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TO
REASONS
STEP
1:
NO
common
law
right
There
is
no
common
law
right
to
reasons
(Osmond)
Osmond:
A
wanted
to
know
why
he
did
not
get
a
promotion.
HCA:
there
is
no
duty
to
give
reasons
Value
of
reasons
! A
safeguard
to
sound
administration
departments
know
that
they
are
going
to
have
to
provide
reasons,
therefore
going
to
ensure
process
if
upheld
! Benefit
to
parties:
access
to
reasons
is
important
!
if
they
see
the
reasons
they
might
be
able
to
see
why
that
has
happened.
If
justify,
the
matter
might
not
go
forward
(democracy)
! Facilitates
review
(in
CT
or
AAT)
! Benefits
the
wider
community
!
general
trend
of
government
department
providing
reasons
early
which
ultimately
benefits
the
community
2.
Reference
to
evidence/material
which
findings/reasons
based
on
Step
6:
Public
interest
refusal
if
the
disclosure
of
reasons
would
be
contrary
to
the
public
interest
s14
-
Prejudice
security/international
relations
-
Involve
disclosure
of
deliberations/decisions
of
cabinet
-
Any
other
reason
that
could
for
basis
Paper,
material
in
writing,
map,
plan,
drawing,
photograph,
marks,
figures,
symbols
with
meanings,
articles
with
sounds,
images,
writing
capable
of
being
reproduced,
information
stored
mechanically/electronically.
Any
other
record
of
information,
any
copy,
reproduction,
duplicate
or
any
part
of
such
AGENCY s 4
DOCUMENT OF AN AGENCY s 4
Definition
document
in
possession
of
M IN,
that
relates
to
his
affaires
of
an
agency/
dept.
Min
deemed
to
be
in
possession
of
Doc
that
has
passed
from
his
her
possession
if
he/she
entitled
to
access
to
DOC.
EXEMPT DOCUMENTS/PERSONS/BODIES
-
-
o
o
o
o
o
o
Because
of
Subsection
11A(4)
STEP
3:
EXEMPT
IF
EXEMPT:
agency
minister
not
required
to
give
access
(s11A(4))
Documents
affecting
NATIONAL
SECURITY,
DEFENCE
OR
INTERNATIONAL
RELATIONS
s
33
Section
33:
Document
is
exempt
if
disclosure:
(a)
Would
reasonably
be
expected
to,
cause
damage
to;
(i)
Security
of
Cth;
or
(ii)
defence
of
Cth;
or
(iii)
international
relations
of
Cth
(b)
Would
divulge
any
info/matter
communicated
in
confidence
by/behalf
of
foreign
govt/
their
authority
or
international
org
of
the
Cth.
CABINET
DOCUMENTS
s
34
Exemptions
s
34
Section
47A
(2)
doc
is
an
exempt
doc
if
it
is:
(a)
an
electoral
roll;
or
print,
or
copy
of
a
print
or
copy
on
tape
or
disk
(c)
microfiche
of
an
electoral
roll;
or
(e)
doc
that
sets
out
particulars
of
only
one
elector;
&
used
to
prepare
roll;
or
(f)
doc
that:
(i)
copy
of
a
doc
referred
in
para
(e);
or
(ii)
contains
only
copies
of
docs
referred
to
in
para
(e);
or
(g)
doc
(incl
habitation
index
w/in
meaning
of
Electoral
Act)
that:
(i)
set
out
particulars
of
electors;
and
(ii)
was
derived
from
an
electoral
roll
(3)
Part
of
an
electoral
roll
that
sets
out
the
particulars
of
an
elector
is
not
an
exempt
doc
in
relation
to
the
elector.
(4)
Any
print,
copy
of
a
print,
microfiche,
tape
or
disk
that
sets
out
or
reproduces
only
the
particulars
entered
on
an
electoral
roll
in
respect
of
an
elector
is
not
an
exempt
doc
in
relation
to
the
elector.
(5)
Doc
that
sets
out
only
the
particulars
of
one
elector
and:
(a)
copy
of
a
doc
referred
to
in
para
(2)(e);
or
(b)
copy,
with
deletions,
of
a
doc
referred
to
in
para
(2)(e),
(f)
or
(g);
is
not
an
exempt
doc
in
relation
to
elector.
FOI
inadvertent
disclosure:
government
accidently
giving
exempt
material
and
what
you
have
to
do
!
Contact
the
provider
of
the
information
immediately,
explain
that
it
was
inadvertent,
ensure
all
copies
are
destroyed
S
42
(1)
Document
is
exempt
if
would
be
privileged
in
legal
proceedings
under
legal
professional
privilege
(2)
Document
NOT
exempt
if
person
has
waived
it
(3)
Document
NOT
exempt
by
reason
only
that
(a)
&
(b)
document
contains
info
that
would
be
exempt
AND
information
is
operational
information
In
Osland,
Mrs
O
was
convicted
of
murder
of
her
husband.
She
made
a
petition
for
mercy
to
the
former
A-G
and
then
was
refused.
A-G
had
sought
advice
from
the
best
QCs
which
they
made
recommendation
for
the
refusal.
Due
to
the
pressure
from
the
public,
A-G
made
a
public
announcement
in
this
regard.
She
sought
a
review
and
access
to
that
advice
amongst
other
information
at
the
AAT.
The
AAT
upheld
the
LLP
exemption.
Q
was
whether
the
A-G
had
inadvertently
waived
his
LPP
when
he
communicated
the
advice
to
the
public.
The
case
went
to
the
HCA
where
it
was
rules
that
A-G
LPP
was
not
waived.
S
45
(1)
Document
is
EXEMPT
if
disclosure
would
found
action
by
a
person
for
a
breach
of
confidence
(2)
sub
(1)
does
not
apply
to
doc
under
47C(1)
deliberative
processes
THAT
IS
prepared
by
Minister,
his
staff,
an
officer/employee
of
agency,
in
course
of
their
duties
or
by
a
prescribed
authority
or
Dept
of
state
unless
disclosure
of
doc
would
constitute
breach
of
confidence
owed
to
another
person/body
OTHER
THAN
(a)
person
in
capacity
of
minister/member
of
staff/officer/agency
(b)
An
agency,
the
Cth
Re
Kamminga
&
Aust
National
Uni
Access
sought
to
referees
reports
&
CVs
which
related
to
unsuccessful
applications
for
positions
at
UNI.
ANU
refused
36,
40
&
45
-
Fell
into
40
(deliberative
process
but
not
against
PI)
WAS
EXEMPT:
under
45,
only
the
referee
reports
though
(breach
of
confidence)
because
it
contained
personal
information
which
was
attaches
to
the
applications.
Section
47
(1)
A
document
is
exempt
if
disclosure
would
disclose;
(a)
trade
secrets;
or
(b)
Any
other
info
having
commercial
value
that
would
be,
or
could
reasonably
be
expected
to
be
destroyed,
or
diminished
if
the
information
was
disclosed.
(2)
Sub
(1)
does
not
apply
to
request
of
access
to
document
which:
(a)
by
reason
only
of
inclusion
of
the
info
concerning
that
person
in
respect
of
their
business/professional
affairs
(b)
By
reason
only
of
the
inclusion
in
doc
of
information
concerning
business,
commercial
or
financial
affairs
of
an
undertaking
where
person
making
request
IS
proprietor
of
the
undertaking/behalf
of
the
proprietor
PERSONAL
PRIVACY
General
rule
Section
47F
(1) Document
conditionally
exempt
if
disclosure
involves
unreasonable
disclosure
of
PERSONAL
INFO
about
any
person
(incl
deceased)
(2)
BUSINESS
AFFAIRS
Section
47G:
Business
affairs
(1)
Doc,
cond
exempt
if
disclosure
of
info
concerning
a
person
in
re
of
business/professional
affairs
OR
concerning
business,
commercial
or
financial
affairs
of
org/undertaking
AND
DISCLOSURE:
(a)
would/reasonably
expected
to
unreasonably
affect
that
person/organisation
with
lawful
business/professional
affairs/
undertaking
lawful
business,
commercial
or
financial
affairs.
(b)
Could
reasonably
expected
to
prejudice
future
supply
of
information
to
the
Cth,
NI
or
agency
for
purposes
of
administration
of
the
laws
by
that
agency.
(2)
sub
(1)
does
not
apply
to
trade
secrets
or
section
47
information
(3)
sub
(1)
does
not
have
an
effect
re
a
request
for
access
to
document;
(a)
by
reason
only
of
inclusion
in
doc
of
info
concerning
that
person
in
respect
of
his
or
her
business
or
professional
affairs.
(b)
by
reason
of
inclusion
in
doc
of
info
concerning
business/commercial/financial
affairs
of
undertaking
where
person
making
request
is
proprietor
of
undertaking
(4)
A
reference
to
undertaking
includes
carried
on
by
authority
of
Cth,
State
etc
(5)
Purpose
of
ss(1)
info
not
taken
to
concern
a
person
in
respect
of
persons
professional
affairs
b/c
info
concerning
status
as
member
of
the
profession.
RESEARCH
47H:
doc
is
conditionally
exempt
if:
(a)
It
contains
information
re
research
that
is/to
be
undertaken
by
an
officer
of
an
AGENCY
specified
in
SCH
4;
and
(b)
Disclosure
of
th
info
before
completion
of
the
research
would
be
likely
unreasonably
to
expose
the
agency
or
officer
to
disadvantage
SCH
4:
Research
institutions
-
Commonwealth
Scientific
and
Industrial
Research
Organisation
-
The
Australian
National
University
THE
ECONOMY
47J:
(1)
The
document
is
conditionally
exempt
if
disclosure
would/reasonably
be
expected
to
have
a
substantial
effect
on
Australias
economy;
BY
(a)
Influencing
a
decision
or
action
of
a
person/entity;
OR
(b)
Giving
a
person
(or
a
class
of
persons)
an
undue
benefit
or
detriment,
in
relation
to
business
carried
on
by
the
person/class
of
persons,
by
proving
premature
knowledge
of
proposed
action/inaction.
(2)
for
sub
(1)
substantial
adverse
effect
on
AU
economy
included
as
substantial
adverse
effect
on:
(a)
A
particular
SECTOR
of
the
economy;
or
(b)
Economy
of
particular
region
of
Australia
(3)
Documents
which
(1)
applies
includes
no
limited
to:
(a)
currency/exchange
rates
(b)
interest
rates
2
|
P a g e
(c)
(d)
(e)
(f)
(g)
OMBUDSMAN
3.
Quick,
cheap
&
informal
has
broad
jurisdiction
over
various
types
of
complaints
&
compulsory
powers
of
investigation
Aim
is
to
resolve
complaints
impartially,
informally
and
quickly
!
it
is
independent
and
impartial
from
the
government.
Promotes
an
open
government,
and
the
adverse
impacts
government
administration
can
have
on
individuals
Serves:
Investigates
complaints
by
people
who
believe
they
have
been
treated
unfairly.
It
is
an
essential
accountability
measure
in
democratic
societies.
Defined:
An
office
provided
for
by
the
constitution
or
byy
action
of
the
parliament
and
headed
by
an
independent,
high
level
public
official,
who
is
responsibility
to
Parliament,
who
receives
complaints
from
aggrieved
persons
against
governmental
agencies,
officials
and
employees,
or
who
acts
on
his
or
her
own
motion,
and
who
has
the
power
to
investigate,
recommend
corrective
action
and
issue
reports
(Ombudsman
Committee
of
the
International
Bar
Association)
Write:
The
role
of
the
Ombudsman
is
to
investigate
either
of
his
own
motion
or
on
the
occasion
of
a
compliant
allegation
of
maladministration
in
government
departments
(s
4(2),
s
5).
Complainants
pay
no
fee.
Depending
on
the
stages
of
the
application
the
Ombudsman
has
a
discretionary
power
to
decide
whether
or
not
to
talk
upon
a
case
(exercise
his
or
her
discretionary
in
the
circumstance).
IF
the
IC
or
the
Commissioner
is
still
reviewing
it,
then
it
is
unlikely
that
the
Ombudsman
will
get
involve.
Even
if
the
decision
is
on
its
way
to
the
AAT
the
Ombudsman
might
still
hesitate.
The
ombudsmans
advice
would
be
to
let
the
investigations
its
course.
However,
there
are
still
positives
about
contacting
the
Ombudsman,
in
substance
the
Ombudsman
may
be
interested
in
this
sort
of
case
file
(fact
inserted).
As
mentioned,
the
Ombuds
have
an
investigatory
powers,
he
has
the
power
to
obtain
information
and
documents
(s
9);
issue
a
certificate
in
relation
to
a
complaint
that
actions
or
decisions
have
been
taking
an
unreasonable
time
and
there
is
unreasonable
delay
with
questions
to
the
AAT
(ss
10A
and
11);
examine
witnesses
(s
13);
enter
premises
(s
14)
etc.
The
Ombudsman
is
required
to
make
reports
in
certain
circumstances
to
the
relevant
Department
or
prescribed
authority,
if
he
or
she
is
in
the
opinion
that
department
or
agency
action
has
been:
-
contrary
to
law
-
unreasonable,
unjust,
oppressive
or
improperly
discriminatory
-
in
accordance
with
a
rule
of
law
a
statutory
provision
or
a
practice
that
is
unreasonable
etc.
However,
the
Ombudsman
is
unpopular
because
(see
below)
Apply
whether
if
the
Ombudsman
would
take
on
this
case
file
what
are
the
benefits
of
his
or
her
powers.
4.
5.
6.
Unpopular
because:
1.
2.
3.
4.
5.
However
-
Still
growing:
complaints
are
increasing
Departments
in
the
Federal
Omb:
Defence
force,
Taxation,
Immigration
and
Social
Security
Effectiveness
-
-
-
-
-
-
-
-
-
-
-
-
-
GENERALLY:
Probably
not
because
the
Omb
would
not
be
as
effective.
Although
reference
may
be
made
to
the
Omb
being
toothless,
it
is
an
important
part
of
their
roe.
If
they
did
have
power
it
would
endanger
the
relationship
with
the
agency.
Would
be
much
more
adversarial
&
the
issues
which
they
seek
to
address
may
not
lead
to,
or
require,
a
specific
decision
(such
as
reform)
IN
EXAM:
Look
at
clients
situation
in
a
context
of
the
problem
question
and
then
able
to
ascertain
with
good
justification
why
or
why
not
the
ombudsman
would
be
appropriate.
JURISDICTIONAL
THRESHOLD
BENEFITS
1.
2.
3.
4.
PROCESS
BENEFITS
1.
2.
3.
4.
NOT
IF
STILL
IN
THE
PROCESS
OF
BEING
DECIDED
!
was
about
to
get
a
process
through
the
committee,
no
point
in
having
omb
intervene
before
a
decision
has
been
made
in
such
a
scenario.
If
circumstances
were
different?
-
they
systemic
stuff
o
Evidential
basis
for
saying
he
has
been
targeted
unfairly
in
the
evidence
o
A
number
of
other
people
o
Reverse
of
that
systemic:
b/c
lots
of
people
arent
and
they
are
all
getting
targets
on
faulty
systemic
evidence
Systemic:
affects
a
number
of
people
Functions
1.
2.
Has
the
capacity
to
go
to
parliament
and
influence
policy
!
b/c
of
their
reputation
&
ability
to
access
high-level
personnel
and
information
Reliability
of
their
opinions
Powers
of
persuasion
Preparedness
to
use
their
wide
powers
Often
the
level
of
media
attention
a
particular
matter
receives
Departments
take
Omb
investigations
very
seriously
because
they
may
expose
or
embarrass
the
department
Decisions
of
the
omb
are
subject
to
judicial
review
b/c
they
are
ultimately
doing
an
administrative
decision
3 | P a g e
MERITS
REVIEW
ADMIN
APPEALS
TRIBUNAL
(AAT)
AAT
ACT
(Cth)
!
most
important
merits
review
body
at
Cth
level
REVIEW
W/IN
EXECUTIVE
ARM
Tier
1:
internal
review
(first
option)
Letter,
internal
process,
FOI,
specialist
tribunal
Tier
2:
Specialist
tribunal
(optional)
-
ex;
social
security
tribunal
Tier
3:
AAT
(LAST
tier
of
review
w/in
executive
arm)
MERITS
VS.
COURT
-
-
-
-
-
-
-
Merits Review
Remakes the decision (subrogation)
Decision substitutes the original decision
Can consider fact & law
Not subject to precedent (but conscious
of consistency)
Can consider new evidence not brought
before original decision maker
Quicker, faster informal (maybe w/o
need of representation
Retrospectively applies new laws AT
TIME OF HEARING
-
-
-
-
-
-
-
-
-
Judicial Review
Expensive form of review
Only questions of law (MUST have
unlawfulness) ! if you want facts reviewed,
go to merits
Remedies may not resolve the dispute
Cannot remake the decision! will the
department change the decision?
Not all decisions are reviewable
Cost orders the loser pays
Need representation
Expensive
Subject to doctrine of precedent
STEP
2:
STANDING
s
27
SECTION
25:
conferred
power
by
the
legislation
may
vary
standing
INDIVIDUALS
Section
27
(1)
any
person
whose
interests
are
affected
by
a
decision
-
(an
application
may
also
be
made
on
behalf
of
a
person.
Ex:
cannot
speak
English).
-
Deportee
partner
(Re
Vincent
&
Immigration)
-
Representative
of
deceased
applicant
(Re
Loschiavo)
Test;
Davies
J
Re
Control
Investments;
a
person
has
other
than
as
a
member
of
the
general
public
and
other
than
as
a
person
merely
holding
a
particular
type
of
conduct
should
be
prevented
or
a
particular
law
observed
- NB:
the
normal
test
is
more
than
mere
intellectual
concern
+
over
&
above
general
community.
Type
of
interest:
Does
not
need
to
be
pecuniary,
or
even
specific
legal
rights
but
can
be
family-
related
but
can
be
family-related,
personal
or
other
non-material
interests
(McHatten)
McHatten:
!
NO
STANDING
Outcome
of
successful
application
might
affect
a
negligence
action
his
client
was
bringing
against
him.
Custom
agents
interests
too
indirect
&
remote
to
enable
him
to
seek
review
of
decision
adverse
to
client.
HELD:
Interest
not
enough,
custom
agent
refused
standing
Re
Driver
&
Moore:
!
STANDING
(very
wide
interpretation
of
standing)
D
deported,
could
not
apply
to
AAT
b/c
of
provision
of
the
Migration
Act.
M
close
personal
friend,
D
adopted
father
of
Ms
child.
She
was
able
to
obtain
standing
b/c
interests
were
affected
in
that
D
was
adopted
father.
Section
31:
AAT
determination
is
conclusive
in
determining
whose
interests
are
affected
(subject
to
44(2)
Section
44(2)
If
AAT
says
your
interests
are
not
affected
by
the
decision
!
appeal
to
federal
court
w/in
28
days
(2A)
ORGANISATIONS/ASSOCIATIONS/INTEREST
GROUPS
STEP
1:
General
rule:
Section
27(2)
organisations
taken
to
have
interests
affected
!
IF
decision
relates
to
a
matter
included
in
objects
or
purposes
of
the
organisations
!
Exception:
27(3)
sub
(2)
does
not
apply
if
-
decision
given
BEFORE
the
organization
or
association
was
formed
OR
-
before
the
objects
or
purposes
of
the
organisation
included
the
matter
concerned.
STEP
2:
Characterise
the
purpose/objects
of
the
group
!
does
it
relate
to
the
specific
matter
being
reviewed
(Re
Control)
Re
Control
Investments
&
ABT
! Appeal
from
AB
tribunal
to
AAT
of
decision
re
transactions
by
Newsgroup
for
TV
licence.
! Other
organisations
wanted
to
take
part
in
proceedings
! Important
issue
!
decision
under
review
must
relate
directly
to
a
matter
included
in
groups
objects
&
purposes
1. ALP
(labour
party)
allowed
because
of
the
media
effect
on
the
political
process
!
STANDING
2. Members
of
ALP
NOT
allowed
(only
the
party
itself)
!
NO
STANDING
3. Australian
Journalists
Association:
allowed
b/c
stated
in
their
objectives
in
relation
to
news
&
current
affairs
!
STANDING
4. Rupert
Public
Interest
Movement
Inc:
not
allowed
no
connection
b/w
organizations
stated
purpose
and
the
particular
matter
of
review
!
NO
STANDING
Re
Gay
Solidarity
Group
!
NO
STANDING;
re
only
general
crim
offences
not
discrimination
GSG
sought
review
of
criminal
deportation
decision
against
gay
man
convicted
of
offences
of
indecency
with
another
man,
buggery,
publishing
indecent
article.
HELD:
refused
standing
WHY:
objects
included
ending
all
forms
of
prejudice
&
discrimination
against
homosexual
in
all
fields.
The
Minister
claimed
that
the
man
had
not
been
discriminated
against
on
grounds
homosexual.
The
deportation
was
based
on
the
conviction
for
a
number
of
offences
Group
did
not
have
a
close
enough
connection
Ex:
M ulti-tier
decision,
Doc
having
sex
with
patient,
losing
his/her
licence.
Investigation
at
first
you
dont
want
getting
out
in
m edia.
Something
that
would
have
a
real
practical
effect,
but
no
legal
effect.
If
doctor
not
afforded
procedural
fairness
in
that
investigation,
then
you
would
want
to
get
in
early
and
seek
review
of
that
Hales
(1983)
OLD
CASE:
!
YES
real
practical
affect
although
not
altering
rights
or
liabilities
(FLEXIBLE)
Pronouncement
which
alters
rights
or
imposes
liabilities
is
readily
classified
as
a
decision
but
the
word
has
wider
scope.
MAY
include
!
a
declaration
or
statement
which
has
real
practical
effect
although
not
altering
rights
or
liabilities
Issue
2:
Advisory
opinion
is
not
reviewable
Re
Rennie:
!
not
reviewable
Given
advice
on
the
likely
effect
of
his
pension
rights
if
he
took
a
transfer
!
not
a
decision,
not
reviewable
Issue
3:
Refusal
to
Act
a
decision?
YES
25(5):
deemed
to
have
made
a
decision
when
failed
to
do
an
act
or
thing
in
the
time
allowed
to
do
it
D-G
Patents
v
Michigan
Uni
!
DECISION
(refusal
to
act)
P
failed
to
apply
w/in
prescribed
time
for
the
restoration
of
a
lapsed
patent.
P
applied
under
160
of
patent
act
for
commissioner
to
extend
that
time.
The
Commissioner
decided
he
didnt
have
power
-
&
refused.
HELD:
this
was
a
reviewable
decision
even
though
it
was
on
the
basis
he
did
not
have
the
power
in
question.
IE:
AAT
can
made
an
ORIGINAL
DECISION
when
original
decision
has
refused
to
act
Prescribed
from
1,
writing,
statement
of
non-binding
reasons
for
application
(s29)
(Re
Greenham)
!
$
fee
29A
(waiver
for
financial
hardship
Time
limit:
28
days
after
receipt
of
decision
in
writing
w/reasons
&
findings
on
Qs
of
Fact.
Parties
to
proceeding:
Applicant,
decision-maker
(potentially
A-G),
any
other
person
whose
interests
affected
!
s30.
May
be
represented
by
another
person
s32.
Joinder:
AAT
has
the
power
to
join
parties
in
s
30(1A)
discretionary
! Re
Marine
World:
8
separate
groups,
applied
to
join.
PERMITTED,
as
long
as
agreed
to
be
represented
jointly
(for
fair
hearing,
carry
out
review
expeditiously)
! Re
Boyd:
Refused
reserve
banks
application
to
join
b/c
of
its
interest,
shared
by
Comcare,
could
be
adequately
represented
by
Comcare.
SCOPE:
Does
not
apply
to
Security
Appeals
Division
proceeding
(section
34)
34A:
Referral
of
proceedings
for
alternative
dispute
resolution
process
(1)
If
Application
for
review
by
AAT,
president
may:
direct
a
holding
of
a
conference,
or
refer
them
to
a
particular
ADR
process
!
Conference
call
held
b/w
parties;
or
!
ADR
process
(5)
each
party
must
act
in
good
faith
in
relation
to
the
duct
of
the
ADR
process
The
practice
&
procedure
of
conferences
!
set
out
in
34B-34H
Conferences
held
in
private
&
nothing
that
is
said
or
done
at
them
can
be
used
at
a
subsequent
hearing
unless
the
parties
agree
34(3)
AATs
General
Practice
Direction
requires
parties
to:
-
Lodge
a
statement
setting
out
the
issues
in
dispute
-
Lodge
and
exchange
copies
of
all
relevant
material
they
intend
to
rely
on
at
any
further
hearing
-
Lodge
a
statement
of
facts
upon
which
they
intend
to
rely
and
any
contentions
to
be
drawn
from
those
fact
ADR
process
!
3(1)
mediation,
neutral
evaluation,
case
appraisal,
conciliation
&
arbitration
Advantages
!
(1)
General
public
interest
in
settlement
proceedings,
(2)
saves
time
&
money
4 | P a g e
Can
rule
on
the
legal
validity
of
decision
PROCEDURAL:
Where
decision
maker
fails
to
comply
with
procedures,
the
tribunal
may
review
the
decision
even
though
it
may
be
a
legal
nullity
(Re
Lear)
NO
POWER:
Similarly,
where
a
primary
decision
maker
lacks
the
power
to
make
the
relevant
decision,
the
tribunal
may
review
the
merits
of
the
decision
and
set
the
decision
aside
but
it
may
not
affirm
the
decision
(Re
Barran)
LAWLOR:
! PRINCIPLE:
AAT
has
jurisdiction
even
if
original
DM
did
not
have
power.
C
of
C
revoked
BLAs
warehouse
licence,
that
decision
taken
to
AAT.
AAT
found
C
of
C
did
not
have
power
to
revoke
the
licence
and
ordered
that
the
cancellation
be
set
aside.
FED
CT:
held
AAT
still
had
jurisdiction
to
deal
with
the
matter
even
though
the
CoC
did
not.
Difficulty
!
interpreting
words
made
in
the
exercise
of
powers
conferred
by
that
enactment
in
s
25.
RULE:
AAT
has
jurisdiction
if
there
is
in
fact
a
decision
&
it
is
INTENDED
OR
PURPORTS
to
have
been
made
in
the
exercise
of
powers
conferred
by
an
enactment
even
though
they
did
not
have
the
power
Brennan
J:
Inconsistency
is
not
m erely
inelegant;
it
brings
the
process
of
deciding
into
disrepute,
suggesting
an
arbitrariness
which
is
incompatible
with
commonly
accepted
notions
of
justice.
The
VCAT
Act
(and
to
some
extent
the
ADT
Act)
takes
a
slightly
harder
line
approach
than
Drake.
His
Honour
concluded
that
where
the
Minister
has
adopted
a
general
policy,
the
AAT
will
ordinarily
apply
that
policy
in
reviewing
the
decision,
unless
the
policy
is
unlawful
or
unless
its
application
tends
to
produce
an
unjust
decision
in
the
circumstances
of
the
particular
case
(at
646).
Alvaro
!
AAT
had
power
to
review
even
where
original
DM
did
not
have
power.
A,
charged
with
social
security
fraud.
Pleaded
guilty,
agreed
to
pay.
D
of
SS
proceeding
to
recover
debt.
Demand
made
by
officer
of
debt
who
signed
as
delegate
of
the
secretary
of
the
dept.
Matter
went
on
internal
review
&
was
upheld.
AAT
said
they
had
no
jurisdiction
to
do
so
b/c
the
officer
was
not
duly
authorised
delegate.
HELD:
AAT
DID
have
jurisdiction
on
the
lawlor
principle.
Principle:
AAT
does
not
loose
jurisdiction
if
person
concerned
did
not
have
power
to
make
decision
!
rationale
to
limit
cases
going
to
FC.
CONSTITUTIONAL VALIDITY
CANNOT
REVIEW:
on
constitutional
validity
(Re
Adams)
such
matters
should
be
brought
before
the
court
s
45
GENERAL RULE:
In
determining
whether
decision
was
the
correct
or
preferable
decision,
AAT
must
have
regard
to
government
policy
as
1
of
the
factors
in
its
determination
of
an
application
(Drake
No
1)
-
Generally:
if
parliament
has
scrutinized
policy,
AAT
adopts
its
practice.
If
government
policy
exists
it
is
a
relevant
factor
to
be
considered
by
the
AAT
-
Parliamentary
scrutiny
-
Ministerial
responsibility
-
AAT
not
linked
into
the
chain
of
responsibility
-
AAT
not
qualified
to
revise
all
policy
-
Consistency
aided
by
policy
Weight:
what
weight
is
given
to
policy
depends
on
AAT
in
each
case
!
the
AATs
main
concern
is
weight
not
to
review
the
policy
itself
(Drake
2)
(Becker)
-
Re
Aston:
govt
policy
affected
entire
industry,
had
been
resolved
upon
at
a
state
&
fed
ministerial
level
(CABINET),
developed
in
the
political
arena
after
consultation
with
industry
!
AAT
MUST
GIVE
SUCH
POLICY
GREAT
WEIGHT
-
Re
Lumsden:
where
departmental
policy
has
not
been
settled/reviewed
at
ministerial
level,
then
less
weight
will
be
attached
to
it
(no
consult
with
industry)
EXCEPTION:
Unless
the
policy
applied
is
UNLAWFUL
or
tends
to
produce
and
INJUSTICE
in
the
individual
case
(Drake
No
2)
LIMB
1:
POLICY
IS
Unlawful
1.
Must
not
be
exercised
for
purpose
other
than
that
for
which
power
granted
2.
Must
comply
with
statutory
criteria,
and
directions
re
policy
(if
any)
LIMB
2:
POLICY
PRODUCED
Injustice
must
assess
merits
of
the
case
FACTS
of
DRAKE:
D
granted
permanent
residence
status
in
Australia.
Brings
son,
marries
Aussie.
Possession
of
prohibited
drug,
12
months
prison,
served
3.
Minister
signs
to
deport
back
to
US.
Appeals
to
ATT.
AAT
affirms,
by
applying
ministerial
policy.
APPEAL,
successful
on
1
ground.
Successful:
AAT
failed
to
exercise
its
independent
discretion
in
the
application
of
ministerial
policy.
COURT:
AAT
must
stand
in
the
shoes
of
the
original
decision
maker.
-
AAT
must
Act
w/in
powers
of
the
decision
maker
-
Where
discretionary
power
comply
w/statute
in
so
far
as
it
restricts
the
discretionary
power
Brennan
J:
the
reason
AAT
should
apply
government
policy
is
CONSISTENCY
Why
Not
Review
Policy?
- AAT
is
outside
of
the
executive
chain
of
responsibility
- Potential
for
such
review
to
result
in
inconsistent
precedent
for
future
government
decisions
- AAT
is
ill-equipped
to
take
on
a
role
in
the
formulation
of
policy
- Potential
loss
of
public
confidence
in
judicial
m embers
of
the
tribunal
w ho
enter
into
the
policy-making
arena
Why
Review
Policy?
- To
protect
against
blanket
application
of
policy
which
ignores
the
individual
m erits
of
a
case
Drake:
was
sent
to
Fed
Crt
b/c
applied
blanket
policy.
Didnt
asses
on
m erits.
- If
policy
cant
be
questioned
or
must
be
adhered
to
in
the
process
of
merits
review,
then
the
external
accountability
of
the
executive
must
necessarily
be
diminished,
the
independence
of
the
merits
review
bodies
must
necessarily
be
compromised,
and
the
w hole
process
w ill
risk
the
taint
of
departmental
capture
- Finally,
it
m ay
be
an
unlawful
policy
which
fails
to
take
into
account
relevant
considerations
Ultimately,
it
is
improper
for
the
AAT
to
ignore
government
policy
if
it
exists.
Got
to
be
a
relevant
factor
and
got
to
be
considered
by
the
tribunal.
AAT
does
not
have
the
power
to
review
all
policy.
As
Brennan
J
stated
the
reason
AAT
should
apply
government
policy
is
consistency.
A
guiding
policy
is
ordinarily
useful
aid
to
achieving
consistency
(an
important
aspect
of
executive
decision-making).
In
short,
if
there
is
an
applicable
statement
of
policy
then
the
tribunal
must
apply
it
if:
(1)
it
was
within
power;
(2)
referred
to
in
decision-makers
reasons;
and
(3)
applicant
was
constructively
aware
of
policy
or
it
was
published
in
Government
Gazette.
They
are
the
legislator
they
make
the
rules
for
the
peace,
order
and
good
government.
The
way
in
which
policy
is
applied
comes
down
to
the
weight
is
given
to
policy
demands
on
AAT
in
each
case.
The
AATs
main
concern
is
weight
not
to
review
the
policy
itself
(Drake
No.2).
Application
of
those
rules:
That
changed
in
the
burden
of
proof
Beyond
Reasonable
Doubt
(BRD)
where
there
is
nothing
in
the
legislation
that
really
warrants
strict
burden
of
proof
that
is
the
criminal
standard.
There
are
potentially
grounds
to
attack
that
policy
on
the
basis
of
unlawfulness
rather
than
that
it
leads
to
an
injustice
in
that
particular
case.
This
policy
seems
rather
extreme
and
there
are
argument
(potentially)
that
it
is
inconsistent
with
the
statute.
The
issue
of
unlawfulness
is
not
what
we
have
discussed
but
in
judicial
review
that
is
our
entire
focus
characterising
tribunal
as
unlawful.
Have
a
crack
here
at
the
policy
rather
than
the
unlawfulness
of
the
policy.
NOTE:
AAT
is
looking
at
the
merits
review
of
the
policy
here
you
would
use
the
Drake
case.
IF
the
question
asks
whether
the
Federal
Court
(or
courts)
is
likely
to
review
the
Commissioners
reliance
on
the
Ministerial
statement
re:
policy
then
it
is
a
principle
of
legality.
Is
the
Commissioner
being
lawful?
Go
to
judicial
review
and
apply
the
grounds.
E.g.
Inflexible
application
of
policy
C/
Green
v
Daniels
under
Failure
to
exercise
discretionary
power.
Grounds
in
Narrow
substantive
UV
Exercise
of
power
overrides
fundamental
common
law
rights
(BRD).
EVIDENCE
s
33(1)(c)
General
rule:
AAT
is
not
bound
by
rules
of
evidence
s
33(1)(c)
!
Tribunal
may
inform
itself
on
any
matter
in
such
manner
as
it
thinks
appropriate
!
May
admit
hearsay
or
non-expert
opinion
evidence
(Trkulia)
Threshold:
Evidence
must
still
be
logically
probative
(Pochi)
!
Pochi:
recommended
deportation
order
for
drug
conviction
be
revoked
b/c
not
enough
probative
evidence.
(used
flimsy
hearsay
evidences
&
suspicions)
!
R
v
War
Pensions:
rules
of
evidence,
evolved
to
prevent
error
&
elicit
truth.
No
tribunal
can
w/o
grave
danger
of
injustice
set
them
completely
to
1
side.
Although
rules
of
evidence
do
not
bind
!
every
attempt
must
be
made
to
administer
substantial
justice
!
Waterfore
&
D-G:
where
technically
inadmissible
evidence
is
admitted
by
the
AAT
it
would
usually
be
given
less
weight.
ONUS
No
provision
in
AAT
re
onus
except
where
originating
Act
requires
it
(Childrens
Wear)
(ex:
FOI
s
61)
SELF
REPRESENTED
CLIENTS
s
32
Rule:
self
representation
is
allowed
(s32)
Obligation:
Tribunal
under
general
obligation
to
provide
reasonable
assistance
on
request
although
no
specific
statutory
requirement
Galea
&
Dept
Social
Security:
AAT
encourages
unrepresented
applicants
to
feel
free
to
come
before
it
and
does
what
is
can
to
assist.
Realistically
may
need
a
lawyer
to
boost
changes
of
success.
PUBLIC
HEARING
s35
Rule:
AAT
hearing
is
public
maintaining
public
confidence
&
fairness
in
they
system
s
35(1)
&
(3)
Exception:
-
35(2)
AAT
can
make
hearing
private
where
confidential
info
(identities,
evidence
documents)
TEST
(exception)
Re
Pochi:
(brennan
J)
exclusion
of
a
party
is
essential
to
preserve
confidentiality
of
the
information
needed
to
determine
the
application.
It
is
necessary
to
sho
that
the
information
is
of
such
importance
and
cogency
that
JUSTICE
is
more
likely
to
be
done
by
receiving
the
information
in
confidence,
and
denying
the
party
access
to
it
must
be
a
public
interest
in
confidentiality.
!
Significant
fear
of
retribution
if
they
were
giving
evidence
against
a
guy
who
was
a
drug
lord.
AAT
(Brennan
J)
recommended
order
for
drug
convict
be
revoked
b/c
not
enough
probative
evidence.
6
|
P a g e
JUDICIAL
REVIEW
1.
2.
3.
Rule
of
law:
that
the
courts
have
review
jurisdiction
(Plaintiff
S157)
(Church
of
Scientology
v
Woodward
Brennan)
SOP:
check
and
balance
on
the
executive
Q
of
Law:
Review
limited
to
legal
errors
(Applicant
S20/2002)
(Peko
Wallsend).
If
CT
looked
at
merits!
breach
of
SOP
b/c
that
is
the
executives
role.
PRIVATIVE CLAUSES
GENERAL
NOTES:
!
!
!
COMMON
LAW
Jurisdictional
errors:
!
decision
void
[totally
invalidates
the
decision
b/c
involves
tribunal/inferior
CT
assuming
powers
which
does
not
have]
Step
1:
Cannot
oust
jurisdiction
of
JR
re
a
jurisdictional
error
Step
2:
jurisdictional
error
consists
of
1.
Narrow
UV
2.
Procedural
fairness
(NB:
exhaustive
statements
of
procedural
fairness
are
fine)
Non-jurisdictional
errors
!
(voidable)
decision
is
voidable
(stand
with
full
legal
force
until
overturned)
-
Broad
UV
-
Can
be
protected
by
ouster
clauses
in
limited
circumstances
CONSITUTIONAL
LIMITS
Principle:
can
never
oust
the
jurisdiction
of
the
HCA
!
constitutionally
entrenched
(s75)
+
Plaintiff
S157
Plaintiff
S157:
HC
made
it
clear
that
s75(3)
&
(5)
of
the
Commonwealth
Constitution
can
never
take
away
the
jurisdiction
of
the
HCA.
You
have
the
right
to
seek
those
remedies
against
the
commonwealth
government
in
the
HCA.
Only
the
HCA
has
the
ultimate
protection.
FEDERAL
&
SUPREME
COURTS
Abebe
v
Cth:
Not
jurisdictionally
protected
because
they
are
created
by
STATUTE
and
not
by
the
constitution.
It
got
really
busy
and
overwhelmed
so
they
passed
an
Act
the
Federal
Court
of
Australia
Act.
Theoretically
they
could
also
abolish
it.
They
gave
it
the
same
powers
as
the
Constitution
so
they
put
it
in
a
Judiciary
Act
section
35B.
RESTRICTIVE
INTERPRETATION
GENERAL
POSITION:
CTs
have
given
a
very
restrictive
interpretation
of
privative
clauses.
Principle
1:
Can
never
oust
jurisdiction
of
HCA
(s75
consti)
(Plaintiff
S157)
Principle
2:
can
never
oust
jurisdiction
to
review
narrow
UV
&
procedural
fairness
Plaintiff
S157:
Privative
Clause:
tried
to
prevent
review
of
denial
of
procedural
fairness
HELD:
Procedural
fairness
is
a
jurisdictional
error
and
you
can
never
oust
a
review
of
a
jurisdictional
error
Plaintiff
M63
(2010)
Tried
to
evade
procedural
fairness
b/c
offshore
Australian
law
does
not
apply
(off-shore
processing)
HELD:
cannot
apply
some
Australian
laws
that
are
convenient
&
avoid
others
that
are
not
(like
PF)
Principle
3:
MUST
NOT
BE
TOO
BROAD
R
v
Medical
Appeal
Tribunal
!
TOO
BROAD
Privative
Clause:
decision
is
final
or
not
subject
to
review
HELD:
too
broad,
courts
would
never
allow
such
clauses
!
not
specific/clear
enough.
Hockey
v
Yelland
!
TOO
BROAD
Tribunal
of
Neurology
board
Privative
clause:
conclusive
and
not
subject
to
appeal
HELD:
too
broad
Houssein
!
VALID
B/C
SPECIFIC
&
CLEAR
Privative
clause:
No
writ
of
prohibition
or
certiorari
shall
lie
in
respect
to
any
award,
order
or
proceeding
of
the
commission
Only
two
remedies,
still
allowed
for
declaration,
injunction
and
mandamus.
UPHELD
by
HCA
!Only
applies
to
non-jurisdictional
errors
Principle
4:
HICKMAN
COMPROMISE
!
Good
policy
underpinning
it
may
justify
it
R
v
Hickman
Dixon
J
suggested
interpreting
ouster
clauses
in
the
following
way
-
Such
a
clause
is
interpreted
as
meaning
that
no
decision
which
is
given
by
body
concerned
shall
be
invalidated
on
the
ground
that
it
has
not
conformed
to
the
requirements
governing
its
proceeding
or
the
exercise
or
the
exercise
of
its
authority
or
has
confined
its
acts
within
the
limits
laid
down
by
the
instrument
giving
it
authority,
Provided
always
that
the
decision
is
a
bona
fide
attempt
to
exercise
its
power,
that
is
RELATES
to
the
subject-matter
of
the
legislation
AND
that
it
is
reasonably
capable
of
reference
to
the
power
given
to
the
body
POLICY
PRIVATIVE
CLAUSES
USUALLY
BASED
ON:
FLOODGATES
ARGUMENT!!!
Houssein
v
Under-Secretary
no
writ
of
prohibition
or
certiorari
shall
lie
in
respect
of
any
away,
order,
proceeding
of
(i)
the
commission
relating
to
any
industrial
matter
which
appears
to
relate
to
an
industrial
matter
[w/in]
jurisdiction
!
UPHELD
Jet
60
Minute
Cleaners:
Permitted
review
of
denial
of
procedural
fairness
and
only
rule
out
unreasonableness
and
irrelevant
considerations
!
UPHELD
Public
service
Association:
Expressly
permitted
judicial
review
on
the
ground
of
excess
of
jurisdiction
(jurisdictional
error)
STANDING
Rationale
1.
2.
3.
ADJR
s
12
confers
discretion
on
the
court
to
join
a
person
as
a
party
to
the
application
subject
to
such
condition
as
it
thinks
fit.
Possible
remedy:
declaration
COMMON
LAW
JUDICIAL
REVIEW
STANDING
(s
39B)
TEST:
Special
interest
in
the
subject
matter
of
the
action
Apply
case
law
ADJR
STANDING
(person
aggrieved)
Section
3(4)
a
person
whose
interests
are
adversely
affected
by
a
decision
or
determination
Similarly,
in
s
6,
a
person
aggrieved
by
conduct
engaged
in
for
the
purpose
of
making
such
a
decision
may
seek
judicial
review.
Section
3(4)(a)(i)
defines
a
person
aggrieved
as
a
person
whose
interests
are
adversely
affected
by
the
decision.
Tute:
Would
your
answer
differ
depending
on
whether
WAR
made
an
application
under
the
ADJR
Act
or
the
Judiciary
Act?
If
they
made
an
application
under
the
Judiciary
Act,
the
only
remedy
would
be
available
IF
they
could
establish
a
ground
would
be
a
declaration.
The
standing
requirements
for
a
declaration
are
really
the
same
as
the
ADJR
Act,
that
is,
the
special
interest
test.
Consequently,
there
is
not
any
difference.
8
|
P a g e
Investigation,
found
Cth
action
making
drugs
more
accessible
to
females
was
unlawful
discrimination
against
males.
In
order
to
give
parties
orders
for
relief,
Commissioner
never
made
a
final
decision.
HELD:
findings
did
amount
to
final
and
operative
decision,
findings
were
on
matters
of
substance
for
which
legislation
expressly
provided
(findings
made
=
substance
of
decision)
CATEGORY:
DEVELOPMENT
CASES
Resort
Management
Services
v
Noosa
Shire
Council:
!
DECISION
Steps
for
local
council
to
amend
strategic
plant
1.
Formally
propose
amendment
to
plan
2.
Give
adequate
notice
of
proposal
and
allow
for
public
submissions
3.
Decide
whether
or
not
to
proceed
(sought
review
here)
4.
Give
decision
to
GIC
for
approval
5.
If
GIC
approved
take
effect
when
published
in
Gazette
HELD:
reviewable
!
was
a
final
decision
required
of
local
council
in
process
&
specifically
required
by
legislation
Redland
Shire
Council
!
NOT
A
DECISION
Held
this
step
1
above
was
not
reviewable;
not
substantive
Section
3(1)
CANNOT
REVIEW
GOVERNER
GENERAL
DECISIONS
R
v
Toohey
(not
under
ADJR
but
Common
Law)
!
when
GG
exercising
STATUTORY
POWER
Political
case,
battle
b/w
NT
govt
&
aboriginal
people
over
land.
Governor
of
NT
declaration
under
town
planning
act
that
land
subject
to
claim
needed
for
town
planning
purposes.
HELD:
-
GOVERNER
GENERAL
DECISIONS:
Judicial
Review
open
to
reps
of
the
Queen
!
only
for
statutory
powers
(not
prerogatives).
Cannot
review
decisions
of
the
Governor
General
under
ADJR
!
Must
go
to
Common
Law.
At
CL,
crown
in
no
different
position
from
any
other
official
with
statutory
power
entrusted.
(ADJR
3(1)
no
review
of
GG
decisions)
!
Go
to
CL
-
(Includes
Ministers)
-
Toohey
REPORT/RECOMMENDATION
Section
3(3):
where
a
provision
is
made
by
an
enactment
or
the
making
of
a
report
or
recommendation
before
a
decision
making
of
report/recommendation
=
deemed
decision
Ross
v
Costigan
(1982)
(FC)
and
Magarula
v
Minister
for
Environment
(1999):
have
generally
outlines
these
conditions
precedent
to
operation
of
s
3(3):
1.
the
power
to
make
such
a
report
or
recommendation
must
be
in
the
statute;
2.
the
statute
must
provide
that
making
the
report
or
recommendation
is
a
condition
precedent
to
the
making
of
the
final
decision;
and
3.
the
statute
must
provide
that
a
decision
is
to
be
made
subsequent
to
the
report
or
recommendation.
Edelsten
v
Health
Insurance
!
decisions
(1)
&
(2)
NOT
decision
!
(3)
was
a
DECISION
Investigation
of
Dr
Edelsten
involved
challenging
2
decisions
1. Health
insurance
Commission:
(Dr
N)
investigated
&
referred
matter
to
Minister
with
recommendation
(decision
1)
that
it
be
referred
to
MSCI
2. Ministers
delegate
(Dr
D)
referred
matter
to
MSCI
(Decision
2)
3. MSCI
decides
whether
practitioner
MAY
have
rendered
excessive
services
!
if
so,
conducts
hearing
&
reports
to
Minister
the
Committees
opinion
&
recommendation
(Decision
3).
IF
read
this
sub
section
literally
then
yes,
but
the
court
has
restrict
it.
HELD:
(1)
&
(2)
not
decisions
w/in
bond
test
!
not
a
condition
precedent
to
the
making
of
a
decision
(restrictive
interpretation
of
section
3(3))
(3)
The
report
of
MSCI
is
within
section
3(3)
THEREFORE
!
stricter
test
under
ADJR,
usually
better
to
bring
report/recommendation
under
39B
JA
CONDUCT
IF
DECISION
FAILS
!
section
6
applications
Section
6
review
of
conduct
[engaged
in]
for
the
purpose
of
making
a
decision
to
which
this
Act
applies.
Section
3(5)
Conduct
the
doing
of
any
act
or
thing
preparatory
to
making
a
decision
including.
Taking
evidence
1.
Must
be
for
the
PURPOSE
OF
making
a
decision
2.
Conduct
is
procedural
and
NOT
substantive
in
character
(Bond)
Bond
Case
!
NOT
CONDUCT
Could
the
fit
and
proper
findings
be
reviewed
as
conduct?
!
NO
Rule:
Conduct
is
procedural
and
NOT
substantive
in
character
-
Word
conduct
points
to
action
taken,
rather
than
decision
made
for
purposes
OF
a
reviewable
decision
-
Looks
at
way
proceedings
have
been
conducted
NOT
decisions
made
along
the
way
of
a
final
determination
-
-
creates
new
rules
of
general
application,
rather
than
applying
existing
rules
to
particular
cases
cannot be made until there has first been wide public consultation
can
be
varied
or
amended
unilaterally
by
its
maker,
the
analogy
being
to
primary
legislation
NOTE
Ainworth,
the
government
can
investigate
whatever
they
like
&
dont
need
authority
from
statute.
The
government
conducts
or
commission
reports
all
the
time
this
is
part
of
their
functions.
10
|
P a g e
Less
strict
than
ADJR
for
preliminary
decisions
So
go
for
common
law
prerogative
writ
under
section
39B
rather
than
ADJR
(lower
threshold)
Finding
of
a
Royal
Commission
!
Writs
NOT
available
R
v
Collins:
Ex
Parte:
Royal
commission
issued
findings
EXTREMELY
detrimental
to
applicant,
but
did
not
legal
affect
his
rights,
since
the
Minister
had
discretion
to
accept
or
reject
the
report.
Fall
foul
of
Jurisdictional
Requirements
under
ADJR!
certiorari
under
39B
(Ainsworth)
&
(Hot
Holdings)
Ainsworth
FACTS:
CJC,
conducted
inquiry
into
poker
machines.
Report,
made
recommendation
that
A
never
allow
to
use
poker
machines.
A
got
declaration
in
HC
b/c
denied
PF
because
never
had
right
to
be
heard.
SOUGHT:
mandamus,
certiorari,
declaration.
HC
only
gave
declaration
(B/C
business
reputation
of
A)
WHY
-
Certiorari:
No
legal
effect/consequences.
Affect
is
to
quash
decision,
report
had
no
legal
affect
so
nothing
to
quash
(already
released)
-
Prohibition:
Too
late,
already
come
down
with
recommendation
+
released,
prohibition
would
have
been
available
if
they
were
not
getting
PF
before
recommendation
was
given
EXAM:
The
current
affairs
ran
a
short
story
on
Noah
on
television.
The
grounds
for
review
would
be
a
right
to
a
hearing.
The
remedy
sought
and
the
only
one
that
would
apply
is
a
declaration.
Possibly
an
injunction
to
prevent
the
release
of
the
longer
documentary,
an
injunction
now
would
be
useless
as
the
program
was
already
screened.
Hot
Holdings
(Liberalized
the
test)
Legislation
discretionary
power
on
Minister
to
grant
mining
exploration
licence
where
recommendation
made
by
mining
warden.
Statute
said
where
2
or
more
applicants
had
complied
with
initial
application
at
same
time,
warden
determined
priority
by
ballot
&
made
recommendation.
QUESTION:
whether
certiorari
law
to
quash
mining
wardens
decision
to
conduct
ballot
(ground
bias)
ISSUE:
whether
certiorari
available
against
preliminary
or
advisory
opinions
HELD:
2
situation
where
legal
effect
is
in
issue:
1. Where
decision
under
challenge
is
ultimate
decision
in
the
decision
making
process
&
Q
whether
ultimate
decision
to
be
made
sufficiently
affects
rights
in
legal
sense
2. Where
ultimate
decision
undoubtedly
affects
legal
rights,
BUT
Q
is
whether
decision
made
at
preliminary
or
recommendatory
stage
of
decision-making
process
sufficiently
determines
or
is
connected
with
that
decision.(IE:
NECESSARY
LEGAL
AFFECT
ON
FINAL
DECISION
!
NB:
Does
not
definitely
have
to
be
condition
precedent!
(less
strict
than
ADJR)
On
facts
!
(2)
applied,
minister
bound
to
consider/take
into
account
mining
wardens
recommendation
&
in
respect
the
RECOMMENDATION
had
the
necessary
legal
effect
on
the
Ministers
exercise
of
discretion
!
BROADER
THAN
ADJR
Recent
Case
Carcione
Nominees
-
Stage
1:
Govt
Dept
recommended
to
Comm
that
certain
planning
amendments
be
approved
&
-
Stage
2
comm
then
recommended
approval
to
minister.
(CONDITION
PRECEDNT)
-
Stage
3:
Minister
then
made
an
in
principle
decision
to
support
proposed
amendments
Comm
decision
to
recommend
amendments
to
minister!
capable
of
attracting
prerogative
relief
b/c
it
constituted
a
condition
precedent
to
exercise
of
power
to
approve
the
amendment
&
therefore
affected
legal
rights.
-
Ultimately
!
failed
on
grounds.
IMPORTANT:
Although
preliminary
in
nature
!
still
met
requirements
for
remedy.
Element
3:
Duty
to
Act
judicially
!
not
too
important
-
When
PF
applies
-
No
longer
required
in
UK
-
Australians
position
unclear
Element
4:
Grounds
But
in
Australia
broad
UV
not
yet
amenable
to
mandamus.
Mandamus
and
declaration
probably
sufficient
remedies
in
practice.
!
MANDAMUS
16(1)(d)
Mandamus:
compels
public
authority
to
perform
a
public
legal
duty
imposed
upon
it
on
application
of
person
having
sufficient
interest
in
its
performance
Element
1:
Have
a
public
Authority
Element
2:
Establish
Public
legal
duty
-
Difficulty:
Crown
Servants
(especially
Ministers)
as
to
whether
they
owe
duty
to
crown
or
to
public
as
persona
designate
-
Cannot
get
mandamus
against
Crown
-
Get
around
this
by
using
persona
designata
situation
involving
a
Minister
or
Public
official
A
non-discretionary
power
!
MUST
NOT
BE
A
DISCRETIONARY
POWER
!
Compels
where
statutory
pre-conditions
to
exercise
of
decision
making
power
but
NO
residual
discretion
Ainsworth
v
CJC
(1992):
Held
that
the
CJC
was
not
under
any
duty
to
investigate
poker
machines,
unless
they
thought
it
necessary
i.e.
a
more
discretionary
power.
Therefore,
mandamus
not
available.
Where
there
is
discretion:
court
will
not
order
to
exercise
discretion
in
a
particular
way
(breach
of
SOP)
-
Discretion
can
be
limited
by
the
circumstances:
Commissioner
v
Royal
Insurance:
HC
held
mandamus,
to
command
refund
of
overpaid
stamp
duty.
Act
stated
Commissioner
MAY
refund
where
overpaid.
Although
power
to
refund
discretionary,
could
only
be
exercise
upon
considerations
relevant
to
decision
to
reduce.
HC
found
no
relevant
considerations
on
facts,
so
NO
residual
discretion
remained.
(limited
to
circs.
)
-
Existence
of
power
does
not
necessarily
imply
duty
to
exercise
the
power
(WA
Field
&
Game:
Min
had
power
to
declare
open
seasons
re
any
fauna.
Had
been
tradition
of
declaring
such
seasons.
In
1992,
Min
made
no
decision.
P
sought
mandamus.
HELD:
Act
created
power
but
not
a
duty.
Element
3:
Grounds
HENCE:
covers
ultra
vires,
jurisdictional
error
and
PF
!
by
administrators,
tribunals
and
inferior
courts.
Element
4
Standing
A
specific
legal
right:
Ainsworth
v
CJC
i.e.
must
be
a
duty
essentially
owed
to
the
applicant.
Sinclair
v
Mining
Warden
at
Maryborough
Fraser
IS,
application
for
sand
mining
to
occur
on
island,
decision
was
made
to
be
taken
by
mining
wardon.
Mining
wardon
part
of
statutory
duties
to
grant
permission
for
mining
or
refuse
in
public
interest.
Objection
lodged
by
FIDO
objecting
to
sandmining
(enviro
grounds).
Wardon
did
not
consider
it
&
approved
the
mining.
FIDO
when
to
HCA
HCA
agreed
with
FIDO
!
issued
mandamus,
order
mining
wardon
to
direct
him
to
rehear
the
application
and
hear
objection
and
give
it
consideration
EQUITABLE
REMEDIES
!
injunction,
declaration
INJUNCTION
1.
Types
"
prohibitory
!
stops
you
doing
something
"
mandatory
!forces
you
do
something
"
permanent
!
speaks
for
itself
"
interlocutory
!immediate
effect
2.
Grounds:
A
flexible
remedy
(except
for
standing)
as
it
is
available
for:
!
denial
of
PF
!
ultra
vires
(narrow
&
broad)
!
jurisdictional
error
!
AND
against
public
and
private
bodies.
3.
Standing
Need
to
distinguish
between
private
and
public
rights.
An
interference
of
a
private
right
personal
to
the
plaintiff
is
sufficient
for
locus
standii.
11
|
P a g e
12
|
P a g e
Tribunals
may
consider
policy
(Drakes
Case)
for
merits
review
!
Courts
you
Dont
get
that
But
SOP:
Check
and
balance
on
the
executive
by
the
judiciary
in
preserving
SOP
NARROW
UV
PROCEDURAL
(does
administrator
HAVE
power?)
This
kind
of
error
involves
failure
to
comply
with
an
essential
conditional
precedent
to
the
jurisdictions
coming
into
existence,
rather
than
a
fact
with
whose
existence
the
jurisdiction
is
interdependent
it
occurs
sequentially
before
the
jurisdiction
coming
into
existence
rather
than
simultaneously
with
it.
STEP
1:
A
may
apply
under
5(1)(b)
or
6(1)(b)
where
procedures
which
were
required
by
law
re
decision
were
not
observed.
! NB:
ADJR
may
have
wider
application
than
general
law
!
b/c
procedures
in
connection
with
were
not
observed
(just
causal
rship)
(Our
Town)
(MIMA)
(Muin)
STEP
2:
Mandatory
directory
approach
(May
or
Shall/
must)
Scurr:
Condition
precedent?
!
MANDATORY
-
Invalid,
failed
legislative
obligation
requiring
public
notice
of
project.
Was
mandatory
notice
was
condition
precedent
to
any
consideration
of
an
application)
Watson
v
Lee:
Required
!
NOT
MANDATORY
-
notification
of
delegated
legislation
on
Government
Gazette
was
required
&
a
condition
to
regulation
making.
HELD:
not
mandatory.
WHY:
substantial
compliance
sufficient
(intention
of
leg
(Stat
interpretation),
very
notion
citizens
read
govt
gazette
ludicrous)
Melville
Leg,
strict
compliance
!
MANDATORY
-
mining
legislation
requiring
mining
tenement
As
to
identify
claims
via
pegs.
Was
mandatory!
strict
compliance
was
required,
there
was
fierce
competition
for
tenements,
without
pegs,
As
could
obtain
unfair
advantage
STEP
3:
A
QUESTION
OF
STATUTORY
INTERPRETATION
(current
approach)
Element
1:
Must
look
at
purpose/intention
of
legislation
(Blue
Sky)
(AIA
15AA)
#
[APPLY:
Define
the
object
purpose
of
the
Act]
Element
2:
CAN
OBJECT
BE
ACHIEVED
IF
PROCEDURE
NOT
FOLLOWED?
Project
Blue
Sky:
International
treaty
NOT
A
PRECONDITION
Act
functions
and
purpose
could
still
be
achieved
without
compliance
with
the
treaty.
ABA
New
STANDARD,
50%
Aus
TV
programs
b/w
6pm
&
midnight.
BUT
Aus/NZ
trade
agreement
required
equal
access
rights
to
market.
Statutory
requirement
obliged
performance
of
functions
with
any
international
treaty.
HELD:
Failure
to
meet
statutory
requirement
(through
standards)
NOT
invalid.
Provision
obliging
compliance
with
treaties
simply
regulated
function
already
conferred
on
ABA
RATHER
THAN
establishing
a
condition
precedent
to
valid
exercise
of
decision
+
considered
public
inconvenience.
Element
3:
WHAT
INJUSTICE
WOULD
FOLLOW
IF
PROCEDURE
NOT
FOLLOWED?
Tweed
Byron:
!
CONDITION
PRECEDENT
(significant
injustice-
land
rights)
NT
claim
over
land.
Minister
issued
Certificate
1
saying
land
not
claimable.
Cert
2
issued
claiming
land
for
public
purpose.
Procedural
requirement:
had
to
consult
with
Minister
(failed
to
do
so
for
2nd
cert)
HELD:
purpose
Act
!
important
safeguard
for
land
rights.
Dire
consequences
for
abo
group,
considered
mandatory
condition
precedent.
Tickner
!
CONDITION
PRECEDENT
(potential
gravity,
b/c
of
heritage
protection
consequences)
Procedural
requirement:
Min
fails
to
read
submissions
(someone
else
read)
AND
meet
requirements
for
notification
&
consultation
(failed
both)
HELD:
was
a
necessary
step
in
the
ministers
power!
gravity
on
aboriginals
severe.
Hunter
resources:
!
CONDITION
PRECEDENT
(unfair
advantage)
Unfair
advantage
re
mining
tenement
pegs.
Specifically
trying
to
set
limits
for
orderly
system
VISA
PROTECTION
APP
SAAP:
!
CONDITION
PRECEDENT
(protect
the
refugee)
Review
by
RRT,
Migration
Act,
Procedural
requirement;
required
to
give
A
particulars
of
info
it
considered
would
be
the
reason
for
affirming
decision
under
review.
(failed
to
provide
detained
immigrant
with
written
notification
of
particulars
of
evidence
given
orally
at
hearing
by
daughter.
HELD:
procedural
narrow
UV
!
overall
importance
of
the
scheme
Element
4:
IS
SUBSTANTIAL
COMPLIANCE
ENOUGH?
(BASED
ON
CIRCUMSTANCES)
!
2
certs
both
required
consult
with
the
minister.
Failed
on
1
=
NOT
ENOUGH
(Tweed
Byron)
!
Fierce
competition,
failure
was
UV
(Hunter
Resources)
NOT
ENOUGH
!
Someone
else
read
submission
when
legis
expressly
authorised
Minister
to
consider
it
AND
not
met
the
requirements
for
notification
and
consultation
in
Aboriginal
Heritage
Act
(Tickner)
NOT
ENOUGH
!
Orally
notifying
of
evidence
that
tribunal
was
going
to
rely
on
&
not
giving
written
notice
NOT
ENOUGH.
(SAAP)
NARROW
UV
SUBSTANTIVE
(does
administrator
HAVE
power?)
Parliament
may
enact
laws
or
may
authorise
another
body
to
make
legislation
on
its
behalf
this
usually
takes
the
form
of
a
section
in
the
Act
enabling
the
making
of
regulations.
Usually
regulations
are
made
by
the
G-G
or
Governor,
but
delegated
legislation
(or
subordinate
legislation,
as
it
is
sometimes
called)
may
also
be
made
on
authorisation
by
the
statute
by
a
Minister,
an
authority
or
a
public
servant.
A
delegated
legislation
has
been
described
as
being
necessary
to
the
functioning
of
modern
governance
Victorian
Stevedoring
case
RULES
OF
CONSTRUCTION
Any
DL
not
within
the
authority
conferred
will
usually
be
UV
STEP
1:
MAY
APPLY
UNDER:
1. Decision/conduct/failure
(5(1)(d),
6(1)(d)
&
7(1)(d)
is
reviewable
where
not
authorised
by
the
enactment
which
it
was
purported
to
be
made
Or
5(1)(c)
2. Administrative
act
must
be
w/in
express
scope
of
Statutory
power
OR
fairly
incidental/consequential
upon
such
power.
STEP
2:
ASCERTAIN
MEANING
OF
ACT
[Name
Act
&
Object
clause]
s
15AA
AIA,
purpose/object
of
Act
!
can/cannot
be
reasonably
inferred
that
[Admin
Action]
was
w/in
scope
or
incidental/consequential
of
the
power
STEP
3:
EXAMINE
BREADTH
OF
THE
REGULATION
OR
DECISION
Category
1:
NECESSARY
OR
CONVENIENT
! DELEGATED
LEGISLATION
Issue:
power
to
make
delegated
legislation
-
Must
be
NECESSARY
OR
CONVENIENT
To
carry
out
primary
Act
-
Must
NOT
go
beyond
purpose
of
the
Act
Shanahan
!
NARROW
SUBSTANTIVE
UV
(Regs
-
Wider
purpose
into
another
field)
Primary
Product
Act
(Vic)
authorised
making
of
regs
necessary
&
expedient
for
giving
effect
to
Act.
Purpose
of
Act
!
collective
marketing
scheme
for
eggs.
Delegated
regulation
made:
prohibited
eggs
in
cold
storage/preservative
treatment
w/o
board
consent.
All
eggs,
even
eggs
in
another
state
&
eggs
which
board
had
nothing
to
do
with
HELD:
Broad
UV
Primary
Act
concerned
with
VIC
eggs,
not
NSW
eggs.
necessary
&
expedient
!
meant
strictly
ancillary
to
purposes
of
Act
Widened
purpose
to
another
failed
!
handling/disposal
of
eggs
even
after
sold
by
board
If
the
power
conferred
is
to
make
by-laws
or
subordinate
legislation
regulating
and
restraining
something,
the
power
cannot
be
used
to
prohibit
the
thing
completely
(Swann
Hill
Corps)
Category
2:
REGULATION
V
PROHIBITION
! DELEGATED
LEGISLATION
Power
to
regulate
may
not
allow
prohibition
(Melbourne
Corp)
Melbourne
corp
!
UV
SUBSTANTIVE
(power
to
regulation
not
to
prohibit
the
thing
regulated
must
continue
to
exist)
-
What
they
were
allowed
to
do:
regulate
traffic
&
processions
-
What
they
did:
By
law
-
no
processions
allowed
on
street
w/o
prior
council
consent
(prohibit)
-
HELD:
Narrow
UV
Substantive
Swan
Hill
v
Bradbury
!
UV
SUBSTANTIVE
-
regulate/restrain
does
not
=
prohibit
-
What
they
were
allowed
to
do:
Vic
by-laws
for
regulating
&
restraining
construction
of
buildings
-
What
they
did:
prohibited
erection
of
any
building
unless
council
approval
given
-
HELD:
invalid,
beyond
power
to
regulate
&
restrain
(re:
subject
matter
&
purpose
of
legislation)
Paul
v
Munday
UV
SUBSTANTIVE:
SUBJECT
MATTER
OF
PROHIBITION
P
operated
private
rubbish
tip
to
dispose
of
60%
Adelaides
waste
Power
to
make
regulations:
regulating
and
controlling
and
prohibiting
AIR
IMPURITIES
from
fuel
burning
equipment
or
any
other
source.
Made
reg:
prohibiting
LIGHTING
FIRES
using
certain
equipment
&
lighting
open
fires
in
certain
places
(leg
in
character
!
39B)
HELD:
Narrow
UV
(ex:
power
to
make
regs
concerning
car
emissions
does
not
mean
you
can
prohibit
cars).
Not
being
able
to
light
fires
went
too
far.
(maybe
prohibiting
emissions
may
have
been
ok)
(maybe
a
different
outcome
now
looking
at
the
purpose
of
the
legislation)
Foley
v
Padley
!
VAILD
(not
UV)
!
WIDE
DISCRETION
-
What
they
were
allowed
to
do:
Council
bylaws
regulating,
controlling
or
prohibiting
any
activity
in
mall.
If
in
councils
opinion
-
likely
to
affect
use
or
enjoyment
of
Mall)
-
What
they
did:
no
person
shall
give
out/distribute
anything
in
the
Mall
to
any
bystander
w/o
permission
from
council
HELD:
Valid
3:2
[Gibbs
CJ,
Wilson
and
Dawson
JJ:
Brennan
J,
Murphy
J
dissenting]
WHY
1. Power
to
prohibit
means
absolutely
or
conditionally
2. Where
power
conditioned
upon
an
OPINION,
it
is
the
existence
of
the
opinion
which
satisfied
the
condition
(not
whether
it
is
correct)
!
WIDE
DISCRETION
3. Activity
in
mall
prohibited
likely
to
affect
use
&
enjoyment
(+
littering
problem)
Strong
dissent
-
Using
the
Latham
test,
found
the
by
law
to
be
unreasonable
as
it
caught
a
passer-by
asking
for
a
light
for
a
cigarette;
and
Murphy
J
on
the
grounds
that
was
effectively
a
super-discretionary
prohibition
that
cut
down
drew
of
expression.
-
Strong
Dissent:
Freedom
of
speech!
capacity
to
discriminate
&
censor
on
political
&
religious
grounds
Legislation
&
procedural
safeguards
must
be
strictly
observed
-
Brennan
the
by
law
could
not
give
a
wider
discretionary
power
than
authorised
by
the
primary
Act.
!
Amounting
to
improper
exercise
of
discretionary
power.
NOTE:
Where
delegated
legislative
power
is
conditioned
on
the
existence
of
an
opinion,
opinion
must
be
a
reasonable
one.
Category
3:
DELEGATION
CL
Administrator
CANNOT
delegate
UNLESS
Act
allows
for
it
expressly
or
impliedly
Implied:
by
the
Admin
power/
the
actdepends
on
the
nature,
scope
and
purpose
of
the
power.
!
Consider
this
practically
(large
volume
of
work,
minister
decision,
necessary
some
delegation
takes
place)
realities
of
public
administration.
!
Not
enough
information
!
would
need
to
look
at
the
applications
&
the
summaries
to
determine
whether
it
was
sufficient.
OReilly:
!
NO
DELEGATION
Comm,
tax,
empowered
to
issue
notices.
-
Comm
of
Tax
authorised
to
delegate
to
Dept
Commisisoner.
-
Dpt
commissioner
authorised
official
to
use
fax
signature
of
dept
commissioner
-
Express
in
Act
-
the
DC
could
NOT
delegate
-
Pratical
administrative
necessity
HELD:
NO
DELEGATION
-
All
he
was
doing
was
authorising
them
to
sign
name.
-
Was
practical
administrative
necessity
(would
reduce
tax
laws
to
chaos,
millions
of
TPs
parliament
&
the
Act
could
not
have
intended
such
a
result
-
Therefore
no
delegation
Peko
Walsend
!
DELEGATION
+
NOT
IMPLIED
=
NARROW
UV
-
Minister
delegated
the
consideration
of
certain
mining
reports
-
Act:
minster
HAD
to
consider
PERSONALLY
(DID
NOT
CONSIDER
AT
ALL)
-
HELD:
Must
be
PERSONALLY
CONSIDERED
BY
MINISTER
(summaries
may
not
even
be
enough)
!
personal
consideration
of
each
report
it
was
the
legislative
intent.
Tickner
!
DELEGATION
+
NOT
IMPLIED
=
NARROW
UV
Decision
making
re
aboriginal
heritage
protection.
Min
had
power
to
make
declaration
to
preserve
site
against
development
Process::
Min
!
appoint
person
to
make
report
!
person
appoint
another
person
to
prepare
report
!
preparer
invite
representations
from
public.
Act
required:
minister
to,
before
acting,
consider
the
report
and
attached
representations
-
Did
not
look
at
representations
of
(secret
womens
business)
never
personally
considered
or
red
13
|
P a g e
-
Also
400
representations
attached
&
Min
made
declaration
after
2
days.
HELD:
INVALID,
Narrow
UV
!
failed
to
consider
reports
&
recommendations
(delegated)
Minister
consideration
of
report
HAD
to
be
done
personally.
a.
Gravity
of
the
matters
in
issue
&
policy
of
public
involvement
in
legislation
b.
Minister
consideration
necessary
step
in
exercise
of
power
c.
Entitled
to
rely
on
others
to
process
&
arrange
material
(SUMMARIES)
(Implied
delegation?)
d.
Legislation
specifically
excluded
delegation.
Minister
must
consider
&
decide.
(incl
womens
business
Category
4:
EXERCISE
OF
POWER
OVERRIDES
FUNDAMENTAL
CL
RIGHTS
Must
have
express
&
unambiguous
words
to
override
fundamental
CL
rights
Park
Oh
Ho
!
UV
NARROW
-
Power
to
detain
deportee
under
MI
Act,
did
not
include
power
to
invade
right
to
personal
liberty
by
oppressive
delay
in
execution
of
order
to
deport.
HELD:
UV
Narrow
outside
power
Coco
v
R:
!
UV
NARROW
decision,
judge
to
issue
police
warrant
re
listening
device
allowed
them
to
install
it
on
private
property.
HELD:
Invalid,
in
absence
of
clear
words,
presumed
parliament
does
not
intend
to
curtail
basic
rights
&
freedoms
(interference
of
private
property)
Plaintiff
s157:
HCA
clear,
legislative
powers
affecting
individuals
are
to
be
interpreted
consistently
with
Australias
obligations
under
international
human
rights
law.
EXAM:
Look
for
a
delegated
legislation
that
increases
the
standard
of
proof
to
Beyond
Reasonable
Doubt
(BRD).
This
is
a
higher
threshold
in
criminal
law
and
should
not
be
applied
because
it
overrides
our
common
law
rights.
14
|
P a g e
BAD
FAITH
(HOW
has
the
administrator
used
their
power?)
RARE/OFTEN
UNSUCCESSFUL
STEP
1:
Any
Exercise
of
discretionary
power
in
bad
faith
ADJR
5(2)(d),
6
(2)(d)
STEP
2:
Corruption/dishonesty/deliberate
malice/fraudulent
purpose
in
the
exercise
of
the
power
STEP
3:
very
heavy
onus
of
proof
!
how
do
you
prove
malice?
FOI?
Unlikely.
-
Beyond
mere
error
o
fact
or
low,
beyond
illogical
-
Requires:
Lack
of
honest
(crucial)/genuine
attempt
to
perform
the
statutory
function.
-
According
to
case
law
Recklessness
MAY
be
enough
(not
mere
negligence)
BUT
generally,
large
departments
make
mistakes.
IMPROPER
PURPOSE
(HOW
has
the
administrator
used
their
power?)
RARE/USUALLY
FAILURE
TO
CONSIDER
RELEVENT
CONS.
STEP
1:
ADJR
5(2)(c),
6(2)(c)
An
exercise
of
power
for
a
purpose
OTHER
than
a
purpose
for
which
the
power
is
conferred
STEP
2:
Define
the
four
corners
of
the
law,
the
purpose
of
the
power
under
the
legislation
(purpose/objects
under
Act)
15AA
AIA
(purposive
approach
of
the
section
giving
power)
STEP
3:
State
the
purpose
they
used
it
for
STEP
4:
Case
authority
MULTIPLE
PURPOSES
SUBSTANTIAL
PURPOSE
RULE:
Substantial
purpose,
need
not
be
the
ulterior
purpose
(Thompson
v
Randwick
Munciple)
Thompson
v
Randwick
Municipal
!
IMPROPER
PURPOSE
(Profit
to
reduce
costs)
Express
purpose
of
Act:
resume
land
for
improvement
and
embellishment
Their
purposes
1.
Resumed
land
for
improvement/embellishment
park/project
2.
Sold
some
of
the
resumed
land
for
PROFIT
to
reduce
costs.
HELD:
Improper
purpose
substantial
purpose,
no
attempt
would
have
been
made
if
it
had
not
been
desired
to
reduce
the
cost
of
the
new
road
by
the
profit
arising
from
its
resale.
-
Note:
Legislation
authorised
selling/resuming
land
but
HCA
said
these
were
no
independent
powers
(incidental
ones),
limited
by
the
purposes
for
which
the
council
was
empowered
to
acquire
land)
BUT
FOR
TEST:
(Samrein)
Substantial
purpose:
if
decision
would
not
have
been
made
BUT
FOR
that
purpose
=
substantial
purpose
-
DECISION
MADE
BY
GROUP:
IW
v
City
Perth;
decision
unlawful
if
anyone
involved
had
an
improper
purpose
(obiter).
Law
is
unclear
on
this
point.
Can
it
be
imputed
to
everyone?
Facts
CASE
EXAMPLES
Municipal
Council
Sydney
!
IMPROPER
PURPOSE
(to
make
profit
&
defray
costs)
Express
purpose
of
Act:
Council
could
resume
land
for
carrying
out
improvements/remodelling
any
portion
of
city
AND
widening
+
extending
any
way
What
the
used
power
for:
resume
land
w/o
plan
to
remodel
extend.
HELD:
Improper
purpose
-
Purpose:
to
defray
costs
(get
profit
on
resale)
-
Furthered
an
ulterior
purpose.
Arthur
Yates
!
IMPROPER
PURPOSE
(promote
own
business,
get
rid
of
competition)
War
time,
re
operation
of
national
security
regulation
!
established
committee
with
wide
ranging
powers
to
ensure
supplies
of
veggie
seeds
available
during
WWII
What
they
used
power
for:
to
prohibit
anyone
selling
veggie
seeds
w/o
permission
HELD:
improper
purpose
-
Purpose:
promoting
its
own
business
of
selling
seeds
and
eliminating
competition
-
NB:
no
evidence
of
bad
faith/dishonesty.
R
v
Toohey
!
IMPROPER
PURPOSE
(Defeating
Land
Claims)
Political
case,
battle
b/w
NT
govt
&
aboriginal
people
over
land.
Governor
of
NT
declaration
under
town
planning
act
that
land
subject
to
claim
needed
for
town
planning
purposes.
HELD:
Act
conferred
power
for
town
planning,
NOT
defeating
land
claims
-
Court
can
look
behind
the
regulations
to
ascertain
the
true
purpose
(V.
Important)
o
Refused
to
hand
over
documents
showing
the
improper
purpose
(claimed
Legal
Professional
Privilege)
o
AG
v
Kearney
!
denied
privilege
where
it
was
for
an
illegal
purpose
(here
illegal
to
defeat
land
claims)
Schlieske
v
IM
!
IMPROPER
PURPOSE
(Deportation
Disguised
as
Extradition)
IRRELEVANT
CONSIDERATIONS
STEP
1:
Taking
into
account
irrelevant
considerations
s
5
(2)(a),
&
s
6
(2)(a)
ADJR
STEP
2:
State
the
irrelevant
consideration(s)
TAKEN
into
account
be
administrator
Padfield
v
Argi
Min
!
UV,
sought
to
avoid
POLITICAL
consequences
Legislation,
wide
power,
refers
complaints
about
milk
marketing
scheme
to
committee
for
investigation.
ISSUE:
complaint
lodged
&
minister
refused
to
pass
on
to
the
committee
REASONS:
Min
recorded
reasons
for
decision
showing
refusal
based
upon
view
that
if
committee
upheld
complain,
would
be
expected
to
place
himself
in
political
controversy
(came
out
in
FOI)
Although
discretionary
!
must
be
in
line
with
purpose
of
legislation
(nb:
improper
purpose
too)
Tickner
!
UV,
sought
to
avoid
political
suicide
Murphyores
!
Was
a
RELEVANT
consideration
(as
opposed
to
an
irrelevant
one)
VALID
CO,
applied
for
consent
from
Min,
export
minerals
from
sand
mining
on
Fraser
Island.
Cth
Environment
Act
passed.
Min
directed
that
inquiry
be
held
into
environmental
impact
before
mining.
Inquiry
considered
before
export
permissions
would
be
granted.
ARGUED:
Inquiry
&
reports
was
irrelevant
considerations
HELD:
extent
of
power
of
decision-maker
rests
on
legislation
which
confers
power.
Q
to
be
answered
whether
decision
maker
has
duly
exercised
power/was
decision
vitiated
b/c
extraneous
considerations.
-
Regulations
confer
SUCH
wide
power
&
broad
discretion
that
ONLY
something
that
could
amount
to
bad
faith
could
justify
the
courts
intervention.
-
Consideration
of
the
environmental
aspect
of
sandmining
was
w/in
ministers
discretion
!
was
proper
to
consider
before
granting
any
further
export
consent
for
the
mineral
EXPORT
UNREASONABLENESS
(HOW
has
the
administrator
used
their
power?)
RARE/
USUALLY
FAIL
TO
CONSIDER
SOMETHING
or
improper
purpose
STEP
1:
Exercise
of
power
is
so
unreasonable
that
no
reasonable
person
could
have
exercised
the
power
ADJR
s
5
(2)(g),
s
6
(2)(g)
(Wednesbury
Test)
(potentially
lower
threshold
in
HCA
Li
case
2013)
!
So
absurd,
that
no
sensible
person
could
ever
dream
it
lay
w/in
their
power
!
ISSUE:
merits
review
creeps
in
(CT
looks
are
the
soundness
of
the
decision)
Wednesbury:
UK
statute
allowed
cinemas
to
open
on
Sunday
empowered
the
local
authority
to
allow
cinemas
to
open
subject
to
such
conditions
they
saw
fit.
Condition
issued
no
children
allowed
in
cinema
on
SUN
w/o
adult
supervision.
HELD:
reasonable
for
childs
moral
health.
b/c
not
absurd
and
no
sensible
person
would
ever
consider
it.
STEP
2:
If
w/in
four
corners
of
the
matters
ought
to
be
considered
CT
can
only
consider
it
unreasonable
if
no
reasonable
body
could
come
to
that
decision
(high
threshold)
STEP
3:
CASES
VISA
PROTECTION
APP
Chan
v
Min
Imm.
!
UNREASONABLE
(mistake
of
law
misconstrued
concept)
Chinese
citizen,
came
to
Aust,
illegal
immigrant
seeking
refuge.
Statute:
immigrant
needed
well-founded
fear
of
prosecution
RRT
(administrator):
fear
not
well
founded
HCA:
fear
well
founded
(thrown
in
&
out
of
prison
most
of
his
life)
HELD:
unreasonable,
decision
maker
made
mistake
of
law,
misconstrued
concept
of
persecution
under
the
convention.
NB:
blurred
merits
review
(+
judicial
activism)
Eshutu:
!
NO
UNREASONABLENESS
Tribunal,
rejected
evidence
claimant
suffered
fear
of
persecution
if
returned
to
Ethepoia
(anti-
govt
student
leader)
HELD:
rejected
that
there
was
unreasonableness
!
unreasonableness
where
decision
is
one
for
which
no
logical
basis
can
be
discerned
Applicant
S20
A
argued
Min
decision
was
irrational
or
illogical
rather
than
unreasonable
[b/c
of
privative
clause
in
MI
Act.
-
saying
no
more
appeals
from
RRT
on
grounds
of
natural
justice,
unreasonableness,
irrelevant
considerations
&
bad
faith.
HELD;
decisions
to
effect
that
unreasonableness
could
not
be
used
to
challenged
unreasonable
fact
finding
STEP
4:
CATEGORIES
Category
1:
Discrimination
w/o
justification
Parramatta
Council:!
UNREASONABLE
(HIGHER
RATE
TO
ONE
GROUP,
non-payers
got
same
benefits)
Power:
authorised
special
levy
to
council
rate
to
cover
costs
of
special
benefits
provided
to
industrial
site.
BY-LAW:
imposed
levy
only
on
those
who
operated
industrial
premises
on
site,
not
the
private
owners.
HELD:
Exempt
private
owners
from
rate
was
UNREASONABLE,
private
owners
were
getting
the
benefit
of
amenities
without
having
to
pay
rate.
No
justification
for
discrimination.
Australian
Fisheries:
!
UNREASONABLE
(1
HAD
HUGE
ADVANTAGE
over
60
others)
Act
empowered
minister
to
construct
fishery
management
plan
involving
fishing
quotas
for
licensed
fisherman
in
particular
areas.
[Issue:
legislative
in
character,
and
not
a
decision
was
a
statistical
fallacy]
50-60
fishing
operators
in
area
ended
up
with
lower
fish
quotas
than
ever
before.
1
operator
more
than
100%
higher,
he
got
18%
of
available
catch
area.
HELD:
management
plan
irrational
and
discriminative
!
1
gained
huge
advantage
at
expense
of
other
Rule:
unreasonable
lead
to
manifest
arbitrariness,
injustice
or
partiality.
Category
2:
Lack
of
proportionality
TEST:
reasonable
proportionality
(Tanner)
Act
water
quality
in
catchment
area
(pollution)
Regulation:
regulating,
controlling
or
prohibiting
the
use
of
any
land
within
a
watershed
!
banned
construction
of
piggeries,
zoos,
&
feedlots
HELD:
reasonable
to
refuse
app
for
construction
of
aviary
under
regulation
directed
against
zoos.
WHY:
reasonably
proportionate
to
the
object
of
the
Act
(pollution).
Viewed
in
isolation,
regulation
extreme
!
but
in
context,
reasonably
proportionate
to
pursuing
object
of
act
(pollution).
NB:
no
clear
authority
for
proportionality
as
a
separate
ground
(Honourable
Justice
Bruce)
Category
3:
Reasonable
inquiries
NOT
carried
out
Prasad
!
EVIDENCE
NOT
GOOD
ENOUGH
P
met,
married
wife
in
Fiji,
she
had
permit
for
AUS,
he
did
not.
He
came
after
marriage,
stayed
at
his
brothers
flat
in
Sydney.
Sought
permanent
residence.
Refused
!
on
basis
married
for
purpose
of
getting
residency
Evidence
flimsy
1.
P
overstayed
a
visit
before
they
got
married
2.
After
engaged
!
wrote
letter
to
brother
saying
wanted
to
live
in
Aus
3.
In
interview
said
there
was
inconsistencies
(failed
to
remember
there
was
a
window
in
the
room
he
had
stayed.
HELD:
!
Failed
to
take
into
consideration
relevant
considerations
(report
interviewing
officer
in
Fiji,
numerous
statutory
declarations,
and
personal
observations
from
legal
officer
at
centre).
!
Unreasonableness:
Devoid
of
any
plausible
justification.
Evidence
was
not
good
enough.
Not
justifiable
on
reasonable
grounds
(remitted),
NOT
new
decision
re
opinion.
Tickner
!
UNREASONABLE
(only
concern
POLITICAL
SUICIDE)
Minister
for
abo
affairs,
refused
to
intervene
against
decision
by
WA
govt
to
allow
development
of
site
(special
significance
to
aboriginals),
Refused
to
obtain
report
under
legislation
even
though
application
by
aborigines.
HELD:
Unreasonable
refusal
of
application
Real
intention
!
to
avoid
political
suicide
(evidence
by
conversation
with
another
politician).
***improper
purpose,
irrelevant
consideration***
STEP
5:
MERITS
REVIEW
OVERLAP
Be
careful
!
dont
want
to
intrude
into
merits
review
!
line
between
the
two
is
policed
more
rigorously
in
this
country
than
appears
to
have
become
the
case
in
recent
years
in
other
common
law
jurisdictions
(Murrumbidgee)
HIGH
COURT
CASE
In
Minister
for
Immigration
and
Citizenship
v
Li
[2013]
HCA
18
A
lowering
of
the
unreasonableness
bar?
NO
EVIDENCE
(HOW
has
the
administrator
used
their
power?)
RARE/
FAILURE
TO
CONSIDER
STEP
1:
There
was
no
evidence
or
other
material
to
justify
the
making
of
the
decision
(s5(1)(h);
s
6(1)(h)
!
s5(3)
and
s
6(3)
STEP
2:
ELEMENTS
!
s
5(3)
&
6
(3)
LIMB
ONE
Condition
precedent
+
not
just
1
fact/consideration
to
be
established
(3)(a)
1.
E1:
person
who
made
decision
was
REQUIRED
by
law
to
reach
that
decision
only
if
a
particular
matter
was
established;
AND
2.
E2:
there
was
no
evidence/
other
material
(incl
facts
not
entitled
to
take
notice)
from
which
he/she
could
reasonably
be
satisfied
that
the
matter
was
established
Western
Television
v
ABT:
!
ESTABLISHMENT
OF
FACT
must
be
an
ESSENTIAL
PRE-CONDITION
Provision
relates
to
legislation
! either
expressly/implication,
provides
making
of
decision
A
depends
on
establishment
of
B;
&
! there
is
no
evidence
or
other
material
from
which
DM
could
reasonably
be
satisfied
that
matter
B
was
established
TV
Capricornia
v
ABT:
!
NOT
SIMPLY
ONE
CONSIDERATION
(must
be
pre-condition)
!
Limb
applies
where
establishment
of
a
fact
is
a
precondition
to
the
making
of
a
decision
!
JR
applies
where
a
precondition
to
the
exercise
of
the
decision-making
power
not
enough
to
be
simply
ONE
of
the
considerations
relevant
to
making
the
decision
POCHI
!
UV
NO
EVIDENCE
(evidence
MUST
have
RATIONAL
PROBATIVE
FORCE)
Immigrant,
15
years
in
Aust,
applied
citizenship,
granted.
Never
received
communication
from
department,
therefore
was
an
alien.
Convicted
of
supplying
Marijuana,
2year
jail.
Released
on
parole
&
send
back
to
Italy.
AAT
evidence
!
tried
to
show
big
time
drug
lord
&
was
best
interests
of
Aust
to
get
deported.
HELD:
NO
EVIDENCE
WHY:
flimsy
circumstantial
evidence
!
even
though
AAT,
must
have
rational
probative
force.
***Procedural
fairness
applied***
Hermann
v
Nurses
Board
!
UV
NO
EVIDENCE
Elderly
lady
tube
down
throat.
Nurse
had
trouble
pulling
out,
lady
claimed
assaulted,
board
suspended
the
nurse.
HELD:
Board
did
not
have
sufficient
evidence
to
suspend
the
nurse
Szelagowicz
v
Stocker:
Correlation
between
ADJR
&
CL
!
ADJR
no
evidence
rule
has
to
be
interpreted
in
light
of
current
law,
NOT
when
law
was
enacted.
Therefore
appropriate
to
consider
impact
of
AAT
statutory
requirement
for
reasons.
A
challenge
may
lie
if
the
decision,
based
on
the
material
before
the
decision-maker,
was
perverse,
capricious,
fanciful,
arbitrary,
and
irrational
or
not
bone
fide
ABT
v
Bond
-
Question
whether
there
is
any
evidence
of
a
particular
fact
is
a
question
of
law
-
Question
whether
a
particular
inference
can
be
drawn
from
the
facts
is
a
question
of
law
LEAVE
findings
of
fact
to
the
administrative
body
ONLY
consider
questions
of
law.
LIMB
TWO:
(3)
(b)
FACT
DID
NOT
EXIST
Person
who
made
decision
based
decision
on
the
existence
of
a
fact
AND
that
fact
did
not
exist
Western
Television:
only
where
express
findings
of
fact
are
made
that
are
plainly
incorrect
TV
Capricornia:
Second
limb
is
a
more
onerous
test
!
requiring
an
applicant
to
NEGATIVE
the
existence
of
any
facts
relied
upon
in
the
decision
under
review
Curragh
Mining:
!
UV
(NO
EVIDENCE)
incorrect
assumption
about
legal
liability
under
K
Heavy
burden
!
obligation
to
negative
any
fact
relied
upon.
A
imported
mining
equipment
to
meet
obligations
under
K
to
supply
certain
quality
of
coal
by
specific
date.
! Had
to
pay
tax
if
available
locally,
did
not
have
to
pay
tax
if
not
available
locally
16
|
P a g e
A
argued
local
equipment
could
not
extract
coal
quickly
enough
to
fulfil
contractual
obligations
HELD:
decision
to
tax
!
based
on
a
fact
that
was
incorrect
THOUGHT
A
could
negotiate
delivery
date
later
than
that
stipulated
!
INCORRECT
assumption
about
legal
liability
of
applicant
under
K.
Anghel:
!
VALID
DECISION
:
The
fact
must
have
high
significance
(and
not
peripheral)
Decision:
sought
review
of
minister
approval
of
construction
on
rail
link.
Statute:
obligation
to
account
for
environment
effects
!
environmental
impact
statement.
App
Argued:
EIS
was
defective
&
therefore
no
evidence
or
other
material
to
justify
decision.
HELD:
Could
not
succeed
simply
b/c
of
existence
of
EIS
which
was
available
to
Minister
at
time
of
decision.
!
MUST
SHOW
that
decision
maker
RELIED
on
fact
which
was
non-existent
IM
v
Rajamanikkam
(HC)
(2002)
!
VALID,
decision
not
based
on
non-existent
RRT
rejected
application
re
refugee
status
(no
well-founded
fear
of
persecution)
2
of
8
reasons
recorded
by
RRT!
based
on
assumption
that
A
had
deliberately
conveyed
a
FALSE
impression
that
it
was
unsafe
for
him
to
return
LATER:
shown
no
foundation
for
this.
HC:
SPLIT
!
took
narrow
view
of
no
evidence
rule
-
Gleeson:
must
negative
the
fact
on
which
decision
made
-
Majority:
decision
not
considered
to
be
based
upon
non-existent
facts
NO
EVIDENCE
RARELY
ARGUED,
RARELY
SUCCESSFUL.
!
UNCERTAINTY
(HOW
has
the
administrator
used
their
power?)
VERY
RARELY
ARGUED;
NO
SUCCESFUL
CASES
Usually
in
relation
to
regulations
(delegated
legislative
power)
[!
common
law
39B
b/c
legislative
in
character]
STEP
1:
Exercise
of
a
power
in
such
a
way
that
the
result
of
the
exercise
of
the
power
is
uncertain
ADJR
5(2)(h),
6(2)(h)
King
Gee
!
POTENTIALLY
GROUND
OF
UNCERTAINTY
(but
relied
on
another
ground)
Ruled
out
uncertainty
as
a
ground,
but
invalid
on
basis
of
narrow
UV
Price
Commissioner
power
under
Regs
to
fix
&
declare
prices.
HELD:
complex
formula
for
prices
was
too
discretionary
&
lacking
in
terms
of
setting
objective
standards
and
it
was
impossible
to
objectively
ascertain
the
maximum
price
for
anything
!
Did
not
satisfy
reg
requirement
fix
&
declare
or
specify
!
Was
uncertain
!but
found
another
ground
to
rely
on.
IMPOSSIBLE
to
ascertain
the
maximum
!
uncertain.
Television
Corporation
!
KITTO
uncertainty
(other
judges,
other
grounds)
Minister,
power
to
grant
TV
licences
upon
conditions
as
saw
fit.
Conditions
set
by
Min
wide
&
uncertain.
Kitto:
uncertainty
of
meaning
&
application
ground
for
challenge.
(only
kitto
other
judges
found
other
grounds)
Racecourse
Cooperative!
UNCERTAIN?
!
did
not
provide
certain
standard
Followed
King
Geee
vague
measures
do
with
fixing
sugar
prices,
did
not
provide
a
certain
or
objective
standard
&
therefore
did
not
determine
and
declare
the
price
as
required
by
Act.
Zhang
Fu
Qui
Observation:
It
is
not
yet
clearly
a
separate
and
independent
ground
of
review
in
Australia
GROUND
1
DELAY
AS
[admin]
has
not
made
a
decision
with
respect
to
the
[decision],
and
there
is
no
period
specified
when
this
decision
must
be
made,
[applicant]
may
apply
to
the
Federal
or
Federal
Magistrates
Court
for
an
order
of
review
for
unreasonable
delay
(s7
ADJR
failure
to
make
a
decision)
&
5(2)(f)
for
the
ground
of
failure
to
exercise
a
discretionary
power.
In
doing
so,
[Applicant]
may
seek
a
WRIT
OF
MANDAMUS
to
compel
[administrator]
to
perform
his/her
duties.
OFTEN
phone
call,
a
letter
!
or
internal
review
Step
1:
Right
to
PF
attached
to
an
admin
decision
affecting
the
rights/interests
of
A
(Kioa)
Step
2:
State
the
interest
that
PF
has
attached
to.
Examples
of
fundamental
rights
include
such
things
as
property,
employment,
financial
and
personal
liberty
etc.
-
Mason
J
in
KIOA
!
the
reference
to
right
or
interest
is
to
be
understood
as
relating
to
personal
&
liberty,
status,
preservation
of
livelihood
and
reputation,
as
well
as
property
rights
or
interests
-
Banks
v
Transport:
Cab
driver
licence
couldnt
be
revoked
w/o
affording
PF
as
licence
is
property
(could
be
sold),
not
mere
privilege
&
holder
has
a
legal
right
-
Winneke:
Workers
comp
insurance
cancelled
!
business
interest
=
PF
applies,
right
to
be
heard
-
Ainsworth
!
reputation
(damaged
by
report
opportunity
to
respond)
[TC:
Procedural
fairness
attaches
Right
to
present
case?]
LEGITIMATE EXPECTATION
18
|
P a g e
PF REQUIREMENTS IN LEGISLATION
Where
legislation
sets
out
certain
PF
requirements
cannot
be
inferred
that
the
legislature
intended
to
exclude
CL
rules
of
PF
simply
b/c
it
prescribes
procedures.
Annets
v
McCann:!
BREACH
OF
PF
(Statute
did
not
exclude
CL
right
to
be
heard)
Prejudicial
findings
=
right
to
be
heard.
Act-
provided
for
personal
attendance
&
cross
examination
of
witnesses
if
consider
person
sufficient
interest
in
the
matter.
Refused
to
here
submissions
from
counsel
representing
parents
o
deceased
child.
Q
arose
whether
procedural
provision
had
effect
of
excluding
CL
rules
of
PF
!
particularly
where
right
of
appellants
to
be
heard
in
opposition
to
any
potential
finding
prejudicial
to
their
interest
HELD:
PF
denied.
Legislation
did
not
expressly
exclude
common
law
right
to
be
heard
PURPOSE
of
legislation
!
to
abolish
unfettered
Coroners
discretion
IE:
legislation
must
be
very
CLEAR
to
exclude
LEGISLATION
EXPRESSLY
EXCLUDING
REQUIRES:
express
wording
&
clear
manifestation
is
required
to
exclude
PF
(Kioa
v
West)
(Miah)
MUST
expressly
state
that
procedures
under
Act
expressly
displace
common
law
PF
1.
ISSUES:
Full
blown
hearings,
proceedings
w/right
to
cross
examine,
right
to
be
heard
orally,
right
to
be
notified
of
a
specific
allegation.
2.
STEP
1:
A
may
apply
to
FC
for
order
of
review
of
(what
happened)
on
grounds
of
breach
of
procedural
fairness
s
5(1)(a)
&
s
6
(1)(a)
in
connection
with
making
his
decision.
BREACH
is
X:
THE
MORE
SERIOUS
THE
CASE
THE
MORE
PF
SHOULD
BE
AFFORDED
RRT
CANNOT
argued
that
reason
for
non-disclosure
was
act
that
no
weight
was
afforded
to
doc.
MUST
be
disclosed
if
credible,
relevant
&
significant
Request
for
confidentiality
by
supplier
of
info
NOT
determinative
public
interest
considerations
are
relevant
!
in
these
circumstances,
in
substance,
letter
could
have
been
disclosed
WITHOUT
THE
IDENTITY
of
informant
being
disclosed
General
Rule:
No
absolute
right
to
an
oral
hearing.
Depends
on:
seriousness
of
the
case
&
whether
person
has
been
given
an
adequate
opportunity
to
present
their
case
-
Circumstances
-
Legislation
Oral
hearing
required:
-
Livelihood
(pett)
-
Reputation
(Pett)
-
Appeals
(Finch)
-
2
competing
bodies
(b/c
cross
examine)
(Finch)
-
Credibility
(Chen)
-
Intention
of
parties
at
dispute
(Chen)
Written
submissions
fine:
-
Nothing
expess
in
leg
+
circumstances
of
case
(Heatley)
-
High
volume
decision
making
(Chen)
-
Objective
decision
making
potentially
fine
(Chen)
Pett
v
Greyhound
Racing
(UK)
!
LIVELIHOOD
AND
REPUTATION
(RQRD
ORAL
HEARING)
Individual
entitled
to
an
oral
hearing
where
their
livelihood
or
reputation
was
at
stake.
Heatley
!
WRITTEN
SUBMISSIONS
(right
to
enter
race
course)
Commission
had
to
comply
with
rules
of
natural
justice.
Race
course
entry
case.
Nothing
express
in
legislation
re
oral
heaing
-
Notice
of
intention
-
Grounds
of
issueance
(warning
of
notice)
-
NOT:
necessary
for
oral
hearing
!
written
submissions
were
fine.
Finch
!
APPEALS
OR
2
COMPETING
BODIES
(RQRD
ORAL
HEARING)
Oral
hearing
NECESSARY
where
process
of
decision
making
is
one
of:
1.
APPEAL
2.
Decision
making
body
required
to
adjudicate
b/w
2
competing
bodies
Committee
established
hear
appeals
re
promotions.
Required
to
adjudicate
b/w
2
parties
in
dispute
over
1
of
them
being
promoted
VISA
PROTECTION
APP
Chen
Zhan
Zi
!
CREDIBILITY
OR
INTENTION
OF
PARTIES
!
High
volume
decision
making
!
may
negate
requirement
of
oral
hearing
Principle:
oral
hearing
required
where
there
is
an
issue
of
creditability
or
a
dispute
as
to
the
intention
of
the
parties
Chen
sought
refugee
status
(well
founded
fear
of
persecution)
Challenged
procedure
of
Migration
Department.
Procedure:
that
every
application
given
to
a
delegate
but
only
those
with
merit
get
opportunity
to
respond.
Those
without
merit
no
opportunity
to
respond.
Could
appeal
to
refugee
Committee
but
that
also
on
paper/
by
writing.
HELD:
objective
test
well-founded
fear
of
prosecution!
could
be
done
on
paper.
WHY:
High
volume
decision
making
jurisdictions
!
practical
considerations
may
negate
the
requirement
to
afford
an
oral
hearing.
HOWEVER
where:
-
Real
Q
as
to
credibility
-
Applicant
disadvantaged
being
limited
to
written
submissions
MAYBE
oral
hearing
required.
3.
REPRESENTATION
STEP
1:
General
Rule:
No
absolute
right
to
representation
(Cains
v
Jenkins)
(Krstic)
!
Statutes
can
override
entitlement
to
legal
representation
!
Even
where
livelihood
is
at
stake
STEP
2:
WABZ
v
MIMIA:
4
Factors
considering
whether
entitled
to
representation
(in
RRT)
1.
Applicants
capacity
to
understand
the
nature
of
the
proceedings
and
the
issues
2.
Applicants
ability
to
communicate
effectively
(in
language
used)
3.
4.
Cains
v
Jenkins:
!
VALID,
GIVEN
PF:
Seriousness,
complexity
&
ability
Trade
union
committee
hearing
of
charges
against
union
secretary.
Refused
right
to
be
accompanied
by
articled
clerk.
HELD:
no
denial
of
PF
!
taking
into
account
the
applicants
experience
and
ability
to
present
his
case.
Requirement
varies
according
to:
1.
The
serious
of
the
matter
2.
The
complexity
of
legal
and
factual
issues
3.
Ability
of
the
person
to
represent
themselves
In
Cains:
lack
of
seriousness,
complexity
&
person
capable
of
doing
it
themselves
Krstic
!
VALID,
GIVEN
PF:
Age,
qualification,
education
No
absolute
right
(even
where
livelihood
at
stake)
Lost
job
with
telecom,
sought
review,
requested
representation,
tribunal
denied
representation.
HELD:
no
denial
of
PF
No
legal
representation
b/c
it
is
an
informal
procedure
Tribunal
directed
by
its
regulations
to
proceed
w/o
regard
to
legal
forms
A
person
with
a
tertiary
qualification
&
normal
amount
of
self-confidence
should
require
no
representation
or
assistance.
ENTITLED:
to
non-legal
representation
(union
rep)
CONSIDER:
age,
qualifications,
education
Canellis:
!
VALIF,
GIVEN
PF:
convicted
person
inquiry,
no
need
for
rep.
HCA
did
not
accept
conduct
of
statutory
commission
of
inquiry
into
doubts
of
convicted
person
required
that
the
witness
be
afforded
legal
representation
(as
general
rule).
NOTED
significant
public
cost.
Sullivan
!
DECISION
MAKERS
NOT
REQUIRED
TO
ASSIST
APPLICANT
(all
required
reasonable
opp
to
present
case
not
impossible
task
of
ensuring
that
part
best
take
advantage
of
the
OPP)
S
sought
review
of
decision
refusing
to
renew
commercial
pilots
licence
on
medical
grounds.
S
represented
himself,
sought
to
call
medical
witness.
Medical
witness
not
present,
w/o
evidence
he
could
not
proceed.
ISSUE:
S
did
not
request
an
adjournment
&
AAT
did
not
offer
one
HELD:
no
denial
of
PF
for
failing
to
tell
him
he
had
right
to
adjournment.
Not
up
to
AAT
4 RIGHT TO AN INTERPRETER
Sing
!
BREACH
OF
PF:
absent
interpreter
+
failure
to
give
record
Set
aside
decision
to
deport
applicant
on
ground
that
absence
of
an
interpreter
for
part
of
the
interview
and
a
failure
to
provide
the
applicant
with
a
copy
of
the
record
of
interview
amounted
to
breach
of
PF
Obiter
Cains
v
Jenkins
AND
Krstic:
suggests
migrant
with
no
English
or
a
deaf
mute
would
have
a
right
to
an
interpreter.
Provided
at
no
cost
International
Covenant
on
Civil
and
Political
Rights
contains
guarantee
in
Art
14
cl
3(f)
of
the
free
assistance
of
an
interpreter
if
he
or
she
cannot
understand
or
speak
the
language
used
in
court
(Australia
has
ratified)
5.
RIGHT
TO
CROSS-EXAMINE
STEP
1:
No
general
right
to
cross-examine
a
witness
(ORourke
v
Miller)
ORourke
!
VALID,
no
cross
examination
required
PF
did
not
require
police
constable
be
entitled
to
cross
examine
persons
lodging
complaints
about
his
behaviour
prior
to
the
conclusion
of
the
probation
period.
HCA:
Swayed
by
Comms
responsibility
to
week
out
probationary
officers.
Special
category
of
disciplinary
proceedings
in
the
police
force
STEP
2:
Exceptions
Issue
1:
Cross
examination
ordinarily
allowed
where
CREDIBILITY
is
an
issue
(Harrison
v
Pattinson)
-
Person
charged
with
breaches
of
discipline
denied
opportunity
of
cross-examining
witness
called
at
inquiry
to
investigate
complains
about
his
behaviour
in
work
place
20
|
P a g e
HELD:
credibility
of
witness
called
to
testify
against
him
was
fundamental
to
the
outcome
&
PF
required
to
cross
examine
Issue
2:
competing
bodies,
serious
allegations
-
Finch
v
Goldstein
! CROSS
EXAMINATION
RQRD
FOR
PF:
2
competing
bodies,
serious
misconduct,
needed
cross
examination
re
issues
a.
Committee
established
to
hear
appeals
in
respect
of
promotions,
was
required
to
adjudicate
b/w
to
parties
in
dispute
over
one
of
them
being
promoted.
b.
HELD:
That
only
through
cross
examination
&
re-examination
of
witnesses
that
the
committee
could
properly
explore
the
relevant
issues
(involved
serious
misconduct)
-
Ansell
v
Wells:
consider
the
gravity
of
any
allegations
made
by
or
against
any
party
Issue
3:
powers
of
decision
maker
The
nature,
constitution
and
powers
of
the
tribunal
and
whether
it
follows
procedures
analogous
to
a
court
should
also
be
considered
(Hurt
v
Rossal)
RULES
OF
EVIDENCE
STEP
1:
No
general
rule
of
pF
that
decision
making
bodies
abide
by
the
formal
rules
of
evidence
(unless
legislation
requires
it)
-
**other
grounds:
no
evidence,
failure
to
take
into
account
relevant
considerations
STEP
2:
HOWEVER
DECISIONS
MUST
BE
LOGICALLY
PROBATIVE
EVIDENCE
(MIEA
v
Pochi)
Drug
lord
(Italian,
papers
for
citizen
approved
but
never
received),
but
not
enough
evidence
to
go
on.
Department
had
acted
on
a
suspicion,
not
on
clear
probative
evidence,
MERE
SUSPICION
IS
NOT
GOOD
ENOUGH
Brennan
J
warned
!
although
AAT
not
bound
by
rules
of
evidence,
should
be
careful
to
ensure
legally
probative
evidence
In
that
case
AAT
refused
to
take
account
of
hearsay
evidence
which
has
highly
prejudicial
consequences
for
a
party.
NB:
Decisions
on
flimsy
evidence
!
NO
EVIDENCE
GROUND
STEP
1:
non-pecuniary
bias
includes
bias
by
association,
conduct
or
prejudgment
STEP
2:
TEST
if
fair
minded
people
would
reasonably
apprehend
or
suspect
that
the
court
or
tribunal
has
prejudged
the
case
(R
v
Watson
HCA)
-
Fair
mind:
given
thought
to
subject
matter
&
formed
views
w/respect
to
it
(R
v
CCAC)
-
ESTABLISH
BIAS:
reasonable
basis
or
fear
(suspiscion)
that
decision
makers
mind
so
prejudiced
in
favour
of
conclusion
already
formed
that
they
will
not
alter
conclusion
irrespective
of
evidence/arguments.
(Laws
Gaudron
&
McHugh)
STEP
3:
PREJUDGEMENT
OF
THE
FOLLOWING
CATEGORIES
(1-7)
1
Previous
expression
of
opinion
Where
decision
maker
has
given
their
opinion
somewhere
ex:
to
the
media
Laws
v
ABT
(Gaudron
&
McHugh)
Must
firmly
establish
1.
Reasonable
fear
that
the
decision
makers
mind
is
so
prejudiced
in
favour
of
a
conclusion
already
formed
2.
That
he/she
will
not
alter
that
conclusion
irrespective
of
the
evidence
or
arguments
presented
to
him/her
CONSIDER
the
context
of
the
case
&
is
previous
statement/expression
so
clear?
2
Provisional
views
expressed
during
a
case
Vakuaka
v
Kelly:
Widely
accepted
that
judicial
silence
may
be
counterproductive.
-
You
expect
them
to
give
some
idea
of
how
they
feel
about
a
particular
issues
as
the
case
produces
-
You
want
them
to
question
you
Richmond
River:
Critical
comments
can
be
useful
to
a
part
early
on
in
an
hearing
-
However;
the
belief
or
opinions
must
be
provision
and
the
decision
makers
readiness
to
listen
and
be
persuaded
is
the
critical
matter
at
hand
-
CONTEXT:
must
be
provisional/preliminary
Koppen
v
Commissioner:
!
BIAS,
COMMENTS
-
During
compulsory
conciliation
conference
!
alleged
that
K
had
refused
Aboriginal
people
entry
to
his
night
club
on
basis
of
their
race.
-
Conciliator,
an
aboriginal
woman,
commented
that
her
daughters
had
also
been
denied
entry
into
Koppens
night
club
HELD:
Comments
gave
rise
to
reasonable
apprehension
of
bias
!
risk
that
conciliator
would
have
actively
entered
the
controversy
between
the
parties
3
preconceived
opinions
evidenced
by
public
statements
Re
Maurice
!
BIAS,
POLITICALLY
SENSITIVE
Aboriginal
land
commissioner
made
comments
critical
of
the
Government,
incl
that
it
has
pretensions
to
be
a
government
for
all
people
in
the
NT
yet
its
actions
consistently
betray
an
underlying
hostility
to
the
basic
principle
of
land
rights
for
a
disposed
people.
HELD:
Commissioner
precluded
from
any
further
involvement
in
a
significant
land
claim
in
NT
Remarks
were
POLITICALLY
SENSITIVE
issues
&
allow
o
publicity
surrounding
the
comments
Carruthers
v
Connolly
!
BIAS,
publically
critical
of
a
commission
inquiry
he
was
part
of.
Commission
of
inquiry
set
up
to
investigate
future
of
CJC
in
Qld,
Connolly
(ex
supreme
ct
judge),
a
commissioner
on
inquiry,
done
for
bias.
Public
comments
critical
of
CJC
chairman
&
CJC
generally.
Showed
supper
for
witness
critical
of
the
CJC.
Other
commissioner
was
disqualified
from
commission
Connolly
guilty
of
most
flagrant
form
of
apparent
bias
verging
on
actual
bias.
Keating
v
Morris
!
BIAS,
same
basis
as
connolly
Involved
shutting
down
another
official
inquiry
same
basis
as
Connolly.
NB:
Can
apply
to
statements
made
after
the
hearing
(Re
MIMA
Epeabaka)
Re
MIMA
Epeabaka:
Comments
posted
on
RRT
members
WEBSITE,
which
included
a
reference
to
the
fact
that
applicants
lie
!
Bias
not
held
in
this
particular
case
but
said
it
could
apply
in
these
sorts
of
circs.
4
Preconceived
opinions
evidenced
by
former
decisions
GENERAL
RULE:
listing
of
cases
before
a
decision
maker
is
a
matter
for
the
relevant
institutions
and
judge
shopping
is
not
allowed!
ALL
CASES
UNSUCCESSFUL.
NO
JUDGE
SHOPPING.
-
The
fact
that
a
decision
maker
has
decided
an
issue
of
fact
or
law
in
a
way
&
may
decide
same
way
against
!
DOES
NOT
indicate
prejudgment
amounting
to
bias.
TEST:
must
show
decisions
makers
mind
was
so
prejudiced
in
favour
of
a
conclusion
despite
the
evidence
presented
that
the
party
will
not
be
afforded
a
proper
hearing.
Raiski
v
Wood:
(Kirby
J)
If
parties
could
pick
&
choose
judges
according
to
perceptions
of
the
way
in
which
their
choice
could
advantage
them
!
great
DAMAGE
would
be
done
to
the
integrity
of
the
judicial
process
and
to
community
confidence
in
the
neutrality
and
impartiality
of
the
judiciary
The
courts
are
vigilant
to
adopt
procedures
to
guard
against
forum
shopping
&
judge
selection
Vietnam
Veterens
v
Gallagher
Argued
that
past
decisions
showed
that
Member
M
(siting
on
VRT)
was
biased
AGAINST
Vietnam
veterans
seeking
pensions
HELD:
dismissed
-
Although
statistical
evidence
may
indicate
that
b/c
M
has
decided
cases
in
a
particular
way
in
the
past,
he
was
likely
to
decide
a
case
of
the
same
nature
in
the
same
way
in
the
future,
that
did
not
amount
to
apparent
bias.
21
|
P a g e
5
Predisposed
attitudes
assumed
by
virtue
of
decision-makers
identity
(race,
religion
etc)
Bird
v
Minister
for
Education
-
Unsuccessful
bias
application
on
basis
of
gender
and
ethnic
origin
(female
jewish
judge)
-
Cannot
claim
just
because
they
are
a
woman
or
that
they
are
Jewish
6
Known
attitudes
to
witnesses
Livesay
v
NSW
Bar
Association
!
BIAS,
CLEAR
VIEWS
ABOUT
CREDIT
OF
WITNESS
whose
evidence
is
significant
3
Judges
struck
barrister
(livesay)
off
roll.
Few
months
earlier
2
of
those
judges
determined
person
who
worked
closely
with
barrister
was
not
fit
an
proper
for
admission.
They
had
been
severely
critical
of
livesey
in
first
case
in
circumstances
where
the
relevant
facts
were
central
to
the
second
case
&
why
he
was
struck
off
HELD:
bias
-
&
noted
bias
by
reason
of
prejudgement
arises
if
a
judge
sits
to
hear
a
case
at
first
instance
after
he
has,
in
a
previous
case,
expressed
clear
views
about
the
credit
of
a
witness
whose
evidence
is
of
significance
on
such
a
question
of
fact,
then
the
appearance
of
bias
by
prejudgment
must
be
avoided
and
the
judge
should
not
hear
the
case.
Vakuata
v
Kelly
!
BIAS,
PRECONCEIVED
VIEWS
ABOUT
MED
WITNESS.
TJ
referred
to
the
D
insurance
companys
medical
witness
as
a
unholy
trinity
whose
views
were
generally
slanted
in
favour
of
the
Governments
insurance
office.
Made
further
comments
critical
of
the
witness
in
his
reserved
judgement.
HELD:
Bias
Trial
judge
concerned
to
vindicate
his
preconceived
views
about
the
reliability
of
the
witness,
and
he
allowed
the
views
to
prejudice
his
whole
approach
to
the
case
to
the
detriment
of
the
defendant
Acknowledged:
decision
makers
who
regularly
see
certain
medical
witnesses
(doctors)
are
likely
to
form
views
about
the
reliability
and
impartiality
of
those
witnesses.
This
does
not
disqualify
a
judge.
To
whom
does
the
rule
apply?
1
Courts
In
Tahmindjis
v
Brown,
an
ADJR
case
that
followed
on
from
Lamb
v
Moss,
the
CT
held
that
the
magistrates,
hearing
a
complex
and
difficult
committal
hearing
where
16
people
were
accused
of
social
security
fraud,
was
disabled
by
an
apprehension
of
bias.
2
Tribunals
All
tribunals,
including
regulatory
and
investigative
tribunals,
are
under
a
duty
to
act
judicially
(i.e.
to
accord
natural
justice),
which
will
include
a
duty
to
act
in
an
unbiased
fashion.
Angliss
Group
the
issue
was
whether
comments
made
by
Kirby
J
(the
Commissioner),
about
equal
pay
for
women
and
men
in
a
National
Wage
case
was
deemed
non-pecuniary
bias
by
prejudgement.
A
unanimous
HCA
held
there
was
no
bias,
the
very
nature
of
the
office
of
Commissioner
involved
the
investigation
of
policy
options
and
tentative
expressions
of
opinion;
a
fair
and
unprejudiced
mind
is
not
necessarily
a
mind
which
has
not
given
thought
to
the
subject
matter
or
one
which,
having
thought
about
it,
has
not
formed
any
views
or
inclination
of
mind
upon
or
with
respect
to
it
(554)
In
Re
MIMA;
Ex
parte
Epeabaka,
an
RRT
member,
Dr
Hudson,
who
had
spent
extensive
time
abroad
working
for
and
with
refugees,
established
a
website
(after
he
had
given
his
decision
in
this
case)
where
he
referred
to
applicants
who
lie
through
their
teeth
(as
they
often
do)
and
said
We
work
with
dishonesty
and
corruption
on
all
sides
applicants
who
weave
webs
of
lies,
lawyers
and
migration
agents
who
prey
on
them
to
rip
off
what
little
money
they
have
Epeabaka
applied
for
certiorari,
prohibition
and
mandamus
in
the
High
Courts
original
jurisdiction
on
the
basis
that
Hudsons
decision
to
affirm
the
rejection
of
his
visa
application
vitiated
for
apprehended
bias.
Gleeson
CJ,
McHugh,
Gummow
and
Hayne
JJ
referred
to
Angliss
Group
noting
that
a
mere
lack
of
nicety
is
not
sufficient
to
establish
apprehension
of
bias,
but
rather
it
must
be
firmly
established
looking
at
all
the
circumstances
and
in
context;
there
was
no
bias
in
this
case.
Kirby
agreed
in
a
separate
judgement.
Institutional
bias
see
Laws
case
An
ABT
member
made
a
public
statement
repeating
the
allegations
of
the
purported
decision.
Laws
sought
judicial
review
on
the
ABT
decision
on
the
basis
of
the
public
statement.
On
appeal
by
Laws
from
the
FC
to
the
HCA,
the
question
was
whether
the
ABT
was
precluded
from
entertaining
an
inquiry
against
Laws,
given
apprehended
bias
deduced
from
its
behaviour
and
public
statements
and
its
defence
of
the
defamation
proceedings.
The
HCA
held
that
was
indeed
apprehended
bias
by
virtue
of
the
defence
to
the
defamation
proceedings.
WAIVER
GENERAL
RULE:
an
objection
must
be
made
as
soon
as
possible
after
the
person
affected
becomes
aware
of
the
bias
!
Parties
often
afraid
to
allege
bias
in
case,
b/c
makes
decision
maker
more
hostie.
!
Risk
to
make
objection,
but
late
objection
shows
uncertainty
as
well
FAILURE:
to
object,
may
amount
to
a
waiver
of
the
right
to
complain
Lilydale
!
WAIVED,
waited
to
see
if
could
get
a
favourable
decision.
Magistrate
driven
by
counsel
for
one
side
to
view
site.
Court
made
it
clear
that
his
issue
of
association
also
arises
when
judges
listed
to
hear
cases
in
which
they
were
involved
with
parties
before
their
appointment
to
the
bench.
HELD:
Applicant
barred
from
seeking
relief
on
basis
of
bias
!
applicant
and
lawyer
chosen
to
let
the
bias
pass
in
hope
of
securing
favourable
decision.
WAIVED
by
not
bringing
it
up
earlier
NOT:
allowed
to
eat
his
cake
and
have
it
too
Osland
v
Secretary
to
the
Department
of
Justice
See
access
to
information
and
LPP
Vakuta
v
Kelly:
Failed
to
object,
waived
right
re
in
court
remarks
Appellant
did
not
object
to
commends
First
instance:
waived
right
to
object
insofar
as
the
in-court
remarks
On
appeal
(HCA):
appellant
had
not
waived
right
to
complain
as
TJs
comment
were
reviewed
in
his
judgement
COURTS
attempted
to
accommodate
realities
of
decision
making
process,
recognising
that:
1.
Appearance
on
bias
may
be
cumulative
(rather
than
instantly
identifiable)!
factors
2.
Late
objection
may
be
product
of
indecisiveness
(or
scared)
rather
than
strategy
3.
Enthusiastic
objective
can
be
a
risky
strategy
NECESSITY
Where
NO
ONE
ELSE
can
hear
it
Laws
Case
(nb:
procedural
fairness
in
the
context
of
preliminary
decisions)
-
Laws
made
comments
that
were
critical
of
aboriginal
welfare
programs
AB
tribunal
met
with
radio
station,
held
laws
breached
standards
of
legislation,
inquiry
would
be
held.
-
Laws
challenged
under
ADJR
&
sued
for
defamation
(b/c
director
discussed
tribunals
public
inquiry
on
radio
-
HELD:
decision
to
hold
inquiry
which
attracted
much
publicity
was
vitiated
by
breach
of
PF
-
WHY:
Laws
had
not
been
given
change
to
be
heard
3
members
that
made
decision
to
hold
inquiry
could
not
sit
on
bench
in
proper
public
hearing
that
was
to
be
held.
If
there
were
no
others,
then
the
principle
of
necessity
would
enable
them
to
hear
the
matter
22 | P a g e