TABLE OF CONTENTS:

ADMIN LAW:
1 ADMINISTRATIVE LAW..................................................................................................................6
1.1 WHAT IS ADMINISTRATIVE LAW?....................................................................................................6
1.2 STRUCTURE OF THE EXECUTIVE......................................................................................................6
1.3 CONTROLLING ADMINISTRATION....................................................................................................6
1.3.1 The nature of bureaucratic rules............................................................................................7
1.3.2 Should we have strong legal rights against the bureaucracy?............................................7
1.4 OUTLINE OF CTH ADMIN LAW........................................................................................................7
2 RISE OF ADMIN LAW.......................................................................................................................8
A. Bayne: Admin Law and the New Managerialism in Public Admin....................................................10

3 DELEGATED LEGISLATION.........................................................................................................11
3.1.1 Terminology..........................................................................................................................11
3.1.2 Legislative Instruments Act 2003 (Cth)................................................................................11
3.1.3 Exceeding power (Ultra vires) and reasonableness ............................................................14
3.1.4 Ways to control delegated legislation...................................................................................15
A. By Parliament:..................................................................................................................................15
B. Administrative control:.....................................................................................................................16
C. Judicial control:.................................................................................................................................17

4 FREEDOM OF INFORMATION.....................................................................................................21
4.1.1 Freeedom of Information Act 1982 (Cth).............................................................................21
4.2 THE BASIC SCHEME OF THE LEGISLATION.....................................................................................22
4.2.1 Background to FOI...............................................................................................................24
4.2.2 THE EFFECTIVENESS OF FOI LEGISLATION................................................................24
4.3 POLICY RATIONALE FOR FOI LEGISLATION.....................................................................25
A. What is the Public Interest?..............................................................................................................26
B. Tests of public interest in FOI.............................................................................................................26

4.3.2 Confidentiality.......................................................................................................................27
4.3.3 Unreasonable disclosure.......................................................................................................28
4.3.4 Deliberative Documents........................................................................................................28
4.4 A PRESUMPTION IN FAVOR OF DISCLOSURE..................................................................................28
4.5 CRITICISMS OF FOI SCHEMES: .....................................................................................................29
5 DUTY TO GIVE REASONS.............................................................................................................30
A. Policy reasons for duty to give reasons for administrative decisions:..................................................30
B. Policy reasons against giving reasons:................................................................................................30
C. Other jurisdictions: .............................................................................................................................32

5.2 DUTY TO GIVE REASON UNDER STATUTE LAW..............................................................................32

A. AAT Act.............................................................................................................................................32
B. ADJR Act............................................................................................................................................32
C. FOI Act...............................................................................................................................................33
D. Consider the following questions in determining applicability of statutory duties:.............................33

5.3 GENERAL SUMMARY.....................................................................................................................33

5.4 NATURAL JUSTICE AND THE DUTY TO GIVE REASONS...................................................................34
7 OMBUDSMAN....................................................................................................................................36
7.1 THE OMBUDSMAN: AN OVERVIEW...............................................................................................36
i) LEGISLATION..............................................................................................................................36

7.2 SCOPE OF THE OMBUDSMAN'S COVERAGE....................................................................................36

7.2.1 Omudsman's power to i) investigate and ii) determine complaints......................................36
7.2.2 Defective administration.......................................................................................................36
7.2.3 Ombudsman's "lion hunting" & "fly swatting" roles............................................................36
A. Anderson(1995) Some Nuts and Bolts................................................................................................36
i) What is an ombudsman?.................................................................................................................37
ii) Jurisdiction of Ombudsmen: who and what can they investigate?..................................................37

Complaints to the Ombudsman.....................................................................................................37

7.3 CHOICE OF FORUM - WHY THE OMBUDSMAN?.............................................................................38
A. Three Case Studies ...........................................................................................................................39

8 MERITS REVIEW.............................................................................................................................40
i) Approach your Member of Parliament ...........................................................................................40
ii) Negotiate with the DM, .................................................................................................................40
iii) Formal Internal Review- ..............................................................................................................40
Problems and advantages of internal review...........................................................................................40
iv) External Review: Specialist Tribunals .......................................................................................41
v) External Review: The Administrative Appeals Tribunal (AAT)....................................................41

9 JUDICIAL REVIEW..........................................................................................................................47
9.1 REVIEW ABILITY AND TYPE OF REVIEW........................................................................................47
9.1.1 The right to judicial review...................................................................................................47
A. The difference between merits review and judicial review.................................................................48
B. Judicial review is a strategy of last resort because:..............................................................................48

9.1.2 The Power to Make Particular Orders ..............................................................................48

9.1.3 Mobilising the Jurisdiction ..................................................................................................49
9.1.4 Review under the ADJR Act..................................................................................................49
i) The decision must be "of an administrative character" - s3 (1) .......................................................51
ii) The decision must be made "under an enactment".........................................................................52
iii) What is a decision? What is conduct?...........................................................................................53

9.1.5 The prerogative writs............................................................................................................53

9.2 NON JUSTICIABILITY AND THE COURTS ........................................................................................53
9.3 CLASS DISCUSSION NOTES....................................................................................................54
10 STANDING TO SEEK JUDICIAL REVIEW...............................................................................55
10.1 STANDING....................................................................................................................................55
11 GROUNDS FOR REVIEW: EXCEEDING POWERS.................................................................59
11.1 COMMON LAW POWERS...............................................................................................................59
11.2 STATUTORY INTERPRETATION.....................................................................................................59
A. Statutory Interpretation.......................................................................................................................59

B. Presumptions

- pp.419-420...............................................................................................................59

C. Statutory Interpretation in Action -.....................................................................................................60

D. Regulation and prohibition .................................................................................................................61

11.3 EXCESS OF POWER .....................................................................................................................62

A. Powers of rule makers and powers of administrators..........................................................................62
B. The power to make errors of law.........................................................................................................62
C. The Power to make Procedural errors.................................................................................................66
D. The Power of make errors Fact...........................................................................................................67
E. The Law/Fact Distinction ...................................................................................................................68

12 DISCRETIONARY POWER...........................................................................................................70
A. Delegation and Dictation....................................................................................................................70

12.2 ALTER EGO RULE.........................................................................................................................70

12.3 ACTING AT THE BEHEST OF OUTSIDE BODIES............................................................................72
12.4 SELF-FETTERING: APPLYING POLICY INFLEXIBLY.......................................................................74
12.5 THE ADJR ACT...........................................................................................................................74
13 BAD FAITH AND IMPROPER PURPOSES................................................................................76
13.1 DUTY TO ACT FOR PROPER PURPOSE AND IN GOOD FAITH........................................................76
Thompson v Randwick Municipal Council (1950) (H.C.)............................................................76
R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981) (H.C.) 77
13.2 MIXED PURPOSE AND COLLECTIVE DECISION..............................................................................79
13.3 ADJR ACT...................................................................................................................................79
14 THE DUTY TO TAKE INTO ACCOUNT ONLY RELEVANT CONSIDERATIONS:..........81
i) Relevant & Irrelevant Considerations.............................................................................................81

14.2 TAKING INTO ACCOUNT IRRELEVANT CONSIDERATIONS.............................................................81

14.3 FAILURE TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS................................................82
Minister for Aboriginal Affairs v Peko-Wallsend (1986) (H.C.)..................................................82
14.4 ADJR ACT...................................................................................................................................85
15 UNREASONABLENESS, NO EVIDENCE & OTHER LIMITATIONS ..................................86
15.1 THE DUTY TO ACT REASONABLY.................................................................................................86
15.1.1 Irrationality.........................................................................................................................87
15.1.2 Discrimination....................................................................................................................88
15.1.3 Duty to inquire....................................................................................................................88
i) Notes and the ADJR Act.................................................................................................................89

15.2 THE NO EVIDENCE RULE..............................................................................................................89

16 THE RIGHT TO PROCEDURAL FAIRNESS: GENERAL PRINCIPLES..............................92
A. The difference between natural justice and procedural fairness..........................................................92
B. Arguments against the notion of natural justice and procedural fairness.............................................92
C. Natural justice and procedural fairness involve two related issues......................................................92

17 THE RIGHT TO PROCEDURAL FAIRNESS: APPLICATION:.............................................97

A. The Right to Procedural Fairness: Application...................................................................................97
B. When is it implied?.............................................................................................................................97
C. When is it excluded?...........................................................................................................................97

D. Does Procedural Fairness Apply? Summary:......................................................................................97

17.2 CLEAR STATUTORY PROVISIONS..................................................................................................98

17.3 INTERESTS...................................................................................................................................98
A. The legal status of the interest.............................................................................................................98
B. Importance of the interest at stake.......................................................................................................99

17.4 POLITICAL DECISIONS AND THE RIGHT TO PROCEDURAL FAIRNESS............................................99

A. Political decisions...............................................................................................................................99
B. Policy and rule making......................................................................................................................100

17.5 EXPECTATIONS BASED ON ADMINISTRATORS BEHAVIOUR. ......................................................101

A. Administrators behaviour................................................................................................................101
B. Undertakings by administrators.........................................................................................................101
C. Ministerial policy as undertaking .....................................................................................................101
D. Signature of international conventions as undertaking......................................................................102

17.6 MULTI STAGE DECISIONS MAKING AND PROCEDURAL FAIRNESS..............................................102

A. The decision maker...........................................................................................................................102

Edelston v Health Insurance Commission (1990).......................................................................103

B. Investigations....................................................................................................................................103
C. Appeals.............................................................................................................................................103

17.7 URGENCY AND PROCEDURAL FAIRNESS ...................................................................................104

17.8 PROCEDURAL FAIRNESS AND THE DECISION MAKING SCHEME..................................................104
18 THE HEARING RULE..................................................................................................................106
18.1 THE FORM OF THE HEARING......................................................................................................106
18.2 RIGHT TO KNOW MATTERS WHICH WILL BE CONSIDERED BY THE DECISION MAKER................106
18.3 RIGHTS ARISING OUT OF ADMINISTRATIVE PRACTICES.............................................................107
18.4 THE RIGHT TO MAKE SUBMISSIONS IN RESPONSE TO THOSE MATTERS.....................................107
A. The form of the submissions.............................................................................................................107
B. A right to legal representation...........................................................................................................107
C. A right to an interpreter.....................................................................................................................108
D. A right to cross examine...................................................................................................................108
E. A right to have al members of the tribunal consider the issue............................................................109
F. Re Refugee Review Tribunal; Ex Parte Aala.....................................................................................109

19 THE RULE AGAINST BIAS.........................................................................................................110

19.1 THE NO BIAS REQUIREMENT......................................................................................................110
A. The problem of neutrality.................................................................................................................110
ALRC - Equality before the law: womens equality: Report no 69 Part II............................................110
B. A reasonable apprehension of bias ...................................................................................................110
C. Judges with political and provisional views......................................................................................112
D. Institutional bias: see Laws case.......................................................................................................113
E. Demographic bias..............................................................................................................................113

19.2 DOES PROCEDURAL FAIRNESS REQUIRE UNBIASED ADMINISTRATORS?....................................113

19.2.1 Waiving the right to have an unbiased decision maker....................................................114
20 LIMITS TO FAIRNESS.................................................................................................................115
20.1 CURING DEPARTURES FROM PROCEDURAL FAIRNESS................................................................115
A. Exercising the Right of Appeal to Cure............................................................................................115

21 JUDICIAL REMEDIES.................................................................................................................116

21.1 THE EFFECT OF A FLAWED DECISION.........................................................................................116

21.2 INTERIM RELIEF.........................................................................................................................116
21.3 COLLATERAL ATTACK...............................................................................................................116
21.4 DECLARATORY ORDERS ............................................................................................................117
21.5 ORDERS SETTING DECISIONS ASIDE...........................................................................................118
A. The need for a decision.....................................................................................................................118
B. Errors of law on the face of the record..............................................................................................119

21.6 ORDERS REQUIRING ADMINISTRATORS TO ACT IN PARTICULAR WAYS.....................................119

A. What is a public duty?.......................................................................................................................120
B. Can mandamus lie against the crown?...............................................................................................120
C. What is involved in failure to perform a duty?..................................................................................120
D. What can administrators be ordered to do?.......................................................................................121
E. The judicial review Act provisions....................................................................................................121

22 DISCRETION.................................................................................................................................122
22.1 DISCRETION AND ITS LIMITS......................................................................................................122
A. Remedies under Administrative decisions (Judicial Review) Act 1977 (Cth)...................................122

22.2 FACTORS AFFECTING THE GRANTING OF A REMEDY.................................................................123

A. Inconvenience to others....................................................................................................................123
B. Delay.................................................................................................................................................124
C. Futility..............................................................................................................................................124
D. The existence of alternative remedies...............................................................................................125
E. Waiver...............................................................................................................................................125
F. Committal hearings...........................................................................................................................125
G. De minimis.......................................................................................................................................126

22.3 A MATTER OF TIMING................................................................................................................126

22.4 EFFECTS OF SUCCESS.................................................................................................................126

1 ADMINISTRATIVE LAW
1.1 What is administrative law?

The legal principles governing the relationship between the government and the governed. The
exercise of power by administrators, including the state (the Crown), ministers, departmental officers,
tribunals, boards and commissions must be based on legal authority
A system by which people can challenge government administrative activity:

Judicial review
Administrative investigation

Merits review
Internal review

Action for damages

A scheme of rights in relation to government information handling

Public access to documents under FOI and Privacy Acts

Right to correct personal records under FOI Act
Control of government personal record holdings, by 11 Privacy Act principles
Right to obtain written statement of the reasons for decisions, eg, AAT & ADJR Acts
Protection of "whistleblowing"

Admin law must balance individual and collective interests because it is concerned with the legality of
admin behaviour, and legality is to a considerable extent determined by what the executive and
parliament decide the law is to be.

1.2 Structure of the Executive

The Constitution is the highest power because it comes from the people. Then comes the Crown, which is
the highest power in the Executive arm of government. The principle components of the Executive:
1.

2.
3.
4.
5.
6.
7.
8.
9.
10.

The Crown - Head of the executive arm of government. The Governor General and the State
Governors represent the Crown, but the powers can also be conferred onto others. It's priorities
and prerogatives can be partly suspended or tied down (e.g. an act that says "this act binds the
Crown"), but they can never die. Unless stated otherwise, its priorities and prerogatives are
presumed to be there. By convention the Crown acts on the advice of the govt and thus vesting
power in the Crown puts it at the disposal of the govt, except reserve powers
Cabinet - Is the government (an informal body of ministers)
Executive Councils - Are the formal versions of cabinet - it is a constitutional institute.
Ministers - They are elected by the people and selected by the party- head of govt department.
Government Departments - there are no statutory rules on which departments should exist.
Public servant - permanent structure governed by the Public Service Act. They must obey the
minister, be politically neutral, advise the minister.
Statutory authorities - including local governments and administrative tribunals. The powers,
duties and obligations of local governments are governed by statute passes by the state govt.
Statutory offices - act as agents of the Crown and enjoy all the prerogatives of the Crown e.g.
Ombudsmen, Auditors-General.
QUANGOS - Quasi Autonomous Non Government Organisation. Public duties but private
membership via contracts
Clubs - based more on private contracts

1.3 Controlling Administration

Bs may be subject to external, non-political supervision.

Bs can also be subject to judicial control.
Senior administrators are formally answerable to electorally responsible ministers who themselves are
answerable to the parliament

Internal controls: administrators controlled by ministers who are responsible to parliament.

External controls: independent auditors, ombudsman
Judicial controls: courts control the legality of bureaucratic behaviour

1.3.1 The nature of bureaucratic rules

A public official has discretionary power when the legislature gives it to them.
Where the legislation that creates the office holder or body, not only creates its power but also states
that it is to be exercised subject to specific guidelines, then that power can only be exercised according
to the rules.
Rules are preferable to discretions where you want to set clear indications of criteria, where you have a
service delivery of a large volume and for consistency, automation and expediency. With rules there is
less margin for error and less margin for complaint. Who makes the rules depends on what the
legislation says. Who benefits? Both the maker and those affected because rules create certainty and
consistency, and these are desirable.

1.3.2 Should we have strong legal rights against the bureaucracy?

Red lighters
Those within government who see administrative law as a check and balance tool which stops excesses and
abuses of government power. Place limitations on the exercise of power. Admin law as establishing a
system of limits on the exercise of governmental power.
Green lighters
Those who consider that the function of administrative law is to facilitate the operations of the state rather
than curb them.
Both views are right - it depends very much on the circumstances e.g. the red light approach may be more
appropriate where civil liberties or the delivery of social welfare is concerned, but the green light approach
may be more appropriate where the power or discretion of a commissioner to do something is concerned.
Amber lighters - like to sit in the middle.

1.4 Outline of Cth Admin Law

The principle components of Commonwealth Administrative Law are:

The AAT
The ADJR Act 1977
The Ombudsman
The FOI Act (journalists and opposition parties are big makers of FOI applications)

2 RISE OF ADMIN LAW

Until the 1950s, most political commentators were content with the view that in our political system,
parliament was sovereign. Responsible govt was said to ensure that ministers were accountable to
parliament for the departments under their control and that the executive was thereby accountable to
the public. The rule of law protected the public from arbitrary rule. Towards the end of the Liberal
rule, however, there were growing fears that the admin was out of control. By the 60s and 70s there
was growing concern about B power. Royal Commissions and investigative bodies were established to
critically assess the activities of the admin state; and various attempts of reforming the public service
were made
1. MINISTERS AND ADMINISTRATORS:
Relationship btw Ministers and administrators. Incoming governments tend to be wary of the public
servants who have served their predecesors. Over the past 25 years, governments have gradually
developed mechanisms to increase Ministers capacity to make effective contributions to the policymaking process. One of the effects of New Administrative law has been to mae Ministers slightly less
powerful, insofar as their decisions are more vulnerable to administrative review than was once the
case. However, suspicion of administratos almost certantly made Ministers more receptive to proposals
to make administratos more susceptible to external control.
3. INDIVIDUALISM AND ADMINISTRATIVE RIGHTS
A more likely reason for the concern to control B power was the questioning of the legitimacy of the
exercise of state power which came with the social revolution of the 60s. With the growth in the
economy came the growth in tertiary sector and this more educated stratum of society meant a
workforce that was receptive to ideologies which legitimated the criticism by subordinates if their
superiors. With the growth in economy workers had more freedom to move jobs and challenge what
was dictated from above.
The Vietnam War politicized a generation by providing a stimulus and focus for an authoritarian
ideology, and individuals increasingly demanded the right to know what the govt was doing and why.
The state could no longer be seen as a generous benefactor, granting favours to individuals in need.
Instead the state was seen as the creator of legal entitlements which were to be distributed according to
the law. The ideology of the rule of law was mobilized in support of the demand that administrative
power be exercise in a non-arbitrary fashion. Govt officials must be made to account for their decision
making such that the public accept that decisions were being made according to the law.
The Rights Perspective: Individuals become empowered by the belief that they have entitlement to a
govt benefit. The process of collective consumption of public services is a significant feature in all our
lives. Granting a public right to a benefit means that decision-making must be more open to challenge,
and decision-making needs to become more standardized and more efficient. Asserting that individuals
have rights also suggests that there should be adequate review and processes to ensure that decision
making is not arbitrary.
Case that expresses the hopes of those committed to protecting individual rights and insisting on the
legality of decision making was Green v Daniels (1977). Legal rights depend on legislative grants and
their availability turns on statutory interpretation. Further, when discretionary power is given to a govt
official complications arise as to the existence of the right and as to the precise scope of the
administrators power.
Two fundamental problems with rights rhetoric application to admin law are:
1. Legislature may, legally and unsympathetically, withdraw rights and benefits, arguing that
resources could not longer be allocated to provide as before for collective consumption.
2. Its employment tends to downplay the importance of collective needs. This is enhanced by the
fact that the involvement of course tends to individualize the process rather than recognizing that
often the disputes are about appropriate allocation of resources.

A rights approach suggested the need for a streamlined process for review of admin decisions, where
individuals could have their claims reassessed by an independent arbitrator on the basis of merit. Also
suggested the decision-makers be accountable for their decision by having to provide reasons for them
and that the executive be open in its instructions to public servants by allowing citizens to access
departmental manuals. These reforms were contained in the Admin Appeals Tribunal.
5. THE NEW ADMIN LAW
Reform of Aust admin law concern about the power of the B and an awareness that the c.l control
over the administration was limited, led to the into of a reform package commonly referred to as the
new Administrative Law
The key features of the Kerr report were:
the establishment of a general admin tribunal which could review admin decisions on their
merits and step into the shoes of the original decision maker
codification and procedural reform of the system of judicial review
creation of an office of ombudsman with powers to investigate matter of admin
the establishment of a body to keep the new admin mechanisms under observation and to
monitor possible developments in admin law and practice.
(A) The Admin Decision (Judicial Review) Act 1977
The ground of challenging admin action which were developed at common law and have been codified
in ss5-7 of the ADJR Act. Act not intended to authorize judicial review of delegated legislation, but
the fed govt has been prepared to consider the validity of delegated legis where an order for review of a
decision made under that legis is sold.
It is now possible to get reasons for any decision for which the Act applies.
There are simpler remedies.
Applications for order for review made to federal court which improves access possibility.
Caseload expedient.
Decision of the GG are specifically excluded form the judicial review.
ADJR Act essectialy codified the existing CL, it also introduced some significant improvements to the
process of obtaining judicial review of govt decision making.
Possible to get reasons for almost any decisions to which ADJR applies
Remedies under ADJR simpler than CL
Challenges to decisions of the GG are available at CL only.
(B) The Admin Appeals Tribunal
Empowered to review specified exercises of discretion, also reasons for decision are available and able
to substitute its decision for that of original decision maker.
(C) The Admin Review Council
An independent advisory body which has general oversight of the system of admin review. Role is to
supervise system of admin law. Function is to carry out research and make recommendations re mattes
concerning admin review. Griffiths: It is a body to monitor and promote the rational and effective
operation and development of admin review'
(D) The Ombudsman
Has wide power to investigate action that relates to matters of admin. His power is essentially
persuasive rather than remedial. - watchdog
(E) Freedom of Information
To allow individuals access to personal info held about them and to allow individuals the opportunity
to challenge and where appropriate have that info amended. It is also intended to provide open govt.
(F) Reasons for Decisions
S28 of the AAT Act provides for access to full reasons for those decisions which could be reviewed
under the AAT Act.

7. FAIR AND OPEN GOVT IN THE 1990s

A.

Bayne: Admin Law and the New Managerialism in Public Admin

Managerialism:
Bayne: objective of 1970s reform to make administratos more efficient, more democratice and more
equitable.
Interest in the efficiency, responsiveness and effectiveness of public sector organizations
Cost and time
The concern for efficiency in the new managerialism is largely seen in costs- but due process
could well be a goal.

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3 DELEGATED LEGISLATION

Parliament does not have the time or resources to enact all legislation directly. It is common
practice to delegate rule making power to a member of the Executive, stat authorities,
tribunals and courts. These bodies have more time to focus on details and also have
knowledge of specialised areas to adapt the regulations according to the particular issues of
their area.
Legislation made by an administrator in the exercise of a power conferred by statute e.g.
rules, regulations, by-laws, ordinances and orders-in-council. Delegated legislation has the
force of the empowering statute. Delegated legislation must be within the legislative power of
the delegator and the delegation itself must not be so wide as to be uncertain or amount to an
abdication of legislative power.
The most fundamental rule is that subordinate legislation will be valid only to the extent to
which it is authorised by the governing statute. Limits on the power of delegation have
been principally resolved by construing empowering statutes.

3.1.1 Terminology
Empowering legislation confers the power to make subordinate rules upon a person, persons or body.
These rules are described as "regulations", "subordinate legislation" or "statutory rules".

By-laws: common usage for subordinate legislation made by local authorities

Regulation: made under empowering legislation by Governor-General (or Governor) in
council or others allowed by the empowering legislation (eg. boards, ombudsman).
Statutory Rule: same as regulation. Terminology is defined in the empowering legislation.
Disallowable Instrument: This is an instrument which has been made pursuant to enabling
legislation but the parliament has the power to disallow the instrument. For example, the
Social Security Act 1991 has a special benefits part (s397a2) where the Minister may make a
legislation which, when tabled in parliament, can be disallowed.

3.1.2 Legislative Instruments Act 2003 (Cth)

S3 Object.
Establish a Federal Registrar of Legislative Instruments; encourage rule makes to undertake
appropriate consultation before making instruments, encourage high standards of drafting;
improved mechanisms of parliamentary scrutiny; ensure instruments are periodically
reviewed (sun set clauses)
S5 Definition
A Legislative Instrument (LI) is an instrument that is of legislative character and was made in
the exercise of a power delegated by the parliament. It is an instrument if it determines or
alters the content of the law rather than applying it ad has the effect of affecting a privilege or
interest imposing an obligation or creating a right.
S6 Instruments declared to be Legislative Instruments
The following are LI: if made in the exercise of a power delegated by parliament and
described as a regulation; if printed and sold as a statutory rule; if described as an ordinance;
if declared to be a disallowable instrument.
S9 Rules of Court are declared not to be LIs.

11

S10 Attorney General must certify whether an instrument is a LI or not

If uncertain the attorney General will decide. If it is a LI the Attorney General must issue a
certificate stating the reasons for the decision in a certificate. This certificate is conclusive of
the question.
S11 Reconsideration and review of Attorney Generals certificate
If the certificate is reviewed by the Fed Court or High Court the AG must reconsider the
matter and issue a replacement certificate. If the certificate is set aside the AT must as soon as
practical notify the body that made the instrument of the courts decision.
S12 When do provisions of LIs take effect?
Either the day specifies in the instrument or at the occurrence of a specific event, or the first
moment of the day after the LI is registered. A LI has no effect before the date it is registered
if the rights of a person will be affected so as to disadvantage him or liabilities are imposes
upon a person.
S15 Effect of repeal of LI or provision of the LI
The repeal of any instrument does not revive anything not in force at the time at which the
repeal takes place or affect the previous operation of the LI or anything done or suffered
under the LI., nor does it affect any penalty, liability etc prior to the repeal.
Part 2
S16 Drafting Standards
Measures to achieve high drafting standards for LIs
The Secretary must take steps to promote the legal effectiveness, clarity, and intelligibility to
anticipated users of the LI.
Part 3
S17Consultation Before making a LI
Before a rule maker makes a LI, especially if it affects business or restrict competition, the
rule maker must be satisfied that appropriate consultation has taken place. This could involve
notification, advertising, could invite submissions etc.
S18 Circumstances where consultation is not necessary
Only examples provided here such s if the LI is of a minor or machinery nature, if a matter of
urgency that does not substantially affect existing arrangements, if a matter of urgency; if
required for national security, if related to employment; or relates to Defence Force.
Part 4
Federal Registrar of LIs
A20 Federal Registrar of LI
The Secretary is maintain a register of LIs, must be available to the public, must comprise of
a database of Lis including explanatory memoranda.
S24Legislative Instruments required to be registered
If the LI is made on or after the commencing day or is to be treated under s55(2) as made on
that day it must be registered.
S25 Lodgement for registration
As soon as practicable after making the LI the LI must be lodged in electronic format with
the Department for registration.
S 26 Explanatory Statements

12

Must also lodge the explanatory statement with the LI. But failure to do so will not affect the
validity of the LI.
S31 Effect of registration
A LI that is not registered is not enforceable. If there are technical difficulties and registration
is temporarily unable to be done then the LI is to be published n the Gazette. This act has the
effect as is the registration were done (i.e. binding anyway). Must register anyway as soon as
practicable.
Part 5 Parliamentary Scrutiny of LI
S37 The purpose of the Part
Facilitate scrutiny by parliament and set out the circumstances in which the LI will be
disallowed as well as the consequences.
S38 Tabling of LIs
The department must arrange for a copy of the LI to be delivered to each House of Parliament
within 6 sitting days of that house. If not laid in accordance with this section then the LI
ceases to have effect from after the last day for it to be so laid.
S39 Additional material to be tables with the LI
Must submit explanatory statement as well.
S42 Disallowance of LIs
Parliament can disallow an instrument within 15 days of sitting. The LI then ceases to have
effect.
S45 Effect of a LI ceasing to have effect
Has same effect as if the LI had been repealed with effect from that time. Also any other laws
that were affected by the LI go back to what they were as if the LI had not been made.
S47 LI not to be remade while subject to a disallowance
Cant submit another version of the disallowed LI (which is same in substance) during the
disallowed period/
Part 6 Sun setting of LIs
S49 Purpose of this part
To ensure that LIs are kept up to date and only remain n force for so long as they are needed.
Look it up for exact details. But basically the LI remains in effect for 10 years and then needs
to be renewed. This process is to start approximately 18 months before it is due to expire.
S51 The attorney General may defer sun setting in certain circumstances
Such as when it is likely that the LI will no longer be in force in another 12 months, or when,
for reasons that were unforeseen, the maker of the LI could to get around to sorting it out
before the due date the Ag can exercise discretion here.
S52 The Attorney General must lay lists of Instruments die for sun setting before each
house of parliament.
Have to do it 18 months before sunset date.
S53 Resolution that instruments continue
Either house of parliament can pass a resolution for the LI to remain in force. The date at
which this is done is the date at which it is remade.

13

Comments about the Legislative Instruments Act 2003 (Cth)

This simplifies the rules of delegated legislation dramatically. It will standardise

delegated legislation.
A big deal here is the explanatory memoranda which will provide the policy
justifications to the LIs.
Note that the Statute has been passed by parliament but it has not yet commenced.
Comes into force no later than January 2005.
Which forms of delegated legislation will it cover? It will cover, in s5,
instruments in writing of a legislative character. So it is the character that
matters NOT what it is called. Section 6 says it includes regulations, ordinance,
disallowable instrument etc.
This Act governs the procedural stuff for new instruments.
Any delegated instrument made in the last 5 years must be registered with this act
(?).
When does the LI come into effect? Either when it says so on the instrument or
when registered.
When making an instrument the instrument must be lodged for registration. Then
it must be table within 6 sitting days of parliament. The reason it goes to
parliament is so parliament can scrutinise it for consistency with primary
legislation and to keep some control of the process. If parliament disallows the
instrument it ceases to have affect, but decisions made prior to disallowing are
valid accrued rights and obligations in the interim period are valid and
enforceable.
Hence, the LI, if disallowed, is valid between lodgement and disallowance.
If the LI is never registered it is not enforceable,
It must be available and accessible electronically and gazetted.
The sun setting clause: happens after 10 years (or 5 years for NSW). This is a way
of keeping the legislation up to date. The LI is not valid unless you make a case of
why it should continue, hence the continues existence of the LI must be justified.

3.1.3 Exceeding power (Ultra vires) and reasonableness

Generally, delegated legislation is ultra vires if it falls outside of the power given to it
under the empowering Act.
Minister for Primary Industries and Energy v Austral Fisheries P/L
Facts: In response to over-fishing, government published management plan that included a
formula for quotas. It was held that this formulas contained a statistical fallacy and was therefore
irrational. Hence the trial judge held that the formula was irrational and therefore void on the
grounds of unreasonableness.
Lockhart J:
There is a general principle that delegated legislation must be within the powers conferred by the
statute it includes grounds such as unreasonableness and uncertainty. Unreasonable, in this

14

branch of the law, means a merely fantastic and capricious by law such as reasonable men could
not be regarded as an exercise of a power conferred upon the legislative body making the
delegated legislation. (Slattery v Naylor). It may be invalid on the grounds of unreasonableness
of it leads to manifest arbitrariness, injustice or partiality, but the underlying rationale is that
legislation of this offending kind cannot be within the scope of what parliament intended wen
authorising the subordinate legislative authority to enact law. Court found that the formula was
indeed not what Parliament intended and therefore void. Note that the court said that it is only in
extreme cases that it will declare delegated legislation invalid.

Regulation Review Committees (TB page 318)

When delegate legislation is laid before parliament there are established committees to
scrutinise the legislation. For example the Senate Regulations and Ordinances
Committee. The committee sits each week wen the senate is sitting to examine each piece
of delegated legislation to ensure that it is n accordance with stated principles, that it does
not trespass unduly on personal rights and liberties, and that it does not contain matter
more appropriate for parliamentary enactment.
General Requirements: Pearce article (page 318 TB). Legislative Quality Control by
Senate Committees Does it make better administration.
Focuses on the area of :
1. regulations should not be beyond power.
2. Regulations should conform to the general objects and the spirit of the
empowering legislation and should not constitute an un expected abuse of that
power.
3. Regulations are not clearly expressed or require elucidation (??)
4. Regulations must not trespass unduly beyond personal rights and liberties.
5. Regulations must not make the rights and liberties of persons depend upon
administrative rather than judicial decision. Regulations must not contain matters
that should be dealt with by an act of parliament.
3.1.4 Ways to control delegated legislation
A.

By Parliament:

1 Repeal of governing Act parliamentary sovereignty

2. Scrutiny of Bills by a Senate Standing Committee the Senate Standing Committee
for the Scrutiny of Bills has the power to report on the appropriateness of the power
to delegate in an empowering Act. The Senate Standing Committee on Regulation
and Ordinances has the power to scrutinise the appropriateness of the regulation
3. Tabling and disallowance rules Legislation requires that the regulations be tabled in
parliament within a specified time of its making (AIA (Cth) s48(1)(c) - 15 sitting days; Interpretation
Act (NSW) s40(1) - 14 sitting days). A disallowance motion can be made within a number of days of it
being laid which, if passed, means the regulations ceases to have affect.
If Commonwealth regulations are not laid within the specified time they cease to have effect. In NSW
though it appears that they can survive not being tabled.

Thorpe v Minister for Aboriginal Affairs (1990) 26 FCR 325 (Fed Ct)
Facts: This is an appeal that the first elections of a regional ATSIC were void because of failure to lay
the election rules before the senate within the 15 sitting days as required.
Sweeney ACJ: The fact that the rules no longer had effect after the 15 days due to not being tabled in
the Senate does not make the election void. At the time the Electoral Commission were obeying the

15

relevant section and it was valid. The lapse in the regulation validity did not ocur until the election
was over.
Northrop J: The loss of effect of a regulation due to it not being tabled has the same effect as them
being repealed. Any right etc accrued or incurred whilst the law was valid in not lost or repealed (AIA
s50).

4. The empowering Act contains limitations and procedures

5. Choice of delegate simply vote on next election on preferred party. If states vested
in G-G/Governor = cabinet.
6. Terminology a) determines the specific rules and procedures applicable to the
specific delegated legislation; b) use of mandatory or directory terms determines
whether requirements are mandatory or discretionary
7. Sunset clauses a legis provision under which future delegated legis will
automatically expire after a certain number of years. In NSW the sunset provision means
that regulations expire on 1 September following their 5

B.

th

anniversary.

Administrative control:

1. Professional vetting minister issues certificate to show the rules is one that can be
legally made.
2. Publication rules In all jurisdictions, there is a requirement that publicity be given
to the making of subordinate legislation, usually via publication in the government
Gazette. Publication important because basic rule of law citizens should know what
the law is.Generally, there is two requirements:
(a) notification that the regulation has been made
(b) notification that copies of the regulation can be purchased at a specified place.
Development in stages:
1. pre-1972:
- strict interpretation - > s 5(3) of Rules Publication Act, sufficient compliance of
notification rules means notice has to give address of place of notification, and that
copies of the regulation must be available at the earliest possible opportunity
(Golden-Brown v Hunt, per Fox J)
- but failing to comply with this renders the regulation inoperative not invalid
(Golden Brown v Hunt)
2. after Golden-Brown v Hunt:
- Ordinances and Regulations (Notification) Act 1972 -> notification of the
regulation having been made, and the place which it can be purchased is enough to be
a sufficient compliance. There is no mention of a requirement that copies must be
available.
3. 1979: Watson v Lee, 3 differing views:
- strict view -> notification means copies of regulation not only available, but
capable of being purchased on the day of notification, but non-compliance simply
prolongs the start of its operation, likely to mean inoperative (per Barwick CJ)
- notification means substantial compliance: enough that it is available at the place
specified, even if not on the exact date of notification. (per Gibbs J) Requirements are
directory, not mandatory, but did not discuss whether non-compliance is to have the
effect of rendering regulation void/inoperative.
16

- Availability inconsequential to question of notification what matters is that the

place where the copies can be purchased are clearly stated. If non-compliance, then
regulation is void. (per Stephen J, whom Aickin J agreed)
4. After Watson v Lee
RPA was amended and renamed Statutory Rules Publication Act 1903 Both Watson
vs Lee and Golden-Brown v Hunt is no longer an authority per se on publishing rules.
- s5(3) provided that a notice in the Gazette of the regulation having been made and
of the place where copies
- can be purchased is sufficient compliance
- s5(3A) provided that copies of the regulation shall be available at the time of
publication, or as soon as practicable thereafter at the place specified in the notice.
- s5(3C) provided that failure to make copies available and for the explanatory
memorandum does not mean there was a non-compliance with notification.
3. Consultation requirements There is a formal consultation process to consult those
who might be affected by regulations. For example, those initiating a regulation are
usually required to:
(a) prepare a Regulatory Impact Statement RIS
(b) advertise the intention to make a regulation
(c) give details where to find RIS
(d) give a period to consider public submission
4. Explanatory memorandums during the process of making delegated legislation,
there is usually a requirement that Ministers and other officers of government
departments need to prepare an explanatory statement.
C.

Judicial control:

= Judicial Review: this method can really only help after a person has suffered some sort
of unfairness because of the regulation can then get it strike down for invalidity etc.
1. Doctrine of simple ultra vires ensuring the subordinate legislation is authorised by
enabling Act. (take note of the terms and defns w/in Act)
2. Extended ultra vires ensuring subord legis is consistent w/ intention of parliament
~ reasonableness, certainty.
3. Procedural ultra vires ensuring subord legis is both made and applied consistently
w/ any procedural requirements ~ a) w/in Act itself; b) in Administration Law.
Qs that always needs to be asked:
1.
What is the procedure specified?
Look in the enabling act, D-L itself, and other relevant Acts: in this case ~ Acts
Interpretation Act, Statutory Rules Publication Act
2.
Is following the procedure mandatory or discretionary?
3.
Has the procedure been complied with?
4.
What is the effect of non-compliance?
If mandatory invalidity
If directory also invalidity
5.
What constitutes non-compliance?
When there has not been substantial compliance to the mandatory or directory
procedures. If there has been substantial compliance ~> remains valid but, then a
Q of whether it is operative.

17

: Golden-Brown v Hunt (1972) SC of ACT

Issues =
notification about ordinances having been made
notification of where copies are available
Remedy =
declaration that rules invalid
injunction to stop police pulling down tents.
Result =
gave declaration rules were non-operative, but not injunction.
Why?
There was substantial compliance; just not sufficient compliance
consequences was not invalidity, just that ordinance not operative until
notification procedures totally complied with. Didnt give injunction, as it
would have been a waste of time, problem could be rectified immediately
making injunction unnecessary.
: Watson v Lee (1979) HC
Issue =
whether copies need to be made available for purchase.
Golden-Brown v Hunt
Facts:

26 January 1972: Pl. camped out in tents on front lawn of Parliament House
30 June 1972: the Trespass on Commonwealth Lands Ordinance 1972 (ACT) herein TCL
was made under s 12(1) of the Seat of Government (Administration) Act 1910 (Cth) herein
SGA
20 July 1972: notice appeared in the Commonwealth Gazette
9:45am 20 July 1972, police began to eject Pl.
Pl seeks to get
(a) a declaration to say that TCL is void because it did not notify in the prescribed manner
(b) an injunction to stop the police from removing them

Fox J:

Subs (2) of SGA says every ordinance shall be notified in the Gazette.
But notification is not defined.
Subs(2A) of SGA says that a notice in the Gazette of any such Ordinance having been made
and of the place where copies of the Ordinance can be purchased...
If this is the test then emphasis is on the fact that:
(a) the Gazette contained a statement saying that the TCL was made; and
(b) the Gazette contained a statement stating where copies of TCL can be purchased.
With respect to (a), because the notice was headed Notification of the making of
ordinances, the issue is: is the notification done in prescribed manner it did not make clear
whether the ordinance has been made or is about to be made.
Court says looking at the whole notice obvious that TCL already been made.
With respect to (b), the issue is: does the notice give enough information for the purchase of
copies of TCL?
Court says NO
- sub-ss (2) and (2A) means to give every person an opportunity to obtain a copy at the
earliest moment possible.
- Giving a mailing address not good enough person cannot purchase as earliest as soon
as possible therefore not within meaning of sub-s (2A)
- Saying that one can buy over the counter from Australian Government Publishing
Service Book Centres not good enough either no address, only says AGPS Book
Centres

Blackburn and Connor JJ:

18

Differs from Fox J with respect to ground (a) in that they believe the notice in the Gazette
was defective because it did not expressly state the ordinance has already been made.
Noted that although the decision may have some inconvenient consequences, in reality this is
not so because TCL is merely inoperative not invalid.

Held

declaration allowed TCL was not operative at time that the police acted on it.
But injunction denied policy reasons pl actively trying to oppose Commonwealth,
therefore no right to be on land, also, injunction in this case would be rather useless will be
quickly amended by Parliament.

Concept

This judgement is somewhat superficial did not give Pl what they really wanted to stay on
the land.
The importance of the decision seem to be that:
(a) notification rules are strict interpretation not only should the notification make obvious
reference to the ordinance having been made, but the availability of the copies of the
ordinances must be realistic for any person to obtain.
(b) But although strict interpretation breaches of the notification rules really only renders
that regulation inoperative until proper notification has been made does not render
regulation invalid suggests that breach of notification rules has no huge effect, merely
prolongs the applicability of the regulation.

Watson v Lee
Facts:

Pl were charged with committing offences under reg 6 and 42 of the Banking (Foreign
Exchange) Regulations
Sought a declaration that the regulations were invalid or inoperative at all times during the
commission of the offences.
The Acts Interpretation Act s48(1) says (Herein AIA):
Where an Act confers power to make regulations, then unless the contrary intention
appears, all regulations made accordingly
(a) shall be published in the Gazette
(b) shall, subject to this section, take effect from the date of notification, or, where another
date is specified in the regulations, from the state specified; and
(c) shall be laid before each house of the Parliament within fifteen sitting days of that House
after making the regulations.
The Rules Publication Act s5(3) says (herein RPA):
Where any statutory rules are required by any Act to be published or notified in the
Gazette, a notice in the Gazette of the rules having been made, and of the place where
copies of them can be purchased, shall be sufficient compliance with the requirements.

Barwick CJ:
Issue 1: when should the regulation take effect?
the date which the regulation shall take effect is always to be subsequent to the date of
notification, unless expressly stated in statue.
Issue 2: what constitutes notification?
s 48(1) is meant to be read that the terms of the regulation needs to be published in the
Gazette citizens should know the law which binds them.
But RPA says otherwise simply have to notify where copies of regulations can be made for
purchase
Issue 3: how available should the copies of regulation be?
strict interpretation where the copies are supposed to be made available, it must be there on
the date of publication in the Gazette, subsequent stock of copies not good enough if not,
then not within the meanings of notification.
availability means three things:
(a) copies are to be capable of being purchased at the time they are notified or said to operate.

19

(b) copies also need to be available at subsequent times out of stock is not a good enough
excuse.
(c) copies must be available at the place notified in the Gazette
if the copies are not available, then the regulation would not have started its operation.
Issue 4: Who has to prove that copies are available?
there is a presumption that proper records are kept of the delivery of the copies of regulation,
and that process is a regular part of Parliament function.
therefore, the onus is on the person who asserts they are not available.
Held: onus is on the plaintiff to show that copies were not available they failed to do this, and
therefore declaration denied.

Gibbs J:
applying the ordinary sense of notify, means that a regulation is to contain:
- a formal announcement in the Gazette that a regulation was made
- a statement of the number of the statutory
- a statement of the name of the regulation
No need to set out whole regulation in the Gazette.
Issue 1: the RPA sets out that notification requires publication in the Gazette and of the place
copies of regulations are purchased. Does both elements have to be met for a proper publication?
YES if only one is satisfied, then not sufficient notification.
Issue 2: is these two requirements directory or mandatory?
If directory then the provisions do not have to be obeyed exactly substantial compliance
is enough Dignan v Australian Steamships Pty Ltd
Look at statutory interpretation parliamentary intention. The object of the statutory
provisions in RPA and the AIA was to bring the existence of the regulations to the notice of
the public. Parliament did not intend that a regulation takes effect only if all elements are
satisfied Therefore, the object is substantially achieved if copies are available at the place
mentioned, even if it was not there on the very day it is supposed to be.
Held: Therefore, notification rules have been complied with therefore pls argument fails.

Stephan J:
Issue 1: what is the effect of s 5(3) of the RPA
S 5(3) says that notification of an act must satisfy a criteria of sufficient compliance this
means it must name a place where copies of the regulation can be purchased.
Availability of copies some times after the notification is of no consequence because s5(3)
only tries to deal with providing a convenient means for obtaining copies, not insist on
making those copies available.
What matters is that the notification clearly names the place where it is available.
Issue 2: what is the consequence of non-compliance with s 5(3)?
Although notification will not effect making of regulations, is still a critical step in the
statutory process of law-making without it, will be incomplete.
Very important that notification be made basis of democracy and rule of law and
Parliament has previously ensured this. Gives example: in Dignans case, court held that noncompliance with AIA (which required laying of regulations before Parliament) was not to
make the regulation invalid, merely inoperative, was overcome by an amendment of sub-s (3)
which stated that non-compliance shall be void and of no effect
This shows that because notification is such a big issue, non-compliance will then have such
an offending effect, that the consequence must to make the regulation being void.

20

4 FREEDOM OF INFORMATION
4.1.1 Freeedom of Information Act 1982 (Cth)
S3 Object
Is to extend as fas as possible tr right of the Australian community to access information in the
possession of the Cth by making available to the public information about the operations of
departments and public authorities and creating a general right of access, and create a right to bring
about amendments of records containing personal information that is inaccurate.
S5 Exemptions of certain personas and bodies..
Some agencies are exempt such as ASIO, Defence Department. Also activities carried on in a
commercial basis in competition with non government bodies.
S11 Rights of Access
A person has a legally enforceable right to access documents of an agency or the documents of a
Minister.
S12 Part not applying to certain documents.
Cant obtain documents under the Archives Act 1983, where the doco is already available to the public,
or where it is available and there is a fee for procurement (ie for purchase). Also cant obtain doco
unless it contains info about the person or his business dealings.
S15 Access to documents.
The request must be in writing and provide information to enable the identifications of the doco in
question. The agency must tae reasonable steps to help the person making the request to find the doco.
If request sent to wrong agency then it must be forwarded to the correct agency.
S18 Access to doco to be given on request.
S22 Deletion of exempt matter or irrelevant material.
If the doco is an exempt doco and a copy can be made with the right deletions then the agency must
make the deletions and copies.
S24 Requests may be refuses in certain cases.
If the Minister or agency believes that too many resources will be used in finding etc the document the
request may be refused. Regard must be made to the reason the doco is sought and why the doco will
not be procured.
S24A Requests may be refused if the doco cannot be found or does not exist.
But only if all reasonable steps have been taken to find it.
S26 Reasons and other particulars of decisions to be given.
If refused then the agency must provide information about applicants rights to have the matter
reviewed, complain to the Ombudsman and the procedure involved.
S27A Procedure on request n respect of documents containing personal information.
Consideration must be made about the extent to which that information is public information, the
availability of personal information from public sources, and the connection between the applicant and
the doco in question.
EXCEMPT DOCUMENTS
S33 Documents affecting national security, defence or the national interest.
Exempt if it can cause damage to the security or defence of the Cth and/or international relations.
S33A Documents affecting relations with states.

21

Exempt if it could cause damage to relations between the Cth and the states or divulge info provided in
confidence between the Cth and the states. This exception does not apply to docos that on balance
would be in the public interest.
S34 Cabinet documents.
Exempt if submitted to cabinet for consideration or is an official record of the cabinet.
S35 Executive Council documents.
Same as 34 but relates to executive council docos.
S36 Internal working documents.
Relates to matters disclosed in the nature of advice, opinion etc in the deliberative process of an
agency. Unless it would be contrary to the public interest. This does not apply to reports.
S37 Documents affecting enforcement of law and protection of public safety.
Exempt if it would prejudice an investigation of a breach of law, identify the identity of a confidential
sources of information, endanger the life of a person, or prejudice the fair trial of a person.
S38 Documents to which secrecy provisions apply.
S39 Documents affecting financial or property interests of the Cth.
Exempt if it would have a substantially adverse affect of the financial or property interest of the Cth
unless contrary to public interest.
S40 Documents concerning certain operations of agencies.
Exempt if it would prejudice the effectiveness of procedures or methods for the conduct of tests, audits
etc of agencies, have a substantial affect on the proper and efficient conduct of the agency.
S41 Documents relating to personal privacy.
Exempt if involves unreasonable disclosure of personal information about any person.
S42 Documents relation to legal professional privilege
S43 Documents relating to business affairs etc.
This includes trade secrets or other info that has a commercial value.
S43A Documents relating to research
S44 Documents affecting the national economy.
S45 Documents containing material obtained in confidence.
Exempt if it would breach confidence.
S46 Documents disclosure of which would be contempt of parliament or contempt of court.

4.2 The basic scheme of the legislation

Object clause s5(p6) Right of access (legal right) for every person (no interest in
docs needed) to docs (docs in their possession) of an agency or minister.
o Do I have a right to access? (s16/35 of NSW Act) ie standing?
o Is it a document?
o Is organization an agency?
o Is agency immune from FOI? (s6,7,8 and schedule 2)
Limitations of access
o Is it otherwise publicy available?

22

o Voluminous request?
o Exemptions (schedule 1)
Procedure
o How to exercise right (ss17-23)
o Basic requirements = writing + specify that made under Act + information
reasonably necessary to identify docs + address
Giving and refusal of access (s24,26 and 28)
o 21 days. Note s25 re refusal
Consultation in certain circumstances reverse FOI (s30-33)
Review rights
o Internal (another officer in same agency)
o External (AAT, supreme Court, ombudsman)
Amendment of personal records (ss39-51)
Publication of statement of Affairs (ss14-15)
NB: use state Act when information you are seeking is from a NSW govt agency, and Cth
Act when Cth govt agency.
What are govt docs?
2 kinds:
1) govt info;
2) records held by govt concerning personal affairs of members of the public.
- most demand for personal info. Approx 200 000 requests made to Cth agencies since
Act was introduced, 90% have been for personal files.
Exemptions:
FOI access rights can be illusory if there are too many exemptions from the Acts.
- exemptions listed on p83-84
- Cabinet records (c1)
- Documents affecting law enforcement and public safety (c4)
- Documents affecting personal affairs (c6)
-

What are personal affairs? In Commissioner of Police v District Court of NSW (1993) NSWCA it
was considered that the disclosure of the names of police officers and employees involved in the
preparation of reports within the NSW police was not disclosing personal affairs. What would be
disclosed is no more than the identity of officers and employees of an agency performing such duties.
The affairs disclosed are not that persons affairs but the affairs of the agency.

Documents affecting business affairs (c7)

Internal working documents (c9)
Documents subject to secrecy provisions (c12)
Documents affecting the economy of the State (c14)
Documents subject to legal professional privilege, documents which relate to
judicial functions of a court/tribunal, docs subject to secrecy provisions in other
legislation, docs containing matter obtained in confidence, docs affecting the
economy or the financial or property interests of a state/cth, docs affecting
national security/ defence, docs subject to contempt
many exemptions are subject to public interest test in order to refuse access,
agency must show that it would be contrary to public interest to release them
can deny if request is too voluminous if work involved in providing would
substantially and unreasonably divert the resources of the agency.

23

Just because a document qualifies for an exemption does not mean it cant be
released. The agency has discretion in all cases, except where the document is
subject to a Ministerial certificate.

4.2.1 Background to FOI

What information is held by governments?
Info ppl provide to gov agencies,
Personal info
Statistics, policy, standards
Allocation of funds
How govt makes decisions

Objectives of FOI
three major objectives:
openness
accountability
responsibility
Policy background to FOI legislation:
FOI legislation raises issues concerning accessing, keeping and disclosing that information.
Prior to FOI, govt operated under a veil of secrecy, and it was a major change when the FOI required
govt to provide this info
There was a fear FOI was incompatible with westminister notions of responsible got and cabinet
solidarity
It makes beaurocrats responsible for information they collect

4.2.2 THE EFFECTIVENESS OF FOI LEGISLATION

Ardagh (1991) FOI in Aust: a comparative and critical assessment.
- prior to FOI legis, the notion that govt info belonged to the Crown (still in UK) rooted
in the Westminster system of govt. 30 year period of closed access to records of Cth
govt.
What FOI legislation provides:
-

Cth, Vict, NSW, ACT, SA and Qld has similar purpose, ie to give the public legal right to docs that are
held by a govt agency.

How is it to obtain docs?

-

cumbersome and time consuming, eg in Vict, 695 requests refused in part or in full on grounds that doc
could not b located or does not exist.

Ministerial certificates:
-

issued by Ministers or Heads of Depts

to establish conclusively that relevant docs are exempt from disclosure

Publication of info concerning agencies:

- each agency required to publish up to date statement of affairs. Must also be publ in Govt gazette .
24

Benefits flowing from agency statements of affairs:

-

public no longer ignorant of what kind of docs are in possession of govt agencies and Ministers.
public will no longer be in the dark about agency org, rules etc
Acts provide that if agency does not make policy docs available for inspection and purchase, the any
detriment suffered by a person who was ignorant of those guidelines is excused.

How successful is FOI?

-

charges and fees have acted as deterrent to its use

overall, act has brought beneficial changes to govt admin. Record keeping, report writing and decision
making have improved. Reports open to public scrutiny.

ALRC & ARC.(1995) Freedom of Information (Discussion Paper No 59)

-

democratic society, expect people to be fully informed about govts actions, decisions and policies.
Participate and influence govt policy making and to scrutinise govt decision making.

Bc open to public scrutiny, imposes a constant discipline on the bureaucracy.

Improved accountability of govt
requests relating to policy development and general govt decision making represent
minority of FOI requests. Raise the question is Act serving its purpose?
Deficiencies in current FOI system:

1) some agencies not supportive of philosophy of open govt and FOI

2) tension b/w resp govt and direct accountability of bureaucracy that FOI provides, can create
uncertainty for the bureaucracy
3) requests often develop quickly into legalistic, adversarial contests
4) cost is prohibitive
5) Act can be confusing and difficult to use
6) Exemption unclear, open to abuse by agencies
7) Act does not address info mgt
8) Tension b/w FOI and privacy

4.3 POLICY RATIONALE FOR FOI LEGISLATION

The public policy behind FOI is:
personal - individuals should be entitled to know what information the government has on
them and correct it if it is wrong.
community - the right to know about the government to allow informed decisions and debates
to to allow participation in the political process.

Rationale for FOI:

Democracy- allows you to make an informed decision about who to vote for, without info, ppl cant
exercise their rights and responsibilities or make informed choices.
Allows you to participate in govt policy making
Allows you to challenge decisions if you know what decision based on- ie ensures accountability
Allows ppl to understand and participate in working of govt- concept that govt doesnt own the
information- they hold it on trust for the community ie, info belongs to the people.
Exemptions to FOI are, on the whole, based on the implicit premise that prima facie, disclosure is contrary
to the public interest.

25

A.

What is the Public Interest?

The concept of public interest under the FOI legis attempts to balance administrative
and legal tradition of preserving govt. secrecy and public servant anonymity against a
new regime of open govt. Represented by a legally enforceable right of access to info
held by govt. and agency obligations to publish info about their operations, functions and
decision-making powers.
Re Eccleston & Dept of Family & Community Services & Abo and Islander Affairs
FACTS: journalist denied access to info about Mabo on grounds that such info was exempted from
disclosure under the QLD FOI Act.
- public interest in citizens being informed of processes of govt.
- notions of the public interest constitute the basic rationale for the enactment of as
well as the unifying thread running through the provision of the FOI Act
- presumption in favour of disclosure approach taken Unless the exemption
provisions, and s41 in particular, are applied in a manner which accords appropriate
weight to the public interest objects sought to be achieved by the FOI Act, the
traditions of govt secrecy are likely to continue unchanged
-

B.

The intent of FOI is to promote public participation and increase public interest in government
accountability and to provide a check against government manipulation of government held
information.

Tests of public interest in FOI

There are three different public interest tests incorporated in the FOI Act (Cth):

Disclosure of documents which would otherwise be exempt where there are matters of
public interest that outweigh those against disclosure (ss 33a(5): documents affecting
relations between the Cth and the States; 39(2) documents affecting the financial or
property interests of the Cth, 40(2) documents affecting certain operations of agencies).
An agency must show that disclosing a document would be contrary to the public interest
before it can make a decision that it is exempt (s 36(1)(a): deliberative processes exemption).
Matter that falls within the definition of "personal information" will be exempt if disclosure
would be unreasonable, weighing public interest for and against disclosure (ss 41: personal
privacy, 43 business affairs).

Re Howard and Treasurer of the Cth (1985)

5 factors of public interest against disclosure formulated by Davies J;
1) Higher the office, more likely info should NOT disclosed
2) Communication during the development & promulgation of policy
3) Where disclosure would inhibit frankness and candour in future communications
4) Disclosure would lead to confusion and unnecessary debate
5) Disclosure may be prejudicial
- Potential for public misunderstanding Re Clearly and Dept of the Treasury
Harris v Aust Broadcasting Corp.
FACTS: employee didnt want interim reports of her performance as head of the Legal
Dept to be disclosed.
Remedy: declaration that reports were exempt.
- s 36(1)(b) disclosure would be contrary to public interest. Must balance:
a) public interest of an individual being informed: against
26

b) public interest in good govt.

notions of public interest change over time.
Interim reports may be prejudicial, so disclosure would be contrary to public interest
Purely factual material should be disclosed.

Re James and ANU

FACTS: students wanted reports re: uni performance.
- public interest in the rights of individuals to have access to docs. not only docs
relating to the broad affairs of the govt, but also docs that relate to quite narrowly to
the affairs of the individual who made the request.
- s39, 40(1)(c)(d)(e), 44(1)(a), the DM must determine that disclosure will have a
substantial adverse effect before the exemption can be claimed. The consequences
of the disclosure must be serious or significant.
4.3.2 Confidentiality
Kamminga v ANU (employment reference checks)
FACTS: K wanted to know why his job application kept getting rejected so wants access
to referee reports. The ANU refused access under s36 (deliberative processes exemption),
s40 ( the operations of agencies exemption) and s45 ( the material obtained in confidence
exemption) of the Cth FOI Act. The applicant sought a review of the decision to refuse
him access.
Held: info may be exempt under one category but not another.
- s36(1)(a) doc is related to deliberative process.
(b) disclosure would be contrary to public interest
- s45 (1) disclosure would be breach of confidence. Plaintiff must show:
i) specify the info
ii) show that info was supplied in confidence
iii) info was supplied to def creating an obligation of confidentiality
iv) actual/threatened misuse of that info.
- employee reports are usually confidential, so exempt under s45
Consideration as to whether a document is confidential under the common law is not taken into account
under s 36, but is under s 45. To determine whether this would be a breach of confidence requires the
determination of whether, if the ANU released the documents (references from referees) could the
referees bring an action against ANU. Here it would be a breach of confidentiality and therefore, under
s45, the documents should not be released.

- rejected the possible inhibition of candour and frankness as a consideration weighing

against disclosure unless concrete evidence indicates that the work of departmental
officers deteriorates as a result of this requirement to disclose.
Corrs Pavey
It is now settled that in order to make out a case for protection in equity of allegedly
confidential info, the pl must satisfy that

27

1. Must be able to identify with specificity, and not merely in global terms, that which is
said to be the info in question and
2. Show the info has the necessary quality of confidentiality
3. The info was received by the def in such circumstances as to import an obligation of
confidence
4. There is actual or threatened misuse of that info.
5.
4.3.3 Unreasonable disclosure
Colakovski v ATC
FACTS: nuisance phone calls. Telecom refused access by claiming that disclosure
would involve the unreasonable disclosure of info relating to the personal affairs of
a person (s41).
Held: It is unreasonable to disclose name of caller as such disclosure clearly related
to personal affairs. Looking at the term "unreasonable disclosure", if the information is material in
determining if an unlawful act had been committed it has to be taken into account in determination of
unreasonableness under s 41(1). Exemptions are necessary for the protection of "personal interests"
(s 41, applicable here) and "business or professional affairs" (s 43). 'It is not in the pub int that the
personal or business or professional affairs of persons are necessarily to be disclosed on
applications for access to documents

4.3.4 Deliberative Documents

This information is the most sacrosanct information that the government has. Deliberative
documents are those arising from cabinet and executive council meetings. See clauses p8 of
Materials. Deliberative documents can refer to any deliberative functions at all levels of
government. However the "underlings" documents are not generally covered.

4.4 A presumption in favor of disclosure

-

There is a presumption in favour of access because that is the object of the Act .As
far as the presumption relating to:
i Unclear facts
ii Uncertain consequences of disclosure
iii
Ambiguity in the legislation itself
iv
Discretion of person with power to grant access
are concerned, it all depends on what the relevant section says.

Prima facie, a presumption in favour of disclosure exists. However, gen right must be
read with s3. s3 expressly states that right of access is limited by exceptions and
exemptions. Also, every time an application is made, there are public interest which will
weigh against disclosure.
News Corp v NCSC (re general right of access)
FACTS: News Corp (applicant) sought access to docs relating to the NCSCs
investigations into the applicants transaction in the shares of Thomas Nationwide
Transport Ltd.
Held: there is no leaning(in favour of disc) statutory position in regard to s3 which
creates a general right of access. This section is to be read in conjunction with the
exemption provisions, and neither section is to be given greater emphasis. The rights of
access and the exemptions are designed to give a correct balance of the competing public interests

28

involved. Each is to be interpreted according to the words used, bearing in mind the stated object of the
Act'.

Searle Aust v Public interest Advocacy centre (re medical reports)

FACTS: access to reports on medical products.
Held: leaning approach does not apply. -Applicant may bear the onus to adduce
evidence that there is a public interest in the disclosure of the subject matter to which the
doc relates.-While s3 assist the interpretation of any ambiguities in the legislation, they
cannot prevail over words plainly expressed.
Re Clearly v Dept of treasury (access to economic forecasts)
FACTS: access to economic forecasts
Held: s 3 may be used to interpret ambiguities, but may not prevail over other sections
-reasonableness the aim of FOI is to extend as far as possible the right of the Aust.
Community to access to info in the possession of the govt. of the Cth
-the right of access to govt doc under s11 of Act is one which is premised on the same
considerations of democracy and representative govt. which underpin the constitutional
right referred to in the other context.
Commissioner of Police v District Court of NSW
FACTS: wanted the names of individual officers who supplied info. to the Qld Criminal
Justice Commission.
s6 of FOI Act (NSW)-personal affairs. Test:
1)
was the information concerning personal affairs of any person? If yes, then,
2)
would disclosure be unreasonable?
Held: names could be disclosed as the officers were acting in the course of their
employment. The affairs disclosed are not that person's affairs, but the affairs of the agency' ..
-Presumption in favour of disclosure? to withhold disclosure it is for the agency to
make out the application for an exemption. Thus the question properly is not why the info
should be disclosed but why it should be exempted. Kirby P expresses support for the tilt in
favour of disclosure in cases of doubt.... general favourable attitude to the provision of the access claimed

4.5 Criticisms of FOI Schemes:

Act can be confusing

Effectiveness of the Act is undermined by numerous restrictions and exemptions in relation to access
to info
Few requests for non-personal info, such as policy development or general govt decision making have
been made. This suggests the Act may not serve the purpose of ensuring govt accountability in policy
and decision making
Charges for applicants have reduced the number of requests
No person or organization is resp for overseeing the administration of the Act
The Act does not give sufficient prominence to record management, which is fundamental to the
effectiveness of the FOI Act
There are uncertainties about the application of the Act as govt agencies are corporatised

29

5 DUTY TO GIVE REASONS

At common law, there is no general requirement that bureaucrats give reasons for their
decisions.
A.

B.

Policy reasons for duty to give reasons for administrative decisions:

People are less likely to appeal a decision if they know the reason for it and a rational coherent
explanation is given.
Procedural fairness
Judicial accountability
Fairness in public administration those entrusted with powers to make discretionary decisions under
statute will exercise power rationally and justly
For precedent
The theory or the hope is that if judges have to give reasons they are under an intellectual discipline
which will improve the quality of the reasons/decisions.
Improves transparency of B
Lawyers argue that without reasons cant challenge
Improves intellectual of decision itself
Persuade the individual that the decision was justified.
McHugh: enable the parties to see the extent to which their arguments have been understood and
accepted as well as the basis for the decision, and provide a foundation for the acceptability of the
decision by the parties and the public.
Kirby in Osmond if there are reasons there should be no reason not to give them.
Safeguard of sound administrative practice
Benefits to parties
Facilities review
Benefits to wider community

Policy reasons against giving reasons:

Delays in terms of time and cost
Decisions are not always framed well because not always given by lawyers.
Over formalisation and unnecessarily intrusive into the proper functions of primary administrators
Induce a lack of candour on the part of the administrative officers concerned.
Set formed reasons
Real debate: how far obligation extends, who should define limits, approach of court in scrutinizing
reasons.

Osmond v Public Service Board of NSW

Facts:

1954: O joined the NSW Public service

1981: O appointed District Surveyor for Armidale
1982: O applied for appointment as chairman of Local Lands Board was to be made to the Governor
upon recommendation of the relevant Department Head.
O was not recommended, appealed to the Public Service Board
Board heard appeal and dismissed without written notification.
O seeks a declaration that the Board was obliged to give reasons for the dismissal of the appeal

NSW Supreme Court held that there is no obligation to give reasons

Kirby P:
No direct authority that bodies exercising public power have to give reasons for
decisions.
But in Taylor v Public Service Board, HC suggested that such bodies, when asked to
do so, should give reasons to explain to the person affected.

30

Why there should be right to obtain reasons:

(a) fairness in public administration means that the decision maker should make
decision rationally and justly, and therefore be in a position to explain that
decision.
(b) Reasons should be required so that courts may fulfil their function of judicial
review.
Therefore, where a person seeks reason, the administrative body should be required to
provide that reason under the principles of natural justice and the duty to accord
fairness.
Held: O entitled to reasons

High Court (was Public Service Board of NSW v Osmond in the HC)
Gibbs CJ:
Issue 1: is there a general right to reasons?
NO - Cases cited by Kirby P, were cases where statutes require that decision makers
give reasons this is no such presumption in common law.
The worry is: that such a presumption of right to reasons will mean that NSW
administrative bodies is subject to control by the courts, whereas the rest of the states
and the Commonwealth bodies do not.
Issue 2: although no general right to reason, is the circumstances in the present case such
that natural justice requires reasons to be given
Rules of natural justice designed to ensure fairness but how can fairness be affected
by giving reasons after something has already been done?
This case is not such that reasons must be given, therefore held: O not entitled to
reasons.(Brennan and Dawson JJ agreed with reasoning)
Deane J:
No general right to reasons if statute fails to require decision maker to give
reasons, natural justice will not remedy the omission.
However, although there is no such right, courts should be less reluctant towards an
interpretation where the intention of the Parliament is to construe an implied statutory
duty to provide reasons.
However, this is only in a situation where the circumstances are exceptional
But foreshadows that in the future could be situations where there are such special
circumstances as to warrant natural justice to demand reasons for a decision, in the
absence of a statutory intention to the contrary.
Not such a case yet, therefore held: O not entitled to reasons.
Cypressvale Pty Ltd v Retail Shop Leases Tribunal (p 119)
Facts:

The Judicial Review Act 1991 (Qld) allowed reasons for certain decisions.
C argued that reasons for granting them less compensation than they were expecting were so deficient
that it was impossible to establish whether there was an error of law.
JRA did not apply to C.
C seeks a mandamus requiring Tribunal to give additional reasons.

Fitzgerald P:
Says that law has moved since Osmond.

31

C.

Suggests law has become what Deane J foreshadowed: although still no general right,
the nature and extent of the obligation to give reason is increasingly dependent on the
circumstances.
For example, in Soulemezis v Dudley (Holdings) Pty Ltd, McHugh J recognised that
the statement of reasons should allow the parties to see what was taken into account
and in what manner.
Other jurisdictions:

Canada: Baker- general approach to give reasons- after Baker, reasons that would be
given would be more sanitized. content of reasons flexible.
Note also the difference between actual and good reasons- there is an obligation to
provide actual reasons, not good reasons.
UK: incrementalist approach
NB: see Spigelmans Practice Note 119 for NSW sup court. The Practice Note has a few
things to say about the sort of pre-trial directions which the typical case in the list might
receive.p16. Potentially gets around Osmond in an administrative way- outflanks
Osmond?
Justice Kirby has said repeatedly that the precedent he would most like to see reargued in
the HC is Osmond.

5.2 Duty to give reason under statute law

A.

Since the 1970s, there has been right to reasons introduced in statutes: s13 of the
ADJR Act, s28 of the AAT Act.
AAT Act
s28 provides right to request reasons for decisions which can be reviewed under AAT Act.

But there are limits on class of persons who apply for review decision maker can
consider that applicant is not entitled to statement of reasons.
Reasons must be intelligible and set out the substantial reasons for the decision. :
'setting out the findings on material questions of fact, referring to the evidence or other
material on which those findings were based, and giving reasons for the decision'.

B.

AAT may order additional reasons, if it believes that the reason already provided are
inadequate.
Applicants do not have to receive review at AAT first before allowed to obtain
reasons.
Exception: where reasons might prejudice the public interest in Australia's security, defence or
international relations, or would involve disclosure of cabinet discussions, or otherwise would be
entitled to Crown privilege, they may be exempted by a certificate issued by the Attorney-General, and
no reason need to be given.

Also, if application of review already made to AAT, s37 requires decision-maker to

provide to Tribunal a statement of facts in which the decision was based on also to
be made available to the applicant.
ADJR Act
ADJR covers much more ground than AAT.
s13 allows any person who is entitled to apply under s5 of the Act for review, access
to a statement of reasons. 'setting out the findings on material questions of fact, referring to the
evidence or other material on which those findings were based, and giving reasons for the decision'

32

C.

D.

If decision maker finds that applicant is not entitled to seek reasons, as stated in the
Act, he or she may apply to the Court for an order to give reasons.
The court may order additional reasons, if it considers reasons already provided are
inadequate.
All the exemptions under ADJR to applicants seeking review covers persons seeking reasons.

s13A, inserted in 1980 provides that decision-makers need not include in the
statement of reasons any information relating to the personal affairs or business
affairs of a person which was supplied in confidence, or pursuant to statutory duty.
FOI Act
FOI gives access to all government documents except for certain exempted
documents this implies that documentation of reasons for a particular decision is
also available.
In fact, s 13 of the ADJR Act imposes a decision maker to give a statement of reasons.

Consider the following questions in determining applicability of statutory

duties:
Which decisions are subject to the statutory duties to provide reasons in s13 and s28
o ADJR s13: applies to decisions which are reviewable under the ADJR
Act, and specific decisions which are reviewable
o AAT s28: reasons can be sought where that decision is subject for review
for AAT. ie the decision must be reviewable, but dont have to make
application for review.
Who may apply for reasons?
Who do you apply to? Decision Maker. Time Limits- 28 days
Does application for review actually need to be made? No
When may the decision maker refuse to give reasons?
o Yes if: decision not reviewable, if no standing, if s14 p32, against public
interest, s13 p31, personal affairs, trade secret etcc
o Schedule 2: classes of decisions to which s13 doesnt apply
Are there any avenues of review if reasons are inadequate?
What is the relationship between s13 and s28?

5.3 General Summary

If a person seeks to obtain reasons, should follow these steps:
1. Look at the empowering Act of the relevant administrative body -> does it obligate
the body to give reasons?
if expressly stated in Act: then right to reasons
if it does not, then a matter of statutory construction: Deane J in Public Service
Board of NSW v Osmond commented that the courts may start leaning towards
an interpretation, which, in the absence of statutory words to the contrary, to
provide reasons in special circumstances.
2. Look at AAT Act -> was the decision a decision applicable for review under the Act
- > if so, then there is a right to reasons.
3. If decision not covered under AAT, look at ADJR Act - > is decision reviewable
under the ADJR Act? If so, then there is a right to reasons.
33

4. If decision not covered under either the AAT or the ADJR Act, then may possibly
look towards FOI Act which allows reasons for decisions problem is: locating the
document.
5. If all fails, look to common law no general right of reasons yet, but Deanes
approach in Osmond and Fitzgeralds discussion in Cypressvale suggest that courts
will move towards allowing general right.

5.4 Natural justice and the duty to give reasons

From Kirby P in Osmond: the argument that the obligation to give reasons is somehow
related to the rules of natural justice is wrong-footed. Natural justice principles dictate
that fairness be done leading up to the decision. Given that it concerns everything leading
up to the decision, those concerns cannot involve something after the decision is made.
The fact that a judge has made a decision in an inferior court and is now called upon to
make a decision in a similar case is no ground for disqualification of the judge. Especially
considering that in the intervening period the law could have changed, which means that
the judge will be hearing the case in a new context.
But, if it is the case that it is proven that the judge has a predisposition on an issue,
through for example extra curial activities, and if it can be shown that the judge held that
view on several occasions, then there may be grounds for disqualification e.g. If Kirby J
went around the country and to various universities saying ".I think it should be .etc.
Bureaucratic decision making must be reasonably rational
Why are the courts so strong on this when there is no general requirement that reasons be given? Because
the courts have an obligation to administer the law. If a decision is patently wrong, then the courts cannot
stand by and let it sit. They must intervene and overturn it (this is obvious enough in the case of defective
reasoning in a curial judgment, where the decision will be declared void. It is the same with administrative
decisions, even though, unlike judgments, there is not general duty to give reasons)
Some points:
There is no obligation to give reasons, so they dont need to be specific. Sometimes the reasons are not
much more than a repetition of the words of the statute. Reasons can be hidden behind the words of the
statute, which makes the decision difficult to challenge.
They'll simply repeat the words of the section. This will be the reason, or most certainly they will start
out that way.
Ansett Transport v Wraith (on group assignment) shows that if on receipt of a so called statement of
reasons, the recipient is of the view that more is required, they can:
1)
Write back asking for further & better particulars
2)
Treat it as a failure to comply
Comcare Australia v Lees (on group assignment) - Finklestein J outlines the purposes for giving
reasons (there are 5).
Consequences of not giving reasons (Comcare Australia v Lees per Finklestein J):
- Tribunal can be ordered to issue reasons (Mandamus or the like)
- Decision can be set aside (as in Sivaram) & referred back to an inferior tribunal to make a proper
decision.
- Judgement of Brennan J in the O'Brien case is the leading authority on consequences.
Failure to give reasons is NOT an error of law, it is a failure to perform a statutory duty and it can be
corrected by a writ of mandamus.
Sivaram's case - sent back and forth. There are around 4 Sivaram cases. But the last one fits it all
together. It would also help to read the second one 168 or 160 ALR 24.

34

35

7 OMBUDSMAN
7.1 The Ombudsman: An Overview
Ombudsman
A statutory office-holder responsible for the investigation of action relating to administration, taken by a
department or prescribed authority. An investigation may be conducted in response to a complaint made by
any person, or on the motion of the ombudsman. The ombudsman has no power to compel the department
or authority investigated to take action in response to the report, but may make a special report to
parliament if there is no adequate response.

i)

LEGISLATION
Ombudsman Act 1976 (Commonwealth)
Ombudsman Act 1974 (NSW)

7.2 Scope of the Ombudsman's coverage

There is a general presumption that the ombudsman has jurisdiction. The general exceptions
are:
1)
2)
3)
4)

Ministers
Courts
Tribunals and Royal Commissions
Then there are specific exceptions provided by statute (statutory exceptions). Examples
are provided on top of p.183 e.g. policy v administration is whether to put inmates in
cells or dormitories - this is a policy decision because it involves funding.
Then there are private ombudsmen

7.2.1 Omudsman's power to i) investigate and ii) determine complaints

i)

Power to investigate derives from complaint being made, that it is to do with administration
and that it doesnt think there is another body or tribunal more appropriate to deal with it.
ii) They dont have determinative powers. But, history shows that you dont need determinative
powers because the public service responds well without it. There is also the factor of adverse
media attention.

7.2.2 Defective administration

Defective administration, for the purpose of the Ombudsman Acts, is:
1)
must relate to the workings of administration as opposed to judicial or legislative.
2)
It should fall into one of the categories that amount to defective administration listed on
p.187 (the important thing is to get past no.1)

7.2.3 Ombudsman's "lion hunting" & "fly swatting" roles

Lion hunting role goes for the big fish - the system itself. Fly swatting role looks at individual
cases - it is not indicative of something rotten in the system. The 2 roles can overlap. It's one
thing for the Government to say we have a body, but its another to resource it. If the
Ombudsman's resources are limited, the fly swatting role will receive priority because it will
require big funds to pursue its lion hunting role.

A.

Anderson(1995) Some Nuts and Bolts

36

i)

What is an ombudsman?

statutory watchdog over the admin. Re: of actions relating to a matter of admin

resp to Parl.
Independent of govt and complainants
Primary role; investigate complaints concerning defective admin by govt. view to resolving
disputes b/w citizens and govt.
- 2nd role; improve quality of public admin through identifying defective admin. Educative and
preventive role.
- To stimulate an environ. of debate by agencies and consumers as to what standards of service
and DM should be expected in the public sector.
ii)
Jurisdiction of Ombudsmen: who and what can they investigate?
- admin actions of govt dept and most stat authorities. Depends on piece of legislation.
- Excluded jurisdiction: legislative and judicial decisions:
- Ministers, s5(2)(a). why? Minister is accountable to parl.
- Judges and magistrates, s5(2)(b)
- Conduct concerning the employment in the public service.
- local councils/authorities are not within the Cth Ombudsman jurisdiction, rather fall under
State Ombudsman.
-

Complaints to the Ombudsman

1. who can complain?
-

any person. Need not be resident or Aust. Citizen. Companies and by inc associations. Make
a complaint on behalf of another possible.
No standing requirement.

2. how to complain?
-

ACT and Cth allow oral and writing, s7

Omb can also investigate matter of their own motion.
No fee
Omb may exercise his discretion. Factors considered; - whether person has taken complain
directly to agency concerned.

3. the role of the complainant

-

Omb is not complainants advocate. Only give the facts and Omb investigate.
Disadvantage, the dissatisfaction and frustration that may arise when a persons demand for
action and outcomes are not being acted upon as they would wish.

4. how the Omb deals with complaints

a)

the discretion to investigate:

may refuse to investigate on these grounds:
complaint is frivolous, vexatious or not in good faith;
complainant does not have sufficient interest in the subject matter of the complaint;
an investigation is not warranted having regard to all the circumstances;
there are alternative remedies available to the complainant;
Cth Act s6, complaints relating to a commercial activity of a Dept or authority and situations
where the Omb is of the opinion that the complaint could more conveniently or effectively be
dealt with by the industry omb for the particular indust.. eg complaints about Telecom

b) preliminary inquiries
-may matters be resolved at this point
c) investigations and investigative powers
-

must give notice to relevant public authority and complainant

powers include right to require ppl to produce docs, furnish info, power to enter premises and
inspect docs.

37

d) the purpose of Omb investigations

*
*
*
*

see whether admin action was defective, maladministration. Usually on these grounds;
it appears to have been contrary to law;
it was unreasonable, unjust, oppressive or improperly discriminatory
based on wholly/partly mistake of law or fact
reasons for a decision were not given but shouldve been given.

e) outcomes of investigations: powers, recommendations and reports

-

Do not have determinative powers. No power to set aside decisions or sub their own decision
for those of agency.
If investigated and defect in admin, must report to relevant agency together with
recommendations.
Omb is not permitted to make a report containing adverse comment in respect of a person or
agency an opportunity to appear before him.
If response is not satisfactory, omb may inform PM. May also make special report to Parl,
ss16 and 17.

f) recommendations in reports
-some recommendations;
* that conduct be referred to the appropriate authority for further consideration;
* that some particular action should be taken
* decision should be cancelled or varied;
* reasons should be given

g) advantages/disadvantages of Omb from a complainants point of view

adv:
- free, informal, little work for complainant, easily accessible (telephone line), no
prescribed forms or pleadings required; may be a good way of finding out info about
decision or action complained of; faster form of review; broad jurisdiction.
Disadv.:
- no determinative power, not complainants advocate, not obliged to investigate all
complaints w/in jurisdiction that omb receives, discretion to refuse is broad.
- Unpredictable
- Lengthy inquiry
- May not allow personal involvement

7.3 Choice of Forum - why the Ombudsman?

Was decision complained of final?

Is complaint about legality or merits? (merits review tribunal better)
Was complaint about non-justiciable behaviour? (delay, rudeness?) O
Is complaint about the existing legal framework?(courts operate in this framework)
Is resistance contemplated? What coercive powers might be needed?
Will there be conflicting issues of fact?
What stake does the complainant have in the matter?
What outcome is sought?
How quickly does matter need to be resolved?
Are there grounds for discretionary refusal to investigate?
What is the complainants capacity to pursue the complaint?
What resources does the complainant have?

38

A.

Three Case Studies

The Australian Tax Office Case

Tax team investigated a complaint which concerned a conscious decision by ATO staff to go against one of
the Commissioners income tax rulings. ATO failed to recover about $42 000 that it would otherwise
received if it had followed the Commissioners rulings.
Complaint: ATO was seeking to recover tax from Mr X

The Cotton case

Demonstrate the limitations and the difficulties of the Ombs function. The Principal of a WA Technical
College brought a complaint to the Cth Omb alleging that the program Nationwide on the ABC had
singled him out. The ABC reject4d the complaint on the grounds the programming decision were not
within its jurisdiction. Such a case will only be investigated if there is element of defective administration
plainly going beyond the merits of a programming decision.
Argument between the ABC and the Ombudsman
Under the broadcasting act, the ABC is in control of its broadcasting program and editorial comments. The
ABC argues that therefore it is not subject to the jurisdiction of the Ombudsman. The Ombudsman doesnt
agree. Universities are also in dispute with the Ombudsman in the same way as the ABC. The universities
arguing that their academic freedom cannot and should not be suppressed, just like the ABC asserts its right
to freedom of broadcasting and editorial comment. The ABC have set up a system to deal with complaints,
just like the universities allow an avenue for 2 nd marking etc. This, in effect, gives then the right to at least
say "get out of here Ombudsman, it is being dealt with".

39

8 MERITS REVIEW
There are several alternative means of challenge to administrative decisions besides the Ombudsman, these
including: [NB it is generally advisable to go through the process in this order, as cost and

bother increases as you go one step up]

approach MP to ask them to intervene.

approach the decision-maker and discuss it direct with them
seek internal review
seek review by a specialist tribunal set up for the particular category of administration (eg.
Social Security Appeals Tribunal)
seek review by the AAT (or similar state tribunal if one exists)

i)
Approach your Member of Parliament
(State or Federal depending on the issue), to intervene in the matter on your behalf. MPs have
access to Ministers and may ask questions in Parliament, and this is free.
ii)

Negotiate with the DM,

Either through internal complaints if you would like to merely register dissatisfaction (becoming more
common) or by politely asking the DM to reconsider "new information" so that the administrator saves face
if you desire the decision to be changed.
The Role of Preliminary Negotiations Ford (1985) - pp213-214
The advantages of attempting to resolve disputes with the bureaucracy direct are:
huge cost savings for clients
matters can be resolved more quickly than through a court or tribunal
discretionary powers of a bureaucrat are generally much broader than those of a court or tribunal.
When approaching a primary decision-maker cooperation is unlikely to be obtained where an
aggressive attitude is taken. It is better to play up to them and try and massage their ego.
If there is no joy with the primary decision-maker, the next step is to look for internal review
mechanisms.

iii)
Formal Internal ReviewReview bodies may be recommendatory only or statutory (e.g. Social Security Appeals Tribunal).
Question of institutional bias and reduced quality of primary decision making. Advantagesreview officers can assess how well the system is working, may consider new information, and
implement reforms as a result.
Under Administrative Decisions Act 1997 (NSW) s 53 the right to internal review is limited
to "reviewable decisions" i.e. reviewable by the ADT. Applications to the DM made in
writing within 28 days: s53 (2)(d) and someone other than the DM in that organisation must
handle it: s53(3), and must take into account of applicant's submissions: 353(4). The reviewer
may affirm, vary or re-make the primary decision: s53(5). This internal review must be
complete within 14 days: s53(9). THEN the matter may be taken to the ADT .

Problems and advantages of internal review

Problems for complainant:
- Complainant might not want to face decision maker who they are disputing with.
- Concerns about the independence of review officers.
1)
Internal review is institutionalised
2)
Internal culture

Advantages to complainant:
- Save money and time
- Comfort

40

Advantages to department:
- Less external scrutiny
- Training for fixing things up
- Budget. Each department gets a certain amount of funding. The under-secretary of each
department must manage whatever amount they get (sometimes it could be very little). If they
run out, they dont get anymore. One way of cutting costs is to reduce external review costs.
- Gives them a better image
Internal Review Creyke (1997)
Internal review processes have value in the following manner:
allows internal reviewers to assess how well the system is working and determine
defects on policy or performance.
can give fiscal savings as internal review reduces caseload on external review bodies.
assists in determination of areas that may require additional staff training.
Criticisms of internal reviews include:
reduces quality of primary decision-making
contributes to review fatigue
does little more than extend time taken to reach external review stage
impedes informal internal review processes.

iv)
External Review: Specialist Tribunals
May be de facto courts to dispense cheap justice (e.g. Victorian Small Claims Tribunal);
administrative bodies staffed by judges for greater legitimacy (salaries, town planning);
administrative review tribunal - accessible and non-technical and armed with the power to not
only review decisions but to exercise same discretions as those conferred on the original DM.
Problems- overly deferential to gov't, lack of consistency in procedures and rules between
tribunals are a hurdle, and make it difficult to have consistent expectations of results.
Remedied by the AAT- independent staff, procedural framework to guide practitioners and
ensure "high quality" decision making- and "independent (i.e. of the AAT) tribunals" e.g.
Australian Competition Tribunal, National Native Tribunal, salary-fixing bodies, and
Migration Tribunals (Immigration Review Tribunal, Refugee Review Tribunal. Subordinate
tribunals- Veterans' Review Bodies, Social Security Appeals Tribunals- apply different
procedures to AAT. These tribunals were traditionally very efficient, but a growing caseload
is causing increased delays.
Further problems (Sassella article)- they cause subversion of government policy because they
are able to alter original decisions which are valid, the original decision should stand unless
manifestly incorrect or grossly unreasonable, emphasis should be on getting it right the first
time. Decisions are not based on departmental policy but on the individual's case.

Problems with the Tribunals Sassella (1997)

One problem is often not one of policy but in the exercise of judgment. The SSAT and AAT
often make "preferable" decisions but not the correct (and not so preferable) one. One way
around this would be to make the decision non-reviewable except by courts or Ombudsmen
unless they are grossly unreasonable or manifestly wrong.
Tribunals tend to not refer to departmental policy, assessing the case as an individual decision
and whether it appeals. It would be preferable that a departure from government policy
should only be for cogent reasons.

v)
External Review: The Administrative Appeals Tribunal (AAT)
- The Commonwealth AAT was established by the Administrative Appeals Tribunal Act 1975
(Cth), and the Administrative Decisions Tribunal (ADT) in NSW by the Administrative
Decisions Tribunal Act 1997.

41

A single tribunal empowered to review the merits of admin. decisions (esp. those with
discretion and policy involved), institutionally separated from the ordinary court and
bureaucratic systems.
The AAT made merits review available and the right to obtain a statement of the reasons for a
decision.
The individual whose interests are affected gained the right to question the methods and
legality of the relevant exercise of power, and when within the AAT's jurisdiction, a right to
participate in the making of the final decision.
Also directed to deal with the limitations of Parliamentary review and the uncoordinated
growth of discretionary decision making.
Main task is adjudication, therefore fully judicial status to determine legality, yet also
first formal merits review.
Able to review matters of policy (s 43) but this is seen to be limited to departmental policy
rather than government (approved by Cabinet or a Minister) policy.
Structure- a President (judge of the Federal Court), Deputy Presidents (legal practitioners
with at least 5 yrs experience, senior members and members- all appointed by the GG. s 6

- Jurisdiction
Drake v Minister for Immigration and Ethnic Affairs
Drake convicted of possessing cannabis. The Minister made an order for his deportation, which
was affirmed by the AAT. Drake appealed to the Full Federal Court, one of the grounds was that
it was unconstitutional for Davies J to sit on the AAT (as he was a judge of Fed Court). Fed Court
rejected this argument saying that his appointment to the AAT was personal, and did not involve
the conferring of functions onto a court. His other argument that it was beyond the legislative
competence of the Commonwealth Parliament to confer part of the judicial power of the
Commonwealth upon an administrative body which was not a Chapter III court. This was also
rejected on the grounds that the general functions of the Tribunal being administrative in
character. Purely administrative bodies may act in a judicial manner without being judicial
bodies.

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd

Issue- does the AAT have jurisdiction in cases where the decision to be reviewed was beyond the
powers of the DM? Yes, otherwise the applicant would have no relief for an unlawfully made bad
decision.
Facts: A warehouse license was purportedly cancelled by the Collector of Customs (NSW). The
licensee argues before the AAT that the Collector had acted outside his powers in cancelling, an
argument the AAT accepted. The Collector is here appealing on the ground that if he was acting ultra
vires, the AAT also had no jurisdiction.
Bowen CJ: A wide meaning of the word "decision" in the AAT Act is given a wide meaning by s 3(3).
The word simply refers to a decision in fact made irrespective of whether it is legally effective or not.
Discussion of a number of ways the phrase "made in the exercise of powers conferred by that
enactment" (pp232-3) before deciding the appropriate interpretation is "in purported exercise of
powers conferred by the enactment" where "purported exercise" includes where the decision-maker is
making the decision on the basis that he is exercising powers conferred by the enactment, whether or
not this is a correct interpretation. The adoption of this view means the AAT would have jurisdiction
to entertain an appeal from a decision in fact made under an incorrect interpretation of the powers and
determine whether the decision was properly made in fact and law.
Smithers J: The necessary conclusion is that decisions reviewable by the AAT are those made by an
administrator in purported or assumed pursuance of the relevant statutory provision.
Deane J: (dissent) An administrative tribunal will ordinarily have no authority to transcend the limits of the
jurisdiction conferred upon it by hearing an application aimed not at invoking the jurisdiction which it
possesses, but at securing an authoritative determination of questions of fact or law anterior to the existence
of that jurisdiction. The Act does not confer such a power on the AAT. If it did a serious question would
need to be asked as to whether, to that extent, it purported to confer part of the judicial power of the
Commonwealth upon an administrative body that is not a Ch III court.

42

Standing-

To bring a matter before the AAT, the person must be "affected by the decision": s27(1).
Organisations have standing if decision relates to a matter included in the objects or
purposes of the organisation- s 27(2) [wider than standing for judicial review] An application
for review can be made 'by or on behalf of any person, including the Commonwealth or an
authority of the Commonwealth, whose interests are affected by a decision .' (s 27 AAT Act

(Cth)) The relevant interest does not have to be pecuniary, but can be related to specific legal rights,
familial, personal and other non-material interests (Re McHattan and Collector of Customs (NSW)
1977 1 ALD 67 per Brennan J). If rejected for standing by AAT, does not preclude standing in

judicial review necessarily. For the ADT, standing is governed by the legislation which
confers the relevant jurisdiction.

Accessibility- applications in writing but need not meet strict requirements of applications
for judicial review. Applications must generally be lodged within 28 days of notification of
the decision. For ADT- only after internal review has been completed. Inaccessibilitypotential applicants unaware of their right, be disinclined to seek review, takes too much
effort (having gone through all the stages beforehand), or costs too much ($500 filing fee), or
the procedures have become so complex as to disadvantage those with disabilities, or who
aren't highly literate or legally represented.

Evidence and Procedures- as little formality and technicality and as much expedition as
possible s 33(1) (ADT is required to do so, to make sure parties understand, and to find out
evidence for themselves). Preliminary conferences minimise the element of surprise and
informs parties of procedure and types of evidence that will be produced. Mediation s34A is
provided but may not be accepted because the costs must be borne by the parties. 70% of
AAT cases settled or withdrawn before a formal hearing. Lawyers role being restricted
because they increase formality and reduce the level playing field. In regards to evidence,
both the AAT and ADT have inquisitorial functions (Tribunal finding evidence apart from
that which is presented by the parties, including questioning the witnesses themselves) but the
ADT is required to find this evidence, hence the innovative role of assessors. The
inquisitorial nature of the tribunal requires special considerations (see O'Neill, p 252)

Formality vs Informality (AAT & ADT)

(i)

Many commentators have argued that the AAT has failed to act in an informal manner and to
be relatively accessible to non-lawyers. It has also been said that the high level of
involvement by the legal profession creates an overly formal environment, making the
proceedings more adversarial.
One method of achieving informality has been the use of the Preliminary Conference. This
conference, if directed to be held, is designed to minimise the element of surprise and informs
the parties of the procedure to be adopted and the type of evidence which will be produced at
the hearing.
The AAT Act also provides for mediation (s34A), although it only plays a limited role in
decision-making. NSW ADT Act also provides for mediation but the costs are borne by the
parties (s104).
AAT is not bound by the rules of evidence, so when acting for a client, when would you prefer
informality and when would you want to insist on more formal methods of proof? If it's a run of the
mill pedestrian thing, the more informal, the easier it is for you. If the decision-maker is challenging formal would be better.

The relationship between admissibility and probative value

In Re Kevin and Minister for Capital Territory (1979) 2 ALD 238 it was held that evidence from the
complainant over his opinion that his property was overvalued was admissible, but would have no
probative value.

(ii)

The role of the rules on professional privilege

43

Re Lindsey and the APC (1989) (AAT) and APC v Hayes (1989) (F.C.)
The difference between Lindsey & Hayes is the time in which the respondent sought to produce the video
tape evidence. In Lindsey, the plaintiff argued for procedural fairness i.e. without the tape, they can't argue
their case properly. The argument against that was to preserve the right of the employer to test the
creditworthiness of the applicant & an element of surprise was a good way of doing this. Decision: Legal
profession privilege is more than a rule of evidence, but a fundamental common privilege. Therefore
statutes will be read to not remove it unless, on construction or in clear terms, it has been removed. The
AAT Act does not allow the privilege to be overridden and therefore the AAT cannot override it.

Facts: Ms Barnbrooke sought a review by the AAT of a decision to terminate her pension. The APC (her
employer) sought to introduce video evidence to rebut her claim. At the commencement of the AAT
hearing Ms B sough to gain access to the video, whereby Hayes (Tribunal) ruled that she should have
access. The APC sought review.

Held: In the 1st instance, Dr. Hayes gave access because he used the balance of convenience
(what would be gained v. what would be suffered by making it available). - the Commonwealth is
stronger so let them carry the burden of disadvantage. Wilcox. J. said 'O.K. the applicant wants
procedural fairness, but that is a 2 way street, which means you can't deny the respondent to fully
test the applicants evidence'. So, the same point the appellant (postal commission) used to get the
tape is the reason why they weren't able to get the tape .
s33 of the AAT Act gives the AAT wide discretion to use its powers but it is still bound to accord both
parties natural justice. This extends to them being able to present their case and to contradict and test the
other parties evidence in cross-examination etc. Ms B has nothing to fear from the video if she gives
honest evidence, and the APC may not adduce the video as evidence in any event. To allow the video to be
accessed by Ms B before her testimony removes the APC's right to cross-examine effectively and would
not allow them procedural fairness.

Hayes was read down in Prica & comcare

Re Prica and Comcare (1996) (AAT)
At a point in the cross-examination of the applicant, Comcare sought to introduce videotape
evidence, the existence of which neither the Tribunal nor the applicant had prior knowledge of.
The AAT didnt like these ambush tactics but accepted that the reasoning in Hayes was
applicable - because the applicant's case depends entirely on the acceptance of the applicant as a
witness of truth - and admitted the video evidence. Following Hayes the video was admissible, but in
the future it may not be if notice is not given to the Tribunal first. The practice of surprise has problems of
fairness and efficiency of the AAT as it operates itself. s 37 requires that the respondent disclose any
relevant material, including that adverse to there case, but this does not continue to material obtained after
the hearing commenced. Failure to comply may lead to the evidence not being taken into account.
Respondent (government) agencies have an obligation imposed on them by the AAT Act to assist the AAT
in performing its functions of de novo review.

Decision making powers-

The AAT can review a decision

on its merits
by exercising the power and discretion of the original decision-maker: s43(1).
The AAT may:
affirm, vary or set aside a decision
remit decisions for reconsideration under directions or recommendation
dismiss applications in certain circumstances
The AAT must:
act on a basis of evidence presented
act on implications of the evidence
act on law in force at the time of making its decision (not at time of original hearing)

44

In exercising the powers of primary decision makers, the AAT conducts its own inquiry. Its inquiry is a
completely fresh inquiry. There is no presumption in favour of the primary decision. The AAT must base
its decision on the material before it. This means that it may overturn a decision, notwithstanding that on
the basis of the material before the primary decision maker, the earlier decision had been correct.
Conversely, it may uphold a decision, notwithstanding that the earlier decision had been wrong.
If the law has changed between the date of the primary decision, and the date of the hearing, the Tribunal
must apply the law in force at the time of the hearing. Where the law has changed between the time of
the primary decision and the time when the AAT makes its decision, the AAT applies the law applicable at
the time of its decision. Under s8 of the Acts Interpretation Act, an amendment to legislation must not be
interpreted so as to deprive individuals of rights that they had accrued under the old law.

Esber v Commonwealth of Australia

Rather complicated case which attempts to illustrate the point that the AAT must take the
current law into account (in this case, the law had been repealed by Parliament) but this was not
well applied in this case. Still, the rule is stated.

Drake v Minister for Immigration for Immigration and Ethnic Affairs

Drake argued that the tribunal had not made an independent assessment of the policy because it
had taken into account the government's deportation policy. Found- where it was permissible for
the DM to take relevant gov't policy into account but the Tribunal is not under a statutory duty to
regard itself as being bound by it, Tribunal is still entitled to treat such a gov't policy as a relevant
factor (but only as one of them, must still decide if it was the right decision or not, not just
whether conformed to gov't policy or not). However, the court decided that the Tribunal had
failed to make an independent assessment of the policy and remitted that matter to the Tribunal.

Re Drake and Minister for Immigration and Ethnic Affairs (No 2)

Brennan's judgment- the Tribunal needs a guiding policy in order to achieve consistency between
decisions (otherwise decisions at each stage are merely dependent on the values or opinion of
each successive decision-making stage), and this policy should be Ministerial policy, unless there
are cogent reasons to the contrary e.g. injustice. This is because 'the adjudication of rights and
liabilities by reference to governing principles of law [a curial decision] is a different function
from the function of deciding what those rights or liabilities should be [a discretionary
administrative decision]. The former function rightly ignores the policies of the executive; the
latter should not. ' That is, the administrative policy should not be determined by a tribunal but in
reference to government policy.
Brennan found that there was no injustice in this case by applying the Ministerial policy of
deportment, because Drake's offence of drug-trafficking was serious enough to warrant
deportation.

Federal Commissioner of Taxation v Swift(1989) 18 ALD 679 (Fed Ct)

Facts: A tax avoidance scheme in the late 1970s was the scheme of asset stripping. Legislation was passed
to stop this particular scheme and made vendor-shareholders liable for tax liabilities if the stripping
occurred before meeting tax obligations. Section 5(4) gave exemptions from this liability in certain cases.
The Swifts found to owe tax but had this overturned on appeal to the AAT.
French J: In making its decision the AAT must consider only the facts before it. It is neither entitled nor
required to place weight upon the fact that the Commissioner had exercised his discretion in a particular
manner.
In the absence of any statutory direction the Tribunal is not bound to apply the administrative policies by
which the exercise of discretion under review is regulated. It is generally entitled to take into account the
administrative policy as a relevant factor in obtaining consistency. A policy that has been developed in the
political arena after consultation with the relevant industry ought generally be given great weight.

The status of AAT decisions: The AAT is required to give oral or written reasons for its
decision s 43(2). Within 28 days of a decision with oral reasons, a request for written reasons

45

may be furnished. They must be provided within 28 days of the request. Written reasons are
required if the AAT wishes to do more than simply decide the issue between the two parties,
or if it wishes to make its decision widely known so as to affect the behaviour of
administrators. Decisions are authoritative and persuasive but not conclusive in
determining questions of law (no strict doctrine of precedent)
Appeal lies from the AAT to the Federal Court on questions of law s 44.

Bhardajj: Student visa case:

1. whether the tribunal member had power to review decision he had made
ultimately depends on construing the statue but there are general assumptions
one can make.
2. As a general rule, we will assume statute does not allow decision maker to
review decision just because hes learnt new facts, changed mind, but
3. it will be assumed that regulatory statute does allow decision make r to do it if the
original decision was null and void because statute allowed reasonable
opportunity to be present and appear, and the court denied this right.
The difference between tribunals and courts
Different procedural rules. Rules of evidence are also a lot more relaxed e.g. hearsay evidence in court, only 1st hand evidence is accepted (there are however, exceptions to hearsay e.g. dying
man's evidence).
Although tribunals can review cases on merits, they only make recommendations and send it back
to the decision maker. They cant make binding determinations like courts.
There is no general right of review given to the AAT. It can only review where a statute has
given it the right to review. General legislation will be overriden by specific. Generalia
specialibus non derogant - general things or words do not derogate from special things or
words.
The separation of powers doctrine ensures the independence of the courts. Courts must
enforce the law regardless of the consequences. Drake no.1 is very important. If the AAT
didn't exist, it would be a problem because if the review went straight to the Federal Court
who would have had to review the merits, this would mean the judiciary is exercising an
executive power.
Greater consistency and certainty of law and outcome. Because it's a merits review
instrumentality.

46

9 JUDICIAL REVIEW
9.1 Review ability and type of review
9.1.1 The right to judicial review
The right to judicial review of administrative actions was considered by Dicey to be a feature of the rule of
law. Courts derive their jurisdiction of review the validity of administrative decisions from a variety of
sources:

An inherent jurisdiction derives from its status, particularly by way of prerogative writs.
The main ones are:
i)
writ of mandamus
ii)
certiorari - issued after a decision has been made
iii)
prohibition - issued before, to stop the decision process from continuing.
iv)
habeas corpus - 'free or deliver the body'
The first two of these allow the court to look at the process used in a decision, the third allowed the court to
direct something be carried out.
With these went inherent powers under the common law and equity. Under common law the court can
declare rights, under equity it can order injunctions which stop an act being done (they can be worded so as
to compel the doing of something).

The distinction between certiorari and prohibition is particularly important in the High
Court because it has not been given jurisdiction with respect to certiorari. Vested
jurisdiction is, on the other hand, jurisdiction which has been given by statute.

High Courts jurisdiction derives from the Constitution e.g. ss.75 (v), 76 and 77 and from
statute. Pursuant to these sections, the High Court has original jurisdiction to exercise both
federal and State jurisdiction.

The Federal Court was created in 1976 as a superior court of limited jurisdiction by the
Federal Court of Australia Act 1976 (Cth) s5. Its jurisdiction is therefore limited to that
which has been conferred by statute. This Act provided for the review of decisions of an
administrative character made under an enactment and for the review of conduct associated
with the making of such decisions. Thus some administrative decisions arent reviewable
under the Act.
The Judiciary Act 1903 was amended in 1983 to allow most matters involving
Commonwealth administration to be heard by the Federal Court: s39B. So s39B outlines the
jurisdiction of the Federal Court and also fills the gaps left by the ADJR Act. Where the
remedies outlined in s39B were inappropriate the Federal Court could use its statutory or
implied powers to grant alternative relief. But there are some cases that dont fall within the
ambit of either the ADJR Act or s39B. S39B for example does not apply to administrators who
were not officers of the Commonwealth and this was held to render it inapplicable to
actions against corporate Commonwealth bodies - but in 1997 this was remedied as s39B was
further amended with the insertion of s39B (1A). This section contains an associated
jurisdiction which has expanded it to also hear non federal claims. These cases can also be
handled by Federal Court because of its cross vesting jurisdiction. By virtue of the
jurisdiction of The Cross vesting Act 1987, and the corresponding State Acts, the Federal
Court may hear any matter which would be within the jurisdiction of a State Supreme Court.
So where previously the Judiciary Act and the ADJR Act conferred exclusive jurisdiction in
relation to Federal Administrative matters on the Federal court, the Cross vesting Legislation
envisages that there may be circumstances in which a State Supreme Court could hear a fed

47

admin law dispute. This is subject to the proviso that if a matter might be more appropriately
heard in another court, it is to be transferred to that court. Thus preventing the Federal Court
from being bogged down by administrative decisions.
Judiciary Act 1903 - s.44 - the High Court shares (i.e. on a concurrent basis) aspects of its
jurisdiction with the Federal Court.

State Supreme Courts have judicial review powers as superior courts of general jurisdiction
subject to:
The Judiciary Act
The ADJR Act
The Cross Vesting Legislation
In general, the State Administrative Law jurisdiction is exercised by the Supreme Courts
generally (except Victoria) because they are the only ones with the power to issue the
requisite prerogative writs. The NSW Supreme Court is allowed to exercise federal
jurisdiction but such circumstances will be rare, it will come down to convenience.

The determination by courts of the legality of exercises of power by administrators and tribunals.
The High Court, Federal Court and the Supreme Courts have final authority to determine the
scope of administrators' powers. The State courts have an inherent jurisdiction to issue relief in
the form of prerogative remedies, injunctions and declarations. Review at federal level under the
(Cth) ADJR Act may be called judicial review, although it does not involve the prerogative
remedies and is a jurisdiction limited by statute rather than an inherent jurisdiction at general law.
Judicial review is confined to review of questions of law and does not extend to review of the
merits of the administrative action.

A.

The difference between merits review and judicial review

Judicial review is concerned with whether it is legally permissible for an administrator to

make a decision. It is undertaken by courts rather than tribunals.
Whereas merits review is concerned with whether a decision was the correct or preferable decision,
judicial review is concerned only with the legality of the administrative behaviour.
JR was originally the only means of reviewing administrative decisions (there was no AAT, ADT etc). It
was allowed only if the statute setting up the board allowed such a review or there was no provision or
attempt to oust the jurisdiction of the court (assumed this jurisdiction was in).

B.

Judicial review is a strategy of last resort because:

1. It is more costly than other forms of review.

2. Delay
3. Legal technicalities - stricter rules of evidence and standing, technical rules on prerogative
remedies.
4. It is concerned with narrow issues, such as the legality of the decision, rather than whether or
not the decision makers findings of facts were accurate.
5. The remedies available to an applicant may well fail to resolve the dispute in question. Courts
can resolve questions about the scope of the discretion, but cant resolve questions about the
uses of this discretion.
6. Not all decisions are reviewable.
7. Not everyone who wants judicial review of an administrative decision will be permitted to it.

9.1.2 The Power to Make Particular Orders

The power to make particular orders derives from:

48

Status of the Court

Powers from statute
A breach of administrative law does not give rise to a right in damages, even where incurred
loss.
If it is a private law wrong, the Federal Court can award damages where it also has the
jurisdiction to hear the relevant private law action.

9.1.3 Mobilising the Jurisdiction

Courts can only act when they have been mobilised. In contrast to ombudsman and corruption
commissions, they cant conduct own motion inquires. Applications for Administrative Review:

1.
2.
3.
4.

Application for prerogative writs or for orders in the nature of a prerogative writ.
Application for private law orders, such as declarations or injunctions.
Applications pursuant Litigants can lose because have wrong type of application.
"Collateral attack"

9.1.4 Review under the ADJR Act

Not all administrative decisions are reviewable under the ADJR Act.

It must be a decision to which the Act applies. Section 3 of the Act restricts these decisions to those "of an admin character proposed to be made, or required to be made, as the case may
be...under an enactment".
Therefore, for decisions to be reviewable under the ADJR Act, the decision :

1. Must be a decision of an administrative nature

2. Must be made under an enactment
Note: Decisions by the Governor General are not reviewable, and nor are decisions listed in Schedule 1 of
ADJR Act. Delegated legislation is not reviewable under the ADJR Act.
Summary: conditions

for a decision to be reviewable under the ADJR Act:

1.
2.
3.
4.
5.
6.
7.
8.

It must involve a Cth law

It must be a decision
It must be of an administrative character
It must be made under an enactment
st
It must be made after 1 October, 1980
It must not be made by the Governor General
It must not be excluded by Schedule 1
The applicant must have standing

- Basic Rules of Admin Law in decision making (DM):

1. DM may exercise only those powers conferred on them by law.
2. They may exercise those powers only after compliance with such procedural
prerequisites as exist.
-

JR is only concerned with legal errors whether the dec. is in contravention of either
these 2 rules.
If it involves:
1. Fairness issue Ombudsman
2. Correctness issue- Administrative Tribunal
Because courts leave it to the administrator to remake the flawed decision.
And wont question an administrators finding of fact.
49

To establish a DM has exceeded its powers, applicant needs to refer to:

1.
The legal provisions which govern the decision in question
2.
General body of statute at interpretation of law
3.
The general body of law governing administrators behaviour

At a Cth level and in Qld, JR statures set out details of the criteria for determining
whether a DM has made a reviewable error, elsewhere it is Common Law.
- Administrators derive virtually all their power from stature therefore scope and limits
of administrative power generally requires:
- 1. reference to the statute sources of the powers
- 2. general rules of statute interpretation
- 3. reference to general issues that arise in relation to the question of whether a body
has exceeded its powers
Principle of legality and the doctrine of ultravires:
1. who may exercise the statutory power? (Ch 12)
2. admin powers must be exercised for proper purposes and in good faith (Ch 13)
-

Duty to take account of relevant considerations and not irrelevant ones (Ch14)
2 grounds that come close to permitting merits review: (Ch 15)
1. unreasonableness
2. lack of evidence

Ch 16-20 relate largely to procedural fairness (PF) as a CL right.

- PF has 2 central rights:
1. the right to be heard
2. the right to an unbiased DM
Types of unreasonableness:
1. Decision not made according to law
2. Its a decision that no R DM acting according to law could have made
3. If the Administrator acts for an improper purpose
4. Dec. based on an irrelevant consideration
5. If actual bias on part of DM
6. If the DM has failed to exercise a discretion
7. Failure to consider relevant and only relevant considerations
- So as long as an error breaches one of these rules, it can be reviewed.
Administrative Decisions (Judicial Review) Act (Commonwealth) 1977
Legislation designed to codify the common law grounds for judicial review of the actions
of administrators, and to simplify the procedure for gaining review at the federal level.
Applies to decisions of an administrative character made under an enactment. An
aggrieved person may apply for judicial review of the decision on several grounds,
including:
- breach of natural justice
- the procedures required to be observed in making the decision were not observed
- the decision maker did not have jurisdiction or the decision was not authorised

50

the decision involved an error of law whether or not it appears on the face of the
record
- there was no evidence or other material to justify the decision
- there was an improper exercise of power
- the decision was otherwise contrary to law
See ss.5 (1) and 6 (1).
Not all administrative decisions are reviewable. For decisions to be reviewable under
the ADJR Act, the decision :
1. Must be a decision of an administrative nature
2. Made under an enactment
3. It must be a decision to which the Act applies and the act s3
restricts these decisions to be of an admin nature. etc
4. Decisions by the Governor General are not reviewable
5. Nor are decisions listed in Schedule 1 of ADJR Act
-

Please note that though here there are only 5 listed hurdles to review, in actuality
Melinda outlined 8:
1. It must involve a cth law
2. It must be a decision
3. It must be of an administrative character
4. It must be made under an enactment
5. It must be made after 1st October, 1980
6. It must not be made by the Governor General
7. It must not be excluded by Schedule 1
8. The applicant must have standing
i)

The decision must be "of an administrative character" - s3 (1)

Minister for Industry and Commerce v Tooheys Ltd (1982)

Under the Customs Act, the Minister had the power to make bylaws the effect of which is that
goods attract a lesser duty than that which would otherwise be applicable. Under the Act (s273)
the Minister had the power to make determinations by instrument in writing with respect to
particular goods if they fell within a more general category of goods subject to a bylaw. Such
determinations had the same effect as would a bylaw applicable to the goods in question. Toohey
sought review under the ADJR Act. The government argued that the decision was not one of an
administrative nature, thus not subject to review.
Issue: Was the determination which was labelled a bylaw of legislative or administrative
nature?

Legislative Acts are those formulating general laws (ie determines the content of
laws) 'The general distinction between legislation and the execution of legislation is that legislation
determines the content of the law as a rule of conduct or a declaration as to power, right or duty,
whereas executive authority applies the law in particular cases'

Administrative Acts apply the general law to particular cases

The distinction is a question of substance (not form). The character of a bylaw must
be determined with reference to their content and subject matter. Here, the by-laws were
held to be administrative.

Queensland Medical Laboratory v Blewett (1988)

Minister of Health and Community Services was empowered to make determinations setting a
new pathology services table. Review was sought under the ADJR Act 1977.

51

Issue: Minister made determinations to replace Schedule with new fees. So in form it looks like
he has the power to include and exclude particular items, eg applying general rules to particular
cases.
Held: it was not administrative because it did not involve an application to a particular case,
rather was general application. Gummow J: There is no simple distinction between legislative and
administrative acts. A law may operate upon a particular case but not lose its character as law.
Conversely, a ruling in an individual matter (eg a Tax Commissioners ruling) is likely to have
general application even though it starts life as an act of the executive. The difficulties inherent in
the legislative and administrative dichotomy means that individual cases tend to be decided upon
their particular facts. Delegated legislation is not reviewable under the ADJR Act. Here the
Ministers determination was the same as amending a statute and this was legislative in nature.

SAT FM Pty Ltd v Australian Broadcasting Authority (1997) (F.C.)

A Broadcasting Plan prepared by the authority provided that no additional commercial licences
were to be made available. The applicant which had been interested in bidding for a further
licence, sought review of the decision under the ADJR Act. The authority said the plan was
legislative thus was unreviewable.
Issue: is the Plan legislative or administrative in nature? Decisions of a legislative or judicial
nature arent reviewable. Held: Was legislative because,
1. Plan creates new rules of general application, rather than applying such rules in a particular
case. Creation or formulation of rules of law having general application rather than the
application of those general rules to particular cases is an indication of legislative rather than
executive power.
2. The Plan must be notified in the Gazette: s35. This publication requirement is seen as
suggesting the legislative character of the subject of the publication.
3. The power of the Authority by notice in writing to vary a plan, is analogous to the
legislatures power to amend legislation.
4. Once a Plan is made it is not subject to executive variation or control.
5. The decision to promulgate a plan is not reviewable by the AAT. The fact that an enactment
allows for the review by the Tribunal of certain decisions made under its provisions but not
for others, has been seen as an indication that the other decisions are not of an administrative
character; Austral Fisheries.
6. A Plan has binding legal effect once prepared, in the sense that various statutory provisions
only come into effect following its preparation. The fact that a plan has this carry on effect
supports its characterisation as a legislative measure.
ii)

The decision must be made "under an enactment"

Australian National University v Burns (1982)

Burns had been appointed to a professorship, then was again promoted, following an adverse
medical report, his appointment was terminated on the grounds of permanent incapacity. Shortly
after wards, B sought a statement of reasons, arguing that he was entitled to this under the ADJR
Act.
Issue: was this decision made under an enactment or contract?
Remedy: wanted reasons for decision.
Bowen and Lockhart
- Not every single decision made is reviewable in the Federal Court though the ADJR Act.
Rather, only decisions which bear a more direct relationship with the enactment will be
capable of review.
- The fact that a contract is made under a power given in an Act does NOT mean that the
decision is made under enactment. This identification of the source of authority for a
decision is a question of substance examines the true characterisation of the decision
itself (eg consider the language and operation of the enactment and contract).
- Here the contract determined the rights of the parties, although the authority to enter into the
contract stemmed from the Act.

52

iii)

What is a decision? What is conduct?

For an administrative behaviour to be reviewable, it must satisfy one of three conditions:

1. It must be a decision (s5), because often a decision is preceded by a host of prior decisions.
2. Conduct for the purpose of making a decision (s6)
3. Or failure to perform a statutory duty (s7)
The problem of 'what constitutes a decision?' stems partly from the fact that a many decisions are preceded
by a host of prior decisions. Which of these decisions are reviewable?

ABT v Bond (1990)

Bond challenging the finding by the Broadcasting Tribunal that he was unfit to hold a
license.
Mason J: Reviewable decisions under s5 must be
a) final and operative; or
b) substantive; or
c) determinative
Thus an intermediate decision will generally not be reviewable. The legality of these
intermediate decisions can only be examined insofar as they apply to the validity of the reviewable
decision. Here, a decision that Bond was not 'a fit and proper person to hold a licence' was a reviewable
one, whilst decisions on Bond's character were not reviewable as such.

This case limits the scope of actions that could be held to constitute a decision. However,
review of conduct under s6 will only occur where a decision which is reviewable under
s5 (eg final and operative etc) has been made. Thus a decision made in the chain leading
to the final decision must be an essential prerequisite to the final decision. 'Conduct' does
not cover intermediate decisions which are made on the way to a final determination, rather it covers the
'way in which proceedings have been conducted'.

9.1.5 The prerogative writs

Like the ADJR remedies, the prerogative writs are not available in relation to legislative decisions and
deliberative activities leading up to the making of legislative decisions. Moreover, they are available only
in relation to final and operative decisions affecting rights and duties and the decision making process
thereto; they are not available in relation to reports by Commissions of Inquiry which do not affect rights.
Moreover, they are available only in relation to public bodies.

Chapmans v Australian Stock Exchange (1994) (F.C.)

Beaumont J held that the listing rules and agreements derived their force from contract and not from
enactments therefore Chapmans could not seek review under the ADJR Act. Statutory recognition of the
rules did not make them instruments. He noted however, that legislation may permit a degree of regulation
by public authorities in the public interest and thus there may be duties of a public character imposed on the
stock exchange which may be susceptible to judicial review.

9.2 Non justiciability and the courts

Re Ditfort; Ex parte Deputy Commission of Taxation (1988) (F.C.)

What makes an issue or dispute non-justiciable?

1) Where the decision maker's power is too broad e.g. not purely executive, but also
legislative.
2) Access to required evidence is not available.
3) Where the legislature intends that it not be reviewed - by privity or ouster clauses.
There are however ways to get around these. Look at pp.347-348

53

If one of the criteria for identifying non-justiciability is an issue's political content, how can
the courts routinely engage (as they do) in judicial review of government acts which are
highly political?
As long as the decision is administrative in character, they will review. The only time they
cant is when it is of a legislative character. The fact that there may be political content is
irrelevant to the courts - they are only concerned with procedural fairness.

Attorney-General (UK) v Heinemann Publishers (Australia) Pty Ltd

Facts: The High Court held that it could not adjudicate on a claim brought by the UK government against a
former security agent who had written a book about the activities of MI6. The decision is based in part on
the traditional principles of international law, and in part on the rationale for those principles, namely the
embarrassment that could be occasioned by judicial evaluations of the merits of such cases.
Mason, Wilson, Deane, Dawson, Toohey & Gaudron: An Australian court can look into, and enforce, a
confidentiality obligation of ASIO as it was set up for the purposes of protecting Australia's security.
Further it could look into whether a foreign agent could publish in Australia based on Australian public
interest issues. However an Australian court cannot determine, or inquire into, damage that may occur to a
foreign state by balancing its public interests. Even putting this aside, it must determine whether Australian
public interest counters a foreign state's prima facie right to prevent disclosure.his would involve a real
danger of embarrassment to Australia in its relations with that State.

9.3 CLASS DISCUSSION NOTES

The ADJR Act gave the courts jurisdiction over Commonwealth administrators. The
difference between the prerogative writs and the statutory bases for judicial review is that the
prerogative writs are wider, whereas the statutory ones are confined to traditional
administrative issues e.g. granting of royal pardons. Where a prerogative power is being used,
then review of it is by way of the prerogative writs. If, on the other hand, statutory powers are
used, then the review will be by statutory mechanisms. The Federal Court and the District
Court of South Australia are examples of courts that have been given power by statute to
issue prerogative writs.

Judicial review doctrine as such is not available against the private sector. But one
nevertheless sees echoes of it in private sector. Expulsion from sporting associations for
example cant be made unless the person had a fair chance of defending themselves. The are 2
jurisdictional basis for the courts supervising the procedures of sporting associations:
1)
If they provided a service that is in any way connected with government.
2)
Through the extension of the rules of natural justice into non-government activities
e.g. they may have had the right to expel but they didnt give me a chance to give my
reasons etc.

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10 STANDING TO SEEK JUDICIAL REVIEW

10.1 Standing
The entitlement of a person or organisation to bring a judicial review action (which is justiciable)
or to bring a merits appeal. Standing may be conferred by legislation or may depend on the
common law rules. At common law, the Attorney-General has standing of his own motion, or on
the relation of an individual, to bring an action to right a public wrong or to restrain a breach of a
law enacted in the public interest. An individual who has no private right affected by the
administrative action does not have standing to seek judicial review unless they have a special
interest in the subject matter of the action: ACF v Commonwealth
A person or organisation with a mere emotional or intellectual concern or belief affected by the
administrative action does not have standing. Under the ADJR (Cth) Act, ss.3(4),5,6 and 7, an
applicant must be a 'person aggrieved'. This is defined as a person whose interests are adversely
affected by a decision or conduct justiciable under the act: Ogle v Strickland
A provision that 'any person' may bring an action effectively removes any standing requirement .

Requirements for applying for judicial review:

Juridisdictional

Justiciability

Arguable case

Standing
The tests for standing differ according to the remedy sought.
Australian Conservation Foundation Incorporated v Commonwealth (1980)
Japanese company wanted to establish and operate a tourist area in QLD. Before a final impact
statement was issued by the Japanese Co., the Minister announced it could proceed. ACF sought
declaration and injunctions in relation to the proposed development. Judge held ACF did not have
standing in this issue. They appealed against primary judges findings
Gibbs, Mason and Stephens held ACF did not have standing. Murphy dissented.

Held: 1) Act did not create private rights and 2) that the administrative procedures laid
down in the Act did not create any private rights.
-

Ordinary member of the public, with no special interest, has no standing to sue
to prevent the violation of a public right or to enforce a public duty unless:
1) permitted by statute;
2) at the same time, a private right has been interfered with or
3) can prove they have a special interest in the matter (this has been consistently
applied in the H.C.)

Special interest to be more than mere intellectual or emotional concern (Gibbs) or a

mere belief or concern in this type of case (Mason)
ACF did not prove standing by writing comments to the Minister. ACF had no right beyond
submitting comments.
Depending on nature of relief sought, the plaintiff will have standing if one can show actual
or apprehended injury/damage to ones property/proprietary rights; business or economic
interests and perhaps social/political interests. (subjective depends on the situation and
relief sought)
Standing rules for declarations and injunctions are the same (NB: assertion of public rights
and prevention of public wrongs by declarations or injunctions is the resp of the AG.).

55

No principle stating that standing should be considered after the merits of the case have been
considered

Onus v Alcoa of Australia: Unlike ACF, the Aboriginals showed that they would suffer more than any
general member of the public because it was their culture/ spiritual duty to protect the relics. So, they were
recognised as having more than an emotive or intellectual interest.

Batemans Bay Local Aboriginal Land Council v Aborig Community Benefit Fund
1st Respondent operated a contributory funeral benefit fund. A rival fund was established by deed
of trust between the appellants (Batemans ALC and NSW ALC). This fund had much lower
subscription rates as it was subsidised by NSW ALC.
Issues: 1st Respondent sought injunction to restrain appellants from conducting their business,
arguing that it was beyond their powers.
Dismissed as lacked standing, the A-Gen having refused to lend his fiat to the party. Appeal
successful to Court of Appeal.
Seeking: appellants seeking dismissal of the appeal to the High Ct.
Results: Respondent won (ie have a sufficient special interest to seek equitable relief
(injunction)).
Treats ACF v Commonwealth as authoritative.
Held: That severe detriment to the business of the respondents is sufficient special interest to seek
equitable relief (severe detriment arising if the appellants were not restrained from commencing
and concluding their activities, there having been statutory limitations upon the appellants
activities re: contributory funeral funds i.e. the interest was held to be immediate, significant and
peculiar to them).

North Coast Environmental Council Inc v Minister for Resources

Applicant sought reasons under s13 of ADJR Act for Respondents decision to grant a woodchip
export licence. Minister refused to provide reasons on grounds that applicant was not a person
aggrieved. Question: to look at the importance of its concern with, and the closeness of its
relationship to, the subject matter.
Sackville: North Coast was able to show that it fulfilled the requirements of a person aggrieved,
being a respected, responsible and recognised environmental body
Difference to ACF means that the case is closer to the line where a special interest in the subject
matter of the action ends. Showed that its concerns were far more than mere intellectual or
emotional ones. ADJR Act is not intended to be exclusively for the benefit of large or
national organisations.
Further the public interest in the ADJR Act includes making known the reasons for decisions
having a potentially adverse effect on the physical environment North Coasts interests were
compatible to this.
This case related to a particular brief, whereas the ACF had a much wider scope of interest. It
was really a change in time that elevated their status. Membership rose, so did the issue it was
getting involved in.
How do you reconcile ACF (1989) and North Coast with ACF (1980)? They couldnt show
that they fit within one of the two Boyce exceptions.
The significance of the fund was how it was set up, pursuant to a council decision. Question
raised about whether the council exercised its regulatory power correctly. The original fund
sought standing to challenge the establishment of a rival fund. They were allowed.

Ogle v Strickland (1987)

Tried to stop a film from being distributed because they claimed it was blasphemous. They
claimed that it attacked certain fundamental tenets of the religion. This case illustrates that the
priests who claim to be more affected than any other member of the public can have standing.
The priests are not meddlers or busybodies [cb385] but are in a special position due to their
duty and vocation as ministers.

56

Held: person who is aggrieved should be interpreted flexibly and derive their meaning from
the context in which they appear and the nature of the particular statute concerned. Important not
to interpret the words by importing concepts from other statutes in which they appear involving
different subject matter and objects. Referring to Brennan J in Onus v Alcoa Australia (1981), a
plaintiff must show that he/she has been specially affected i.e. to a substantially greater degree
or in a significantly different manner in comparison with the public at large. Not uniquely
affected - others may be affected in like manner.
Comments: The standing rules under the ADJR Act are more liberal. Lockhart J commented that
if the priests werent given standing then who would be to challenge the Censorship boards
decision to allow the movie? The difference in ACF is that no one else was interested in the ACF
case except the ACF.

Right to life Association (NSW) (Inc) v Secretary, Dept of Human Services and Health
(1994) (F.C.)
The Association wrote to the Secretary re: permission given to import a drug for use in clinical trials which
the Association claimed was contrary to State abortion laws. Secretary was not persuaded by Associations
claims and did not stop the trials. Association sought review of Secs decision/failure to act.

Issue: The Secretary argued, inter alia, that application did not relate to a reviewable decision and
the applicant lacked standing.
Results: Was a reviewable decision (Gummow dissenting) but Association had no standing under s5.

Held: Whilst the Association had a right of free speech in pursuing its object, the right to speak
and influence opinions of the public and politicians does not mean that it leads to a right of
standing
Would amt only to a intellectual philosophical and emotional concern [cb394], not affected in
any way greater than the general public. The most it can achieve is the satisfaction of correcting
a wrong decision and winning a contest such as to improve its position to persuade the public
and politicians.
Further the Act under which the drugs were imported was the Therapeutic Goods Act not
related to the concern that the trials would be contrary to criminal law nor the objects of the
Association.
NB civil courts reluctant to interfere with matters relating to crim process
Beaumont distinguished this case from the ACF case (No 2), that the evidence did were not of the
same scale or significance as the ACF.
No evidence of research or study or any other activity in the area of abortion.
Gummow criticises the decision in Ogle v Strickland, in that it interfered with a criminal issue
and also the lifting of a prohibition to the common law assumption of freedom of speech and
expression. The Censorship board had acted to lift a prohibition on blasphemous, indecent or
obscene films in respect of legislation that affected freedom of speech in Australia. Gummow
states that legn which treated a person as aggrieved when the person complained of the lifting
of what would otherwise be a prohibition upon freedom of speech would require unmistakable
and unambiguous language.

Transurban CityLink v Allan p 406

Reasons for and against standing
The rule that a person seeking judicial review must have "standing to sue" excludes some people from
challenging government decisions that are illegal.
Why the legal system might want to exclude the public:
- Floodgates
- To keep "busy bodies" and "do gooders" at bay.
Reasons to let the public in:
- Draw on the knowledge and resources of those in a better position (such as the ACF) to litigate than
the aggrieved individual.
- Floodgates is not really true. Factors such as costs orders act as a deterrent to busy bodies anyway.

57

The courts have a discretion to hear who they want. The court can allow others to put submissions in
writing provided that neither of the parties who's right are affected don't object to it.

58

11 GROUNDS FOR REVIEW: EXCEEDING POWERS

11.1 Common law powers
Ruddock v Vardarlis (2001)

11.2 Statutory Interpretation

A.

Generalia specialubus non derogant - general things or words do not derogate from
special things or words.
expressio unius estas exclusio ulterius - the express mention of one thing is the
exclusion of others.
Statutory Interpretation

3 slightly different approaches: literal approach, purposive approach and the golden rule.
Recent legislation has sought to encourage reliance on purposive approach and allowed a wider usage of
extrinsic material to supplement the grammatical rules traditionally used in interpretation.
This is one of the important factors in determining if a decision is validly within the parent power. Things
to have regard to are:
Is there an interpretation section is the statute itself? Certain sections within the statute may
have meanings within the given division/section.
Construction rules developed by the Courts over the centuries:
literal rule: give words or phrases, in the absence of the above, their plain, literal and
everyday meaning
mischief rule: look to the purpose or object of the legislation by asking what
mischief Parliament was trying to address in the legislation. This must be ascertained
by reference to the statute itself.
golden rule: natural, literal meaning will apply unless an absurd result is achieved. If
this happens courts give a meaning that avoids the absurdity.
Other considerations:
express mention of one thing excludes all other things
general words after phrasing: the general words meaning will be ascertained having
regard to the preceding words
general words in a phrase will be given a meaning consistent with surrounding
words.
Assumptions will be made that can be overcome by a statement of clear intent in the statute:
statutes are not designed to derogate from common law rights
minimise discrepancies between domestic and international law
Acts interpretation Act
S.15AA (1)
Provision for taking the purposive approach
S.15AB (1)
Provision for 'extrinsic materials

B.

Presumptions

pp.419-420

Courts have a range of principles of statutory interpretation independent of the specific

legislation.
In Watson v Marshall there was a presumption against interference with personal
freedom even though the police action was promoting the purpose of the legislation.
Presumptions that legislation will not invade the common law right:
1.The right to freedom of contract: Mixnam's Properties v Chertsey
2.The freedom of speech: Davis v Commonwealth
3.The right to personal freedom: Watson v Marshall

59

4.Presumption against interference with the freedom of assembly: Melbourne Corp v Barry
5.Presumption against interference with enjoyment of property rights: Ex Parte Fitzpatrick
6.Access to the courts: Raymond v Honey
7.Presumption against retrospectivity: Maxwell v Murphy
8.Those with legitimate rights and expectations may be entitled to PF in administrative
decisions
9.Legislative wont violate international law or international treaty obligations

But these presumptions are rebuttable.

C.

Statutory Interpretation in Action

London County Council v Attorney General (1902)

When someone acts within authority, they are said to act intra vires. When they exceed
the power given to them, they are acting ultra vires. In the context of Administrative Law, it
occurs when the person who has been given statutory power tries to extend that power into
something they were not given power to do. The passengers could not get their money back if
they had already taken the trip. But, if they had bought tickets in advance, they would have
contractual remedy or remedy in restitution. The council couldnt run buses because its
constitution didnt say anything about buses, only trams: expressio unius estas exclusio ulterius
(the express mention of one thing is the exclusion of others).
House of Lords (Lord MacNaghten): Though they can conveniently work both together, one is
not incidental to the other.

Paull v Munday (1976)

Paull operated a rubbish dump and was convicted of permitting to burn an open fire without permission of
the Local Board of Health. He claimed that the regulation contravened the Act.
The Governor had power, on the recommendation of the Clean Air Committee, to make regulations for or
with respect to all or any of a 12 specified matters including (c) regulating, controlling and prohibiting
the emission of impurities from fuel burning equipment or any air impurity source.
Paull was convicted of burning an open fire under a regulation made by the Clean Air Committee because
it was found that he didnt have the requisite approval

Issue: Was the regulation ultra vires, outside the limits granted by the Health Act?
Paulls argument: Reg 7 doesnt regulate, control or prohibit the emission of air impurities,
rather it prohibits the source of the impurities and therefore the regulation is ultra vires.
Mundays (Chief Health Inspector) argument:
1. The words with respect to are wider than the word for therefore it is valid to create a
regulation which prohibits the emission of pollutants from an open fire.
2. open fires by their very nature emit some air impurities anyway.
3. The governors power is only exercised with the Committees recommendations which is
composed of experts.
Remedy: appeal allowed - yes it was ultra vires.
Gibbs: (literal method of interpretation of statute)
- The statute gave the Board specific powers. The regulation was too wide because:
air impurities from fuel burning equipment or any air impurity source does not enable
regulations to be made prohibiting the use of such equipment or sourceSimilarly to forbid
the use of motor vehicles might prevent the emission of gases from such vehicles, but a regulation
forbidding the use of motor vehicles could not be described as a regulation with respect to the
emission of gases from vehicles. Regulations of this kind might assist in bring about the result
which was apparently intended to be achieved by the making of regulations under s 94c, but they
would do more than the section permits- they would go beyond the power granted
Just because a regulation achieves the same result as the method in which the statue has
prescribed, does not mean that the regulation is valid.

60

 A regulation cannot be upheld as within power because it appears to have no wider practical
effect than valid regulation would have had, where a statute allows certain means to be adopted, it
does not permit the adoption of different means which happen to lead to the same end.
General Object of Act: reduce air pollution, but Legislation has not given such general powers to
make regulations to achieve that object, rather only regulations can only be made for Limited and
particular matters, Furthermore, the Governor may regulate or control, but may not prohibit under
s94(c). If Parliament had intended to grant the Governor power to prohibit the lighting of open
fires, then it would have been very easy to insert words to that effect.
Since reg 7 does not ban all open fires in prohibiting some open fires, reg 7 is ultravires.
Murphy: (purposive method of interpretation of statute- dissenting) Greenlighter
Uses s22 of the Acts Interpretation Act 1914-57 (SA) provides that:
every provision or enactment thereof, shall be deemed to be remedial, and shall accordingly
receive such fair, large and liberal construction and interpretation as will best ensure the
attainment of the object of the Act according to their true intent.
Thus believes the statute grants a wide power to regulate - as indicated by the phrases for or with
respect to and regulating, controlling and prohibiting.
A law which prohibits an activity does not prohibit the existence of the object of that activity, eg
a law which prohibits the explosion of a smoke bomb, or the firing of a sky rocket, or the setting
off of fire crackers, does not prohibit the existence of smoke bombs, sky rockets or fire crackers.
The effect of reg. 7, it was argued by the appellant, was to create a blanket prohibition on all fires
and that this was inconsistent within the authorising section. This found favour with the majority.
How could it have been drafted it to avoid review? Say that you cant have fires that emit 'air
impurity', instead of having blanket prohibition!

D.

Regulation and prohibition

(in the context of whether the statute allows it)

When a body is granted the power to regulate an activity does it also receive the power to prohibit the
activity, partially prohibit the activity or prohibit the activity in certain circumstances?

Foley v Padley (1984)

It was argued by the Hare Krishna that the regulation was outside the power on the basis that it was too
wide. Yes, the words of the by-law were restricted, but they were restricted to a specified class. The By-law
read:
No person shall give out or distribute anything in the Mall or in any public place adjacent to the
Mall to any bystander or passer by without the permission of the council
Issue: What powers did council have when a stature permits it to make bylaws regulating, controlling or
prohibiting activities which the Council considers to adversely affect the enjoyment of the Mall?
Foleys arguments: Bylaws invalid because
1. It is so wide that it could include many activities that are innocent and innocuous. Eg a person
giving sweets to children.
2. The presumption of freedom of communication of ideas and opinions
3. By law allowed the Council to decide whether or not to give permission to an Act which was
actually prohibited without permission. Therefore council did not form any decision.
Gibbs: There must be an existing opinion that the activity will effect the enjoyment of the Mall for the
bylaw to be valid. The opinion must be reasonable. However, court cannot substitute its view of
reasonableness for that of the original decision maker.
Brennan: where the discretionary power created by the bylaw is wider than the legislature has authorised,
the power is ultra vires. Where a bylaw depends upon the formation of an opinion, the opinion must be
reasonably formed. Here the bylaw imposed a conditional prohibition on the activity (since you had to get
Council permission). An empowering statute to prohibit may be exercised as an absolute or conditional
prohibition.
Murphy: By law is too wide and avoids the statutory safeguards
Dawson: Where a statute authorises prohibition, the prohibition may be complete or partial, conditional or
unconditional.

Melbourne Corporation

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Barry challenged validity of the law which required prior consent before certain processions could be held.
Under the statute Melbourne City Council was able to make: bylaws for regulating traffic and
processions. Issue was whether or not Council was within its powers to make this law. Regulate, control
or prohibit.

It was challenged on the basis that it was ultra vires. Court agreed. This case shows very
clearly the operation of expressio unius estas exclusio ulterius. A rule that authorises you
to regulate something, is not tantamount to allowing you to forbid it. Challenge to the validity of by
laws controlling processions through the city of Melbourne.

Country Roads Board: It not only authorised regulatory activity but "regulating and
prohibiting".
Swan Hill: Act authorised them power in "regulating and restraining the erection and
construction of buildings" but it did not give them power to prohibit, which they did.
Extrinsic materials
S.15AA authorises you to include them in order to resolve ambiguity. You can look at the
headings and importantly - Hansard. If you adopt the literal approach and it doesnt lead
to an absurd outcome, you wouldnt need to use extrinsic materials

11.3 Excess of Power

ADJR ss 5,6 &7]
This is stuff is largely semantic the basic thing we need to know is that the common law
grounds of JR and the accompanying grounds in ADJR outline errors of law which
invalidate a decision and thus are jurisdictional/ultra vires. In general, it is difficult for
an admin body to make an error of law and still be within jurisdiction

A.

Error of law
Misinterpretation or misapplication of a principle of law, or the application of an
inappropriate principle of law to an issue of fact.
Error of fact:
An error made by a decision maker about the existence of a particular fact.
Powers of rule makers and powers of administrators

Regulations makers are said to have 'powers'. Those who make decisions of a judicial
nature are said to have 'jurisdiction'.
B.

The power to make errors of law

Non jurisdictional error
Error within jurisdiction
Error of jurisdiction

(interchangeable)

Non-jurisdictional errors, while not fatal, could lay the basis for a decision being
quashed or reversed on appeal.

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Jurisdictional error-Goes to the ability to act on or decline to embark on a question.

Jurisdictional errors are fatal - they involve the body assuming powers they do not
have.

Traditionally, a distinction was drawn between 'jurisdictional errors' and 'errors of law within jurisdiction'.
Jurisdictional errors resulted in nullity, whereas 'errors within jurisdiction' simply made the decision
voidable. This distinction is still recognised in the inferior courts of limited jurisdiction (Craig v South
Australia). So long as a court is empowered to hear a particular case, it enjoys a power to make errors of
law, and decisions based on those errors of law are binding unless overruled on appeal or review. On the
other hand, 'jurisdictional errors' are fatal.
Similar principles once applied in relation to tribunals, but the general position now is that neither tribunals
nor administrators possess the power to make errors of law. All non-procedural errors of law by
administrators are now classified as being 'jurisdictional', and decisions are therefore void (Craig).

Judicial review applies to illegality, but there are different types of illegality. At common
law, illegality which gets judicial review is that which nullifies the result (void ab initio).
But there are lots of illegalities which dont do that.
ADJR s5 (p.20 study guide) is a codification of the common law invalidating grounds**
i.e. the sort of illegalities which make agency action invalid
s5 (1)(a) : needs to be a serious procedural impropriety the gravity of the error is
built into the term natural justice
s5 (1)(b) : literally this is far too broad procedural rules lie beneath substantive
law and they are many of them, so they are frequently breached. Only some
procedural rules are req to be followed on pain of invalidity
s5 (1)(c) : literally lack of jurisdiction does not happen often (e.g. misread rules
about quorum) but this has a wider meaning
There was an old distinction between juridisdictional error, which applied to courts, and
ultra vires, which applied to administrators (because powers, not jurisdiction, govern
rule-makers). This distinction is based on the often artificial distinction between judicial
and administrative functions.
Jurisdictional error in the old sense was very narrow matter. Could be committed in 3
ways: geography, subject matter and remedial. But gradually it got wider. The three
cases for this class use this old conception of jurisdictional error vs. error within
jurisdiction
Nowadays, juridictional error refers to a breach which has invalidated the action. The
concept is merely conclusory you only call something a jurisdictional error following
reasons that the illegality is one which makes the outcome invalid.
Anisminic Ltd v Foreign Compensation Commission (case brief below) is taken
to have merged the categories of jurisdictional error and ultra vires by listing the
formal grounds that used to (long ago) apply to ultra vires and call them
jurisdictional error.
Ex parte Aala (High Court 2000) is the Australian case which definitively
merges jurisdictional error and ultra vires.
So what distinguishes an invalidating error from a non-invalidating error?

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1.
Look to the Act. In rare cases it will say that if any of the rules are broken, the
decision is not invalid. This is a matter of statutory construction, but Act usually doesnt
say.
2.
Look at the regulatory context of the Act consider the needs of the regulator and
the regulated
3.
Look at the gravity of the error
4.
Look at the consequences of granting judicial review for breach
e.g. in Project Blue Sky v ABA (case brief below), the court considered:

It shouldnt undermine the potency of the regulator

There were so many treaty obligations that the ABA was required to respect that
the odds of breach were high

Parliament couldnt have intended a breach of treaty obligations to produce

invalidity
More broadly, the need to distinguish between the two types of errors relates to the
distinction between judicial review and a full merits review, and what type of authority
these bodies would have in terms of making its own final decisions.
Anisminic Ltd v Foreign Compensation Commission (House of Lords 1969)
[British Foreign Compensation Commission set up by statute to compensate companies
whose assets were seized by the Egyptian government when UK and France invaded
Egypt. H.L. found that the commission had wrongly excluded companies. The Act
contained a privative clause]
Privative clause was read down as protecting decisions made within jurisdiction, i.e.
where the error is not a jurisidictional error of law. Anything else is not a decision, but a
nullity and the clause does not apply to it.
So it was necessary to find an error going to jurisdiction not just an error of law
Issue: was the eligibility requirement jurisdictional?
Decision:
Merged error of law/ultra vires grounds with jurisdictional error so errors of law could
constitute excess of jurisdiction.
Here: Commission had misconstrued the Act didnt consider the case, didnt figure out
what the losses were = error of law = excess of jurisdiction so privative clause didnt
apply.
(But could have easily said that determining eligibility was within jurisdiction, thus if the
decision was made in good faith, it was final)
Lord Reid:
Where a decision-maker has made an error of jurisdiction, the decision will be a nullity. As the error is
outside jurisdiction, the decision is not actually a decision before the law.
The first thing to determine is whether a body has the jurisdiction to consider the question put before it
(threshold question of whether it can exercise its jurisdiction). If the question is outside its jurisdiction to
answer, then the tribunals decision is a nullity. Even if the tribunal is answering a question that is within its
jurisdiction to consider, it can still do something within the course of its inquiry to make it a nullity.
Lord Reid's narrow definition of jurisdictional error is an error relating to whether the tribunal was
entitled to enter on the inquiry in question. This narrow definition is preferable because it makes the
decision voidable and therefore the rights of parties in the interim are not affected.
The following are sorts of errors in addition to jurisdictional errors in the narrow sense, which Lord
Reid said render the decision a nullity. If the tribunal :

gives its decision in bad faith

makes a decision which it had no power to make
fails in the course of inquiry to comply with the requirements of natural justice

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in perfectly good faith, misconstrues the provisions giving it power and fails to deal
with the question remitted to it, and decides instead on a question which was not
remitted to it
refuses to take into account something which it was required to take into account
bases its decision on some matter which, under the provisions setting it up, it had no
right to take into account
the decision is rendered a nullity . Lord Reid went on to say that "I do not intend this list to be
-

exhaustive. But if it decides a question remitted to it without committing any of these errors, it is as
much entitled to decide that question wrongly as it is to decide it rightly" The doctrinal reason for his
approach is that all the points he mentioned goes to the validity of the decision, but not to jurisdiction.

Pearlman v Keepers and Governors of Harrow School (Eng Court of App 1979)
[P had a lease and legislation said that if tenant improved the property with a structural alteration
or addition, they would get a rent reduction. P installed a central heating device. County Court
rejected his claim and by legislation their decision was final and conclusive]

Issue: was the error of the County Court jurisdictional?

Decision:
Denning proposes to discard the distinction between errors which lead to an absence of
jurisdiction and errors of law within jurisdiction - all errors of law are jurisdictional & court of
law should have final say on matters of law.
County court had misconstrued the requirement for the rent reduction jurisdictional error
certiorari will lie.

Lord Denning regarded it as almost self-evident that the courts should have the last say on questions
of law. His policy arguments were:
- to do justice to the complainant
- to secure that all courts and tribunals, when faced with the same point of law, decide it in the same
way (i.e. certainty in precedent argument)
The policy arguments that go the other way (as per Geoffrey Lane LJ's judgment) are:
- the judge considered the words which he ought to have considered
- he did not embark on some unauthorised, extraneous or irrelevant exercise
- all he did was come to what appears to this Court to be a wrong conclusion upon a difficult
question
- if this judge is acting outside jurisdiction, so then is every judge who comes to a wrong decision
on a point of law.
At the heart of Pearlman's case is the notion that if there is jurisdiction to get it right, there is also
jurisdiction to get it wrong. And if you have jurisdiction to get it wrong, you have from the clause
protection/insulation from judicial review. If the legislature say that a certain court's decision is to be
final, it will be final because that is the function of a court - to decide questions of law.

Craig v South Australia (High Court 1995)

Facts: A District Court judge stayed the prosecution of the appellant. The respondent sought certiorari to
quash the judge's decision, the Supreme Court granting this.
This case says that Anisminic does not apply to courts of law - because courts make determinations ans
therefore have power to get it wrong.

Sorts of errors which nullify the end result if committed by a tribunal:

-

identify wrong issue

ask itself wrong question
ignore relevant material or rely on irrelevant material

Sorts of errors which nullify the end result if committed by an inferior court:
-

mistakenly asserts or denies the existence of jurisdiction

misapprehends or disregards the nature or limits of its functions or powers in a case where it
correctly recognises that jurisdiction does exist.

65

If a court has jurisdiction to hear a question and they make an error during hearing, then all the normal
avenues of revue to the higher courts is available. But if parliament say that e.g. the District Court's
determination on a certain question will be final, then it will not be further reviewed no matter what.

[Dietrich application for judge to order a stay until C got legal representation. It was
denied, but this was an interlocutory decision so couldnt be appealed. So C fell back on
JR and argued that the judge had made a jurisdictional legal error.]
Court refused to go as far as in England in Pearlman, but goes half way. Recognises
continuing validity of distinction between jurisdictional and non-jurisdictional errors of
law the court has plenty of discretion in deciding whether an error is to be jurisdictional
Identifying relevant issues, determining what is and isnt relevant evidence are all part of
ordinary jurisdiction of the lower court must consider the law and decide authoratively.
So if there isnt a right of appeal unlikely to succeed in saying that error of law is
jurisdictional.
But it is more likely to succeed for a tribunal or an administrative body over a court: in
the absence of a contrary intent in a statute, in clear words, the presumption is that
administrative bodies do not have power to decide questions of law (+ constitutional
requirement of separation of powers Parliament cannot confer judicial power on
tribunal).
Court lists the common law grounds for JR and says that breach of them amounts to
excess of authority and they are such errors of law as to be jurisdictional.
Note: **ADJR s5 (1)(f) is NOT a codification of the common law. It states that one of
the grounds for JR is that the decision involved an error of law which is wider that
jurisdictional error of law used at common law. This gives the court greater discretion
to disregard the trivial.
Textbook: it appears now that only some State tribunals have the ability to make errors of
law within jurisdiction, but only in extremely restricted circumstances.
C.

The Power to make Procedural errors

There is no firm line between procedure and substance. Though the latter may be more
important, many of the ADJR grounds could be seen as wholly procedural e.g. breach of
natural justice.
But it is inaccurate to say that JR is wholly procedural and thus not merits review.
Rather, our concern is with important and unimportant procedural errors. This is a matter
for the Court (where the Act doesnt provide a clear answer) and they look at efficacy,
effect on regulator and regulated.
Whether, in the absence of express statutory provisions, a procedural requirements is to be classified as
imposing a condition precedent to the exercise of a power is a matter for inference on the basis of
assessment of what the legislature would (or should) have intended would be the consequences of failure to
comply with prescribed procedures.

Question 1: Is the procedural breach an invalidating breach?

ABC v Redmore (High Court 1989)
[Statute says that contracts over $500 000 must be signed off by the Minister. ABC didnt
get approval before signing the contract which was a breach of the statute. ABC argues
that as a consequence, the decision is invalid]
Issue: does this breach invalidity or simply political consequences?
Decision:

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The Act is ambiguous: doesnt say whether ABC has power to enter contracts for
these sums it is not expressed in terms of power and gives no conseqeunces of breach

Look at where this provision sits in the statute surrounded by provisions that
dont confer power but to make the ABC behave itself there are political consequences
and there is the Auditor-General, but the provision doesnt have invalidity consequences.
The question to be asked is whether the relevant provision should be construed as confining power or as a
directory of the manner of its exercise, which is a finely balanced question at times. Looking at the Act as a
whole to determine its purpose is undertaken to fit the relevant provision into context. It was found that
failure to observe s 70 was possible grounds for disciplinary action, but not a means of invalidating a
contract that would injure an innocent third party.

Project Blue Sky v ABA (High Court 1998)

[Act required Flynt to formulate Aust. content regulations the ABA approved their definition of
Aust. content. But the a section of the Act required that the ABA observe treaty obligations, and
there was the CERTA between Aust. and NZ which required no discrimination against NZ.]
Issue: does this breach invalidity?

Rejected the distinction b/w mandatory and directory procedural reqs. as conclusory and
not really useful. Instead what matters is a legislative intent that compliance w/ procedural reqs.
is a condition precedent to the exercise of power failure to comply renders the decision a
nullity.

Where the legislation is silent as to consq of failure to comply court will be guided by
overall statutory scheme, purposes of the legislation, and nature of the breach. Better test:
whether it was the purpose of the legislation that an act done in breach of the provision should
be invalid. (Majority)

Where it is clearly intended to improve the quality of the decision-making process or the
decision itself, likely to a condition for validity. But if breach is minor & insubstantial, less likely
to be fatal.
Held: relevant section regulated the exercise of functions, did not establish essential preliminaries
no invalidity.
The idea of mandatory and directory provisions is rejected, the question being asked simply whether it was
the purpose of the legislation that an act done in breach of the provision should be invalid. (whether the
breach went to the core)
McHugh, Gummow, Kirby & Hayne JJ: An act done in breach of a condition of the regulations of the
exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon
whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the
condition.
Therefore, the question is whether there is a legislative intention that compliance with procedural
prescriptions is a condition precedent to the exercise of the power. If so, failure to comply with the
requirement renders the decision a nullity. Otherwise, the decision survives.
The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and
objects, and the consequences for the parties of holding void every act done in breach of the condition.
There is no decisive rule that can be applied for this, nor even a ranking of relevant factors or categories to
give guidance on the issue. It depends upon the circumstances of each case.

D.

The Power of make errors Fact

General willingness of the courts to let administrators make errors of fact. But this is a problem
where the existence of a fact is a pre-condition of the decision-makers power to enquire or make a
decision.
While the distinction between jurisdictional and non-jurisdictional errors of law is almost dead in
that virtually all errors of law are jurisdictional, in the case of errors of fact, virtually all errors of
fact have been made non-jurisdictional.
But, of course, the line between fact and law is blurry.

Question 2: Is there a jurisdictional error of fact?

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The courts' are quite willing to allow administrators to make errors of fact. This reluctance to review factfinding can variously be explained in terms of self-aggrandisement (law finding/making more prestigious
than fact finding/making); self-preservation (fact finding stressful); realism (higher courts probably no
better at fact finding than administrators or magistrates, and possibly worse); or efficiency (administrators
find facts faster and more cheaply than judges).
The courts have held that virtually all errors of fact are non-jurisdictional:

Parisienne Basket Shoes v Whyte (High Court 1937)

[Employers were cheating the award rate and union sought backpay, but there was a complicated
statutory provision for review ambiguity over whether the summons was in time or whether it
was lawfully extended]
Issue: was it for local court to decide whether the summons was on time, or does it lose
jurisdiction if the summons is out of time?
A genuine legislative provision that jurisdiction of a body is based on a set of facts lead to the
problematic situation of its proceedings being questionable until some higher body decides that
the requisite facts existed to enactment should be given this interpretation unless there is a
clearly expressed intention.

Held: whether summons was too late is not a matter of jurisdiction.

Note: Textbook says this case is equally applicable to administrative bodies.
Whether information was laid too late is a question committed to the magistrate for a decision; it is not a
matter of jurisdiction. There has been a tendency for courts who can draw within their scope of remedy by
use of writs complaints that the inferior court has proceeded with some gross disregard of the forms of law
or the principles of justice. This tendency has been checked again and again, and a clear distinction must be
maintained between want of jurisdiction and the manner of its exercise.

E.

The Law/Fact Distinction

Much often turns on this distinction e.g. Fed Ct appeals from the AAT are limited to errors of
law. In judicial review generally, rare to succeed if decision maker just got facts wrong.
Right to reasons: requires statement of findings on material facts this is clearly a high level of
abstraction from the facts as a whole. And materiality is to be judged from the eyes of the
decision maker: Yousuf

Question 3: Is it a question of law or fact?

Collector of Customs v Agfa Gevaert (High Court 1996)
[AGFA appealed against the decision of a Customs official as to the meaning of silver dye
bleach reversal process claiming that the construction of the phrase was an error of law]
There is no satisfactory test of universal application to distinguish between fact and law
The Pozzolanic propositions:
1.
Whether word/phrase is to be given ordinary English meaning or a technical
meaning is a question of law.
2.
The ordinary meaning of a word/phrase or its non-legal technical meaning is a
question of fact.
3.
The meaning of a technical legal term is a question of law.
4.
The effect/construction of a term, once its meaning is established, is a question of
law
5.
Whether facts fully found fall within the provision of a statutory enactment
properly construed is a matter of law. Qualification: where the statute uses words in their
ordinary meaning and it is reasonably open to find that the facts fall within that meaning,
then whether they do or not is a question of fact.

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Court says that these pigeon holes are not so useful in a complex case like this, where
some words are given ordinary meaning and some a technical meaning.
Especially problematic is the attempt to dissassociate the meaning of a word and its legal effect
(construction) if they are interdepedent, which the Court believes they are, then difficult to say
meaning is a question of fact and construction is a question of law.
The determination of whether an Act uses a word in a sense other than its meaning in ordinary
speech, i.e a technical legal or technical scientific meaning it is a question of law (i.e. there is
one correct meaning). But an ordinary word with ordinary meaning is up to the fact finder.
Note: Aronson thinks that this case replaces the old distinction with a distinction which I equally
ridiculous because all words have differential meaning.

Corporation of the City of Enfield v Development Assessment Commission

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12 DISCRETIONARY POWER
A.

Delegation and Dictation

Normally, the person who may exercise a statutory power is the person the statute declares to be
the repository of that power. But this is a problem if the nominated person is a Minister or senior
official.
A person with the power + power to delegate, may delegate & delegates exericise power in
their own name (not just as an agent of the delegator)

Question 4: What if the statute doesnt confer power to delegate, or does so to an

extent inadequate for administrative efficiency?
Discretion
The power or authority of a decision maker to choose between alternatives, or to choose
not alternative. Discretion is usually confined by the statute which describes the ambit of
decision making power.
The rule is that a decision-maker entrusted by Parliament with a power or duty
cannot divest itself of that power or duty.

12.2 Alter ego rule

(a)

Exercise of power or performance of a duty must not be delegated to another decisionmaker unless there is express or implied power to delegate.
(b)
Decision-maker must not allow another decision-maker to dictate how that discretion
should be exercised.
(c)
The decision-maker must not fetter the exercise of the discretion by inflexibly applying a
rule or policy.
Notes for the above rules:
Question of WHO?
1) look at the empowering Act
2) look to see if there is express power of delegation then look at its limitations (e.g.
delegate by instrument of writing)
3) is there implied power? when the Alter ego rule applies

Carltona v Commissioner of Works (English Court of Appeal 1943)

[Ministry took possession of a factory during WW2. The order was issued in the Ministers name,
though he hadnt seen the file. The person who made the decision was high up and responsible to
Department head, who was responsible to the Minister.]
Here there was no formal delegation the beauracrat hadnt been empowered to act, didnt sign
in his own name.
Functions given to Minister are too vast to be personally attended to so they are normally
exercised by other officials. The Minister is responsible, so must ensure that the tasks are
entrusted to competent individuals.
A competent authority was empowered to take possession of any land if it appeared to be necessary or
expedient so to do in the interests of the public safety, or for maintaining supplies and services essential
to the life of the community. By statute, functions of the Commissioner of Works are exercised by the
First Commissioner of Works, and later by the Minister of Works and Planning. A delegate of Minister of
Works and Planning sent a letter notifying Carlton of the resumption. Carlton sought a declaration that the
decision was ultra vires as there was no actual exercise of a discretionary power and an injunction to
restrain the resumption. The appeal was dismissed.

70

Look at how authorities that are set up by legislation are meant to perform their functions efficiently.
Statute is structured in a way presuming that not one person (ie the Minister) is to do all the work.
In the context of administrative functions, the alter ego rule provides that a decision-maker may
delegate his discretion while remaining responsible for the decisions of the delegate.
Ministers are said to be able to choose competent officers to be his/her delegates.
The Carltona doctrine - wherein powers are delegated, practicality must set in. It is not possible for the
person authorised to personally handle everything. Its o.k. for public officials to act in the name of the
statutory office holder e.g.
'In the administration of the government the functions given to ministers are so multifarious that no
minister could ever personally attend to them. The duties imposed upon and powers given to ministers are
normally exercised under the authority of the minister by responsible officers of the relevant department.
The decision of this official is the decision of the minister, and the minister is responsible before parliament
for any decisions taken under his name'

Ex parte Forster; Re University of Sydney (NSW SC 1963)

[Uni tried to kick out a student, who claimed that the University Senate had not failed him, so
failures were nullities]
Didnt work.
Court also says that the importance of the subject matter may have a bearing on the permissibility
of delegation (e.g. marking exams vs. sacking a professor).
Need to look at the purposes and objects of the statute. This Act relates to the entire management of a
university which obviously requires a myriad of decisions to be made affecting individual students,
frequently between meetings of the Senate. Without the most ample of delegation this purpose would not
be achieved at all, and it is obvious that, for the most part, the affairs of the university are carried out under
delegated authority

The power to delegate is a matter of statutory interpretation of the empowering Act.

Application of the maxim delegatus non potest delegare (a decision-maker cannot
delegate its discretionary power to another person) rest on relevant considerations:
a)
purpose and objects of the empowering Act
b)
character of the power which is conferred
c)
exigencies of the occasions
d)
the importance of the subject-matter
Here there was an implied power to delegate.
OReilly v State Bank of Victoria (High Court 1983)
[Tax Commissioner limited delegation to Deputy Commissioner in each state so the issue was a
sub-delegation. Deputy Comm. had authorised Chief Investigative Officer to use a rubber stamp
of his signature in certain circs, incl. summons]
Tax rorter argued that the summons needed to be from the D.C, and there was no necessity to
apply Carltona because the Commissioner could have delegated to as many ppl as needed in the
first place.

Wilson J:
There is a clear distinction between delegation and agency & Carltona recognised the necessity
for shared duties short of delegation. The logic of Carltona, that the Minister cannot personally
consider everything applies equally to a Deputy Commissioner he cannot personally discharge
all duties which are performed in his name & which he is accountable for.
Here there exists a power of delegation (with the Commissioner) but this does not require that
each of his delegates direct their minds personally to every power practical necessity argument
against the Commissioner delegating to officers rather than having DCs power exercised by
officers. The existing manner of delegation is essential for decentralised state system.

Held: In issuing the summons, the actions of the CIO were the actions of the Dc
notwithstanding that the latter had no personal knowledge of them. Delegation valid.
Wilson J:
Common ground that the Commissioner has validly delegated the exercise of that power to the DC.

71

Distinction b/w the delegation of a power and the exercise of that power through servants or agents.
Lord Greene in Carlton expressed the importance of shared performance of duties in modern govt.
Practical exercise of administrative functions necessary allows a Deputy Commissioner to exercise
powers delegated to him by the actions of officers authorised by him.
Therefore answered negatively to the question whether the existence of the power of delegation
requires that the Commissioner of his delegate must direct his mind personally to the exercise of every
power/function vested in him.
DC, like a Minister, is a head of a department in the Public Service who is not expected to discharge
personally all the duties which are performed in his name and for which he is accountable to the
responsible to the Commissioner.
Therefore there is an implied power of sub-delegation on the DC for the efficient operations of the
department.
Policy consideration power of delegation is important for the decentralisation of a Cth department to
State departments.
2 special ways when power can be delegated:
(1) Expressly provided by statute
(2) Implied power of delegation
see by way of how organisations operate
look at persons who are being delegated the power
use commonsense to decide the implied limit of delegation (e.g. may be just minor functions)

Tickner v Chapman (Fed Ct 1995)

[Hindmarsh Island case. Instead of considering the material himself, Minister relied on verbal
assurances of staff member as to contents of certain documents provided on the condition that
they would only be read by women.
Court read the relevant section of the Act as saying no delegation and no Carltona procedural
ultra vires & the order stopping State action was thus invalid.

12.3 Acting at the Behest of Outside Bodies

The ADJR Act
The duty to not act at the behest of outside bodies is recognised in the ADJR Act. Sections 5(1)(e) and 6(1)
(e) deal with situations where the making of decisions involves an improper exercise of power. Subsection
(2) of ss 5 and 6 defines improper exercise of power to include:
(e) an exercise of a personal discretionary power at the direction or behest of another person.

Question 5: What if the decision-maker takes into account other peoples views? How
does the conferral of power on an incumbent affect responsible govt?
The issue of dictation is not yet resolved and there are an equal number of judges on
either side
R v Anderson; Ex parte Ipec-Air (High Court 1965)
[Director-General realised that the charter license and the importation of aircraft which were
applied for would have political implications and do referred it to the Minister, who took it to
Cabinet. Act says that the D-G must decide on the issue and he had told Ipec-Air that he was
favourable to their application. When it was then refused, it was clear that Cabinet had said no
and thus D-G had refused permission]
The whole bench said that while D-G could listen to the govt, he could not be dictated to by the
govt. He cant be told what to do, but must take the govts wishes seriously. Practically, there is

72

not much of a difference because the weight given to govt policy must be so great by necessity
anyway.

Held: here the decision was not that of the D-G taking into account govt policy it was
the governments decision and thus invalid.
Held: Court issued a writ of mandamus

i)
Kitto J: A govt official may consider govt policies, but s/he must arrive at their own decision. Merely
obeying govt policy may amount to the decision being made by the govt, not the decision of DirectorGeneral, thus not a valid exercise of discretionary power.
Where a statutory discretion is invested in an office holder, there is a duty on that person to exercise his
power according to law. He personally thought there was nothing wrong with the decision, but waited for
the minister's view before giving an answer. There is nothing wrong with that per se, but the way he
responded, left him open to review. It showed that he was merely echoing the voice of someone (the
minister) who was not given the discretionary power.
Sometimes the power will be given to the minister, but where it is given to another person, it is to be
exercised only by that person, this doesnt mean of course that they cant take into consideration
government policy.
There was nothing wrong with what the Director General did in the Ipec case, only the way he responded.
If he said he would find out what the policy was and use it as one of the factors in making his decision, it
would have been perfectly o.k. Ipec would probably not have succeeded in court.

Ansett v Commonwealth (High Court 1977)

Barwick and Murphy said that it was the duty of an administrator to follow the wishes of govt.
The vesting of a discretion does not give power to ignore or depart from govt policy.
Gibbs and Aicken say that there is nothing wrong in govt policy breing given considerable, even
conclusive weight.
Mason says that if the power/discretion is vested in the official, they cannot be bound to obey the
Minister because then the decision would no longer be theirs, it would be the Ministers. The
policy may be decisive, but that will depend on the circumstances. Official cannot abdicate their
responsibility by merely acting on directions given by the Minister.
In this case, Mason J agreed with the judgement of Kitto J in Ipec.
Official is to be expected to have regard to any relevant govt policy in exercising his discretions,
nevertheless deciding for himself whether the existence of the policy is a decisive consideration.
The legislation vest discretion in the officials; they therefore contemplate to make their own decisions.
Mason J says that its o.k. to take policy into consideration. Murphy J however says that it is the duty of the
department to follow policy, but he is careful to note - the lawful policy. To make a decision that accords
with the govt policy is different from one that is directive of govt policy. This is very much in line with
what is said in Drake (no. 2). The grounds to depart from policy is if it leads to an unjust result.

And theres more:

Defacto Officers - textbook material is out of date
What do you do when there is a defect in appointment requirements? Does this breach
invalidity of decisions made?
the de facto officers doctrine attempts to cure defects in the appointment process (because
how are members of the public to know that someone is/isnt the proper officer?)
treat the appointment requirements as directory only (although there are constitutional limits to
this)
e.g. Cassell [ICAC legislation said that al; hearings were to be presided over by the
Commissioner or deputies appointed in writing Deputy X wasnt, but this breach didnt
invalidity of decisions]

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12.4 Self-fettering: Applying policy inflexibly

Although policy does not enjoy the status of legislation, it enjoys considerable political
status, administrative status, and increasingly, a degree of legal status as well.
The role of policy in making for good administration is one of the themes of Re Drake and
Minister for Immigration and Ethnic Affairs (No 2) (1979).
Some suggestions that failure to take account of govt policy may amount to a failure to take
account of relevant consideration: NSW Aboriginal Land Council & ATSIC.
Policy may also give rise to legitimate expectations, sufficient to ground a right to procedural
fairness in cases where the govt is planning to depart from that policy, and sometimes even in
cases where the govt is planning to abandon the policy: Minister for Immigration and Ethnic
Affairs v Teoh (1995).

Green v Daniels
Application for unemployment benefits was rejected b/c of a general rule in the department manual
which stated that school-leavers are not entitled to the benefits till after the school holidays.

Challenge:
Refusal of benefits was a result of an inflexible application of a policy.
Remedy:
Sought declaration that Green was entitled to the benefits.
Stephen J:
There is a duty to exercise discretion if power is conferred to exercise discretion.
Can take into account government policies but they should not dictate your discretion.
Flexible application of policy = consider the merits of each particular case.
2 steps are required in such cases:
1) Was the policy lawful?
2) If so, then was it applied flexibly?
If an applicant is treated in a class of cases then she is effectively excluded from
consideration due to the department policy => an inflexible application of policy.
This case shows that department manual cannot override legislation but will be factually
relevant. Particularly where manuals provide that applicants satisfying certain conditions are
prima facie entitled to outcomes.
This case illustrates the case that must be taken where there are departmental guidelines in
relation to the application of a policy. Where a statutory provision requires something to be
established, then it will be quite proper for guidelines to be issued to indicate what will be
sufficient etc. However, guidelines cannot be phrased in a way that denies flexible
application or they are unlawful.
The department set time constraints, not reasonable steps, as the determinant. Time restraints
which the act does not provide for. Therefore it is unlawful.
That inflexible guideline has the effect of saying that it will ignore all other factors - even if
the applicant had a big portfolio of evidence of their job seeking efforts. Guidelines must be
such that they are capable of being interpreted consistently with the statute. Here, the
guidelines had the effect of suspending the operation of the statute, therefore they are
unlawful and their application is unlawful. Therefore the person affected has a right to a
remedy.
Relevance of govt policy: obliged to follow if expressed in statute. Barwick & Murphy (in
Ansett) both expressed that decision-makers are always obliged to take government policies
into account

12.5 The ADJR Act

A failure of the duty to exercise discretionary power properly could be brought under
s5/6(1)(d): where a decision was not authorised by an enactment
s5/6(1)(e): an improper exercise of power which includes

74

s5/6(2)(e) an exercise of a discretionary power at the direction or the behest of another

person
s5/6(2)(f) an exercise of a discretionary power in accordance with a rule or policy
without regard to the merits of the particular case
A failure to exercise a discretionary power could also be the subject of an application under
s7 of the ADJR Act.

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13 BAD FAITH AND IMPROPER PURPOSES

13.1 Duty to Act for Proper Purpose and in Good faith
Rule 1: Power must be exercised to achieve a purpose or object authorised by the
legislation granting the power.
[Improper Purpose = a purpose other than the purpose for which the power was
conferred. The power must be exercised to achieve a purpose or object authorised
by the legislation granting the power. Although need not necessarily excersised in
bad faith, it is not what parliament had in mind when
investing that power]
Issue: (a) What was the purpose for which power was conferred?
- express: look at Act
- implied: statutory interpretation
(b) Does the purpose for which the power was exercised fall within this
description?
(c) If more than one purpose, the improper purpose must be the substantial
purpose for the action or decision to be ultra vires.
Proof: Onus lies on those making the assertion of improper purpose or bad faith.
Rule 2:A power must be exercised in good faith (i.e. consistent with the Act).
[not for an improper purpose with an element of dishonesty or corruption; a
deliberately malicious or fraudulent purpose] ). Unlike an improper purpose, bad faith
has an element of dishonesty or corruption; a deliberately malicious or fraudulent
purpose.

The power exercised proceeds from a malicious motive. Not exercising power on its merits.
The donees of public powers will inevitably rationalise whatever they do as being for the public good.
So, according to them, they never do anything for personal benefit

The ADJR Act

The duty to act for proper purposes and in good faith is recognised in the ADJR Act. Sections 5(1)(e) and
6(1)(e) deal with situations where the making of decisions involves an improper exercise of power.
Subsection (2) of ss 5 and 6 defines improper exercise of power to include:
(c) an exercise of power for a purpose other than a purpose for which the power is conferred; and
(d) an exercise of a discretionary power in bad faith.

Thompson v Randwick Municipal Council (1950) (H.C.)

Thompsons land was affected by the Councils proposed resumption to build a new road.
Power: Council may purchase or resume any land, and thereupon do all or any of certain specified things.
Randwick Council resumed land for the purpose to build a new road, but proposed to resume more land
than required to re-subdivide the land and sell the balance.

Challenge: Council acted for an improper purpose.

Remedy: Sought injunction to restrain Council from resuming the land.
Held: Council acted in bad faith. Appeal allowed, order for injunction.

76

Court read the provision in question with other provisions in the Act.
Court interpreted the provision to confer a power to acquire land adjoining or in the
vicinity of land whenever the acquisition of such adjoining or proximate land is
reasonably incidental to the carrying out of the purpose for which the land is
authorised to be acquired under that section.
In a reviewable decision, the ulterior purpose need not be the sole purpose. It is still
an abuse of power if it is a substantial purpose in a decision.
Substantial = no attempt would have been made to exercise the power, if it had not
been for this substantial purpose (in this case the purpose is to reduce the cost of the
new road by the profit arising from its re-sale).
Thus the Council was acting in bad faith and not exercising its powers for the purpose
for which they were granted but for what is in law an ulterior purpose.
Always ask for what purpose is the power contemplated? If stated, anything else is
outside the power. Because the council said in evidence, that without all of the land,
their scheme wont work, so court said O.K. then, you lose, you dont get anything.
Bottom of p. 497 defines 'improvement' and 'embellishment'.

"It is well settled that a public body invested with statutory powers such as those conferred upon the
corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority
committed to it. It must act in good faith. And it must act reasonably."
. The improper purpose invalidates the decision so long as the decision would not have been made but
for the improper purpose (Here, the evidence strongly suggested that the decision would not have been
made but for the improper purpose).
The case is one where the exercise of improper power taints part of the law, it taints the whole of the law.
There is no need to differentiate between land that is required for the roadworks only

R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981)

(H.C.)

Kenbi land claim over land on Cox Peninsula

Act:
Town Planning Act (NT)
Power:
to make regulations for town planning purposes.
Exercise:
Administrator declared land on Cox Peninsula as part of Darwin.
Issue:
Whether this regulation was consistent with the purpose of Town
Planning Act. Whether it was ultra vires as made for improper
purposes or in bad faith.
Remedy:
Sought certiorari to quash this decision.
Act:
Power:

Aboriginal Land Rights (NT) Act (Cth)

Make traditional land claims. Commissioner to decide on whether land
in question is claimable and whether claimants are entitled to make
claim
Exercise:
Commissioners decision that he could not investigate the validity of
the Town Planning regulations because he has no jurisdiction.
Remedy:
Sought mandamus directing Commissioner to exercise his jurisdiction
under the Act to hear the claim.
Held:
Order for mandamus
The problem was that the commissioner (Toohey) declined to review under the
law that decisions of Ministers are not subject to administrative review. A
prerogative power derives from the Queen. Many old prerogatives have been
replaced or eroded by statute, but it never dies, it can only be suspended by
legislation. One of the prerogatives that is relevant in Australia is the one that the
77

crown gets priority where debts are owed to people including the crown. Here, the
dilemma was determining whether they were excersising a prerogative power or
power under statute. They decided that prerogative power that has manifested
itself in statute form can be reviewed.
Gibbs CJ:
Subordinate bodies exercising powers conferred by statutes were bound to
exercise their powers bona fide for the purposes for which the power was
conferred and not otherwise
Power conferred by statute will only authorise to carrying into effect what is
enacted in the statute itself and will cover what is incidental to the execution of its
provisions. BUT will not support attempts to widen the purposes of the Act, to add
new and different means of carrying them or to depart from or vary the plan which
the legislature has adopted to attain its ends: Shanahan v Scott (1957).
3 reasons to give immunity to Crowns acts from review:
(1) Ministers on whose advice the representation of the Crown relies are
responsible to parliament, whose scrutiny is avaliable to check excesses of
power.
(2) Courts could not substitute their views for those of the executive on matters of
policy.
(3) Counsels of the Crown are secret.
Gibbs rejected these reasons no limit on the ordinary power of courts to inquire
into exercise of statutory power of representatives of the Crown. Courts have
power and duty to ensure that statutory powers are exercised only in accordance
with law.
Onus of proving that representative of the Crown did act for an authorised purpose
lies on those who make that assertion.
Stephen J:
No distinction between a power exercised by a Minister of the Crown and power
exercised by the representative of the Crown upon the advice of his Ministers. Both
exercises of discretionary power are subjected to judicial review.
Thus regulations made by Administrator is reviewable. The exercise and non-exercise by ministers of
discretionary powers vested in them are subject to judicial review, which extends to the examination of
reasons which led to the exercise or non-exercise.
Just as the courts have the power ensure the legislature stay within the bounds of the Constitution, they
also have the power to ensure the executive stay within the bounds given to them in the relevant
legislation.

Mason J (concurred with Stephen J):

The rule that the acts of the Crown or its representatives cannot be impugned has no application to the exercise of a
statutory discretion by the Crown in Council or by a Crown representative. The general rule, to the extent to
which it now has any application at all, is confined to the exercise of the prerogative powers. See bottom of p507-8
for reasons behind this.
Here the Administrator acted on the advice of the minister before making the decision. As stated earlier the
minister does not fall under the Shield of the Crown and so can have their decisions reviewed. This can be review
through this avenue.

General rule that acts of the Crown or its representatives can be impugned is
confined to the exercise of prerogative powers, does not apply to the exercise of
statutory discretion/power.
Reasons for statutory discretion to be subjected to judicial review:

78

- its exercise often affects the right of the citizen

- there may be a duty to exercise discretion one way or another
- discretion may be precisely limited in scope
- it may be conferred for a specific or an ascertainable purpose
- it will be exercisable by reference to criteria express of implied
Also alleged no difference b/w power exercised by Ministers or by Crowns
representatives; and it is settled law that courts will review the exercise of a
statutory discretion vested in a Minister of the Crown.

Subordinate bodies exercising powers conferred by statutes were bound to exercise their powers
bona fide for the purposes for which the power was conferred and not otherwise: Arthur Yates v
Vegetable Seeds Committee.
Power conferred by statute will only authorise to carrying into effect what is enacted in the statute itself and
will cover what is incidental to the execution of its provisions. BUT will not support attempts to widen the
purposes of the Act, to add new and different means of carrying them or to depart from or vary the plan
which the legislature has adopted to attain its ends: Shanahan v Scott (1957).

13.2 Mixed purpose and collective decision

In Thompson and Toohey, the decisions in question were made by collective

bodies, apparently consensually, and apparently on the basis of a shared improper
purpose.
Different position if only some of those involved in a decision-making process are
actuated by an improper purpose.
Full Court of Supreme Court in WA in Perth City v DL (1996) considered this
issue:
- Ipp J: applied the test that the improper purpose has to be that of the majority
in order for the decision to be invalid.
- Wallbank J: improper purpose has to be that of a majority of the majority of
the decision.
High Court also dismissed the appeal from this case:
- Gummow J: decision is invalid if one member of the majority had acted on an
improper purpose.
- Toohey J: a but-for test, drawing on analogous decisions in relation to the
share allocations for improper purposes, and discrimination.
- Kirby J: issue be resolved by the relevant Act meaning that a decision by a
collective body was discriminatory so long as it would not have been made but
for the discriminatory behaviour of the relevant members.
at this stage, the law is still unclear and may even vary according to the context in
which the issue arises

13.3 ADJR Act

The duty to act for proper purposes and in good faith is recognised in the following sections:
- 5/6(1)(e): deal with situations where the making of decisions involves an improper exercise of
power.
- 5/6(2) defines improper exercise of a power to include:
(c) an exercise of power for a purpose other that a purpose for which the power in conferred;
(d) an exercise of a discretionary power in bad faith.

79

s3 states that ADJR Act cannot review decisions of the Governor-General. However, Tooheys Case
provided grounds to challenge such decisions. The lack of amendment of the ADJR Act means that such
challenge must be made via the more traditional procedures.

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14 THE

DUTY TO
CONSIDERATIONS:

TAKE

INTO

ACCOUNT

ONLY

RELEVANT

Relevant considerations
Considerations that a decision maker is bound to take into account when exercising
discretionary power. Failure to take into account a relevant consideration or taking
into account an irrelevant consideration is a ground for judicial review at common law
and is also reflected in the ADJR Act (Cth) ss.5(2)b, 6(2)b
Irrelevant considerations
Considerations which a decision maker must not take into account when exercising a
discretionary power. A decision maker who takes into account irrelevant
considerations acts in abuse of power and the decision may be held invalid in a
judicial review action. A consideration will be irrelevant if it is expressly excluded by
statute. Whether a consideration is irrelevant is a question of interpretation of the
subject matter, scope and purpose of the empowering Act: Minister for Aboriginal
Affairs v Peko-Wallsend
i)

Relevant & Irrelevant Considerations

The duty involves taking into account relevant considerations and not taking into
account irrelevant considerations. This duty is sometimes clear from the statute. The
decision-maker and the court must then determine whether or not the duty is
mandatory and whether the statute is exhaustive or merely inclusive. When the statute
is silent on the matters to be taken into account; the nature of the statute must be
studied as well as the legislation as a whole; in order to determine whether there are
suggestions that considerations should be relevant or irrelevant. The lack of
specificity may also suggest an unfettered discretion by the decision-maker.

14.2 Taking into account irrelevant considerations

Roberts v Hopwood (1925) (H of L)
The Council was empowered by statute to pay its employees such salaries and wages
as [it] may think fit.
The Statute did not specify any matters, which the Council should or should not
consider in exercising this power. Council fixed the minimum wage for both male and
female employees to 4 pounds per week.
This wage was maintained even though the cost of living had fallen significantly.
The District Auditor was required by statute to disallow any item contrary to law,
and surcharge the same on the person making or authorising the making of the illegal
payment. On finding the wages were excessive and contrary to law; he exercised his
power under the statute.
The Council on appeal succeeded in quashing the District Auditors decision.
The District Auditor is now appealing.
Held: The wage was unreasonable and didnt take into account relevant
considerations.
Even though Buckmaster was reluctant (because of the wide discretion) to determine
which considerations should and should not be taken into account in the payment of
wages, he found the wages to be arbitrary. The wages were not standardised
according to the duties performed nor of the purchasing power of the sums paid. Both
of which they themselves appear to regard as relevant considerations. The Council did
81

not take into account considerations, which they say influenced them. "They took an
arbitrary principle and fixed an arbitrary sum, which is not a real exercise of the discretion imposed
upon them by the statute".
- cost of living = low during depression, council against usual
- men and women perform work of a different nature (post WWI)
-

Lord Atkinson: Nobody contends that the Council should be bound by trade union
rates, cost of living, payments or other local or national authorities in deterring its
minimum. However it is what justice and common sense demand. They should all be
considered in determining a fair, just and reasonable wage. "A body charged with the
administration for definite purposes of funds contributed in whole or in part by persons other than
members of that body, owes ... a duty to those latter persons to conduct the administration in a fairly
businesslike manner ...."

Also there is no provision relative to the nature of the work done, and no
consideration of whether the work of the women was different to that of the men.

14.3 Failure to take into account relevant considerations

Minister for Aboriginal Affairs v Peko-Wallsend (1986) (H.C.)

A Commissioner recommended that land be granted to Aboriginal claimants, pursuant

to the Act. The land contained a uranium deposit for which Peko had applied for
mineral leases. Peko and companies communicated their objection to successive
Ministers. Claiming that the effect of the land grant on commercial activities was not
dealt with adequately. The responsible Minister decided to grant the land on the basis
of a departmental brief, which did not refer to the submissions made by the companies
after the Commissioner had completed the report recommending the grant.
Held: The Minister is bound to take into account submissions from parties adversely
affected by his decision.

Mason J: With regards to "failure to take account of relevant considerations" it has emerged in
past cases that 'This ground can only be made out if a decision-maker fails to take into account a
consideration which he is bound to take into account'.
Factors that the decision-maker is bound to take into account are to be found by reference to the
statute. Where a discretion is, in terms, unconfined, it may nonetheless be possible to infer that a
matter is a relevant consideration on the basis of 'the subject matter, scope and purpose of the
statute'.
Not every consideration that is required to be taken into account will justify a court setting aside a
decision if it is not taken into account (eg. so insignificant it would not affect the decision).
Decisions may be set aside only if the consideration not taken into account was not only relevant,
but material.
The court has a limited role in reviewing decisions, and it is not its function to substitute its own
decision for that of the administrator, but rather to set the outer limits for the decision makers
powers. It follows that if the statute doesn't give weight to considerations, it is generally up to the
decision-maker to decide weighting, not courts. So long as the decision maker gives some weight
to a relevant consideration, that will suffice, except where the weight given is clearly
unreasonable.
These principles apply to Ministers of the Crown.

Accordingly, the Court held that the Minister was bound to have regard to the detriment which P-W

82

might suffer as a result of land rights being granted. This decision was based on the fact that the statute
listed detriment among the matters on which the Commissioner was obliged to comment.
With regards to the discretion available to the court to give a remedy, it is stated that the ability of a
higher court to overturn a lower court decision "are grounded in the view that it would not be right to
overturn a judicial decision solely on the basis of the appellate court's mere preference for a different
result, when the question is one on which reasonable minds may come to different conclusions, the
decision of the judge first exercising the discretion falls within the reasonable range, and no error on
his part can be shown." - more likely to get up on an error in law than an error of fact noting Craig and
what was said about jurisdictional error.

Purpose of Act is to provide the granting of traditional Aboriginal land in the NT for
the benefit of Aboriginals. s76 authorises delegation of certain matters, to be deemed
as exercised by the Minister.
Peko applied for review under the ADJR Act 1977 (Cth) to contend the decision made
by the Minister to grant land, on the basis that it was an improper exercise of the
power conferred on him by s11 of the Act. He failed to take relevant considerations
in his decision; namely the extent to which Peko would be detrimentally affected by
the grant.
It was noted that the functions of a Minister are so multifarious that the business of
government could not be carried on if he were required to exercise all his powers
personally (OReilly v State Bank of Victoria Commissioners). A minister entrusted
with an administrative function may act through a duly authorised officer of his
Department (Carltona Ltd v Commissioners of Works). However there was no
evidence that the Minister delegated his decision making under s76, and so the
argument that the Minister is not to blame for details omitted in the summary by the
Department Officials, could not be raised.
This ground appears in s5(2)(b) of the ADJR Act. This entitles a party with
sufficient standing to seek judicial review of ultra vires administrative action. This
ground is substantially declaratory of the common law.
a) The ground of failure to take into account relevant considerations can only be
made out if the DM is bound to take it into consideration in making his
decision: Sean Investments v Mackellar
b) The factors that a decision-maker is bound to consider in making a decision is
determined by construction of the statute conferring the discretion. If
expressly stated, court will determine if the matters stated are exhaustive or
merely inclusive. If not, it must be determined by implication from the subject
matter, scope and purpose of the Act. Very limited for the role in its reviewing
exercise not the function of the court to substitute its decision into the DM
position. However, the courts need to consider whether in fact the DM had
taken relevant considerations (proper, genuine and realistic) into account.
c) A factor might be so insignificant that the failure to take it into account could
not have materially affected the decision: Baldwin & Francis Ltd v Patents
Appeal Tribunal. In which case the court will not set aside the impugned
decision and order the discretion to be re-exercised.
d) In the absence of any statutory indication of the weight to be given to various
considerations, it is generally for the decision-maker and not for the court to
83

determine the appropriate weight to matters of consideration: Sean

Investments Pty Ltd v Mackellar. I.e. it is not a matter of substituting a
decision, but asking 'is the decision able to be sustained'?
e) The principles above also apply to administrative decisions made by a
Minister of the Crown. However, where the decision is made by the Minister
of the Crown, due allowance may have to be made for the taking into account
of broader policy considerations which may be relevant to exercise of a
ministerial discretion.

2 issues to be determined in the present case:

1. Whether the Minister is bound to take into account the comments of detriment
which the Commissioner is required by s50(3)(b) of the Act to include in his
report to the Minister.
In considering the subject matter, scope and purpose of the Act; and the
concern of the legislature that the Minister not overlook crucial considerations,
Mason J said that if the Commissioner did not take into account the comments
made by the Commissioner, it would deny the respondents the opportunity of
compelling a consideration of the detriment that may be occasioned by the
granting of land.
2. Whether the Minister is bound to take into account submissions made to him
which correct, update or elucidate the Commissioners comments.
It is found in the subject matter, scope and purpose of nearly every statute
conferring power to make an administrative decision an implication that the
decision is to be made on the basis of the most current material available to the
decision maker. This includes submissions from those other than the
Commissioner. The Minister was bound to consider submissions put to him by
parties who may be adversely affected by the decision.

The next question asked is whether the relief sought by the Commissioner (for
failing to identify Ranger 68 to the Commissioner) should have been refused on
discretionary grounds.
Mason J said that it did not warrant refusing relief, because the Minister did not
set out to deliberately
mislead the Commissioner. It was merely a mistake or carelessness in the
presentation of the case
Notes:

Drummond J in Li Shing Ping v MILGEA:

the decision of what material from the range of relevant material to take into
account is generally one for the decision-maker alone. It is only when material
which must be taken into account is ignored that the decision is reviewable

84

Therefore despite the documents may be in the possession of the Minister ie held
by his department, it is not expected that the Minister consider every document.

In order that relevant/irrelevant considerations do not expand to permit review on

the merits, the ground is restricted to matters, which the decision-maker was
obliged to take into account. (Mason J in Peek).

14.4 ADJR Act

Subsection (2) of ss5 and 6 in the ADJR Act defines improper exercise of power to include:
a) taking an irrelevant consideration into account in the exercise of a power; and
b) failing to take a relevant consideration into account in the exercise of a power.
Questions arise out of this: what is a decision-maker "bound" to do? Is the decision-maker bound to
take account of matters s/he is unaware of? A piece of information considered by a subordinate making
a report to a superior who makes a decision based on the report? etc.

85

15 UNREASONABLENESS, NO EVIDENCE & OTHER LIMITATIONS

Courts have developed 2 tests : unreasonableness test and evidence test. These
seem to come close to permitting merits review but are applied in a manner so as to
retain judicial deference.

Unreasonableness: A description of an exercise of power by an administrator that

is so unreasonable that no reasonable person could have so exercised the power:
Wednesbury Corp case. It is an abuse of power reviewable both at common law
and under the ADJR Act s.5(2)(g).
Unreasonableness may come about through giving excessive or inadequate weight
to relevant considerations: Minister for Aboriginal Affairs v Peko-Wallsend.
However, a decision which is reasonably open to a decision maker will not be set
aside simply because the court may disagree with it - this would be exceeding the
judicial power and would be trespassing into the merits of the decision.

No evidence rule: requires no more than that there should be some evidence to
justify the decision.
The principle that an administrator's decision must be based on logically probative
evidence.

15.1 The duty to act reasonably

Unreasonableness has been referred to as the Wednesbury test in the common law, has
been entrenched in ss.5 (2) (g) and 6 (2) (g) of the ADJR Act. Wednesbury Corp is the
main case on unreasonableness. It says that it must be so unreasonable that no
reasonable body would make the decision.
Associated Provincial Picture Houses v Wednesbury Corporation (1948) (C.A.)
Local authorities were empowered by statute to grant licenses permitting cinemas to
be open on Sundays subject to such conditions as [they thought] fit to impose. The
Wednesbury Corporation granted Associated Provincial Picture Houses Ltd such a
license, subject to the condition that no children under the age of 15 years shall be
admitted to any entertainment whether accompanied by an adult or not.
The Plaintiff sought a declaration that the condition was unreasonable and ultra vires.
Held: The authority contravened the law as the condition was so unreasonable that it
was ultra vires.
Lord Greene MR: The courts can only interfere with an act of the executive authority
if it were shown that the authority has contravened the law. It is for those who assert
that the local authority if it were shown that the local authority has contravened the
law to establish that proposition. On the face of it, the condition is perfectly lawful.
When discretion of this kind is granted the law recognises certain principles upon
which that discretion must be exercised, but within the Four Corners of those
principles the discretion is an absolute one and cannot be questioned in any court of
law. The principles are:
1.
The exercise of such discretion must be a real exercise of discretion. If the
statute conferring that discretion states matters which ought to have been taken

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into consideration, then in exercising that discretion it must have regard to

those matters.
2.
If the nature of the subject matter and the general interpretation of the Act
make it clear that certain matters would not be germane to the matter in
question, the authority must disregard those irrelevant collateral matters.
What does unreasonable mean? Can mean something so absurd that no sensible
person could ever dream that it lay within the powers of the authority (eg redhaired teacher, dismissed because of the colour of her hair in Short v Poole
Corporation [1926]). In another sense it may also include taking into account
extraneous matters, so unreasonable that it can be described as being done in bad
faith.
The particular subject matter of the condition was one, which was competent for
the authority to consider.
It is not for the courts to act as arbiter of the correctness of one view over another.
It is the local authority that are set in that position and, provided they act, as they
have acted, within the 4 corners of their jurisdiction, this court cannot interfere.
Some points
The problem with the unreasonableness ground of challenge to an administrative
action is the indeterminable nature of the concept. Unreasonability is the last
resort, when all else fails. It is usually unsuccessful because the court will use the
other grounds. The other areas are more defined and a factual situation that fits
into unreasonableness will usually also fit into the other areas.
In Chan Yee Kin v MIEA (1989) the decision was held unreasonable not because
the decision-maker was unreasonable but because the decision-maker made a
mistake in law.
However the ADJR Act implies that unreasonableness should not be given this
restrictive interpretation. The Act implies that there will be cases where a decision
will be bad only for unreasonableness.
15.1.1 Irrationality
Rationality is not the test for reasonability because it is something that is more
linked to logic than reasonability. It goes to logic and soundness.
Reasonability is an indicator which is below rationality. A rational decision will
always be reasonable. But a reasonable decision may not always be rational or
sound + for review we do not look at whether something is reasonable but we look
at whether it is unreasonable.
A reasonable decision is one within the ambit of the power, it may not be the most
logical or sound decision that was available but nonetheless it is explainable and
therefore within the power (discretion).
Lord Diplock suggested that irrationality might be one of the grounds of
challenging an administrative action. However to equate irrationality with
unreasonableness is problematic:
Wednesbury
Many irrational decisions may be rational given the politics, values, personality or
psychological needs of the decision-maker. Further, irrational decisions may be
unreasonable.
ABT v Bond
87

Court accepted the proposition that a decision can be valid, notwithstanding that
the reasoning process, which underlay it, was logically flawed.
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd
The Government published a management plan, which included a formula for
allocating catch quotas. This formula was held to contain a statistical fallacy and
irrational and thus the plan was held void on the grounds of unreasonableness.
Bienke v Minister for Primary Industries and Resources
While there was evidence that some of the papers basing the Ministers decision
were methodologically flawed; there was also expert evidence as to their
methodological adequacy.
Fuduche v MILGEA
A decision may also be held irrational, if the decision requires appropriate
qualifications, which the decision-maker does not have.

15.1.2 Discrimination
New South Wales Aboriginal Land Council v ATSIC
Hill J held that in all the circumstances, ATSICs behaviour was unreasonable. It
was disproportionate in its use of resources and discriminated against NSW
Indigenous people in favour of those from the Northern Territory.
15.1.3 Duty to inquire
Unreasonable proportionality may involve an imbalance between the means used to
achieve a particular end and the value of that end. It has been a basis for holding
subordinate legislation invalid. If the costs are totally out of proportion to the benefits,
the decision could be expected to fall foul on unreasonableness.
Prasad v Minister for Immigration and Ethnic Affairs
Prasad sought permanent residence in Australia on the grounds of his wifes residence
status. His application was denied because officers of the department considered that
Prasad had contracted a marriage for the purpose of claiming residence in Australia
and that a genuine on-going marriage relationship does not exist. A departmental
review by the Immigration Review Panel recommended the Minister that the
departmental decision is maintained, and the Minister accepted the Panels judgement.
Prasad challenged the Ministers decision, arguing that it was ultra vires. The
interview and observations werent taken into account. It was contended on behalf
of the appellant that they went in support of the appellants claim that the marriage was
intended to last.
Held : The decision by the Minister was unreasonable. The matter should be
reconsidered on the basis of the facts as at the date of his decision.
Wilcox J:
Final ground of invalidity argued: the exercise of a power that is so unreasonable
that no reasonable person could have so exercised the power: s.5 (2) (g) of the
ADJR Act.
The common law position was summarised in Wednesbury : if a decision on a
competent matter is so unreasonable that no reasonable authority could ever have

88

i)

come to it, then the courts can interfere. However to prove a case of that kind
would require something overwhelming.
In a case where it is obvious that material is readily available which is centrally
relevant to the decision to be made, it seems that to proceed to a decision without
making any attempt to obtain that information may properly be described as an
exercise of the decision-making power in a manner so unreasonable that no
reasonable person would have so exercised it.
Considers the material which was before the decision-maker and the material
which the decision-maker might have acquired and concluded that the decision
was unreasonable.
Decision to refuse the applicants application for a permanent entry permit must
be set aside and the matter remitted to the Minister for further consideration. It
does not follow that the application must, upon reconsideration, be granted. The
duty of the Minister will be to reconsider the matter upon the basis of the facts as
at the date of his decision.
Notes and the ADJR Act

Given the requirement that an error be material if it be grounds for a successful

challenge, the position would be different if it was reasonable to seek the
information, but if it were to turn out that the information which would have been
revealed would have been non-material.

Tests for non-materiality:

1. Focus on the unreasonableness of the decision, given the additional
information.
2. Broader test, focus on the question of whether, assuming that the decisionmaker had been fully informed, the decision actually made could be
challenged.
3. Focus on whether, had the additional information been available, the decision
might have been different.

15.2 The no evidence rule

There are suggestions that decisions based on a lack of probative evidence will
fall foul of a decision-makers duty to afford procedural fairness.
The ADJR Act lists the no evidence rule as a separate ground of challenge. A
person may apply for an order for review where there was no evidence or other
material to justify the making of the decision (ss5(1)(h),6(1)(h)). This is qualified
in ss5(3) and 6(3) which specifies that the no evidence ground will not be made
out unless:
a) the person who made the decision was required by law to reach the decision
only if a particular matter was established, and there was no evidence or other
material (including facts of which he was entitled to take notice) from which
he could reasonably be satisfied that the matter was established; or
b) the person who made the decision based the decision on the existence of a
particular fact, and that fact did not exist.

Even where a decision must be based on findings of fact administrators are empowered to make
erroneous findings of fact provided that they have some justification for their findings.

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However, there are suggestions that decisions based on a lack of probative evidence will fall foul of a
decision-maker's duty to afford procedural fairness (see case below).

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) (AAT)
Probative weight = evidentiary value to support a certain line of reasoning.
Brennan J: A decision must be supported by evidence, it doesnt have to be evidence
received in a strict curial sense, because they are not performing a judicial function
but an administrative one. So, they can take hearsay, suspicion etc but that suspicion
etc must be based on evidence. It doesnt have to be evidence that will stand the test at
a court of law but must be one that has some probative value.
'The Tribunal and Minister are equally free to disregard the normal rules of evidence in receiving
material on which facts are found, but each must bear in mind that this assurance of desirable flexibility
does not go so far as to justify orders without a basis in evidence having rational probative force'.
'The requirement that a person exercising quasi-judicial functions must base his decision on evidence
means no more than it must be based on material which tends logically to show the existence or nonexistence of facts relevant to the issue to be determined...he must take into account any material which,
as a matter of reason has some probative value. If it is capable of having some probative value, the
weight to be attached to it is a matter for the person to whom Parliament has entrusted the
responsibility of deciding the issue'

Minister for Immigration and Ethnic Affairs v Pochi (1980) (F.C.)

Deane J re-enforced Brennan J's statement in Re Pochi that a decision of a tribunal
must ordinarily be based on evidence which is reasonably capable of sustaining it.
Whilst not bound by the formal rules of evidence that apply to the courts, the tribunal was not entitled
to consider evidence that was not rationally probative such as suspicions and heresay.
The Tribunal is bound, as a matter of law, to act on the basis that any conduct alleged should be
established, on the balance of probability, to its satisfaction by some rationally probative evidence,
and not merely raised before it as a matter of suspicion or speculation.
When a statutory tribunal acts in a judicial manner, the decision must be in accordance with the well
established principle of law that a decision ordinarily be based on evidence which is reasonably capable
of sustaining it. This requirement, which can be seen as a component of natural justice in certain
circumstances, can be modified or abolished by the express words of the legislation.

Australian Broadcasting Tribunal v Bond (1990) (H.C.)

Same principles as Pochi come out of this case but Mason CJ extended it so that an
error of fact can be judicially reviewable - if the exercising of a power depends on a
finding of fact and that fact is found unreasonably or not based on probative evidence.
Findings of fact and inferences of fact are not reviewable under the ADJR Act unless jurisdiction is
enlivened by the review of a "decision" or "conduct". - see start of judgment p549.
See bottom p549-50 regarding the common law position in Australia relating to questions of fact/law.
The ADJR Act has no allowance for a general review of finding of fact in the absence of an error of
law. The finding of fact is left to the public body except if they act "perversely" (ie. with no probative
evidence). This does not include a mere lack of evidence, as opposed to a complete absence of
evidence.
'At common law want of logic is not synonymous with error of law. So long as there is some basis for
an inference - in other words the particular inference is reasonably open- even if that inference
appears to have been drawn as a result of illogical reasoning, there is no place for judicial review
because no error of law has taken place'.
Decisions may also fall foul of the reasonableness requirement: "Decisions may be set aside because,
being insufficiently supported by reason, they appear to be an improper exercise of power conferred or
arbitrary or because there was no evidence or other material sufficient to justify the making of the
decision or the decision was so unreasonable that no reasonable person could have so exercised the
power. The making of, or failure to make, a particular finding of fact in the course of the reasoning
process may equally be attacked on any such ground. The taking into account of a fact found
unreasonably or the failure to take account of a fact that a reasonable decision-maker would have found
and taken into account provides a ground for review under ss 5(1)(e) and 5(2)(a) and (b) of the ADJR
Act."

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Szelagowicz v Stocker (1994) (F.C.)

It is really concerned with enforcing Mason C.Js judgement in Bond
Final note:
Unreasonableness and no evidence often go hand in hand, so do taking into account
relevant and irrelevant considerations

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16 THE RIGHT TO PROCEDURAL FAIRNESS: GENERAL PRINCIPLES

Natural justice
The right to be given a fair hearing and the opportunity to present one's case, the right
to have a decision made by an unbiased or disinterested decision maker and the right
to have that decision based on logically probative evidence. Denial of natural justice
is a ground of review against an administrative decision: ADJR Act ss.5(1)(a), 5(1)(h)
(3), 6(1)(a) and 6(1)(h)(3). At common law, denial of natural justice allows a review
in circumstances where the administrative decision might affect a person's rights,
interests or legitimate expectations. Also known as 'procedural fairness'.
Procedural fairness
Common law principles implied in relation to statutory and prerogative powers to
ensure the fairness of the decision making procedure of courts and administrators. The
term is used interchangeably with 'natural justice': Kioa v West. The three rules of
procedural fairness are the hearing rule, the bias rule and the no evidence rule.
A.

The difference between natural justice and procedural fairness

Natural justice requires that there be a hearing and that it be heard by an unbiased
decision-maker.
Procedural fairness doesnt necessarily require a hearing per se, whereas natural
justice demands it. Procedural fairness may just be a paper shuffle. Also, there is
nothing in procedural fairness that requires the adjudicator to be disinterested.
B.

C.

Arguments against the notion of natural justice and procedural fairness

Impediment to government efficiency i.e. would be more timely and costly
Decision making would be more conservative
Bias in terms of expertise could be beneficial in some cases
The decision would be on trial , not the person
Natural justice and procedural fairness involve two related issues

1) Is there a duty to afford natural justice or procedural fairness to a particular

individual or group of individuals ?
There is a recognition on the part of the courts that there are circumstances in
which administrators are not under a duty. But why would the legislature confer
power on a body which adopted unfair procedures? One answer is that it might
wish to confer a power not subject to judicial review. Also the legislature may
trust the good sense of the ministers more than the decision making of the courts.
2) What is required by the rules of natural justice and procedural fairness?
This is best answered by seeing the usual requirements of natural justice. These are :

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The granting of a hearing to a potentially affected party and ( the hearing

rule )
The granting of a hearing by a disinterested decision maker ( the bias rule )
These rules will operate in a statutory context and are involved because the statute
is silent about the necessary procedures in that situation. Courts assume when the
statute is silent that the failure to exclude them implies natural justice procedures.
Cooper v Wandsworth Board of Works (1863)
Cooper built a house without permission The Board pulled down the house while
Cooper was away. Cooper argues that while the Board had the power under statute,
because of the seriousness of the consequences he ought to have had a hearing before
they pulled down the house.
Held: It was found unlikely that the legislature would have conferred a power so great
without giving notice to the person to show cause.
Ridge v Baldwin (1964) (H of L)
Historically, natural justice applied to fundamental rights. The obligation to afford
natural justice only applied to bodies which excercised judicial or quasi-judicial
power. But, Ridge v Baldwin established that:
1)
The right to natural justice is not restricted to judicial or quasi-judicial power.
2)
The court moved away from saying that natural justice was only attracted
where rights were interfered with - it extended it to interests.
This case was regarded as a landmark case because it established a broad entitlement
to natural justice.
A policeman was dismissed and subsequently he challenged the right to be dismissed
without hearing. This had major implications as if he was dismissed he would receive
no pension but if resigned he would still be entitled to it. Held: Court found that
employment was akin to property and held that he should have been entitled to a
hearing. However it was argued that public employees did not enjoy a right to natural
justice if their rights were contractual only.
FAI v Winneke (1981) (H.C.)
Act
Power
Insurance Act
Governor : licenses

Exercise of Power
Renewal of license

FAI was doing shonky dealings and when the time came to renew their license the
governor refused to do so upon the recommendation of the Minister. What is
important here is that FAI assumed that it would be renewed but with some concern
as it hadnt complied with certain criteria.
Held: Wilson J - The considerations in deciding this case included 3 issues
1) FAI regarded the renewal of license as right because they had a legitimate
expectation.
A "legitimate expectation" is a legally recognised aspiration founded on previous
conduct and behaviour that a certain course of events will unravel in the manner
that the aspiration contemplates. So, it does have a subjective element - it is their
perception. It serves a useful purpose because short of a right, it can be used as a
basis to activating a right in natural justice. FAI were seeking renewal. So they
have the basis of previous course of conduct to rely on. If they were seeking a new

93

licence, it is not fatal that they cannot use their subjective experience, but (without
the subjective aspect) it makes it harder to establish 'legitimate expectation'.
2) The status of the decision maker is irrelevant
There was the presumption that you couldnt challenge the decision of the Crown
which in this case would have been the representative i.e. the Governor. However
the court said that although the governor was the body they could delegate to
lower levels who had the ability to give a hearing.
3) Parliaments intention
The subject matter, scope and purpose of the legislation ( Act) must be looked at.
In this case the DM was given a very large discretion, but even so they are still
obliged to comply with NJ/PF
The argument pressed by the administrative agency (who was in this case the
Governor in Council) was that FAI didnt have a right that was interfered with,
therefore a hearing wasnt required. FAI said that they had a right in natural
justice to (a) be informed of the reasons and (b) be given an opportunity to
respond, both of which were denied to them by the Governor in Council.
Limits - if the repository of the power is executive (especially at the highest level,
as in this case - the Governor in Council), then it is not administrative anymore - it
is legislative and there is no place for the courts to interfere.
Kioa v Minister for Immigration and Ethnic Affairs (1985) (H.C.)
Act
Power
Exercise
Migration Act

Minister has power to deport Issue of deportation

Kioa had overstayed the visa period , therefore he was regarded as an alien. Under the
law aliens have no legal rights. If he had not legal rights the question arises as to why
they should have a hearing.
Held: Kioa had no rights, but similar to the renewal of the license the court thought
they had a legitimate expectation that they would be allowed to stay as there were
other allegations made about him that were required to be processed. This case
required that the party have some interest in the decision being made and some other
circumstances to gain procedural fairness - Mason J (p.579):
The law has now developed to a point where it may be accepted that there is
common law duty to act fairly, in the sense of according PF in the making of
administrative decisions which affect rights, interests and legitimate
expectations,subject only to the clear manifestations of a contrary intention

Therefore PF is allowed so long as it is not excluded by clear words. But earlier cases
had established that s18 of the Migration Act excluded PF therefore not entitled to it.
Mr Kioa's reputation was important. It was the allegation that he was an incubator of
discontent (for helping others try to stay in the country) that also gave him the right to
protect his reputation.
Mason J:
The law has now developed to a point where it may be accepted that there is a presumption of a
common law duty to act fairly, in the sense of according procedural fairness, in the making of
administrative decisions which affect rights, interests and legitimate expectations, subject only to the
clear manifestation of a contray statutory intention.
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms
that, generally speaking when an order is made which will deprive a person of some right or interest

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or the legitimate expectation of a benefit, he is entitled to know the case made against him and to be
given an opportunity of replying to it. The reference to "right or interest" must be understood to relate
to personal liberty, status, preservation of livelihood and reputation, as well as proprietary rights and
interests. This means that there does not have to be a deprivation of a legal right.
What is the content of procedural fairness?
There is a requirement that in the making of administrative decisions which affect the above that the
duty to act fairly be observed subject to clear legislative intent to the contrary. The application and
content of this duty to act fairly depends upon the construction of the statute (where provision is made
by the statute) or the circumstances of each individual case. In some cases with deportation orders for
example it may be required that the order be made ex parte so that the recipient is not forewarned,
where in other situations an ex parte order may not be applicable.
What is appropriate in terms of natural justice depends on the circumstances of the case and they will
include, inter alia, the nature of the inquiry, the subject matter and the rules under which the decisionmaker is acting.
Brennan J:
To determine whether there is a requirement for natural justice to be accorded depends on the
legislature's intention as gleaned from the relevant statute. Without express provision the statute is
construed against the common law background of reading in the requirements of fairness and justice
(ie. an assumption that natural justice be accorded). This presumption may apply to powers classified
as legislative or administrative as well as quasi-judicial ones.
There are interests beyond legal rights that the legislature is presumed to intend to protect, these
interests denoted as "legitimate expectations". However the construction that is placed upon the statute
to exercise procedural fairness does not depend upon the state of mind of the individual affected, but
the interest affected by the exercise of the power that is to be investigated (see FAI above for what
Brennan J means by this).
If the exercise of the power is likely to affect the interests of the individual in a way substantially
different from the way it affects the interests of the public at large, the decision-maker will ordinarily
be bound or entitled to have regard to the interests of the individual. What interests must be taken into
account are determined from the statute, and in the absence of any express requirements, the subject
matter, scope and purpose of the statute must be looked at to determine whether the decision-maker is
bound or entitled to have regard to individual interests.
A statutory power of strictly legislative character does not need to observe the principles of natural
justice as it affects the interests of all the members of the public in the same way. It is more likely to
be intended the exercise of a statutory power in an executive, administrative or quasi-judicial nature to
require natural justice to be exercise if it singles out individuals by affecting their interests in a manner
substantially different from the manner it affects those of the public at large.
The presumption does not depend upon the character of the interest, but on the factors relevant to the
individual's right to insist on an appropriate procedure for considering the interests and his standing to
seek judicial review if such procedures are not adopted.

The difference between Mason J & Brennan J in Kioa

Both judges acknowledge that there is nothing in the statute that takes it away.
The problem with 'legitimate expectation' is that it has this subjective element to it.
The difference between the judgments comes down to whether the child had a right to
procedural fairness. Mason J, using 'legitimate expectation' said no because a 10
month old baby does not have developed a level of reasoning high enough to have an
expectation (p.582).
Brennan J agreed that the child could not possibly have had a reasonable expectation.
But, he used a much wider and more objective test to activate the child's right to
procedural fairness / natural justice - the aggrieved person test. This is a much wider
view of what a right or interest is. The common law position (before Lord Denning
came up with the 'legitimate expectation' test in the 1960's which Australian courts
have also adopted) was that an aggrieved person had a right to certiorari. Brennan J's
use of it is in line with authorities and although he was the only one to adopt it in this
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context, it is still good law. Mason J did not consider it because he decided the case
using the legitimate expectation test, but he did not (and no other judge has) disagree
with it.

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17 THE RIGHT TO PROCEDURAL FAIRNESS: APPLICATION:

A.

The Right to Procedural Fairness: Application

The principle enunciated in Kioa v West in some cases is easily applied. Some statutes
make it clear that there is a duty to comply with natural justice rules and others make
it clear that it is not. However as a whole statutes do not advert explicitly to this show.
Existence of legitimate expectations may be more problematic. There are cases where
it is reasonable to infer a legislative intent to remove or restrict the right to procedural
fairness.
B.

C.

D.

When is it implied?
When rights, interests, legitimate expectations are adversely affected
Legitimate expectatiom may arise from the conduct of the person proposing to
exercise the power e.g.:
- statement or undertaking
- regular practice, course of conduct ( e.g. administrators behaviour)
- consideration of factors adverse and personal to the applicant
Also arising from the nature of the application/ benefit or privilege enjoyed e.g.
license renewal:
ADJR Act ss. 5/6 (1) a
When is it excluded?
When there are express words in the statute
Where there are necessary implications to exclude procedural fairness. These
include :
- multi stage decision making ( Edelston)
- Twist type appeal
- Subject matter of legislation
- Political nature of the decision
- Conduct: waiver of procedural fairness rights
Does Procedural Fairness Apply? Summary:
There is a general presumption that PF applies: 'The law has now developed to a point where it
may be accepted that there is a presumption of a common law duty to act fairly, in the sense of
according procedural fairness, in the making of administrative decisions which affect rights,
interests and legitimate expectations, subject only to the clear manifestation of a contray statutory
intention': Kioa
Does the statute, by express words, evince a clear manifestation of the intention to exclude
procedural fairness? (Kioa)
What is the legal status of the interest? Is it a right? Is it a privilege? FAI v Winnike
Entitlement to PF is greater when the decision is capable of having profound effects on the well
being of those affected by the decision: 'It is not the kind of individual interest, but the manner in
which it is apt to be affected that is important in determining whether the presumption is attracted':
Kioa.
Political decisions generally do not attract the obligation to accord PF. Does the decision affect a
person directly and individually, or simply as a member of the public or a broad class of the
public? Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987)

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Decisions with a political element do not necessarily exclude the duty to afford procedural
fairness. PF may apply where the decision impacts on the individual: South Australia v O'Shea
(1987)
The rules of natural justice may not be applicable to the exercise of delegated legislative power,
particularly where the regulation is concerned with general conduct or as an application of power
or authority as a matter of general application, as opposed to the action of particular persons on
particular occasions: Queensland Medical Laboratory v Blewett (1988).
The administrator's behaviour may create a variety of legitimate expectations. A legitimate
expectation can give rise to a duty to afford procedural fairness - if an administrator acts
inconsistently and thereby disadvantages the party they must give the person the chance to make
submissions: FAI v Winnike.
Long standing practices can give rise to legitimate expectations (see Council of Civil Service
Unions and Others v Minister for the Civil Service [1985]
Where an administrator has made an undertaking, this may give rise to a legitimate expectation: ''It
was a clear representation to the respondent ...In those circumstances we think that the respondent
was entitled to hold the reasonable expectation that he would be afforded a reasonable opportunity
of answering the allegations should the dept change it's attitude towards him': Cole v Cunningham
(1983).
Ministerial policy can constitute an undertaking, providing a basis for a legitmate expectatation:
'As the policy required that there be exceptional and strong circumstances to overturn the AAT
decision, H is entitled to procedural fairness to see the exceptional and strong evidence and be
given an opportunity to answer it.': Houcher v Minister for Immigration (1990).
The signature of International Conventions can also form an undertaking, giving rise to a duty to
afford procedural fairness: Minister for Immigration and Ethnic Affairs v Teoh (1995).
Where decision making is multi staged, no procedural fairness is owed at the earlier stages as these
do not effect the applicant's rights, privileges or liabilities until they get to the final stage of
Ministerial decision. Edelsten v Health Insurance Commission (1990). The duties of a final, noninvestigating decision-maker do not require procedural fairness as long as they are not influenced
by fresh material brought in after the other party has been heard. If this decision-maker hears the
matter anew it must accord procedural fairness (O'Shea).
The rules of procedural fairness generally apply to investigations (Annetts v McCann (1990)
The courts have recognised that at times the prima facie right to a hearing must give way to the
public interest in secrecy, where applying the principles of PF may frustrate the exercise of power
by the administrator: Kioa.

17.2 Clear statutory provisions

The simplest means of determining whether or not procedural fairness is required is
where there are express words in the statute outlining the position. This may be at
times to exclude procedural fairness e.g. The Corrections Act 1986 (Vic). Exclusions
are far outnumbered by enactments which expressly require compliance with natural
justice rules.

17.3 Interests
A.

The legal status of the interest

The legal status of an interest affects whether it is sufficient ground to have natural justice.
One would expect that claims to PF would be most likely when 'rights' are at stake, and less likely
when interest of aggrieved party are seen as amounting to a license to act in a particular way.
One would expect the legal status of the interest to affect whether it is a sufficient claim for PF in 3
ways.
1. Ample support for proposition that those whose rights might be directly affected by a decision
normally have a right to NJ in relation to the making of that decision
2. Legal categories might be expected to affect the way in which judges come to conceptualize
particular interests

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3.

B.

Legal categories are likely to reflect the value placed by the legal culture on particular interests

Importance of the interest at stake

The logic of fairness also suggests that the greater the impact of a decision on a persons well-being, the
greater the likelihood of procedural fairness being required to be given.
Entitlement to PF is greater when the decision is capable of having profound effects on the well being
of those affected by the decision: 'It is not the kind of individual interest, but the manner in which it is
apt to be affected that is important in determining whether the presumption is attracted': Kioa.
In assessing the effects of a decision a semi objective test appears appropriate b/c reasonable
expectation would be unfair to all parties if it was assessed on a subjective basis.
In practice it is usually assessed by judicial common sense where losses will be more concern that
failure to achieve gains. E.g. Banks

17.4 Political decisions and the right to procedural fairness

A.

Political decisions

In Kioa and FAI applicants success based at least in part on the attributes of the
applicant. Political decisions generally do not attract the obligation to accord PF. The question is
determined by whether the rule affects a person directly and individually or simply as a member of
the public or a broad class of the public: Kioa

Position may be different in cases where there is a strong political element.

Political cases

(1) Impinge directly on

interest of person

Prima facie PF

(2) General application which affect

people by virtue of membership
to broad category

No PF allowed

3 exceptions:
the government will have political sanctions if it makes the wrong decision
may not be practical to afford PF as there are some decisions which are
better treated as belonging to executive due to SOP
May be asymmetry in affording PF to a party.

Minister for Arts v Peko Wallsend Ltd (1987)

In this case the Cabinet made a decision to protect part of Kakadu on the World
Heritage list. The decision was contest by Peko who had mining interests in the area.
Held: The Cabinets decision was non justiciable in the sense that the Cabinet did not
have to provide procedural fairness to the applicants since it involved complex policy
considerations.

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Bowen CJ: The subject-matter of the decision (involving complex policy questions relating to a
number of different matters) combined with the convention under which it is brought to the World
Heritage Commission make it non-justiciable. It is up to Cabinet to make the highest level policy
decisions which conflict public interests with private interests. There are avenues to be heard but to
require Cabinet to give procedural fairness to all parties would bring it to a halt.
Sheppard J: The cabinet is a political organisation, and the sanctions which bind it to act in accordance
with the law are political ones. The consequence of this is that it would be inappropriate for the court
to interfere with what it does.
Wilcox J: Follows the principle in FAI where it was decided that submissions to the Executive Council
could be made through the responsible Minister, so too could submissions be made to Cabinet.

South Australia v OShea (1987)

OShea received an indeterminate sentence.
Parole Board
Minister
High Court
It was argued that PF with the Parole Board was sufficient and didnt require
procedural fairness with the Minister. It was not regarded as a political decision rather
a matter of generalised government policy
Held:
The court held that decisions with a political element do not necessarily exclude the duty to afford
procedural fairness:
'Although it is unrealistic and impractical to insist on a person having the opportunity to present
submissions on matters of high level general policy the same considerations do not apply to the impact
of policy on the individual and to those aspects of policy which are closely related to the circumstances
of the particular cases and that is the case here'.
The court held that provided that the Board accorded O'Shea procedural fairness, and that the Governor
in Council's decision was not influenced by fresh material relating to Mr O'Shea personally which was
not known to the Board at the time when it held the hearing in his prescence, there was no requirement
to rehear his case.
A duality has been placed in the parole system as it allows the Governor in Council to have unfettered
discretion as to what is in the public interest in each individual case. The hope that the Parole Board
recommendations would be accepted does not of itself create a sufficient enough ground for an
expectation that will attract legal consequences. The G I C had statutory power to make its decision in
light of the Board's recommendations, based on public policy factors such as deterrence, retribution and
public confidence in the system.
The court noted that decisions with a political or policy judgment do not always exclude a duty to act
fairly, particularly where the policy impacts on individuals.
The decision of the Governor in Council of whether it is in the public interest to follow the
recommendation does not attract procedural fairness, it was a decision made on the basis of public
policy factors alone.

B.

Policy and rule making

This area will tend to involve political considerations. There are also further reasons why rule-making
would be excepted from procedural fairness requirements, including:
1.
2.
3.
4.

Relevant legislation
Difficulty in ensuring all affected persons can be heard.
Questionable utility of allowing hearings for all.
Instability implicit in a situation where rules may be overturned on relatively vague
criteria.

Queensland Medical Lab v Blewett (1988)

Under the Health Insurance Act the Minister had the power to make determinations
regarding a new pathology services table. In an application by the AAPP for a review
it was argued that the Minister had failed to provide procedural fairness. Held that
there was no duty to provide procedural fairness because the determination did not
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affect the rights, interests and expectations of pathologists etc in a sufficiently

individual and direct way as to attract that duty.
The rules of natural justice may not be applicable to the exercise of delegated legislative power,
particularly where the regulation is concerned with general conduct or as an application of power or
authority as a matter of general application, as opposed to the action of particular persons on particular
occasions.
In Comptroller General of Customs v Kawasaki Motors Pty Ltd (1991) 32 FCR 219 the Federal Court
held that natural justice was not required where the person(s) is affected by being a member of the
public or a class of the public as opposed to where it affects a person individually.

17.5 Expectations based on administrators behaviour.

The administrator's behaviour may create a variety of legitimate expectations, i.e. where discretion
tends to be exercised in a manner that one could reasonably expect that in the absence of good
grounds the discretion would continue favorably to that person.
Courts will conduct a number of inquiries to determine whether the behaviour will give rise to an
expectations. These inquiries will determine whether
the behaviour gave rise to an expectation
whether there are good grounds for anticipating that it would
should it be treated a giving rise to one
A legitimate exp in relation to matters that are relevant means that if an administrator acts
inconsistently and thereby disadvantages the party they must give the person the chance to make
submissions
A legit exp in relation to procedure gives rise to a right to procedures similar to those embodied in
expectations.

The general concept of estoppel does not apply against the government unless it is acting in a "private
law" capacity. However legitimate expectations can give rise to legal consequences.

A.

Administrators behaviour

Long standing practices can give rise to legitimate expectations (see Council of Civil Service Unions
and Others v Minister for the Civil Service [1985] AC 374

B.

Undertakings by administrators

Well established principle in private law that where someone gives an undertaking which is relied upon
another this can alter the legal relations between the parties. This should also be extended to the public
law.

Cole v Cunningham (1983)

Employee of Dept of Immigration had formed an attachment to a woman who was subsequently
arrested as a prohibited immigrant. He was advised that "if you resign now it will be a normal
resignation and youll leave with a clean record". On that basis he resigned. 18 months later he sought
appointment at the Public Service but was refused on ground of an adverse report from the Departmet.
Held: That the statement was a clear representation that he would maintain an unblemished record and
that there was reasonable expectation that he would be afforded with the reasonable opportunity of
answering those allegations should the Department change its attitude to the representation.
'It was a clear representation to the respondent that if he resigned he would leave the Dept with a clean
record. In those circumstances we think that the respondent was entitled to hold the reasonable
expectation that he would be afforded a reasonable opportunity of answering the allegations should the
dept change it's attitude towards him and asserts (contary to the representation made to him) that he had
left the dept with an unblemished record'

C.

Ministerial policy as undertaking

Houcher v Minister for Immigration (1990)

Facts:

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On the 4/5/83 the Minister made a policy statement that recommendations from the AAT would be
taken in criminal deportation cases except in extreme circumstances. The AAT recommended that H's
deportation order be revoked. There was no indication the Minister took this into account before giving
the order, and H was not able to make submissions.
Held:
Deane J: The policy in operation at the time would have given H a reasonable expectation that the
review by the AAT would be the major hurdle and that it would not be overturned by the Minister. The
Minister decided on issues that had not been heard before, with the decision directly affecting the
individual's rights, interests, status and legitimate expectation. To overturn the AAT decision required
strong evidence, evidence on which H should have been heard.
Toohey J: As the policy required that there be exceptional and strong circumstances to overturn the
AAT decision, H is entitled to procedural fairness to see the exceptional and strong evidence and be
given an opportunity to answer it.

D.

Signature of international conventions as undertaking

Minister for Immigration and Ethnic Affairs v Teoh (1995)

Facts:
T applied for permanent residency but was refused on the grounds of his criminal record. He was
married with 7 children at the time. Australia had ratified the UN Convention on the Rights of a Child,
which had one Article stating 'primary consideration must be given to children'. The review panel took
this into consideration but stuck with the policy of not giving permanent residency to serious convicted
criminals.
Held:
There was a breach of the duty to afford PF. Although the decision makers had considered the hardship
the family would face and the impact of the proposed decision on the children, they did not make the
interests of the children a 'primary consideration' as required by the Convention.
Mason CJ & Deane J: The ratification of a convention is a positive statement by the executive
government to the world and the Australian people that they, and its agencies, will act in accordance
with the convention. This positive statement is sufficient to ground a legitimate expectation that,
absent of any statutory or executive indication to the contrary, decisions will be made in accordance
with it. If the decision-makers make a decision against the legitimate expectation then procedural
fairness must be accorded. This does not mean they have to comply, but merely must have regard to it.
If the decision maker proposes to make a decision inconsistent with a legitimate expectation,
procedural fairness requires that the persons affected should be given notice and an adequate
opportunity of presenting a case against the taking of such a course'.
Gaudron J considered that apart from the Convention, it is the children's common law human right as
Australian citizens which founds the legitimate expectation that the best intrests of the children will be
taken into account as a primary consideration.
Note: As the Convention was not part of Australian law the body had no legal obligation to comply
with it. Therefore it could not be seen as a relevant consideration that was not considered

17.6 Multi stage decisions making and procedural fairness

A.

The decision maker

A major problem associated with administrative decision making is knowing who makes the decision.
Decisions are often formally made by one person on the advice of another. As a result a decision may
be e.g. to investigate further. In such cases where there are many interim decisions being made etc, we
have to consider who exactly is expected to comply with the rules of procedural fairness. One answer
might be the final decision maker but this is not always clear who is the final decision maker? The
de facto or the de jure? In the case of multi-stage decisions the courts will ultimately be influenced by
relevant statutes.

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Edelston v Health Insurance Commission (1990)

Dr Nearhos = referral to Committee
Dr Dash (delegate) = referred to inquiry
If found to be over-servicing recommend to Minister
Minister makes determination
Reviewable under the act and ADJR
Edelston was accused of over-servicing. The question before the court was whether he was entitled to
procedural fairness at every stage.
Held: This had two possible outcomes
1) That there is no PF until the end or a specified point conservative
2) At every step procedural fairness is available radical
Edelston had claimed that he was denied PF at the first two stages, however it was found that these
steps were preliminary. It was found that Edelston shouldnt succeed because the content of procedural
fairness varied at each stage and the actions of the two doctors was sufficient. Therefore the content of
procedural fairness in multi-stage decision making will vary at every stage. No procedural fairness is
owed at the earlier stages as these do not effect E's rights, privileges or liabilities until they get to the
final stage of Ministerial decision. There is no discernible legitimate expectation which may have been
affected.
The duties of a final, non-investigating decision-maker do not require procedural fairness as long as
they are not influenced by fresh material brought in after the other party has been heard. If this
decision-maker hears the matter anew it must accord procedural fairness (O'Shea).
If the decision-maker indicates clearly they will follow recommendations of another body except in
exceptional circumstances they may be obliged to grant a hearing if those exceptional circumstances
arise (Houcher).

B.

Investigations

The scope of requirement for procedural fairness and the point it comes into play depends upon
whether the procedure is an investigation or an inquiry. The rules of procedural fairness generally
apply to investigations (Annetts v McCann (1990) 170 CLR 596). For inquiries procedural fairness is
generally required at the early stages and towards the very end.

C.

Appeals

The question is raised whether the existence of a right of review implies that the primary decision
maker need not accord with procedural fairness, as any injustice thereby occasioned can be corrected
on review

Twist v Council of Randwick (1976)

The legislation provided for a decision and allowed for an appeal de novo to a court.
Act
Power
Exercise
Local Govt Act
Council
Knock down the house
He brought action for a denial of procedural fairness because they pulled down his house without a
hearing.
Held: The court found that having a mere appeal right will not mean inclusion of PF and that because
the appeal provision was of a particular nature, there was sufficient legislative intent to preclude PF.
PF may be excluded where there is a statutory right to appeal which is de novo to a court of law
Barwick CJ:

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The existence of a full appeal does not necessarily displace the obligation of the primary decision
maker to comply with the rules of procedural fairness.
Mason J:
Regarding the urgency to carry out the order (the subject matter of the statute) and the comprehensive
nature of the appeal, the Council does not have to afford natural justice when preparing the order,
though they may if they wish.
'Having regard to the subject matter of the section, the nature of the order which the council is
empowered to make, the degree of urgency which may attend the execution of the order and more
particularly the comprehensive nature of the appeal to a District Court judge, I am of the opinion that
the relevant section should be read as providing the exlusive remedy available to an owner who wishes
to challenge the validity or correctness of an order'.
Jacobs J:
To determine if natural justice should have been afforded by Council the legislative intent must be
looked at. Because there is a very broad appeal available it does not follow that procedural fairness
does not have to be given. Here the matter on wich the person wishes to be heard is an appropriate one.
Note: It would appear from the judgements delivered in this case that the potential of a full right to a de
novo appeal can 'cure' the unfairness in the original decision, as it provides the applicant with an
opportunity to be heard before their rights are finally affected. Where the legislation provides for an
unrestricted appeal, the appeal may be the exclusive remedy available to an individual wishing to
challenge a decision made under that legislation. If the appeal is more restricted however, it may not be
viewed by the courts as being able to overcome the lack of fairness at the initial stage.
This is not a steadfast rule. In Calvin v Carr it is asserted that procedural fairness may need to be
afforded at an earlier stage in situations where the most perfect of appeals or rehearings will not be
sufficient to produce a just result
In Twist v Randwick, Mason J said 'If the right of appeal is
exercised and the appellate authority acts fairly and does not depart
from natural justice, then the appeal may be said to have 'cured' a
defect in natural justice or procedural fairness which occured at the
first instance'. This view appears to be supported by the judgement
in Calvin v Carr.

17.7 Urgency and procedural fairness

The courts have recognised that at times the prima facie right to a hearing must give way to the public
interest in secrecy. Examples are in Kioa Mason J stated that advanced notice that a deportation order
would be given was not required to be given if he'd deliberately evaded authorities in the past. This
would defeat the purpose of the order and allow the person to hide: 'this would serve only to facilitate
evasion and frustrate the objects of the statute. See also Edelsten v Federal Commissioner of Taxation
(1989) 85 ALR 276 discussed on p617: 'To give an intended recipient of a deportation order advance
notice of its imminent issue may rob the whole procedure of its efficacy by providing the person with
an opportunity to leave the country before the order can be issued.

17.8 Procedural fairness and the decision making scheme

1.
2.
3.

Look at the legislative scheme

Prelim stage investigation PF may be required
Final decisions ( following recommendations) may/ may not require PF depending on:
a) new facts of allegations
b) consideration of matters personal to the applicant
c) whether there was a representation or undertaking
d) other special circumstances

Most cases are not like this, as appeals are based on prior findings, not de novo.
EXTRA NOTES ON PROCEDURAL FAIRNESS FROM CLASS DISCUSSION
The interest in Kioa was interest in not being deported.

104

The legitimate expectation in Teoh's case was that the decision maker would act in accordance
with a Convention (which Australia ratified) that "in all actions concerning childrenthe best
interests of the child shall be the primary consideration".
In Cole's case, the fact that he was told he would leave with a clean record gave him a legitimate
expectation that he would. Both cases were about reputation. Cole's cases is stronger because there
was a representation made to him. Kioa wasnt given any such indication.
The court did rely on the statement made by the government in Houcher. When the Minister
decided that these are exceptional circumstances, he activated Houcher's entitlement to make
submissions in relation to whether it was exceptional because he has a reasonable expectation that
the AAT's recommendation will be followed.
Note however that the AAT's decision did not amount to a substantive right to remain in the
country. It was only a recommendation. The ultimate decision still belonged to the Minister - the
AAT's recommendation forces him to consider it (even if its a paper shuffle).

Peko-Wallsend - The decision was characterised as one of a political nature. Therefore it was
legislative rather than administrative in nature.
O'Shea, Blewett and Peko-Wallsend are all cases where Cabinet is making a decision (or where
Cabinet is delegating its powers to make a decision to a Minister) which has overbearing political
considerations. It is of a nature that will not activate rights to natural justice or procedural fairness
because it affects the public. Even if the rights of individuals are affected, it would not be
sufficient to activate rights to natural justice or procedural fairness because those affected are not
over and above the level that everyone else is affected. These are examples of where courts have
denied natural justice or procedural fairness.

Should natural justice be extended to legislative and/or political decisions?

There will always be fallout from political decisions, but not enough to activate rights in natural justice
or procedural fairness to individuals. It does not make for efficient government functioning if it were.
When the power is given to a Minister, it is expressly stated or if not implied that the type of decision is
best left in the political arena

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18 THE HEARING RULE

The principle that a decision maker must afford a person whose interests will be
adversely affected by a decision an opportunity to present their case. Breach of the
principle by a decision maker is a denial of procedural fairness. Judicial review of the
decision on this ground renders the decision void: Kioa

18.1 The form of the hearing

Where the legislation is silent, the standards expected of the decision-maker are determined by
reference to what seems appropriate given the context within which the decision is to be made.

18.2 Right to know matters which will be considered by the decision

maker
In proceedings where specific allegations are made, a person is entitled to know the adverse allegations
in order to be able to controvert them: Re Macquarie Uni; Ex Parte Ong (1989)

Bond v Australian Broadcasting Tribunal (No.2)

Bond defamed Sir Joh Bjelke Petersen. In a defamation settlement Bond paid $400,000 (which was
much more than usual in cases like this). This gave grounds for the allegation that the overpayment was
a bribe for favourable political comment disguised as a defamation settlement. Bond complained that
the warning of the charges to be made were inadequate given the adversarial nature of the inquiry.
The court said that the inquiry remains investigative / inquisitorial throughout so there is no need to
give particulars at every stage in the process. It's task is to ascertain facts and from them, arrive at the
truth.

To do its investigative function, it sometimes becomes inappropriate to give warning.

There are no sides (i.e. its not adversarial) therefore there is no need to know if there
are witnesses 'against you' because there is no one against you therefore procedural
fairness had not been denied.
Romeo v Asher
Intervention on the grounds of a failure to provide adequate particulars may take place
at any stage in a bodys deliberations e.g. inadequate notice that an adverse decision
may be made. However, the courts are reluctant to intervene on the grounds of
possibly inadequate puttings on notice.
Ansett v Minister for Aviation
When there are public policy grounds for not disclosing details of a document to the
person about whom a decision is made, then there is no obligation to disclose. Also,
the operation of the relevant Act required that confidentiality be respected. There is
however the possibility for the Minister to reveal the gist of the information without
breaching the duty of confidentiality.
Minister for Immigration v Kurtovic
The need for disclosure cannot be overcome by the argument that disclosure would
cause difficulties. Minister did not reveal to K the contents of the reports on which the
Minister decided that K should be deported contrary to a decision by the AAT that
K should not be deported. Whilst court agreed that revealing the documents would
have caused difficulties, the Minister should have made the info available to the Ks
lawyer, on an undertaking not to reveal the information. If confidentiality was an
issue - upon the appropriate undertakings, the reports could have been made available
to the legal adviser.
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Somaghi v MILGEA and Heshmati v MILGEA

Suspicion that S and H wanted to make themselves refugees by sending
controversial letters.
Held that there is a duty to warn where the administrator acts on the basis of
prejudicial material whose existence is not known to a person who is thereby
adversely affected. Jenkins J: in general, administrators are not obliged to disclose
their reasoning processes for comment to an applicant, however there are exceptions,
eg, when the animadversion (adverse decision) is not an obviously natural response to
the circumstances which have evoked it

18.3 Rights arising out of administrative practices

Where a department has introduced procedures or practices, they may give rise to requirements of
natural justice and also affect the way that the hearing is to be conducted.

Hamilton v MILGEA
Had to fill in a form but was not given an info booklet that was given to others which helps applicants
complete forms. Mrs Hamilton didnt fill it out correctly.
Held: Breach of natural justice Inequality of treatment. But despite this, Mrs H had not
substantially complied with the requirements of the regulations surrounding her application
application dismissed.

18.4 The right to make submissions in response to those matters

A.

The form of the submissions

It may be sufficient to be read to satisfy the condition of being heard. The Courts have recognised that
an oral argument is not an essential ingredient to be heard, with natural justice requirements being
satisfied in other ways. In Chen V MIEA (1993) 45 FCR 384, French J stated that the court's should be
reluctant to impose detailed rules of practice in the name of procedural fairness, particularly in the area
of high volume decision-making involving a significant use of public resources. (If oral hearings were
to be required in all refugee cases, one likely result would be that cases would have to be conducted by
less experienced officers with a consequent deterioration in the quality of decision-making).
In the appeal (1993) 48 FCR 591 the Full Court did not see anything exceptional in French J's
comments, stating there may be circumstances in which an applicant would be entitled to an oral
hearing, in particular where the applicant's credibility is at issue:
'Where an issue of credibility is involved or it is otherwise apparent that an applicant is disadvantaged
by being limited to submissions or responses to the decision maker in writing...it may be that the
fundemental requirements of natural justice can only be satisfied by a determination made upon an oral
hearing.'

B.

A right to legal representation

There is no presumption in favour or against having a lawyer

When there is a right to legal representation, it may not be a right to representation
at public expense.
In some cases there's no choice: some legislation provide that parties may NOT be
legally represented.

Krstic v Australian Telecommunications Commission

Open to the Tribunal to decide that it does not want lawyers appearing. Q of whether
person should be allowed assistance or representation depends on the ability of the

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person to conduct their own case e.g. person with tertiary education and normal selfconfidence should not require representation or assistance.
Woodward J referred to Cains v Jenkins and adopted the approach that there is no
absolute right to representation even where livelihood is at stake. The nature of the
request could not be justified on the basis of fairness. He gives examples of no
English or seriousness - these would justify. But that wasnt the case here. Union
representative allowed to give advice but not to act as an advocate. Prima facie, you
are allowed to have someone with you: Collier v Hicks. But, because she was able to
communicate during adjournments, the fact that they did not allow her to
communicate inside did not have any adverse effect.
To determine whether assistance by another person other than a lawyer should depend upon the ability
of the person concerned to conduct his or her own case. In this case a Union representative was allowed
to assist (though not advocate for) K. However it was unnecessary and unhelpful for the Tribunal to
place an artificial restriction upon her ability to quietly communicate with him during the hearing.The
Court held that an informal tribunal would be well advised to grant a request for non-legal assistance
unless there was good reason for rejecting it.
If there is a right to representation there is not necessarily a right that this be provided at public
expense. It would depend on the principles of the legal aid bodies:

NSW v Canellis
Witness wanted a lawyer because he had a new ID (previously convicted felon).
Rejected because a right to a lawyer would be judicialising everything, and
witnesses arent subject to same adverse position as the accused. The content of the
rules of procedural fairness do not extend to the provision of legal representation or
the grant of a stay to ensure the provision of such representation. It doesnt even
extend to a witness at trial, let alone an inquiry. The position of a witness in a trial or before a
commission is fundamentally different to that of a party to the trial. The witness does not run the risk
of conviction or an adverse order against them. The Tribunal's conclusions may be unfavourable or
adverse to a witness. The Dietrich principle does not extend to witnesses to a trial or commission, nor
do the requirements of procedural fairness require the provision of legal representation or the grant of a
stay to ensure the provision of such representation

C.

A right to an interpreter

Yes: Krstic and Cains - if unfit to represent yourself you are granted legal representation.

D.

A right to cross examine

Where there is a right to only make written submissions it follows that it is unlikely that there is a right
to cross-examine. However what it is to occur where a party has a right to oral submissions?

O'Rourke v Miller (1985)

Facts:
O was a probationary constable in the Victorian Police. Before the expiration of his term he was
allegedly involved in an incident with two members of the public who claimed that he had misused his
badge to gain entry to a shop after it had closed, and that he had behaved in a drunken, aggressive
manner towards them. O was interviewed in relation to these allegation but was not given the
opportunity to cross-examine the witnesses.
Held:
Gibbs CJ: Where there is a hearing before a tribunal it does not follow that a person affected
necessarily has a right to cross-examine witnesses. Natural justice does not require strict application of
fixed or technical rules; it requires fairness in all the circumstances. Here there was no lack of fairness
in the process by not allowing cross-examination.

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E.

A right to have al members of the tribunal consider the issue

Re Macquarie University; Ex parte Ong (1989)

Facts: A committee recommended that the Head of the Law School be declared vacant. The
committee's report was considered by the V-C before the meeting to decide, and the V-C wrote
supporting the recommendations. She did not attend the meeting which declared the position vacant.
Held:
Hope JA: Where there is no ability for the decision-maker to delegate any of its functions, the decisionmaker must consider the evidence or such a summary of it before making it decision. Where there is a
power to delegate however, the decision-maker can give a delegate the power to make findings of fact
and to make recommendations. In this situation the decision-maker is free to look at all the evidence or
a summary and make its own findings, or it may adopt the delegate's findings as its own without
considering the evidence or a summary of it. There is no right in this case to have all members consider
the issue. There is a power of delegation whereby can rely on others to read all the transcripts and
produce findings which the decision-makers just endorses

F.

Re Refugee Review Tribunal; Ex Parte Aala

CLASS NOTES:
The difference between judicial and administrative decision making
There is a difference between judicial and administrative decision making because the nature of the
hearing (or task the body is performing) dictates what kind of procedural fairness is to be applied.
The difference where rights are affected
There is a difference between judicial and administrative decision making where rights are affected
because courts involve the rights (or claimed rights) of litigants, whereas public bodies have a dual
role.
The public interest balancing test in determining the content of the natural justice requirement
Sometimes the nature of the tribunal's hearing is one where the dictates of public responsibility
outweigh the interest of the individual. In O'rourke for instance, natural justice did not require a need
for cross-examination of the accusers by the constable.
Outcome of impugned decision making process does not necessarily change the effect of the
breach
If there is something so minor that it wouldnt make a difference it wont change the effect of the
breach e.g. Krystic

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19 THE RULE AGAINST BIAS

This is the last of the materials on natural justice. The origins of the rule is the
thinking that the decision maker approach the question with an open mind. The
rule is that the decision maker should disqualify themselves if they wont or are not
able to have an open mind.
Bias
A pre-existing favourable or unfavourable attitude to an
issue when impartial consideration of the merits is required. Determinations of
decision makers, including judicial officers, may be open to review when bias, or
an appearance of bias, is present. A judge will be said to be biased when a fair
minded person might reasonably suspect him of being so: Ex parte Angliss
Bias rule The principle that a decision maker must not have an interest in
the outcome of the case or an appearance of bias.
From the perception of the reasonably informed observer (reasonable
apprehension) - factored in to maintain public confidence - legitimise the court "justice must also be seen to be done".

19.1 The no bias requirement

A breach of procedural fairness on the grounds of bias occurs if a fair minded and objective bystander
would entertain a reasonable apprehension that the administrative decision maker would not bring an
impartial and unprejudiced mind to the resolution of the question invloved

A.

The problem of neutrality

ALRC - Equality before the law: womens equality: Report no 69 Part II

Bias = deviation or creating the reasonable apprehension of deviation from what is correct or fair
(as justice must not only be done but be seen to be done)
Bias is a ground for judicial review in administrative law.

Bias sometimes on the ground that judging should only be done by white males:
Pregnancy: solicitor said Tribunal member had been biased because suffered from placidity
caused by pregnancy and so lost clarity of mind
Religion: man said being a Christian, he could only be judged by men. Decision in his favour
quashed.
Opinion: commission said to be biased because had expressed an opinion in favour of equal pay for
men and women
Expertise: where individuals are appointed as members of tribunals by virtue of their expertise,
their very expertise may expose them to claims of an appearance of bias. Koppen v Commissioner
for Community Relations: Aboriginal woman disclosed special knowledge, in keeping with
procedural fairness, and was said to create the appearance of bias.
Women judges and female plaintiffs: Canada- female judge commented on the benefits of having
women judges and was said to be biased.

B.

A reasonable apprehension of bias

It is not enough that decision makers have in fact, to the best of their ability, approached an issue with
complete impartiality; it is also necessary that they appear to have done so. The standard is that of the
reasonable observer.

Laws v Australian Broadcasting Tribunal (1990)

Facts:
L made comments critical of Commonwealth expenditure on Aboriginals. The ABT had a meeting
with 2GB in response to complaints and subsequently asked 2GB to submit any other material they

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thought was relevant. On 24/11/87 a three member tribunal issued a statement saying L had breached
guidelines and an inquiry would be conducted. On 2/2/88 L commenced proceedings seeking review of
the ABT decision. Further L instituted a defamation suit against the ABT and a particular member after
she made comments critical of a L broadcast.
Held:
The court held that a fair-minded observer would not conclude that the members of the ABT, other
than the 3 members who participated in the earlier decision, would bring other than an unprejudiced
and impartial mind to the resolution of the issues which would arise during the inquiry.

Necessity - where there are no judges who dont have an interest (bias) in the case,
then the rule of necessity will allow the judge to sit of whom the applicant has a
reasonable apprehension of bias.
In assessing what the hypothetical reaction of a fair-minded observer would be,
we must attribute to them knowledge of the actual circumstances of the case. In
this case, a reasonably placed observer would know that the defence which the
judges filed against the defamation action was just an ambit defence and not their
actual opinion or prejudgment. This assumes reasonable person is basically a
lawyer.
Must prove that the reasonable person fears that the decision-makers mind is so
prejudiced that their conclusion wont change despite the evidence presented

Mason CJ & Brennan J:

Apprehended bias occurs when a "fair minded and objective bystander would entertain a reasonable
apprehension that the administrative decision-maker would not bring an impartial and unprejudiced
mind to the resolution of the question involved".
'In assessing what the hypothetical reaction of a fair minded observer would be, we must attribute to
him or her knowledge of the actual circumstances of the case which led to the bringing of the
defamation action and the filing of the defences. While it would not be proper to attribute to the fair
minded observer the understanding that a lawyer would have of the capacity of the Tribunal to make an
independent decision uninfluenced by previously expressed opinions and conflicting interests..., such
an observer must be taken to appreciate that the defences filed by the Tribunal do not amount to
assertions of belief or admissions...He or she would understand that the corporate action of the Tribunal
in filing defences...did not invlove a judgment of the issues in the action by the individual members of
the tribunal'.
There is an exception to this which is the rule of necessity (applied so natural justice does not frustrate
a statute). This permits a member of a court who has some interest in the subject matter to sit on the
case when there is no judge without an interest available to sit. Here there is no other body to sit but the
ABT, so the ABT must sit.
Gaudron & McHugh JJ:
To necessitate a disqualification it must be established that there 'is a reasonable fear that the decisionmaker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that
conclusion irrespective of the evidence or argument presented to him or her'. A fair and unprejudiced
mind does not have to be one that 'has not given thought to the matter or which may, having thought
about it, not formed any views or inclinations of the mind upon or with respect to it'.
Deane J: (dissenting)
Need to look at whether the Tribunal as an entity is affected by the defamation action (a question to be
answered by looking at the circumstances). The test is that of the reasonable and fair-minded lay
observer.
There are two qualifications to the rule of necessity:
i) It does not apply where its application would involve positive and substantial injustice
ii) When it does apply, it applies only to the extent that necessity justifies
Note: Statutory intent can override this principle.

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Glynn v ICAC (1990)

Regarding a judicial officer or commissioner giving an indication to someone to whom it is axiomatic
that it is provisional:
'There is nothing wrong with a helpful indication of a point of view, by a judicial officer or
commissioner, to whom it is axiomatic that the view will remain provisional until the proceedings are
concluded. It is, of course, necessary that it will be borne in mind that litigants or lay observers may not
understand this and mistake a provisional view for a calculated prejudgment, and it will often be
appropriate for an explanation to be given to allay such fears. When the test of the reasonable observer
is taken into account, it is however my view that he should be creditied with the knowledge that
judicial officers and legal practitioners have of the legitimacy of exposing provisional views for debate.
Particularly is that so in a long running and comlex inquiry where the notion of 'judicial silence' is
likely to be counter-productive'

Johnson v Johnson (2000)

Facts:
Trial judge stated, after hearing the evidence of the respondent (but not the appellant) that he would
'rely, principally, on witnesses other than the parties in this matter - and documents - to determine
where the truth lies'.
It was argued that this could give rise to a reasonable apprehension of bias as it constituted a
predetermination of the credibility of either one, or both of the parties to the action.
Held:
The hypothetical reasonable person needs to take into account the exigencies of modern litigation:
'Judges, who in exchanges with counsel, express tentative views which reflect a certain tendency of
mind, are not on that account alone to be taken to indicate prejudgment'.
Here, considering the context of the relevant judicial statements, it was held that the Judge was making
a point about the significance of documentary evidence. A reasonable observer would not have imputed
to the Judge a view that the appellant (or respondent) was a person whose evidence was of no worth.

C.

Judges with political and provisional views

R v Cth Conciliation & Arbitration Commission; Ex parte Angliss Group

President had said that it would be appropriate for women to get equal pay as men.
The Angliss group wanted to prevent the President from sitting. Held: The reasonable
person would not conclude that the Commissioners had prejudged the case. Mere
expression of opinion upon a general question of policy is not a reasonable ground for
lack of integrity of future decisions.
Vakauta v Kelly (1989) HC
Trial judge gave an opinion on various witnesses called in on a personal injury case.
Held that in some cases, and notwithstanding the professional attachment of an
experienced judge, it would be all but impossible to put preconceived views entirely
to one side in weighing the evidence of a particular witness. Statements made by a
judge / tribunal member cannot be revived by unauthorised statements of another.
Kaycliff Pty Ltd v Australian Broadcasting Tribunal 1989
The Chair had expressed in her opening statement that she felt that Mr Skase had used
a legal device to obfuscate ownership. Husband showed similar views. Held: That she
expressed dissatisfaction at his actions was not improper or unlawful.
1. A tribunal is allowed to form a provisional view (This can depend on when it was
said eg after all the evidence; or when written submissions had already led the
judge to make a view and so the respondent asked to state case first = no bias)
2. Casual statement by husband cant be said to have been formed due to the bias of
the wife.

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D.

Institutional bias: see Laws case

E.

Demographic bias

Bird v Volker
Mr Bird wanted Kiefel J disqualified from hearing the case because:
1. She was a woman and a lawyer and women lawyers dont think properly.
2. She was appointed only a few days after his application (to thwart him)
3. She might hold views opposed to Anglo-Saxon background as she may be Jewish.
Held:
Judge/person obliged to act judicially should not hear a matter if the party or
public might entertain a reasonable apprehension that s/he might not bring an
impartial or unprejudiced mind
She declined to disqualify herself as his views were not conclusive and that the
threshold test had not been made out namely, the reasonable bystander.

19.2 Does Procedural fairness require unbiased administrators?

Cases may arise where the circumstances might justify a hearing , but where the
decision-maker could not reasonably be expected to be impartial. The court has are
several approaches to this:
1. Hearing rules operates but the bias rule does not.
2. The no bias riles operate, but in an attenuated (narrowed) form.
3. Decision-making which involve quasi-judicial tasks attract the bias rule,
whilst those involving quasi-political tasks do not. This is based on the
view that fact-finding must be free of actual or possible bias.
Where, however, the decision-maker enjoys considerable discretion, decision-makers
will be free to make decisions about the implications of those facts on the basis of the
administrators or the governments values. This is subject only to the duty to comply
with the relevant administrative law standards relating to the exercise of
administrative discretion: Angliss
Century Metals and Mining NL v Yeomans
Facts: Y had made critical comments about Union of Christmas Island Workers but
was appointed the independent assessor of Century and UCIWs proposals.
Held: Administrators and Ministers are bound by less rigorous rules with respect to
bias than judges. There is the same test for each ie, reasonable apprehension of bias
but the interpretation of reasonable is less strict on Ministers.
Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy
Facts: The delegate of the Minister refused Ms application for refugee status,
allegedly under the influence of the statement made by the then PM Bob Hawke, that
the Cambodian boat people (M was one of them) were not refugees within the
meaning of the Migration Act.
The applicant thus argued that the decision was flawed on the grounds of reasonable
apprehension of bias.
Held:
Correct test formulated by Deane J in R v Webb:

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The test of reasonable apprehension of bias is on the mind of a fair-minded lay

observer.
- The standard of such an observer will vary according to the function being
discharged and the particular circumstances.
In this case, the decision was made in private and there was no formal procedure
as in a court of formal tribunal
However, since the delegate was obliged to accord procedural fairness to the
applicant, the principle of reasonable apprehension of bias should also be applied.
In the circumstances, a reasonable observer would not entertain a reasonable
apprehension that the delegate was biased. But dismissed the appeal for other
reasons.
-

Minister for Immigration and Multicultural affairs v Jia Legeng p 688

19.2.1 Waiving the right to have an unbiased decision maker

This is a 'two bites of the cherry' issue, which arises in cases where people become
aware that they are being denied procedural fairness, but fail to protest until after the
decision making process is over. At one extreme is the case where the default is the
result of a reasonable fear that it would be unwise to protest. At the other is the case
where the 'aggrieved' person doesnt say anything, hoping the decision will do their
way and if it doesnt -cry 'bias'! The law should favour the former but not the
undeserving opportunists who want a second bite of the cherry.
Vakauta v Kelly
The trial judge commented critically on the witnesses who the defendants (GIO)
intended to rely on. He explained that his comments were intended to put the parties
on notice as to his views, so that they could conduct their out of court negotiations
accordingly. At no stage did counsel for GIO ask the judge to disqualify himself. The
judge subsequently found for the plaintiff and GIO appealed.
There is little doubt that the comments of the trial judge would have raised a reasonable apprehension
that the trial judge might not bring an unprejudiced mind to the hearing. However there is no reason
why a litigant fully aware of the circumstances from which ostensible bias might be inferred should not
be capable of waiving the right to later object to the judge continuing to hear and dispose of the case.
At a minimum an objection must be taken even if counsel does not go as far as to request the judge
disqualify him/herself. If this does not occur the party can be held to have waived their right to
challenge.
However the language in the judgment also gives rise to ostensible bias. The defendant had not waived
their right protest this on appeal (only waived right to reasonable bias challenge).

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20 LIMITS TO FAIRNESS
20.1 Curing departures from procedural fairness
The question is raised whether the existence of a right of review implies that the primary decision
maker need not accord with procedural fairness, as any injustice thereby occasioned can be corrected
on review.

Twist v Council of the Municipality of Randwick (1976)

Facts:
The statute allows the local council to demolish buildings under certain conditions. An appeal lies to a
District Court judge from such an order. T was given an order without a hearing, did not appeal in time
and is now seeking declaratory relief.
The issue here was whether the existence of the right of appeal indicated a legislative intention to
exclude procedural fairness from the council's decision making process.
Held:
Barwick CJ: The existence of a full appeal does not necessarily displace the obligation of the primary
decision maker to comply with the rules of procedural fairness.
Mason J: Regarding the urgency to carry out the order (the subject matter of the statute) and the
comprehensive nature of the appeal, the Council does not have to afford natural justice when preparing
the order, though they may if they wish.
'Having regard to the subject matter of the section, the nature of the order which the council is
empowered to make, the degree of urgency which may attend the execution of the order and more
particularly the comprehensive nature of the appeal to a District Court judge, I am of the opinion that
the relevant section should be read as providing the exlusive remedy available to an owner who wishes
to challenge the validity or correctness of an order'.
Jacobs J: To determine if natural justice should have been afforded by Council the legislative intent
must be looked at. Because there is a very broad appeal available it does not follow that procedural
fairness does not have to be given. Here the matter on wich the person wishes to be heard is an
appropriate one.
Note: It would appear from the judgements delivered in this case that the potential of a full right to a de
novo appeal can 'cure' the unfairness in the original decision, as it provides the applicant with an
opportunity to be heard before their rights are finally affected. Where the legislation provides for an
unrestricted appeal, the appeal may be the exclusive remedy available to an individual wishing to
challenge a decision made under that legislation. If the appeal is more restricted however, it may not be
viewed by the courts as being able to overcome the lack of fairness at the initial stage.
This is not a steadfast rule. In Calvin v Carr it is asserted that procedural fairness may need to be
afforded at an earlier stage in situations where the most perfect of appeals or rehearings will not be
sufficient to produce a just result.

A.

Exercising the Right of Appeal to Cure

In Twist v Randwick, Mason J said 'If the right of appeal is exercised and the
appellate authority acts fairly and does not depart from natural justice, then the appeal
may be said to have 'cured' a defect in natural justice or procedural fairness which
occured at the first instance'. This view appears to be supported by the judgement in
Calvin v Carr.

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21 JUDICIAL REMEDIES
21.1 The effect of a flawed decision
P730-732

21.2 Interim relief

Under s15 of the ADJR Act, courts may make interim orders suspending the operation of decisions and
restraining decision-makers from taking action to implement decisions.

21.3 Collateral attack

Collateral attack is where in an action or proceedings against you that are under way you raise an
administrative law point as a defence e.g. jurisdiction question or denial of natural justice

Director of Public Prosecutions v Head [1959]

Facts:
In England it was an offence to have sexual intercourse with a woman or girl under certain conditions
under the Mental Deficiency Act 1913. In 1947 EH was placed in an institution under a defective
order. She was later released on licence. In 1956, Head had intercourse with her despite being warned
not to. He appealed to the CA and won. The DPP appealed to HL.
Held:
Lord Somervell of Harrow: The question is whether a man should be sent to prison on the basis of an
order that the court knows would be set aside if proper proceedings were taken? I doubt it. Reserves the
question of whether the order was void or voidable.
Lord Denning: If the order was void it is a nullity (and any continuation orders) and no court action
would be required to quash it. If the order were voidable then some action would be required to quash
it (ie. an application to the CA for certiorari to quash it). The court would have discretion to quash it
(which it would do if justice demanded). If the order arises from an erroneous act of jurisdiction then
the order is voidable and not a nullity.
Even if the original order were set aside the continuation orders would remain good: for it is a general
rule that when a voidable transaction is avoided, it does not invalidate intermediate transactions which
were made on the basis that it was good. This includes the decision of the trial judge in this case,
which was made based on the fact the order was good.
Allowed the CA decision to stand as it would be unjust for it is only in extreme circumstances can the
DPP appeal from an acquittal.
Viscount Simonds: (dissent) The DPP does not have to prove that the person under the care (or placed
out in licence therefrom) was not only in fact under the care but also lawfully detained.
Problems can arise where an administrative decision is attacked in the course of a private law
proceeding. The most obvious one is where the decision is attacked in a lower court that does not have
the jurisdiction to hear such matters. Legislation is one way around this.
Another problem can arise where the court does have jurisdiction due to the different evidentiary,
discovery and interrogation procedures and the limitation periods. The use of this way of gaining
prerogative relief does not appear often (indicating it may not be important), and was criticised by the
NSW CA suggesting it may amount to an abuse of process such that it may be struck out ( Meagher v
Stephenson (1992) 30 NSWLR 736).
This argument is less compelling where there is a real conflict between the policy considerations for
the private matter and those for the public matter (see Chan v MILGEA (1991) 31 FCR 29 - p705).
Attacks on administrative decisions collaterally as a shield against prosecution for failure to comply
with a (void) administrative decision are possible. However a risk would have to be run, as well as
jurisdictional issues and abuse of process rules.

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21.4 Declaratory orders

Declaratory orders are the most widely sought and flexible of all administrative law orders. Because
they constitute a statement of the legal implications of the administrators behaviour, they constitute an
extremely flexible order.
They are made by courts in their equitable jurisdiction, but the jurisdiction to make a declaration
without granting other forms of relief is regarded as being based in statute.
The ADJR Act provides that declaratory relief may be granted in relation to an application to review a
decision (s16(1)(c)); an application to review conduct (s16(2)(a)), and an application in respect of a
failure to act (s16(3)(b)). The Act basically codifies the common law with respect to declaratory orders.

Forster v Jododex Australia Pty Ltd (1972)

Facts:
Under the Mining Act 1906 (NSW) J made an application for an exploration licence, with a 12 month
one granted. The licence expired on 28 November 1969. On 28 October 1969 J applied for a 6 month
extension, which was granted, and further extensions subsequently granted. On 7 November 1968 F
applied to enter part of the land to search for mineral. To succeed J's application of October 1969
needed to be made no less than one month before its expiration (as required by the statute). On 26
March a Mining Warden began to hear F arguments. J began proceedings in NSW Sup Ct seeking
declaratory and injunctive relief (getting declaratory relief, injunctive claim abandoned).
Held:
Gibbs J: Historically the ability of the NSW Supreme Ct to grant declaratory relief under s 10 of the
Equity Act 1901 was where there was a right to some consequential relief which, if asked for, could be
granted by that court or, in certain cases, by some other court. A judge sitting in the equity jurisdiction
could only make a declaration of rights in proceedings for equitable relief or relating to equitable rights
or titles.
The question put forward must be a real, not theoretical, question; the person raising it must have a real
interest to raise it; he must be able to a secure some one presently existing who has a true interest to
oppose the declaration sought.
Here J had a real interest in establishing the validity of the licence. F had a real interest in contesting J
claim which, if upheld, would defeat his claim.
The plaintiff should not necessarily be refused one form of relief because another is available from the
court.
The court, when using its discretion to hear proceedings on an issue that is pending in another arena
(whether another court or tribunal or whatever) must weigh all the questions posed by the two parties
respective rights.
The courts are reluctant to issue declarations where the issue appears theoretical, with standing rules
generally ensuring that this doesn't occur. The reasons for this are:
1.
2.
3.
4.

There needs to be a proper contradictor.

Facts are more fluid where the situation is hypothetical.
A decision in a hypothetical may differ from that that may be given if the court had a
more concrete case (ie. considering an administrative act in the light of undeniable
consequences).
Uncertain on the practical implications such as whether it will be precedential and binding
on future litigation.

The courts will allow a certain degree of hypotheticality, especially where the consequences for the
litigants are potentially very damaging.
Superficially declarations appear to have no teeth, but in practical terms this is not the case.
Administrators would be unlikely to ignore it. They would be expected to comply with the law as
declared, rather than face another round of litigation (and the near certainty of some extremely acerbic
comments from the judge). Secondly a declaration of rights constitutes res judicata as between the
parties in future litigation..the issue of the legality of the impugned action will therefore not need to be
re-litigated.
Part of the appeal of declarations lies in the fact that they can save the citizen from having to risk

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criminal prosecutions in order to test their belief that a particular administrative act is a legal nullity.

Minister for Immigration and Ethnic Affairs v Guo (1997)

Facts: The respondent entered Australia illegally and claimed to be refugees. Their application for
relevant visas were refused by the primary decision-maker, which was upheld by the Refugee Review
Tribunal. They sought a decision by the Federal Court under the ADJR Act. The court held the RRT
had erred in law, and further (Beaumont J dissenting) made a declaration that the respondents were
refugees under the Migration Act. The government appealed.
Held: The HC held that the Federal Court had erred. Brennan CJ, Dawson, Toohey Gaudron, McHugh
& Gummow JJ: The declaration by the Federal Court lacked utility because it did not specify with
reference to the relevant legislative criteria, nor indicate any ready means of identification thereof. 'A
declaration so loosely framed is objectionable in form.'
'Moreover, a declaration, even if drawn in specific terms, should not have been made. The Tribunal
was empowered to exercise all the powers conferred upon the primary decision maker. The Act
provided for determination by the Minister that a person was a refugee, but this power was exerciseable
upon the Minister being satisfied that a person had that status or character. The rights of the appellants
to the issue of visa, which the Full Court purported to declare with present effect, would only arise
upon satisfaction of statutory conditions including the determination by the Minister'.
Kirby J:
Judicial review is fundamentally designed to uphold the lawfulness, fairness and reasonableness
(rationality) of the process under review, not to substitute its own decision for that of the administrator
exercising a discretion given by the legislature. There may be cases where the discovery of a
fundamental flaw in the primary decision and strong arguments of convenience will warrant the
making of orders effectively determining the question under review. However in most circumstances
this should not be done. Where the Act does not confer the power on the court is one such case (here
both the primary decision-maker must be satisfied, as must the RRT upon review for an error in law).

21.5 Orders setting decisions aside

Where a decision is a legal nullity, no formal action is needed to set them aside, a declaration that they
are void will normally suffice. In practice courts set aside decisions where it is not completely
necessary for them to do so. When reviewing a decision of an inferior court where the error is nonjurisdictional, declaratory relief will not suffice. The decision, though flawed, stands until formally set
aside.
Decisions that have been subject to judicial review are set aside by:

writ of certiorari (traditional procedure) or an order of the nature of certiorari (more

flexible procedure removing some of the formalities).
order under a Judicial Review Act (ADJR Act or JRA)

Like prohibition, certiorari is available only in relation to bodies that must afford procedural fairness in
relation to the making of the decision in question. Further, it is only available in relation to a decision
operating in law to affect rights. Finally, in relation to review of inferior courts they are only available
on non-jurisdictional errors that are "errors of law on the face of the record."
These requirements are echoed in the Judicial Review Acts (JRA and ADJR Act). They do not
expressly require the body to afford natural justice, but the decision must be of an administrative
nature.

A.

The need for a decision

A decision flawed through failure to comply with the requirements of procedural fairness can be
quashed by certiorari only if it is one which has legal effect.

Ainsworth v Criminal Justice Commission (1992)

Facts: The Qld CJC issued a report that commented adversely on the applicant and recommended that

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he not be permitted to participate in the Qld gaming industry. This recommendation was not, at law, a
matter to be taken into account in subsequent decisions as to the granting of the relevant permission.
Held: The Court held that, in consequence, certiorari would not lie to quash the decision,
notwithstanding its finding that the Commission had failed to accord procedural fairness to the
applicant before making its report.
Mason CJ, Dawson, Toohey and Gaudron JJ: The function of certiorari is to quash the legal effect of
the legal consequences of the decision or order under review. The report of itself has no legal effect
and carries no legal consequences, whether direct or indirect. It did not legally affect rights. (The
Commission could have chosen to ignore the report in deciding whether to issue the license).
There being no legal effect or consequence attaching to the report, certiorari does not lie to correct the
failure of the CJC to comply with its duty to proceed in a way that was fair to the appellant.
Brennan J in the above case stated that the appellant could have sought an injunction restraining
publishing the report until they had been afforded natural justice.
The Judicial Review Acts provide that only a "decision" can be quashed.

B.

Errors of law on the face of the record

In judicial review of an inferior court certiorari is available where there is a jurisdictional error or
where there has been a "non-jurisdictional error of law on the face of the record." In the latter case the
quashing only takes effect from the time the decision is quashed, whereas with the jurisdictional error,
the decision was a nullity.

Craig v South Australia (1995)

Held:
Brennan, Deane, Toohey, Gaudron and McHugh JJ:
In some recent cases there has been an expansive approach to certiorari which would include both
the reasons and the complete transcript of proceedings in the "modern record" of an inferior court
(citing NSW decisions). This should be rejected.
The decisions of the High Court conclude that, in the absence of statutory provision, the record of
the inferior court for the purposes of certiorari does not ordinarily include the transcript, the
exhibits or the reasons for decision. To extend the availability of certiorari is best left to the
legislature.
The transcript and reasons can constitute part of "the record" by reference. This qualification
should be understood as referring only to so much of the reasons or transcript as is referred to in
the formal order in a way which brings about its incorporation as an integral part of that order and
"the record".
Ordinarily, in the absence of statutory provision, the record will comprise the documentation
which initiates the proceedings and thereby the grounds of the jurisdiction, the pleadings (if any)
and the adjudication (that being the actual order or ruling). If a formal record has not been
prepared the court hearing the matter can construct or complete the record.
The Judicial Review Acts (i.e. ADJR Act) allow a decision to be quashed as long as a ground for
review has been made out. The court also has the power to determine a date from which the quashing
is to take effect (see p724 - before heading no. 7)

21.6 Orders requiring administrators to act in particular ways

A writ or order in the nature of a mandamus requires administrators to perform particular acts (there are
similar provisions under the Judicial Review Acts). Mandatory orders require the doing of someone
under a public duty that which ought to be done. It appears more positive than the other writs, but is
usually sought in conjunction with one of them.
Mandamus does not lie against those under a "private" duty to act. For it to apply there must have been
a duty to act and a failure to perform that duty. There are lingering doubts about its availability against
the Crown.
Before a court can make a mandatory order, it must be satisfied of two things:

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that the administrator was under a duty to perform a particular act, and that, despite a demand, the
administrator failed to perform that duty.

A.

What is a public duty?

Is there a duty to act? Sometimes this will be clear: the legislation will impose obligations on a
repository of a discretion or duty to perform in particular ways in particular circumstances. Where a
discretion is conferred, the position may be more complicated. It may be unclear whether the repository
is actually under a duty to exercise that discretion.

Western Aust Field and Game Association v Minister for State for Conservation
Facts: The Wildlife Conservation Act 1950 (WA) (the Act) allowed the Minister to declare an open
season on any fauna, and to place such restrictions on the season as were advisable. The Minister was
to publish declarations in the Gazette, and the declaration was to have the force of law. Relevant
Ministers had traditionally consulted the appellant group. In 1992 the Minister made no decision and
the appellant was not consulted. The appellant sought an order of mandamus for the Minister to
perform his duty under the Act. It further argued that the failure to perform the duty was motivated by
a belief that game hunting should be absolutely prohibited, an irrelevant consideration under the Act.
Held: The court held that the Act created a power, but not a duty for the Minister to exercise the
discretion. Consequently, mandamus did not lie.
Malcolm CJ: The discretionary power to remove the protection must be exercised reasonably, in good
faith and consistently with the purpose and objectives of the Act. The mere fact that the environmental
considerations or any other relevant considerations are such as would make it possible to declare an
open season does not have the result that the Minister is under a duty to consider whether he should
make a declaration. It follows that the Minister's power must be exercised consistently with the scope
of the legislative power of Parliament. In general what is necessary or desirable for this is a matter of
policy for the Minister or government to determine and for which they are accountable to Parliament
and the electorate. In general the area of policy determination is one that the court will not intrude. If
the power is exercised and the declaration made the decision would be susceptible to judicial review.
If, however, as a matter of policy a decision is not made to exercise the power to promulgate delegated
to remove the protection, that is an area into which the courts will hesitate to intrude.
Where a person possesses a discretion that person's duty is to exercise that discretion according to the
law, not to exercise it in a particular way. The only time a mandamus will lie to compel a particular act
or decision is where the relevant person is required to perform that act or make that decision. See quote
from Ainsworth p726.
The distinction between public and private duties is difficult to define. Contract generally continues to
be treated as 'private', with duties arising directly from statue far more likely to be treated as public.

B.

Can mandamus lie against the crown?

There is authority that it cannot (FAI Insurances). This rarely presents problems given the minimal
importance of the Crown and its representatives. However the protection enjoyed by the Crown is also,
in part, enjoyed by its servants. Due to the erosion of Crown privileges in other areas of administrative
law, it is unlikely that the traditional rule would be able to stand where it precluded a mandatory order
that would be otherwise justified.

C.

What is involved in failure to perform a duty?

It may be unclear whether there has been a failure to perform a duty - especially where there has not
been an explicit refusal to perform the duty, and where there are no express requirements that the
discretion be exercised within a specific period. In such cases, the best that courts can do is decide
whether the delay in acting is so unreasonable as to amount to a constructive refusal.
There must be a demand for the act to be carried out.
Refusal to act may be evidenced by an unambiguous statement. What is more likely, however, is that
the evidence for refusal to act will be ambiguous. There may be action, but this may invlove elements
which are not to the complainant's liking and which lie outside the decision-makers power. This will be
treated as a failure to act). Failure to act with appropriate speed can also be treated as a failure to act

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D.

What can administrators be ordered to do?

The administrator may only be ordered to do that which he/she is under a duty to do. Thus if a Minister
is under a duty to consider whether to proclaim open season on koalas, the Minister is required only to
consider whether to exercise that discretion. The Minister cannot be required to exercise the discretion
in a particular way.

E.

The judicial review Act provisions

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22 DISCRETION
Parties who have established that administrators have acted unlawfully are not entitled as of right to
orders in their favour. This is the case both for equitable orders (which are of their nature discretionary)
and (with some minor exceptions) for prerogative orders. The Judicial Review Acts also embody this
principle. In practice, orders are made in favour of successful parties almost as a matter of course, but
in exceptional circumstances discretions may be exercised against an otherwise successful party.
Among the reasons for refusing relief are the 'successful' party's conduct, futility, and the effects of
orders on third parties. Courts may also exercise their discretion in the context of the formulation of an
order, especially where the order invloves declaratory relief. Discretion may also be exercised in
relation to the setting of the date from which the order is to operate.

22.1 Discretion and its limits

A.

Remedies under Administrative decisions (Judicial Review) Act 1977 (Cth)

Lamb v Moss (1983)

Facts: M, a medical practitioner was charged under the Crimes Act (Cth) and sought a review of
decisions made by the magistrate in the course of the committal hearing. The court considered whether
it may exercise a discretion to refuse relief under the ADJR Act.
Held: Bowen CJ, Sheppard & Fitzgerald JJ: The decisions made in the course of the committal hearing
were reviewable under the ADJR Act. Section 16 (see p746) details the powers of the Court with
respect to applications, and also gives the Court the discretion to use these powers. In the
determination of the discretion to refuse relief the following are considered:
i) The word "may" is always permissive and never obligatory
ii) Prima facie the word "may" is used to confer a power, the exercise of it is not compulsory
iii) The contrary may emerge from the enactment by which the power is granted (in a
particular enactment its operation may be such as to oblige the court to act)
iv) Where a jurisdiction is given to a court generally, at least, the conferral carries with it the
duty to entertain applications for the jurisdictions' exercise.
v) The permissive language may be used because the court is to determine the existence and
validity of the claim. Further such language is consistent with the existence of a
discretion in the kind of relief that can be granted. Such language does not necessarily
indicate a discretion to refuse relief notwithstanding the establishment of a claim.
vi) The existence of a duty to exercise jurisdiction does not necessarily mean there is an
obligation to grant relief upon satisfaction of the validity of a claim.
vii) Given the discretion exists it must be used judicially on grounds which go to the scope
and purpose of the enactment.
viii) The existence, nature and extent of a court's jurisdiction granted by the use of the word
"may" also depends upon the construction of the relevant provision in the enactment as a
whole.
The application of these principles to the Act leaves no doubt that once the Court's jurisdiction in
enlivened there is an obligation to hear the application. However, the existence of that obligation is not
inconsistent with a power in the Court to refuse relief notwithstanding that the statutory preconditions
to a grant of relief are satisfied. In our opinion, such a discretion does exist under the Act.

Discussion of sections in the ADJR Act:

- s5 : Rights to make an application in respect of a decision to which the Act applies.
- s6 : in respect of conduct engaged in for the purposes of making such a decision
- s7 : and in respect of a failure to make such a decision are conferred on persons
aggrieved.
The grounds upon which an order may be sought are specified in those sections.
- s8:The Court is given jurisdiction to hear & determine applications made to it by s8.
- s9 : With qualifications not immediately relevant, s9 excludes the jurisdiction of
State courts in respect of, inter alia, matters which may be reviewed by this Court
under that Act.

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- s11 : The manner in which applications are to be made is specified in s11, which
also deals with the time for making applications.
- s12(1) : A person interested in proceedings under the Act may apply to the Court to
be made a party to the application; and the Court may, in its discretion, grant
such an application conditionally or unconditionally or refuse it : s12(2).
- s16 : discusses what the Court can do, in its discretion, when reviewing a decision.
(listed in detail on p746-747). It strongly suggests that the applicant has no absolute
right for a kind of relief or another, once the basis for relief is established.
s16(10)(2)b)- (discussed in class) A Court in its discretion may refuse to grant
an application under ss5,6 or 7 on the grounds that 1) if the applicant has sought
review already by the Court or another Court; or 2) if an adequate remedy is available
through merits review, the court may refuse remedy

22.2 Factors affecting the granting of a remedy

A.

Inconvenience to others

Where the quashing of a decision may cause considerable inconvenience to people who have relied on
the validity of the decision the Court may use its discretion to not overturn the decision (eg. not use
certiorari). Alternatively the interests of the adversely affected people may only be accorded a limited
weight in the decision to use any discretion.

R v Muir; Ex parte Joyce [1980]

Facts: A public service probation officer was denied tenure, being refused natural justice in the
decision to refuse tenure. By the time the case was heard, the probationary period had elapsed and
another person appointed to the position.
Held: Dunn J: The void, invalid or vitiated decision has had legal consequences.
The fact that the prosecutor's appointment had been annulled cannot be ignored. Nor can it be ignored
that the regulations require a recommendation of the Board precede annullment; the Board had no
power to make a recommendation after annullment. It follows that it would be very wrong to recommit
the question whether the prosecutor should be permanantly appointed to the Board, and the order nisi
for mandamus must be discharged.
The Court has the discretion to refuse remedy that will be virtually useless. However the order nisi for
certiorari in this case will be of some use (the plaintiff provided evidence of this) and it would set the
"record straight" in the Public Service employment records.

Chief Constable of North Wales v Evans [1982]

Facts: A probationary police officer was dismissed after not being accorded procedural fairness.
Having been advised of this he was given the option of resigning, which he did. He then sought judicial
remedy seeking an order of reinstatement rather than damages.
Held: The court refused the reinstatement order but issued a declaration to the effect that the dismissal
was unlawful.
Lord Hailsham of St Marylebone: To make a declaration that the choice put to the officer to offer
resignation or dismissal was void would be a mere brutum fulmen (an empty threat) without practical
consequence. To quash the decision using the writ of certiorari would leave the parties unsure of their
current position or any direction as to their future conduct (it could mean that he has been an officer in
the intervening period as his employment was never validly terminated.
Lord Brightman: A declaration declaring the decision of the Constable void does not make clear the
consequences that may flow. The parties, ideally, must have an idea where they stand under the order.
It is not practical to order the Constable to reinstate the plaintiff (by mandamus), as this would usurp
the powers of the chief constable, nor does the plaintiff want monetary compensation. The declaration
that the dismissal was illegal is the best remedy. The declaration entailed that by reason of such
unlawfully induced resignation, the respondent thereby became entitled to the same rights and remedies
, not including reinstatement, as he would have had if the appellant had unlawfully dispensed with his
services under the regulaions. Such a declaration would clarify the staus of the respondent and would
leave him free to pursue such remedies, short of reinstatement, that may be open to him.

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B.

Delay

The requirement of not delaying an application for review is implicit in relation to inconvenience.
Delay may prejudice the rights of those working on the assumption that the decision was correct, as
well as potentially making the hearing more difficult. Courts however are more sympathetic if there is
a good reason for delay (such as in Muir where the applicant was awaiting a decision in legal aid).

Hodgens v Gunn; Ex parte Hodgens [1990]

Facts: H had been banned from having custody of a dog in Qld. He had been breeding dogs in NSW
and in 1988 he transported a number of dogs to Qld which were confiscated (as where dogs in a second
kennel). Subsequently the Minister ordered forfeiture under the relevant Act. H sought certiorari to
quash the order. Thomas J found that the Minister may not have to accord natural justice in
exceptional circumstances, however, this was not such a case. The court then considered whether a writ
of certiorari should issue:
Held: The court held that H had not pressed his case vigorously and by the time that they had decided
the matter, they were of the view that the dogs, having been long since dispersed, in circumstances
where they and their new owners may be aggrieved at their return, certiorari would be refused.
Thomas J: The claim was not prosecuted diligently or candidly. There was an undue delay by H, where
the matter called for expedition. The Court has a discretion to decline to grant a remedy. Undue delay,
bad faith, acquiescence, change of position and futility are all recognised factors that may lead to a
remedy being withheld. Whilst there was no delay in obtaining the order nisi, there was substantial
delay after. Delay after commencement may be as relevant as delay before commencement. Here the
delay would cause extensive problems if the order nisi were upheld, with the Crown having to track
down the dogs and get them back from new owners etc. The circumstances of the case demanded
prompt prosecution. The order is discharged.

C.

Futility

Parkes Rural Distributions Pty Ltd v Glasson (1986)

Facts: A scheme existed whereby rural petrol distributors were subsidised so they had comparable
prices to capital cities. Authorised officers were empowered to issue certificates detailing the amount
of monies to be paid by the State or money owed to the State if this occurred. P received two notices
for debts owed. These were to be issued with A4 certificates, the second one was issued late.
Held: Glass JA: An undoubted breach of procedure committed by a defendant does not give a remedy
if the grant of the prerogative relief would be a futility. Here the second A4 certificate, whilst not
being valid for the second debt would be a valid ground for a third. No relief given as it would be
futile.
Another situation where granting relief is futile is where the applicant does not have necessary
information/evidence to warrant the decision be altered (Hodgens' Case above discussed p758). Also
the situation may arise where insufficient evidence is provided by the applicant and any order by the
Court would be uninformed, and hence maybe have prejudicial and unanticipated results (Thomas v
Appleton (1994) 35 ALD 481; see p758 of text).
Finally in Stollery v Greyhound Racing Control Board the Court gave certiorari relief even after the
disqualification period had passed. This was because if the decision stood it may have consequences
on future decisions.

FAI Insurances v Winneke (1980)

Facts:See Notes earlier under PROCEDURAL FAIRNESS.
Held: Aickin J: At the time of the Supreme Court hearing the current licence had lapsed as it was over
a year old (max time allowed under the Regulations). Therefore need to consider the effect of giving
FAI relief. No order of the Supreme Court could extend the licence or grant approval for a new one.
The only options are mandamus or a declaration.
A writ of mandamus cannot go against the Crown (which for these purposes the Governor and
Governor in Council are in the position of the Crown). Any such order further would not be able to
force either the Governor nor Minister to do anything even if mandamus was permitted. Further any

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declaratory order would be without any legal effect because the approval had expired by the time the
hearing took place.
See p760 for reasoning as to why the court can give an order that is effective.

D.

The existence of alternative remedies

Courts may also look to see if there are alternative remedies available when looking to refuse relief.
However if too much weight was given to this consideration there would be obvious problems as with
administrative irregularities there exist a number of alternatives (eg. ombudsman review, internal
review, AAT review and judicial review).
Even after this there are other issues that prevent this being a hard rule, such as the applicant opting for
what they regard the most efficient review procedures. Denial here would create costs for the
applicant.
The ADJR Act allows a court to refuse to grant an application on the grounds that there are adequate
provisions under the law that allow for review without resorting to the ADJR Act. Moreover revised
procedural rules allow the court to choose between forms of relief even if the applicant chooses the
"wrong" remedy. The courts are extremely loath to allow administrative law to review decisions in a
criminal trial.
The Federal Court under the ADJR Act starts from the proposition that the applicant is prima facie
entitled to all remedies available.
See Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829 on pp 761-2 for
decision to refuse jurisdiction in relation to a report that was not the final decision, merely a step on the
way.

McBeatty v Gorman [1975]

Facts: A union secretary commenced proceedings against an employer. The industrial magistrate
refused to hear the claim on as a technical defect in the information meant he lacked jurisdiction.
Held: Waddell J: A provision in the Industrial Arbitration Act 1940 (NSW) allows the plaintiff to
appeal to the Industrial Commission any decision from an industrial magistrate (s120). There is a
general rule that "the existence of a right of appeal against a refusal to carry out a duty has generally
been regarded as a fatal impediment to an application for mandamus."
See extract from Meagher v Stephenson (1993) 30 NSWLR 736 (CA) regarding the use of avenues of
appeal as "backdoor" to judicial review that have been closed by legislation (pp 763-4).

E.

Waiver

GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1987)

Facts: The Tribunal had an agreement whereby the judge would sit alone on minor hearings, and have
the two lay members sit on important issues. In this case the judge had proceeded to hear a matter
involving several important issues, and did not appear to notify the lay members. Coles appealed the
decision.
Held :Kirby P and Hope JA: It is not open to the parties to waive compliance with statute. The
provision of a tripartite tribunal is part of the public law of the State. The award that the Tribunal
makes is a form of delegated legislation. It is therefore essential that the award should be made by the
body envisaged and duly constituted by Parliament.

F.

Committal hearings

While the courts have accepted that judicial relief is available for committal hearings, they have
proceeded on the basis that these remedies should be granted only in exceptional circumstances.

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Sankey v Whitlam (1978)

Held:
Gibbs ACJ: In any case where a declaration can be sought and is sought on a question of evidence and
procedure exceptional circumstances are required to warrant the grant of relief. For policy reasons
given on p766 to use declaratory relief in criminal trials is to be applied with caution. Once criminal
proceedings have begun they should be allowed to follow their ordinary course unless it appears that
for some special reason it is necessary in the interests of justice to make a declaratory order.

G.

De minimis

The law does not concern itself about trifles, and relief may be refused on the grounds that an error is
trivial.

22.3 A matter of timing

The courts can exercise their discretion in setting the date from which the order takes effect, taking into
account the realities of the situation.
s16(1)(a) of the ADJR Act empowers the Court to make an order quashing or setting aside the
decision....with effect from the date of the order or from such earlier or later date as the Court
specifies

Styles v Secretary, Department of Foreign Affairs and Trade

Syles was successful in arguing that the appointment of Harrison to a London posting
was invalid. However the Court considered the difficulties and inconvenience to
Harrison should the reconsideration appoint someone else. Thus the operation of the
order was postponed for a period sufficient to enable his transfer to a suitable new
post.

22.4 Effects of success

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