supreme Court on a question of law.
provided that:
*Authority held a public inquiry to determine whether SHC
(1) its decision is a bona fide attempt to exercise its
was a suitable person to hold a casino licence.
power,
*The inquiry officer concluded that close associates of SHC
(2) it relates to the subject matter of the legislation; and
were not of good repute.
(3) it is reasonably capable of reference to the power
*Authority determined that these entities ceased to be close
given to the body.
associates of SHC decided to grant casino licence to SHC.
It is impossible for legislature to:
No evidence that the Authority failed to consider the question
give power to any authority which goes beyond the
of influence in determining that the parties found not to be of
subject matter of the legislative power conferred by the
good repute were no longer close associates of SHC s 13
Constitution; or
complied with valid decision.
impose limits on an authority which it sets up with the
Privative clause
intention that any excess of that authority means
The Hickman principle is a rule of construction. It requires an
invalidity, and yet deprive the HC of authority to restrain
inconsistency to be resolved by reading the provisions
the invalid act of the authority.
together and giving effect to each.
Where there is a privative clause, it becomes a question of
Privative clauses cannot protect against jurisdictional errors
statutory interpretation whether transgression of its limits (so
(ie. refusal to exercise jurisdiction, or excess of jurisdiction)
long as done bona fide and bearing an appearance of an
otherwise s 75(v) Constitution would be defeated.
attempt to pursue the power), necessarily spells invalidity.
But a privative clause may protect against other errors (within
Decision
legislative power) by altering the substantive law to ensure
The Boards powers are concerned entirely with the
that the decision/conduct/failure to exercise a power is in fact
settlement of disputes. The Regulations are not intended to
valid & lawful.
give the Board any power to conclusively determine the ambit
Provided the intention is clear, a State privative clause may
of coal mining industry, or the extent of their own
preclude review for errors of any kind, so long as it satisfies
jurisdiction as governed by that expression.
the Hickman principle.
So the Boards authority (under the Regulations) is limited
No constitutional s 75(v) equivalent at State level.
to the coal mining industry.
However, privative clauses are construed with a
The Board has tried to decide the lorry dispute completely
presumption that the legislature does not intend to deprive
outside its authority writ of prohibition issued.
the citizen of access to the courts, other than to the extent
expressly stated or necessarily implied.
The operation of a State privative clause is purely a matter of
its proper meaning ascertained in its legislative context.
SOURCES OF REVIEW JURISDICTION

Invoke which source of review jurisdiction? Possible avenues of
review:
State decisions can be reviewed by:
State Supreme Court (r98 Supreme Ct Rules).
Cth decisions can be reviewed by:
High Court (s 75 Constitution);
Federal Court (ADJR Act) only for a decision of an
administrative character made under an enactment,
OTHER THAN a decision by the GG or a decision
[listed] in Schedule 1 (s 3).
ABT v Bond: A reviewable decision is:
a final & operative decision, or
an essential preliminary step required by statute
to reach an ultimate decision.
Federal Court (s 39B Judiciary Act);
AAT if the relevant statute confers AAT review
jurisdiction (s 25 AAT Act).
MERITS REVIEW
Standing (s 27(1)): Applications may be made by any person
whose interests are affected by the decision.
Preconditions to AAT review satisfied?
Any jurisdictional facts, procedural preconditions?
Do the merits review: A fresh decision. Simply reargue law
& facts: interpret statute and apply it to the facts.
Has the facts changed since the decision?
Did the original decision maker take a wrong view of the
facts?
Drake v Min Immigration: The AATs function is to
independently determine the correct & preferable decision on
the material before it. (subject to statute)
Although govt policy is a relevant consideration, the
AAT cannot blindly follow it. AAT should question the
policys propriety, and consider other factors.
Remedies: S 43 AAT Act: AAT can affirm, vary, substitute or
remit the decision.
This amounts to full merits review power (Drakes case).
Note: The AATs powers may be limited by the statute conferring
jurisdiction.
JUSTICIABILITY (NOT OF ADJR)

There is no automatic immunity from review merely because
the decision was made by Ministers (Padfield; Murphy Ores),
Crowns Representative (Re Toohey; FAI v Winneke) or
Cabinet (SA v OShea; Peko-Wallsend); or made under a
prerogative power (CCSU case; Peko-Wallsend).
Key factors of justiciability:
Subject matter? (eg. of non-justiciable SM: National
security (CCSU v Min Civil State); Treaty
implementation (Peko-Wallsend); appointment of QCs
(Waters v AG))
High-level policy decision? (complex weighing up of
many competing policies; highly political; courts lack
expertise: Peko-Wallsend). Or a Determinative decision?
Position of decision-maker & nature of power?
STANDING
Does the Pl have a special interest; or Is the Pl a person
aggrieved? (ie. the decision must affect the Pls interests
more than the public at large) an individualised effect.
Right to Life Assn v Dept: The special interest must be within

the purposes of the relevant Act.
Pl has standing only if there is a relationship between (a)
the subject matter of the decision (from the Acts
objects), and (b) the matters that the Pl alleges.
(Decision was about quality/safety of goods; but Pls
arguments had nothing to do with quality/safety. They
were based on clinical trials being contrary to law no
standing)
Personal/Private Standing
Personal standing may arise from:
Directly interference with common law rights to life, liberty &
property;
Actual financial loss (eg. lowering of property values) (Howes
v Vic Railways);
Indirect effect on a right (eg. effect on residential amenity)
(Exp Helena Valley v State PC);
Competitors:
Exp Cooke: Courts are unwilling to allow judicial review
to be used as a tool to hinder competitors.
Batemans Bay: Allowed standing to a competitor, who
showed a significant effect on its commercial/financial
interests.
Ministerial directions indirectly affecting rights/interests
(Riddell, Smoker, ADC v Hand).
Public Standing
ACF v Cth: A mere intellectual/emotional concern, or a strong
belief that the law should be observed, is not enough to give
standing.
Vocational special interest
Ogle v Strickland: If a necessary incident of the Pls vocation
is to challenge the decision, the Pl has standing.
(Priests had standing to challenge decision to allow
imports of blasphemous film)
Onus v Alcoa (Aboriginal custodians of relics had standing to
challenge a decision to allow aluminium smelter which would
interfere with Aboriginal relics on the land)
Sutton v Warringah (Councillor had standing to challenge
Councils decision to delegate powers)
Participation in Statutory Process (objector status)
US Tobacco v Min: A Pl has standing if the Pl participated in
a statutory process that leads up to the making of the decision
being challenged. But merely making submissions is not
enough.
Representative standing
A body which is best placed to represent the interest of a
section of the community that is specifically affected by the
decision, has standing to challenge it.
Shop Distributive v Min Industrial Affairs: An Union has the
same interest as its members.
North Coast Env Council v Min Resources: The more
organised & recognised the body is, the more likely it can get
representative standing.
(peak organisation in region, govt funding, keen interest
for many yrs, no body more representative standing)
ACF v Minister for Resources
(main body for protecting environment, govt funding,
great public perception of protecting environment
standing)
Exec Council of Aust Jewry v Scully: The representative body
need not have its operations confined to the geographical
region affected by the decision.
PRECONDITIONS TO EXERCISE OF POWER

Jurisdictional fact error (s 5(1)(c))
Is a fact a jurisdictional fact (precondition) or a nonreviewable question of fact (not precondition)?
Factors:
Statutory language makes the fact an essential
preliminary to power jurisdictional (Enfield v DAC).
Fact is phrased in objective language jurisdictional
(Enfield v DAC). Subjective language (considers)
non-jurisdictional (AHC v MIM).
Fact is pivotal /central to the design of the statutory
scheme jurisdictional (Enfield v DAC).
Fact determined by detailed public consultation &
consideration procedures non-jurisdictional (AHC v
MIM).
Fact incorporates strong value judgement nonjurisdictional (AHC v MIM) But if determinable by expert
evidence jurisdictional (Enfield v DAC).
Inconvenience of making admin decisions conditional
upon a courts view of the facts non-jurisdictional
(Project Blue Sky v ABA).
Whether the facts exist has a strong impact on common
law rights & liberties jurisdictional.
Procedural UV (s 5(1)(b))
Is the requirement a procedural precondition? (something
decision-maker had to do before making the decision)
Project Blue Sky: Whether invalidity flows from noncompliance with statutory requirements, is a question of
legislative intent.
Factors indicating intent of invalidity:
Subject matter is determinate & rule-like?
Consequences of invalidity?
Subjective preconditions are relevant considerations (PekoWallsend) & may be reviewable for unreasonableness/no evidence.
SUBSTANTIVE GROUNDS OF REVIEW

SIMPLE UV (S 5(1)(D))
Did the administrator go beyond the express words of the
power?
Swan Hill Corp v Bradbury: Powers authorising intrusion into
common law rights & freedoms construed more narrowly.
ERROR OF LAW (S 5(1)(F))

1) What does the overall statute, or technical legal words,
mean? (this is a question of law which the court can
determine: Hope v CC Bathurst)
2) Did the decision-maker:
Misunderstand the nature/limits of its
functions/powers?
Apply the wrong statutory test?
BREACH OF PROCEDURAL FAIRNESS (S

5(1)(A))
Procedural fairness applies to the decision?
Kioa v West: Decision has a direct & immediate effect on
rights, interests or legitimate interests of an individual [in
an individualised way]?
Any contrary statutory intent?
Cases show its hard to find contrary statutory intent:
Ainsworth v CJC (could not use expressio unius maxim to

impliedly exclude PF)
Exp Miah (specification of certain procedures (Code) &
right of appeal to Tribunal, did not exclude PF)
Kioa v West (requirement to give reasons PF applied)
But PF may be excluded where its application would
be inconsistent with the statutes operation/purposes.
Statutory provisions affect content of, rather than exclude, PF.
Ainsworth v CJC: Where a decision-making process involves
different steps, procedural fairness is satisfied if the entire
process entails procedural fairness.
Fair hearing
Kioa v West: Procedural fairness requires the administrator to
notify the affected person about any adverse information in
the administrators mind, that will influence the decision.
This includes adverse information that is not
crucial/decisive of the decision (Kioa).
This includes information in the public domain (Exp
Miah), as long as Pl could not reasonably have expected
the info to be used against him.
Russell v Duke of Norfolk: Procedural fairness requires the
affected person to be given a reasonable opportunity to
present his case (ie. an adequate hearing).
1) What is Pls defence argument?
2) What procedures are necessary in order to make Pls
case? Any reason why not adopting it would still be fair?
3) Were those procedures actually adopted?
Examples of procedures required by procedural fairness
Ex parte Polemis (PF required adjournment, b/c need time to
prepare evidence + poor English)
Chen Zhen Zi v Min Immigration (PF only required oral
hearing where credibility is in issue, or the applicant is
disadvantaged by being limited to written submissions)
White v Ryde Municipal Council (PF did not require legal
representation, b/c only simple factual matters, no legal
arguments, no charge, and no witnesses)
ORourke v Miller (PF did not require cross-examination or
confrontation, b/c no reason why the witnesses lied)
NCSC v News Corp (PF did not require adversarial
procedures, b/c: statute requires expedition; only an
investigation; can cross-examine & call witnesses in
subsequent proceedings; and decision-maker is likely to call
right witnesses inquisitorial procedures were sufficient)
Deemed Bias
Dimes v GJC: Decision-maker has a direct financial interest in
the outcome of the decision?
Ebner v OTB: If the decision has no effect on the financial
interest of the decision-maker, then there is no deemed bias.
Apprehended Bias
Would a fair-minded observer reasonably apprehend that there
might be bias (ie. a closed mind to the arguments), because:
Decision-maker prejudged the case (Livesey v NSWBA;
Vakauta) by expressing preliminary views on the case;
Decision-maker conducted the matter in an unjudicial
way (Damjanovic v Sharpe); or
Decision-maker has a close relationship with a party.
Waiver of right to object: Vakauta v Kelly; Damjanovic v
Sharpe: Where Pl fails to object to bias before the decision,
and is aware of the right to object, then Pl waived that right to
object.
Rule of Necessity: Laws v ABT: The bias rule cannot stop a
body from performing its statutory functions; or frustrate the
intended operation of a statute. (b/c statute > common law)
ABUSE OF DISCRETION
Padfield v Min of Ag: Even formally unconfined & absolute
discretions may be reviewed for abuse of discretion.
Improper purpose (s 5(2)(c))
1) What were the actual purposes for which the power was
exercised? Proof? (can infer)
2) What is the authorised purpose for which the power is
intended to be exercised? (statutory interpretation)
3) Are the actual purposes consistent with the purposes of
the power/Act?
4) But for the unauthorised purpose, would the same
decision still have been made?
Are the proper purposes enough to justify the decision?
Woollahra Council v Min for Env: Good motives are
irrelevant.
Irrelevant & Relevant Considerations (s 5(2)(a)-(b))

1) What is a relevant/irrelevant consideration in making
the decision?
If Act expressly states them:
Define them in accordance with purposes of the Act.
They are not exhaustive (R v Hunt).
Can imply them from the subject matter, scope and
purpose of the Act (Peko-Wallsend).
Test: Does such a consideration have anything to do
with the purposes of the power/Act?
Examples of implied relevant considerations:
Peko-Wallsend (preliminary inquiry; update on a
relevant consideration is a relevant consideration)
Edelston v Wilcox (massive financial effect)
Phosphate v EPA (Environment Act, no mention of
economic/public interests economic consequences
are not relevant considerations)
Roberts v Hopwood (City Mgmt Act, power to set
wages social philanthropy & feminist ambition
irrelevant; union rates & cost of living relevant)
Green v Daniels (prevention of abuse relevant)
2) Was it actually considered? Proof? (look @ the reasons)
ACF v Forestry Comm: Failure to mention a
consideration does not necessarily mean failure to take it
into account.
(expressly considered in other cases + decision must
be made quickly inferred consideration)
Peko-Wallsend: The weight which a decision-maker gives
to the relevant factors, is a matter for them.
Norvill v Chapman (no physical access + no time not
considered)
export trade if no action taken + Acts express purpose

was long term best interests of trade reasonable)
Limited duty of inquiry:
Prasad v Min Immigration: Where material which is
central to a decision to be made is easily available, failure
to obtain that material before reaching the decision would
be unreasonable.
(rejected VISA application on basis of suspicious
marriage, without investigating these suspicions
unreasonable)
Unreasonable application of [ordinary English] statutory
words to facts. (Hope v CC Bathurst; Chan Yee Kim v Min)
No evidence to justify making of the decision (s 5(1)(h)).
FAILURE TO EXERCISE DISCRETION

Failure to make a decision (s 7)
Only where there is a duty to make the decision.
No express time limit unreasonable delay?
Thornton v Repatriation Commission (not unreasonable
to wait for High Court decision on similar matter)
Delegation
1) Who is supposed to make the decision (or perform the
duty)? (look @ statute)
2) Did he in fact do it personally? (look @ facts)
3) Did he have an implied power to delegate the
decision/duty?
Carltona: Powers to delegate may be implied where
administrative necessity requires it.
Eg. OReilly v Comm of State Bank (power exercised lots
of times + express delegation power is limited implied
power to delegate)
Factors against implied power to delegate (Secretary DSS v
Alvaro):
*Power does NOT largely involve fact-gathering from
objective evidence that can be tested;
*Discretionary power (result doesnt necessarily follow);
Power expressly vested in decision-maker;
The repositorys discretion is central to the decisionmaking process, evidenced by preliminary inquiry
procedures (Peko Wallsend);
Exercise of discretion significantly affect rights &
liabilities;
Power likely to be exercised to implement broad policy
objectives under the Act.
Direction/Policy = valid/invalid? (simple ultra vires)

Unreasonableness (s 5(2)(g))
Test: Is the decision so unreasonable, that no reasonable
person could have so exercised the power? (Wednesbury)
Discrimination without justification:
Parramatta CC v Pestel (levied rates on some sites only
within an area, to fund amenities to the whole area
unreasonable)
Sunshine Coast Broadcasting v Duncan (refused
application for reasons that applied equally to other
applications which were accepted unreasonable)
Disproportionate admin response to a perceived problem:
Ex parte Hook (decision took away Aps livelihood b/c of
the trivial offence of urinating unreasonable) Edelston.
Fares Rural Meat v AML (decision costed Ap millions of
export trade loss, but potential serious consequences for
No statutory power (policy)

Are the policy guidelines consistent with the Act
conferring the discretion? (Rendell v Release on Licence
Board)
Re Findlay (policy not to release prisoners in all but the
most exceptional cases consistent with Act because
decisions turn on public interest, not individual
circumstances policy valid)
Green v Daniels: If policy rigidly introduces an extra
criterion for eligibility, it is inconsistent with statutory
criteria & ultra vires.

Statutory power (to issue directions/guidelines)
1) Does the direction/guideline take away discretion?
2) Is the power to issue intended to authorise this?
Impermissible constraint of discretion?
ADC v Hand: A power to issue general directions
means that the direction must not be directed to a
particular case arising for decision, but must be generally
applicable. Ie. direction must be as to procedure, not
outcome.
(Direction to co-operate & give info was general)
ALS v Min for Aboriginal Affairs (Direction allowing
Special Auditor to override ATSICs discretion to grant
in particular cases not general invalid)
Riddell v Sec DSS: There is power to give general
guidance only, not to dictate the result of all cases,
because:
Direction power & compliance rule refers to the
Secretarys power recognises that the Secretary
still has discretion.
Compliance rule says must act in accordance with
directions suggests directions are not to be
mandatory rules.
Direction power says the Minister may issue the
directions the directions are not essential to the
statutory scheme.
Direction power did not exist before if Parliament
intended the directions to circumscribe the
Secretarys power, it would have addressed the ambit
of the power itself.
Smoker v PRA: There is power to make guidelines
which dictate results of particular cases, because:
Direction power & compliance rule did not refer to
the Authoritys power, but to functions recognises
that the Authority does not have discretion.
Compliance rule says must comply with the
guidelines suggests guidelines are to be
mandatory rules.
Direction power says the Minister must issue the
guidelines the guidelines are essential to the
statutory scheme.
A prior agreement contemplated that the Minister
could circumscribe the Authoritys discretion.
Acting under dictation (s 5(2)(e))
1) Did DM exercise its discretionary power at the direction
of another, without examining the merits?
2) Is this consistent with the statute?
Does statute require DM to exercise discretion for itself?
Roncarelli v Duplessis
Rendell v Release on Licence Board (Board applied policy not
to release prisoner until served minimum 10 yr gaol w/o
looking @ merits; but statute required Board to consider
individual circumstances invalid decision)
Inflexible application of policy in exercising a
discretionary power (s 5(2)(f))
1) Did DM apply its own policy inflexibly, without
examining the merits?
2) Does the statute require DM to exercise more
discretion?
British Oxygen: As a minimum, the DM must be willing
to listen to someone who has something new to say;
[Inflexible application of policy] is more likely to be
inconsistent with statute if:
once the statutory criteria are satisfied, there is a
legal entitlement (not merely a hope of receiving
benefit) (Green v Daniels); or
the decision turns primarily on the individual

circumstances of the applicant (Tang v Min of
Immigration, Cumbairux v Min Immigration) rather
than the public interest (Re Findlay).
Fettering statutory discretion by representations

Kurtovic: Estoppel is not available against a government
decision-maker in its exercise of public powers.
JURISDICTIONAL ERROR
(only relevant if decision-maker is an inferior court)
Craig v SA: An inferior court falls into jurisdictional error if
it:
Mistakenly asserts/denies jurisdiction [precondition not
satisfied]; or
Misunderstands the nature of its functions/powers (where
it correctly recognises that jurisdiction exist).
Errors of law made by inferior courts that are NOT ordinarily
jurisdictional errors:
Mistake in identifying relevant issues, formulating
relevant questions and determining what is/isnt relevant
evidence;
Failure to take into account relevant considerations, or
taking into account of irrelevant considerations, in
determining a question within jurisdiction.
If non-jurisdictional error cant get remedy.
PRIVATIVE CLAUSE
Hickman principle: A privative clause can make a decision in
excess of power valid, if the decision:
(1) is a bona fide attempt to exercise the power;
(2) relates to the subject matter; and
(3) is reasonably capable of reference to the power.
REMEDIES
Prerogative writs: Certiorari (quash decision), Prohibition,
Mandamus (remit matter back to decide according to law).
Equitable remedies: Declaration, Injunction.
ADJR flexible remedies (s 16(1)):
(a) quash; (b) referring matter to original decision-maker
with appropriate directions; (c) declare parties rights; (d)
direct parties to do (or refrain from doing) anything.
OBTAINING REASONS
S 13 ADJR Act: Can obtain reasons for a decision, if:
The Act applies to the decision (ie. decision of admin
character made under an Act); and
The person is a person aggrieved.
CROWN IMMUNITY FROM STATUTES

The Crown is presumed not to be bound by statutes of general
application.
Bropho v WA: Can infer Parliaments intention that the
Crown be bound, from the content & nature of the
legislation.
S 20 Acts Interpretation Act (SA): An Act passed after June
1990 will, unless the contrary intention appears
(expressly/impliedly), bind the Crown, but not as to impose
any criminal liability on it.
BHP v Bradken: If the Crown is not bound by a statute, any
person having a contractual relationship with the Crown is
also immune (if otherwise the Crowns interests would be
prejudiced).
Remedies: Hard to get prerogative writ against the Crown
seek equitable remedies instead.

Administration Law Combined Notes

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(1) SCOPE OF ADMINISTRATIVE LAW

Review by Executive itself

WHAT IS ADMINISTRATIVE LAW?

WHO REVIEWS EXECUTIVE ACTION?

(1) SCOPE OF ADMINISTRATIVE LAW

MERITS REVIEW JURISDICTION

All merits review jurisdiction are conferred by statute.

(2) CONSTITUTIONAL FRAMEWORK OF ADMINISTRATIVE LAW

The 3 principles often conflict tension.

Statutory interpretation & common law rights

(2) CONSTITUTIONAL FRAMEWORK OF ADMINISTRATIVE LAW

(2) CONSTITUTIONAL FRAMEWORK OF ADMINISTRATIVE LAW

*Teoh applied for a permanent entry permit.

*The Immigration Review Panel recommended that Teohs

(2) CONSTITUTIONAL FRAMEWORK OF ADMINISTRATIVE LAW

Courts deprive themselves of assistance from the

Judicial review involves criteria and technicalities that

Pearce (Red Light)

(2) CONSTITUTIONAL FRAMEWORK OF ADMINISTRATIVE LAW

(3) LAW, POLICY & DISCRETION

Judicial attitudes to policy & the relationship between them and

(3) LAW, POLICY & DISCRETION

Also, co-operate could be interpreted to mean

General Directions (valid).

ALS v Minister for Aboriginal Affairs

(3) LAW, POLICY & DISCRETION

He argues that currently, discretion is inconsistent with the

(4) MERITS REVIEW & THE AAT

Although if review is granted because of

Eg. appeal right from AAT to Federal Court (s 44

(b) for review of decisions made in the exercise of

(4) MERITS REVIEW & THE AAT

appeal to the FCA from this decision.

Powers (also advantages/disadvantages of AAT review)

Role of Policy in AAT review

(4) MERITS REVIEW & THE AAT

(5) PRECONDITIONS TO POWER & FACTS/LAW DISTINCTION

Judicial review of Qs of Fact

Preconditions to Existence & Exercise of Power

(5) PRECONDITIONS TO POWER & FACTS/LAW DISTINCTION

Project Blue Sky v ABA: Non-compliance with procedures

(5) PRECONDITIONS TO POWER & FACTS/LAW DISTINCTION

Hs activities would amount to a business under any

The appellant sought customers by advertising.

Sharp Corp v Collector of Customs

(6) BARRIERS TO ACCESS: JUSTICIABILITY & STANDING

Determinative decision = application of reasonably

*There was established practice that the union will be

(6) BARRIERS TO ACCESS: JUSTICIABILITY & STANDING

Standing = question of who can bring an action to challenge

(6) BARRIERS TO ACCESS: JUSTICIABILITY & STANDING

(6) BARRIERS TO ACCESS: JUSTICIABILITY & STANDING

ALRC 1996 Report: Any person should be able to commence

(7) & (8) PROCEDURAL FAIRNESS

1) WHEN DOES PROCEDURAL FAIRNESS

Contrary statutory intention

2) WHAT DOES PROCEDURAL FAIRNESS

(7) & (8) PROCEDURAL FAIRNESS

Usually no issue of necessity, because a body has lots of

(7) & (8) PROCEDURAL FAIRNESS

*At the adjourned hearing, the council expelled him under a

[The decision to expel directly & immediately affected an

He had no time to read the prosecutors report of samples;

(7) & (8) PROCEDURAL FAIRNESS