Week 13

Judicial Remedies
There are two types of remedies

Common law - Some common law remedies include

prerogative writs
1. Certiorari- is to squash- this is only for jurisdictional errors
and errors of law on face record
2. Prohibition- is to desist
3. Mandamus is to preform
4. Habeas Corpus is to release.
Writs are only for final and operative decisions affecting
rights and duties.
Declarations and injunctions
These are equitable remedies
They are available against private bodies
Apply to all powers
There are no formal time limits
Not for the theoretical issues
Injunctions are discretionary

Statutory - The administrative decisions (Judicial review) act

1977 (cth) , also the states judicial review acts (not NSW). The
ADJR act is modelled on common law and is not for the high
court. It can be excluded by legislation.
The ADJR act has three threshold issues:
(1)the decision or Conduct (ABT v Bond)
(2)the administrative character (ANU v Burns)
(3)and under enactment (ABT v Bond)
A DECISIONMADE UNDER AN ENACTMENT

The ADJR only applies to a decision of an administrative

character made under an enactment. This means that decisions
which are not made in the exercise of a statutory power will fall outside
the ambit of the ADJR Act review.

Need to look at the extended statutory definition of the word

enactment in s.3(1) but beyond that it is dependent upon
case law.

The Meaning of made under an enactment

Glasson v. Parkes Rural Distributions Pty Ltd
- You must identify a Cth statute as the source of the power to make the decision.

The Cth had set up a scheme relating to fuel prices which required the States to pass
mirror legislation and they had to figure out whether the decision that they were looking
at was made under the State Act or Cth Act.

Case Summary
Australian Broadcasting Tribunal v. Bond
- The HC settled the matter about decision in this case.
- This case concerned an attempt by Bond to Judicially Review actions
taken by the ABT.
- The ABT was conducting a hearing to determine whether to renew a
commercial TV license owned by Queensland Television (QTL). The
licensee was a company owned by Bond.
- The ABT had extensive powers and its ultimate power was to revoke a
commercial TV license.
- S.88 of the ABT Act said the tribunal may suspend or revoke a
commercial TV license. But certain preconditions to taking that step
were set out in the legislation. The one in question, part B provided
that the tribunal is satisfied that the licensee is no longer a fit and
proper person. Here, the licensee was the QTL
- Therefore the two step process. (the final decision is to suspend or
revoke, but to get there, it has to be satisfied of the latter).
- The ABT was halfway through its proceedings when Bond sought ADJR
Act review.
- In the process of satisfying itself that the licensee (the coy) is a fit and
proper person, it reached a no. of conclusions of fact. Firstly, that Bond
had agreed to pay the Premier of Qld $400,000 to settle his defamation
claim not believing that the sum was justified by that sum alone, but
believing that if he did not settle at that figure, the Premier might harm
Bonds interests in Qld. They also found that Bond gave false evidence
to the Tribunal.
- On that basis, the ABT made two findings. Firstly, it made a conclusion
that Mr Bond would not be a fit and proper person to hold a
broadcasting license and secondly, because he was the Managing
Director and had the controlling interest in the company that was the
licensee, the licensee was no longer a fit and proper person to hold the
TV license.
- Bond sought review of both these findings. He said that these are
decisions within the meaning of s.5 of ADJR Act and if not, they are
conduct engaged in for the purposes of making a decision under s.6.
Held:
- The HC took a close look at the word decision and first made
it clear that Lamb v. Moss was wrong. They said that the word
decision has a much more limited field of operation.
- Mason CJ said it will generally but not always, entail a decision that is
final, operative and determinative. He also said that a conclusion
which is simply reached as a step along the way to making a final or
operative decision does not ordinarily amount to a decision.
- S.5 of the ADJR Act only allows you to review the final
decision in a decision-making process.

The HC also added that an interim or preliminary decision may

still be reviewable under s.5 of the ADJR Act PROVIDED that the
statute in question expressly creates this interim decision as a
step.
Part B imposes a prelim step on the tribunal and this can be attacked
under s.5 because even though its not the final or operative
determination, it is in itself expressly set out as a preliminary step by
the statute.
S.5 would therefore be available for both.
But Bond also wanted to judicial review the set of interim findings that
the ABT had reached and published, one of which was that he, Bond,
would not be a fit and proper person if he were a licensee. That was
not judicially reviewable because that decision was even more
preliminary than part B.
Bond could not appeal because he was not the licensee the licensee
was the company.

THE MAKING OF A REPORT OR RECOMMENDATION..

S.3(3) ADJR Act provides that where provision is made by an

enactment for the making of a report or recommendation
before a decision is made, the making of such a report or
recommendation shall be deemed to be the making of a
decision for the purposes of the Act.

There are two requirements:

1. The report-making power itself must be one that is created by statute
2. There must be a final decision, or the final decision must be made after
that report or recommendation is taken and the final decision must also
be something that is provided for by the statute.

s.3(3) says that a decision can include a report or recommendation

before a decision is made, but the statute that gives the person the
power must expressly create the two things the preliminary reportmaking power and the final decision.

Australian National University v Burns:

- The question was whether a decision made by the ANU to dismiss
Professor Burns was made in accordance with a power conferred by the
Australian National University Act OR whether it stemmed from the
contract of employment between Burns and the ANU.
- Burns had a drinking problem and was given a number a warnings and
was ultimately dismissed. He sought a statement of reasons from the
ANU for the decision to dismiss him.
- S.13 of the ADJR act is the main reason why the ADJR Act is the
most popular form of review of administrative decisions. This
is because it allows the applicant an independent right to
obtain a statement of reasons from a decision maker, even
before you commence proceedings against the decision maker
for the decision.
- This allows you to establish ground for the proceeding and is therefore
a powerful weapon for the applicant.

S.13 only applies where the decision is of an administrative character

and made under an enactment.
- There was no such requirement at common law. In this case the
Australian National University Act said that the ANU may appoint
Deans, Associates and Professors etc.
- It also said that the ANU could make by-laws regarding the manner of
appointment or the manner of dismissal. No such by-laws were ever
made.
- Hence in the Act there were clearly laws regarding appointment but no
such laws regarding dismissal.
Held:
- At first Instance: Ellicot J: the ADJR act is a remedial statute and should
be read broadly and flexibly and it should not be read narrowly to
defeat the purpose of the act and although it is difficult to find a
precise source of the statutory power to dismiss, it was impliedly there
and the ADJR act should be read broadly.
- Federal Court: disagreed with above: you must look closely at the
particular decision being attacked and if you look very closely
at this decision to dismiss Burns you will see that it was a
decision which repeated cl.18 of his contract in citing the
grounds for dismissal.
- He was dismissed for incapacity in relation to specified matters and
this ground of dismissal was expressly stated in the contract and this
decision emanated precisely from the terms of his contract.
- It was not a decision made under an enactment - it was a decision
made under the terms of the contract of employment between Burns
and the ANU.

Reconsideration the tribunals can consider

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR
117
- the leading authority on this issue.
- -In that case, the Immigration Review Tribunal cancelled Mr Bhardwajs
student visa. At the time of making the decision, because of an
administrative oversight by the Tribunal, it was not aware that Mr Bhardwaj
had requested an adjournment of the hearing because of illness.
- -Could it remake the decision when it discovered this fact?
- -The High Court found that the initial failure to provide a hearing breached
the procedural fairness requirements of the Migration Act 1958,
constituting a failure to properly exercise the decision-making power. As a
result of this jurisdictional error, the first decision could be ignored. The
second decision was validly made.While the circumstances in Bhardwaj
enabled the Tribunal to ignore the first decision, a decision flawed by
jurisdictional error may still have practical effect. The legal and factual
consequences of a decision, if any, will depend upon the particular statute
When is it appropriate to remake a decision?
If a decision is unsuitable and the legislation does not prevent it from being
remade, the next issue is whether remaking the decision is preferable in the
factual circumstances and promotes good administration and fairness. The
following points may provide guidance:

o Consider the operational effect of the decision. If not disturbed,

might the decision have harsh, unwarranted or unintended
consequences?
o Determine the attitude of the affected party. Remaking the
decision may assist in avoiding unnecessary litigation.
o Find out whether the decision has wider implications. Who is
likely to be affected if the decision is remade? Remaking the
decision might be more appropriate if this will not adversely
affect anyone else.
o Look at whether reconsideration will foster good administration.
Take into account, for example, finality, consistency, fairness,
flexibility and accountability.
Conclusion
The existence of jurisdictional error in a decision may allow it to be
reconsidered. In addition, there is no legal principle that prevents a decision
that is within jurisdiction from being reconsidered and, if its merits are
substantially flawed, replaced. In all cases, however, a decision can only be
remade if this is consistent with the legislation that is the source of decisionmaking power. Careful consideration should also be given to the factual
background and competing principles of good administration before a decision
is remade. Making a new decision should seek to promote the efficacy of the
legislative scheme and fair outcomes for all involved.
Collateral Attack- Unlawful decision may be defence but risky
Damages- no damages except for tort and are limited tort of
misfeasance
Interim Relief
The provisions for courts to make interim orders suspending the
operation of decisions and restraining decision makers from taking
action to the implement decisions. These provisions are found in the
ADJR act section 15. These may be effective if there is a serious
issues and the balance of convenience.
The decretion in granting remedies is both at common law and
under the ADJR Act and is rarely refused

OTHER THAN A DECISION BY THE GOVERNOR-GENERAL

The ADJR act expressly excludes judicial review of decisions

made by the Governor-General.
Often the legislation in question will say eg s.1 the GG may decide to
release a prisoner on license s.2 the term GG in this act means GG
acting on the advice of the AG ie this is a deeming provision.

In substance this is really a decision made by the Attorney-General and

the Governor-General is just a rubber stamp. But the Courts say and
the ADJR act says that these are decisions of the Governor-General and
are not subject to judicial review.
But in Thongchua v Attorney-General: Fox J: in dissent of the above
point, but a dissent only as he was in the minority.

..other than...a decision included in any of the classes of

decisions set out in Schedule 1.

The First Schedule of the ADJR Act excludes a certain range of

decisions from judicial review under the ADJR Act.
These include many classes of decisions where there are specialised
systems of review and appeal, policy decision, eg., under Foreign
Takeovers Act and also decisions relating to assessment and
calculations in relation to income tax.
Note however that these decisions are still susceptible to
judicial review before the High Court pursuant to s75(v) of the
Constitution.
Decisions referred to in Schedule 1 are also susceptible to judicial
review before the Federal Court under s.39B Judiciary Act. Remember
however that the Federal Courts jurisdiction under either the ADJR Act
or s39B of the Judiciary Act can be expressly excluded by legislation.
For example, see Migration Act 1958