Week 1 - Introduction to Administrative Law

TOPICS TO BE COVERED:
Accountability as an Underlying Principle of Administrative Law
The foundational concepts and issues in Administrative Law
Historical Foundations of Australian Administrative Law

What is public law?

Private law is characterised as a dispute between 2 private citizens (although many private matters involve
the government as a party, e.g. contractual dispute)
Public law is characterised by the government being a party to a dispute
Grounds and review and remedies which are not generally available against private bodies (i.e. it is
concerned with the control of powers which are inherently governmental or public in nature, in the sense that
only government possesses such powers.

What is administrative law?

Involves review of the exercise of public power by public bodies. Public bodies meaning the executive
Public bodies include
o Government departments
o Statutory authorities
o Ministers and cabinets
Administrative law includes review of:
o Social security decisions
o Immigration and deportation issues
o Taxation
Statutory and prerogative
o Environmental law
powers
are public powers
o Grants and funding decisions
and are within the scope of
o Dismissal of public officers
admin law
The executive exercise certain powers
o Statutory powers
In admin law, we are concerned with the exercise of a power already lawfully conferred on
the government, rather than the validity of that conferral (different from constitutional law)
o Prerogative powers (powers once exclusive to the Sovereign such as the power to sign treaties
and declare war/peace, prerogative of mercy)
o CL powers (contractual powers, power to own property)

The Role of Administrative law

A branch of public law that controls and regulates the executive power by governing the relationship
between the government and the governed. Thus the purpose of admin law is to safeguard the rights and
interests of people and corporations in their dealings with the government agencies.
Underlying principle of administrative law is accountability
o Others considered by admin law include, openness, accountability, fairness, transparency,
consistency, rationality, accessibility, legality and impartiality.
It establishes a relationship between the executive government and the people in a State who are affected
by the exercise of executive power. It is a means for holding the executive to account for the exercise
of its power.
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Accountability occurs through the principle of responsible government and through various Parliamentary
means of examining executive actions, most particularly, mechanism for holding the executive to account for
raising and expending public monies.
Topics of modern Administrative Law can be described as follows.
o One of the aims of Administrative law mechanisms is to facilitate what has come to be known as
open government. The concept of open government recognises that ultimately government is
for the people. The more transparent are the processes of government, the more
confident the people can be of its integrity and the more they are able to participate in it.
There has been a growing concern at the increased power of the executive government and the failure of
the political and administrative law mechanisms for accountability to check over power.

Who reviews executive action?

Accountability to Parliament
o Various forms of parliamentary review. Ministers are responsible to Parliament but in practise it is
impossible for Ministers to adequately supervise all that is done by bodies that they are responsible
for.
Review by executive itself
o Internal review, external merits review and review by ombudsmen.
Judicial Review

Types of Review
o Merits Review (conducted by tribunals)
Creature of statute with a right contained in the statute
The tribunal takes no account of the original decisions. It starts from scratch, hearing the
evidence anew, deciding the facts and interpreting & applying the statute for itself.
When it makes a decision, that decision stands in place of the original decision under
review.
At Cth level the ATT (Administrative Appeals tribunal) and some specialist tribunals hear
review. At State level there are various specialist tribunals but the administrative and
disciplinary division of the District Court allows for general merits review where Acts confer
a right of appeal to the division.
o Legalities Review (conducted by courts and limited to questions of law.)
The Court does not start from scratch, it does not rehear all the evidence, and instead it just
examines the procedures followed by the original decision maker, to ensure that they were
fair and reasonable.
It is a review of the processes used to make a decision, not a review of the substantive
outcome of the decision.
When a court finds that incorrect procedures were used by the original decision maker, it
will not substitute its own decision, rather, the original decision is declared void and the
matter is remitted back to the decision maker.
o Review by Ombudsmen (Review of Government action by independent statutory body)
Ombudsman Acts were introduces in the Cth and all States and Territories in the 1970s
which confers power on Ombudsmen to investigate various forms of administrative
malpractice.
Unlike tribunals and courts they have no coercive powers and cannot enforce any
conclusion they reach about an error.
o Judicial Review
Was originally an inherent CL jurisdiction claimed by superior courts. It is constitutionally
limited to questions of legality. This means courts will only examine the process rather
than a direct challenge to the substantive outcome of that process.
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The remedies do no transgress into the merits of the administrative decision.

Remedies Available

Prerogative Writs (only available against public bodies and their exercise of public power, i.e. statutory or
prerogative powers)
o Certiorari To quash a decision, making it void and of no legal effect
Appropriate where the flawed decision-making process has been completed
Only granted where the decision has a discernable or apparent legal effect upon rights and
only directed to bodies that have legal authority.
o Prohibition: An order that the government body does not proceed with a particular course of action
Appropriate where flawed administrative process has not been completed yet or to restrain
a body from exceeding its powers.
Commonly used for excess of jurisdiction and a breach of natural justice.
o Mandamus: A mandatory order that a government body do something
Granted by a superior Court to command the fulfilment of a duty of public nature that
remains unperformed and for which no other specific legal remedy is available.
Usually issued with certiorari to direct the following or proper procedures
o Habeus corpus
May be obtained from the HC or a State or Territory SC but not the FC.
Equitable Remedies: (broader in scope and more flexible that prerogative writs)
o Declaration: A declaration that the decisions are legally flawed and thus void.
Technically, it has no coercive effect; but in practise it is treated the same as certiorari.
o Injunction: Can be prohibitory or mandatory.
Can cover same ground as prohibition and mandamus

Judicial Review Jurisdictions

At SA level, there is only 1 source of judicial review jurisdiction: the SCs inherent jurisdiction as laid out in
rule 98
At Cth level, there are 4 sources of judicial review jurisdiction: one for the HC (s 75 Constitution), two for the
Federal Court (ADJR Act, s 39B Judiciary Act) and one for the Federal Magistrates Service (ADJR Act)
o High Court (Cth jurisdiction)
Section 75(v) Constitution
The HC court has original jurisdiction in matters:
o (v) Where mandamus, prohibition or injunction are sought against an
officer of the Cth; or
o (iii) Where the Cth (or person on the Cths behalf) is a party.
Although the remedies of certiorari and declaration are not mentioned the HC is
usually willing to grant either where appropriate.
The HC can in most cases remit cases commenced within s 75(v) jurisdiction to,
and only to, the FC (s 44 Judiciary Act; s 9 ADJR Act)
o Federal Court
ADJR Act confers judicial review on the Federal Court (s 8)
Section 3(1) The Act applies to a decision of an administrative character
made under an enactment (other than a decision by the GG or a decision listed
in schedule 1.
Only Cth exercises of statutory power can be reviewed under the ADJR Act. This
overrides the CL principle of justiciability.
Standing is granted to a person aggrieved by, a decision (s 5), conduct (s 6)
or failure to make a decision (s 7)
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o Person aggrieved means a person whose interests are adversely affected

(s 3(4)). Picks up on CL rules of standing.
o Interested persons can apply to be made a party to an existing application
(s 12(1)).
The grounds of review are set out in ss 5, 6 & 7.
o These grounds are essentially the CL grounds, with the exception that any
error of law is reviewable under the Act.
o Section 5 is used where the decision has already been made. Section 6 is
used where the decision has not been made and s 7 is used where an
administrator failed to make a decision when there was a duty to make the
decision.
The FC can order flexible remedies: broadly defined order for review (s 16).
o Section 39B Judiciary Act (Cth)
Replicates the form of s 75(v) in conferring a power of judicial reviews on the FCA. Confers
an additional judicial review jurisdiction on the FC.
Designed to overcome the more limited jurisdiction of the ADJR Act.
Limits of this Act are that must be an officer of the Cth and an s 39B (1A) (c) action must
arise under a law made by the Parliament.
Relief available to FC through Federal Court Act
Declarations of right (s 21)
Grant remedies to which any of the parties appears to be entitled in order to quell
the controversy between them (s 22)
Writs of such kind as the Court thinks fit (s 23)
o Federal Magistrates Service
This is a new Cth court created in July 2000 which has ADJR Act jurisdiction. Matters may
be remitted between it and the FC.
o State SC
Have inherent CL jurisdiction to review:
State administrative decisions; and
Cth administrative decisions (although today this restricted to very limited
circumstances)
SA s 17 Supreme Court Act preserves the inherent jurisdiction of the Supreme court which
includes the judicial review of an administrative action.
Rule 98 of the Supreme Court Rules makes available the remedies of prerogative write,
declarations and injunctions.

Week 2 - The Constitutional Framework

TOPICS TO BE COVERED:
The Constitutional tensions that underlie administrative law and which influence and shape the
nature of judicial review and its distinction from merits review
How concepts of the rule of law, the separation of powers, responsible government and
constitutionalism are relevant to administrative law
The framework for judicial review
An introduction to Administrative law remedies

Introduction

Administrative law is concerned with ensuring the legality of administrative decision making. The
constitutional issue is assumed. Constitutional validity of that statute may be treated as a preliminary legal
issue to the administrative law question.
Concerned with whether or not a decision is made consistently with, or in accordance with, the power that is
conferred on the executive decision maker by the relevant statutory or CL authority.
Constitutional principles also shape the manner in which judicial review of administrative action may be
carried out.
The separation of power prevents the Courts from carrying out merits review where a decision of the
court is substituted for that of the original decision maker.
Courts cannot stand in the shoes of the decision maker and exercise that persons decision making power.
Courts are simply limited to looked for the presence of legal error including:
o Exceeding powers that have not been conferred
o Irrelevant considerations
Courts limited to
o Procedural Fairness
looking
for legal error
There is a clear distinction between judicial review and merits review.

Exploring the legality/merits distinction

The courts often refer to their legitimate role in setting and identifying the legal limits within which executive
action must be carried out. Within these limits, the courts must defer to an administrative decision
makers decision.
Judicial review involves review for legal error as opposed to an appeal of the substantive decision
itself. Whether a judge thinks and particular decision to be wrong, unfair or unjust is entirely irrelevant and
so long as no legal error has occurred, the courts have no authority to interfere with a particular decision.

Discretionary Powers and Judicial Review

The prevalence of discretionary powers in administrative decision making makes the task of identifying
specific legal limitations that apply to a given decision-making process more complex.
The scope of authority is expanded and the legal limitations are pushed out or aside.
With discretion often comes the capacity for individualised justice the ability of the DM to take into
account the particular circumstances of each case in reaching a fair decision
o Without flexibility of discretion, rigid rules will often lead to unjust outcomes.
o Discretion has become a necessary feature of modern administrative decision making.
While the courts cannot direct the exercise of discretionary power and must defer to the executive within
certain boundaries, the courts have largely rejected the notion of completely unrestrained
discretionary power.
No such thing as an absolute or unfettered discretion
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o Padfield v Minister for Agriculture, Fisheries and Food

Judicial deference & restraint

The courts, while attempting to preserve the role of judicial review in respect of broad discretionary powers
have also adopted a deferential approach towards the executive in certain respects.
Courts have been willing to make certain allowances based on the position or skill of a particular DM.
There is an approach of judicial restraint when in comes to examining the written reasons provided for a
tribunal decision.
o Minister of Immigration and Cultural Affairs v Vadarlis
o Attorney General (NSW) v Quin
Area of law: legality/merits distinction & unreasonableness. Also Clarifies HC position in
regards to unreasonableness
Case Details: Quin magistrate in NSW. Court abolished and Quin not reappointed after
allegations of fitness for office passed to NSW A-G.
o Brennan J: There is one limitation Wednesbury unreasonableness which may
appear to open the gate to judicial review of the merits of a decision or action taken
within power. Properly applied, Wednesbury unreasonableness leaves the merits of
a decision or action unaffected unless the decision or action is such to amount to
an abuse of power.
o Acting on the implied intention of the legislature that a power be exercised
reasonably, the court holds invalid a purported exercise of power which is so
unreasonable that no reasonable repository of power could have taken the
impugned decision or action.
Repository balance interest of majority with minority
Courts not equipped to evaluate policy considerations
o Associated Provincial Picture Houses Ltd v Wednesbury Corporation
Area of law involved: legality/merits distinction & unreasonableness
o Picture house needed permission from local authority to open on Sundays.
Wednesbury condition was no children under 15 without adult present were
allowed.
o Must be a real exercise of the discretion: Court must consider relevant & disregard
irrelevant. Discretion will be valid if real exercise of discretion but courts can still
interfere if unreasonable. Test for unreasonableness: Lord Greene MR:
o Authorities must not be involved in unreasonable conduct
o If a decision on a matter is so unreasonable that no reasonable authority
could ever have come to it, then the courts can interfere.
o Authorities may not use discretion to make decisions based on bad faith,
dishonesty, unreasonableness, attention to extraneous circumstances and
disregard of public policy.
o Court cant substitute itself for the authority.
o Chaudhary v Minister for Immigration, Local Government and Ethnic Affairs
Not taking into account appropriate considerations when making a decision
o Application for citizenship under MA under compassionate/ humanitarian grounds.
Application refused on basis child had cerebral palsy. Compassionate vs. financial
cost. Financial costs were greater.
Wilcox, Burchett and Foster JJ:
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o DM concluded medical costs & therefore interests of Aus community outweighed

compassionate factors. Appeal allowed by Full Court of FC because error of law to
see national interest in such narrow terms. Aus interests far wider than purely
economic best interests to be seen as civilised & compassionate (reputation).
o E.g. possible omission of consideration matters which should not be
overlooked in a valid decision.
Important Cases
Minister for Immigration and Multicultural Affairs v Vadarlis
Attorney General (NSW) v Quin
Associated Provincial Picture Houses Ltd v Wednesbury Corporation
Chaudary v Minister for Immigration, Local Government and Ethnic Affairs

Week 3 - Merits Review & the AAT

TOPICS TO BE COVERED:
An examination of the Administrative Appeals Tribunal Act 1975 (Cth) and the operation of the
AAT.
Drawing distinctions between merits review and judicial review.

Legality/Merits Distinction (based on SOP)

Executive makes substantive administrative decisions (i.e. determine the merits).

Judiciary ensures that decisions are made according to law (i.e. determine whether the decision-making
process is legal, fair & reasonable).

Full Merits Review

ATT represents the major generalist merits review tribunal at the federal level. It is generalist in the
sense that it is not limited to reviewing a particular type of decision, or decisions within a particular subject
area.
Any Federal Act can expressly allow for decisions made under that Act to be appealed to the ATT.
Merits review is one of the basic devices for the correction of administrative error. It is generally
undertaken by administrative tribunals of one sort of another (Boards, Review Panels or Commission).
The extent of merits review by the DC is possible because there is no strict separation of judicial power
at the State level.
Merits review allows a fresh substantive decision to be made. The merit review body stands in the shoes
of the original DM and re-makes the decision.
Applicants get to re-make their case before a different DM and the tribunal endeavours to make that the
correct and preferable decision.
The tribunal aims to make the right decision in a substantive sense not simply that it be correct in terms of
being devoid of legal error and procedural defects.
The ATT may be given a more limited jurisdiction to reconsider only certain aspects of a decision, and not
fully review it.

In essence, merits review is a fresh decision:

o The original decision is disregarded.
Introduction o The reviewing body stands in the shoes of the original decision-maker will
consider afresh all relevant questions of law & fact, and re-make the original
decision.
o The new decision will take the place of the original decision.
It re-examines the SUBSTANCE (merits) of the original decision.
Note: the relevant statute may give less than full merits review.

Grounds of review & Remedies

Ground of review = simply that the original decision was wrong or a different decision would be more
correct/preferable.
No burden of proof (subject to contrary statutory intent).
Remedy = re-make the decision correctly & substitute it in place of the original decision.

Judicial/Legalities Review

Legalities review is undertaken by superior courts.

Legalities review is created by common law.
It examines the PROCEDURE by which the original decision was made (ask: was the procedure
unlawful/unreasonable/unfair?). It does not re-examine the substance (merits) of the original
decision.
Unlike judicial review, which is a common law development, merits review is a creature of statute. It
follows that merit review will take whatever form is conferred upon it by the relevant statute.
With judicial review the court is limited to looking for legal error and cannot exercise the powers of the
original DM. Potential legal errors that can be made are what are referred to as grounds of review. If a
decision is quashed for legal error, then the matter is remitted to the original DM to be determined according
to law.
When faced with merits review body in an exam context, pay careful attention to the statutory provisions
governing that body, as they may depart from the provision that regulate the bodies as discussed in
seminars and lectures

Availability

Availability of merits review depends on legislation conferring such a right upon individuals affected by
particular decisions under an Act.
In some cases where merits review is available, the case may contain a number of legal complexities and so
judicial review may be preferable.
In SA, since 1991, merits review has been conducted by the Administrative Appeals Division of the DC.
o District Court Act s 7

Statutory Appeal

4 general types of appeal rights:

o Appeal on question of law only
This is the only kind of appeal right which can be validly conferred to a court exercising
federal judicial power (because of constitution).
Difference from common law judicial review = any (not just jurisdictional) error of law.
E.g. appeal right from AAT to Federal Court (s 44 AAT Act).
o Appeal in the strict sense
No further evidence is admitted, and changes to the law are disregarded. The appellate
body only intervenes where there has been an error in the decision-making process, or
a finding of fact that is clearly wrong.
o Appeal by re-hearing
The appellate body can hear new evidence.
Absent new evidence, the original findings of fact cannot be overturned unless the
original decision-maker made an error.
o Re-hearing de novo (full merits review)
A complete fresh start.
This is the typical appeal right for AAT review, although some statutes may confer
lesser appeal rights to the AAT.
As the AAT re-makes the decision, it is not confined to evidence before the original
decision-maker or decisions given by the original decision-maker.
Coal & Allied Operations v AIRC: The nature of a statutory appeal depends on the terms of the statute
conferring the right of appeal.
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o appeal usually means appeal in the strict sense;

o Provisions conferring power to take new evidence appeal by way of re-hearing is
intended;
o Provisions conferring a wide range of discretionary remedial powers a hearing de novo
is intended.

The AAT
Jurisdiction

The AAT has jurisdiction to review a particular decision, only if the statute (under which the decision was
made) provided actual authorisation for AAT review.
o Section 25(1): An enactment may provide that applications may be made to the AAT:
for review of decisions made in the exercise of powers conferred by that enactment; or
For review of decisions made in the exercise of powers conferred (or that may be conferred) by
another enactment having effect under that enactment.
Jurisdiction is limited to review of statutory powers.
The relevant Act may:
o give the AAT full merits review power;
o limit AAT review to particular decisions made under the Act, rather than all decisions made under the
Act;
o impose pre-conditions upon review (e.g. prior review by a lower level specialist tribunal, like the SSAT).
Meaning of decision [defined in s 3(3)]
o ABT v Bond: The AAT can only review final & operative decisions.
o Collector of Customs v Brian Lawlor: There need not be a legally effective decision; a purported
exercise of power is enough.
o Section 25(5): decision includes failure to make a decision.

Standing
Standing for the AAT is wider than that for judicial review.
Section 27(1): Applications may be made by any person whose interests are affected by the decision.
o Section 31(1): The Tribunal decides whether the interests of a person are affected by a decision. If it
decides that the interests of a person are affected by a decision, this decision is conclusive.
o Section 44(2): If the Tribunal decides that the interests of a person are not affected by a decision,
the person may appeal to the FCA from this decision.
Section 27(2): An organisation/association is taken to have interests affected by the decision, if it relates
to a matter included in the objects/purposes [before the decision was made: subs (3)].
Section 30(1A): The AAT may, in its discretion, allow any other person whose interests are affected by the
decision to be made a party to the proceeding.

Powers (also advantages/disadvantages of AAT review)

Section 43: AAT can affirm, vary, substitute or remit the decision.
o This amounts to full merits review power (Drakes case).
Limits on AAT powers:
o The AATs powers may be limited by the statute conferring jurisdiction.
o The AAT cannot conclusively determine questions of law.
o AAT decisions cannot form binding precedents.
Re Scott: Good administration involves consistency the AAT follows its own decisions,
except where (a) the later case is more fully argued, or (b) the first decision is manifestly
wrong.
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o AAT does not have jurisdiction to State decisions and some Cth decisions.

Procedure
Right to access information
Section 28(1): If a decision is reviewable by the AAT, a person entitled to apply for such review may request
the decision-maker to give reasons for the decision. Reasons include:
o Findings on material questions of fact;
o Evidence upon which the findings were based;
o Actual reasons for the decision.
[note: there are exceptions]
Section 37: The relevant decision-maker must lodge with the AAT
o (a) findings on material questions of fact, and
o (b) Any document relevant to the AATs review of the decision.
Pre-hearing procedures
Section 33(1A) provides for directions hearing.
Section 34 provides for pre-hearing conferences.
Section 34A provides for mediations (if parties consent).
Purpose = narrow issues + encourage settlement.
Procedure during hearing
Section 33(1): The proceeding is conducted with as little formality & technicality as possible. The AAT is
not bound by rules of evidence.
Section 32 allows representation, which includes legal representation.
Section 40 gives the AAT power to summon witnesses & administer oaths.
Legal Constraints on AATs flexibility
Since the AAT is in the same position as the original decision-maker, it can be reviewed by the Courts.
o Section 44(1): A party to a proceeding before the Tribunal may appeal to the FCA, on a question
of law, from any decision of the Tribunal in that proceeding.
So the AAT must follow rules of procedural fairness etc.
Also, although rules of evidence dont apply, the AAT has to make a correct & preferable decision (Drake).
Reaching such a decision involves correctly ascertaining the correct facts rules of evidence remain in
the background.
Social Constraints on AATs flexibility: AAT looks like a court.
AAT members are usually Federal court judges.
Usually barristers represent parties adversarial.
AAT has court-like powers.
Role of Policy in AAT review
Drake v Min Immigration: The AATs function is to independently determine the correct & preferable
decision on the material before it. (subject to statute)
o Although govt policy is a relevant consideration in reaching such a decision, the AAT cannot limit
itself to determining whether the original decision conformed to government policy.
The proliferation of discretionary powers conferred upon administrative decision makers in a common thee
in administrative law.
Discretionary powers are often regulated though the development of government policies which are meant
to guide DM.
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Policy is essentially a non-statutory instrument that is developed by government to supplement legislation

The benefits of having a policy, largely relate to the ability to ensure consistency and fairness between
cases.
Where a policy is valid, it constitutes a relevant consideration that must be taken into account by the DM.
The government cannot fetter, change or limit a discretionary power through policy, as only
parliament may amend the scope or operation of a statutory conferred power.

Tribunal Independence

While merits review tribunals are essentially a part of the executive, they are also established as bodies,
independent of the departments and officers whose decisions they review.

The concept and scope of merits review

Normally identified through the nature of its power with respect to the original decision under appeal
Administrative Appeals Tribunal Act allows the tribunal to affirm, vary or set aside a decision. Where the
decision is set aside, the tribunal may substitute a new decision for the original decision, or remit the matter
for reconsideration with directions or recommendations.
Stark contrast to those exercised by a court conducting judicial review.
Key features of merits review include:
o Not limited to considering the case put by the parties or the material that was before the original DM.
o tribunal is bound by law but not policy (though valid policy will constitute a relevant consideration
and must be taken into account)
o Neither party bears the onus of proving that the original decision was right or wrong
o The rules of evidence and procedure observed in judicial proceedings do not apply to tribunal
hearings
Generally speaking an administrative agency does not have the authority to alter or change a decision once
it is appealed to a tribunal and most tribunals have the power to seek fresh evidence and thus accommodate
changes in the facts.

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

o The ATT must make a correct/preferable decision on the material before it (subject to
statute)
o Section 12 Migration Act: Where an alien has been convicted and sentenced to imprisonment for 1
year or longer, the Minister may order deportation of that alien.
o Drake was convicted of possessing drugs and the Minister for Immigration decided to deport him
under s 12 of the Act. Drake applied to the ATT for a merits review, but ATT affirmed the Ministers
decision.
o Drake then applied to the Federal Court pursuant to s 44 AAT Act, arguing that the Tribunal attached
such importance to the Ministers policy statement that the Tribunal failed to exercise its own
independent judgment.
o The issue was whether the ATTs decision was the correct and preferable one on the material
before it? (full merits review)
Principles
o Ordinarily, an administrative officer with discretionary power is entitled (in the absence of statutory
defined criteria/considerations) to take into account government policy as a relevant consideration
(provided its not inconsistent with the statute or its objects)
o But the ATT must (in the absence if specific statutory provision) determine whether the decision
made was correct/preferable on the material before it; rather then merely determine whether the
decision conformed with government policy.
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o The ATT must independently assess all the circumstances to reach its own
correct/preferable decision, rather than abdicate its functions by applying government policy
uncritically to the facts.
o Even the Tribunal reaches the same conclusion as the application of policy, the Tribunal
should make it clear that it has considered the property of the policy, and indicated the
consideration which led it to that conclusion.

Decision
o The ATTs reasons indicate that it failed to make an independent assessment and determination; it
simply checked whether the Ministers decision was consistent with government policy.
o It therefore failed to properly perform its function of reviewing the Ministers decision
o Remedy is quashing the ATTs decision and remitting the matter to it for a rehearing.
Summary
o This case is about the relevance of government policy on the ATTs decision.
o Government policy is a relevant consideration the ATT takes into account but in reality, policy
usually determines the outcome
o BUT ATT cannot use it to mechanically determine the outcome. Instead, the ATT has to make its
own assessment of the matter and reach a correct/preferable decision.

McKinnon v Secretary, Department of Treasury

Important Cases
McKinnon v Secretary, Department of Treasury
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)

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Week 4 - The Scope & Limits of Judicial Review

TOPICS TO BE COVERED:
An introduction to the jurisdictional limits that operate with respect to judicial review.
Exploring the relationship between certain jurisdictional limits (i.e. jurisdictional error and
privative clauses) and the available grounds of review.
An examination of the scope of the ADJR Act, including its jurisdictional limits, and other
sources of Federal and State Judicial Review

Introduction

At federal level: can conduct judicial review by

o Section 75(v) Constitution
o Section 39B Judiciary Act
o The Administrative Decisions (judicial Review) Act
In SA, the inherent power of the SC to conduct judicial review is preserved under s 17 of the SC Act and a
simplified procedure for securing both the prerogative writs and the equitable remedies of injunction and
declaration is set out in Order 98 of the SC Rules.
Where judicial review of a decision is sought, a basis for invoking the courts jurisdiction must be
established.
o At federal level, an applicant is likely to invoke the ADJR Act as it gives many benefits including the
right to access reasons for the decision and more flexible remedies.
o Has it own unique limits though, being subject to some of the more general requirements related to
issues such as justiciability and privative clauses.
Each source of jurisdiction contains its own limits and each framework for judicial review is subject to
requirements of justiciability and standing
Each of these limitations relates to questions of whether the courts jurisdiction is enlivened in the first place.
o Further limitations which can be narrowed by jurisdictional error and the effects of a privative clause.

Jurisdictional Limits on Judicial review

Judicial requirements under s75(v) of Constitution and s 39B Judiciary Act

o Matter constitutional principle required to enliven courts jurisdiction under 75(v) or 39B
a matter is not a judicial proceeding but the subject of the controversy which is amenable to
judicial determination in the proceeding.
characteristics include
some immediate right, duty or liability to be established by the determination of the
court
o matter must be justiciable, or suitable for judicial determination
o applicant must possess necessary standing to bring the action
o The applicant must be:
seeking a remedy (prohibition, mandamus or injunction; certiorari or declaration as an
ancillary remedy) - note prerogative (non-equitable) writs (mandamus & prohibition) are
only available to correct jurisdictional error
against an officer of the Commonwealth
this excludes decisions made by corporate bodies or statutory corporations as
these are not officers of the Commonwealth
No definitive HCA ruling, but Federal court has excluded the following
o Statutory corporations
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Post Office Agents Association v Australian Commission (1988) 84

ALR 563
Vietnam Veterans Association (NSW Branch) v Cohen (1996) 70
FCR 419
o State courts exercising federal jurisdiction
R v Murray & Cormie; Ex parte Commonwealth (1916) 22 CLR 437
o President of the senate e.g. officer of court and parliament
Re Reid; Ex parte Bienstein (2001) 182 ALR 473
Section 39B(1A)(c) of Judiciary Act
o Only likely to be used where ADJR doesnt apply, such as where schedule 1 applies
o Different jurisdictional requirements any matter arising under any laws made by the
Parliament.
o this broad phrase is limited to same interpretation given to the Constitution s76(ii) that the right or
duty in question
must owe its existence to the federal law or depend upon it for its enforcement
and simply not touch upon or involve its interpretation
o The section confers a broad jurisdiction on the court it is necessary for the party who seeks to
invoke the jurisdiction to be able to identify a right, duty or defence which owes its existence to the
law made by the Parliament upon which he or she relies or which relies on that law for its
enforcement McGowan v Migration Agents Registration Authority [2003] FCA 482
o only remedy under s39B(1A)(c) is declaration
o This section has the possibility of picking up corporate bodies but has not yet been tested. In
McGowan power was derived under ADJR Act.

Administrative Decisions (Judicial Review) Act - confers jurisdiction on FC & FMC to undertake review
of:
a) a decision to which this Act applies ss 5 & 3(2)
&
b) conduct for the purpose of making a decision to which this Act applies ss 6 & 3(5)
Jurisdictional limits are as follows:
o Must be a constitutional matter
o One that is judiciable, or suitable for judicial determination
o Applicant must process necessary standing to bring this action (person aggrieved)
o The case must involve a decision of an administrative character, that is made under an enactment
ss 3 & 5 ADJR Act
o OR: The case must involve conduct engaged in for the purpose of making a decision, and
includes any act or thing preparatory to the making of a decision, including the taking of
evidence or the holding of an inquiry or investigation. (ss 3 & 6 ADJR Act)
A conclusion reached as a step along the way in a course of reasoning leading to an
ultimate decision would not ordinarily amount to a reviewable decision, unless the
statute provided for the making or a ruling on that point. see Bond
Can a finding of fact amount to a reviewable decision?
Ordinarily, a finding of fact cannot amount to a reviewable decision because its a step
towards the ultimate determination. However, from Bond, if statute requires or authorises
DM to determine an issue of fact as an essential preliminary to the taking of ultimate action
or the making of an ultimate order > determination of the issue of fact will be a reviewable
decision (Bond). BUT, if ultimate determination which depends upon finding of fact is
vitiated by error of law or made without evidence, it is reviewable s 5(1)(f) & (h).
Ross v Costigan (Ellicott J): decision may mean an ultimate or operative determination, not
a mere expression of opinion or statement which has no effect.
Procedural benefits of ADJR Act
o right to statement of reasons s13
15

o flexible remedies available s16

o simpler procedure for commencing an action s11

Specific Jurisdictional Limits Under the ADJR Act

Decision and Conduct

o Both these words are defined in s 3 of the ADJR Act, however it has been through judicial
elucidation that their full meaning within the context of the Act has been explained.
o While a braod approach was adopted in the early days of the Acts operation, the decision of the HC
in Bond, marked a more restrictive reading of those terms.
decision of an administrative character
o the term administrative describes all those decisions, neither judicial nor legislative in character,
which Ministers, public servants, government agencies and others make in executing or carrying
into effect the laws of the Commonwealth Burns v ANU (1982) 40 ALR 707
o many powers overlap, and the nature of a power will take its character for the statutory
context in which it is conferred and is intended to operate
o Suggestions to help determine question of administrative character can be found in Central
Queensland Land Council Aboriginal Corporation v Attorney General (Cth) (2002) 116 FCR 390 per
Wilcox
legislative decisions determine content of rules of general application, whereas
administrative decision apply to them
parliamentary control of the decision points to it being legislative
requirements of public consultation may also point to a power being legislative
provision for merits review indicates that the power is administrative
a decision with a binding legal effect, that effects the operation of other legal provisions of a
statute, suggest that it is legislative
decision made under an enactment
o excludes review of prerogative powers (non-statutory & executive powers) and powers sourced to
the common law (e.g. the power to enter into contracts)
o What is an enactment?
An instrument (including rules, regulations or by-laws) made under such an Act (s 3(1)
ADJR Act)
includes documents of administrative as well as legislative character, since even rules
regulations and by-laws can have dual character Chittick v Ackland
it must be a document made under, in pursuance of, or under the authority of the Act, it
must be of such kind that it has the capacity to affect legal rights and obligations - Chittick
In Chittick, a document setting out the terms and conditions of employees was held to have
been made pursuant to statute, it supplemented their employment contracts, and could be
unilaterally changed by the employer. This is commonly distinguished from other cases as it
was different to an ordinary contract.
In ANU v Lewins (1996) 68 FCR 87 a policy on the criteria for promotion of staff was not an
instrument within the scope of the Act it had no statutory basis and could not unilaterally
be changed by the university.
In Chapmans v ASX (1996) 67 FCR 402, a decision to delist a company was not a decision
under an enactment. Simply because the company made rules with contractual force and
had been given statutory recognition was not enough.
o When is a decision made under an enactment?
there must be a direct link (express or implied) between the decision and the enactment
Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290
16

decisions which, being authorised or required by an enactment, are given force or effect by
the enactment or by a principle of law applicable to the enactment General Newspapers
Pty Ltd v Telstra Corporation (1993) 45 FCR 164

Judicial Review in the State of South Australia

Under Rule 98 SA Supreme Court Rules 1987
o only jurisdictional limits are to standing and justiciability
o While conduct is not reviewable in SA, an order in the nature of mandamus could be sought as the
state level to compel a decision maker to exercise their power where they have failed to make a
decision
o Rule 98 gives the SC the jurisdiction to grant orders in the nature of the prerogative writs, and to
award the equitable remedies of injunction and declaration where it would be just and convenient to
do so.
Grounds for Judicial Review
Having considered the scope and limits with regard to each source of judicial review jurisdiction, it is worth
considering the potential grounds of review that are available under each source.
Section 5 of ADJR Act establishes 18 separate grounds for judicial review
Judicial review under s39B or 75(v) or state supreme court are taken from the common law
Differences b/w C.L. and ADJR act
o ADJR departs from C.L. at s5(1)(f) that the decision involved an error of law, whether or not the
error of law appears on the record of the decision
o ADJR departs from C.L. at s5(1)(h) there was no evidence or other material to justify the making
of the decision
o ADJR formalised CL of uncertainty s5(2)(h)
o ADJR recognises otherwise contrary to law s5(1)(j) and abuse of power s5(2)(j) due to changing
nature of common law
If a tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question,
to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an
erroneous finding or to reach a mistaken conclusion, and the tribunal exercise or purported exercise of
power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which
will invalidate any order or decision of the tribunal which reflects it Craig v South Australia (1995) 184 CLR
163

Additional Limits to Jurisdiction

Jurisdictional Error
Privative Clauses

Cases
Australian Broadcasting Tribunal v Bond (Limit to Judicial review, ADJR Act, Decision)
ABT reached a decision that Bond was not a fit and proper person to hold a broadcasting license and that
the license holders were also not fit and proper persons.
o Mason CJ: The answer is that a reviewable decision is one for which provision is made by or under
statute. That will generally, but not always, entail a decision which is final or operative and
determinative, at least in a practical sense, of the issue or fact falling for consideration. A
conclusion reached as a step along the way in a course of reasoning leading to an ultimate
17

decision would not ordinarily amount to a reviewable decision, unless the statute for the
making or ruling on that point so that the decision, though an intermediate decision, might be
accurately described as a decision under an enactment.
Another essential quality of a reviewable decision is that it must be a substantive determination

Right to Life Association (NSW) Inc v Secretary, DHS and Health (Limit to Judicial review, ADJR Act, Does
not doing something amount to a decision)
Secretary made a decision not to stop a trial of an abortion drug. Court held that this decision was a
reviewable decision
o Lockhart J: In the ADJR Act, a reference to the making of a decision includes reference to the doing
or refusing to do a relevant act or thing. This decision had the character or quality of finality, it was
an ultimate or operative decision.
Not to do something can indeed be a reviewable decision
Kelson v Forward (limit to judicial review, ADJR Act, Preparation of report amount to a decision?)
Minister ordered the preparation of a report into workplace practices at Australian War Memorial.
Finn J ruled this was a reviewable decision
o Report can be said to stand alone as a separate and discrete decision. That subsequent decisions
may be taken in consequence of it, does not rob it of this character
o Report can have an effect on the interests of the applicants that are protected by law. This alone
would not result in the report being a reviewable decision, it is the combination of the qualities of
finality and substantive determination which is necessary to produce the result.
o The report has the independent capacity to be the instrument of silent and/or collateral injurious
affection to the applicants
Important Cases
Australian Broadcasting Tribunal v Bond
Right to Life Association (NSW) Inc v Secretary, Department of Human Services
Kelson v Forward
Electricity Supply Association Ltd v Australian Competition and Consumer Commission
Griffiths University v Tang

18

Week 5 - Jurisdictional Barriers:

Justiciability & Standing
TOPICS TO BE COVERED:
The jurisdictional barriers of justiciability and standing in the context of judicial review of
administrative action.

Justiciability

A common law doctrine that recognises that some matters are unsuited to judicial resolution
Justiciability does not really turn on whether a decision is statutory or prerogative in origin, or who the DM is.
Essentially the question concerns the subject or nature of the power being exercised. In addition,
whether certain prerogative powers are reviewable as a general rule or non-justiciable with respect to the
manner of their exercise will ultimately depend also on the nature of the power in question.

Justiciability = suitability of an exercise of Executive power for judicial review.

o If non-justiciable, court wont even review legalities.
It is a limit to the rule of law, which suggests no such immunity from review.
Generally, political/policy decisions are non-justiciable.
The ADJR Act displaces the common law test for justiciability. Rather, any decision of an
administrative character made under an enactment can be reviewed.

Removal of automatic immunities from review

Status of Decision-maker
There is no automatic immunity from review merely because the decision was made by:
o Ministers (Padfield; Murphy Ores)
o Crowns Representative (Re Toohey; FAI v Winneke)
o Cabinet (SA v OShea; Peko-Wallsend).
SA v OShea
o The GG, acting on Cabinets advice, decided not to release a prisoner.
o The fact that it was in substance a Cabinet decision did not, in principle, affect justiciability
prisoner could challenge on ground of procedural fairness.
o However, Cabinet decisions are usually political may impose substantive limits on review.
o Parole Board hearing & Cabinet decision were parts of a single decision-making process since
OShea had a fair hearing before the Parole Board, and no new material was before the Cabinet, he
had received a fair hearing overall OShea failed.
Review of Statutory powers
Fettered powers are always reviewable (for ultra vires.)
Padfield: A formally unfettered power must be used in a way which is consistent with the purpose of the
Act, as determined by courts unfettered discretions may be justiciable.
Review of Prerogative powers
Prerogative powers examples include: national security, defence, declaration of war, conduct of relations
with foreign powers, extradition decisions, power to grant pardon, power to proceed by ex-officio indictment,
power of AG to grant/withhold AGs fiat, appointment of judges/QCs.
19

Historically, courts could examine whether a prerogative power exists, but could not review the manner of its
exercise.
CCSU case; Peko-Wallsend: Prerogative powers are not automatically immune from judicial review.
o But some decisions made in the exercise of such powers may be immune from review because of
their subject matter.

Review of Contractual powers

Case law: A government contract is governed by the same private law as any other contract government
contracts do not involve exercise of public power not reviewable.
However it can be argued that the government is increasingly using contractual techniques to implement its
policies so should be reviewable. Also, voluntary contracts are very similar to statutory rights.

Two reasons why a decision might not be suitable for judicial review:
o Constitutionality: Courts should not encroach on areas in which the legislative & executive
branches of government are responsible.
o Judicial competence:
(a) Judges do not have training for certain decisions; and
(b) courts are better at applying clear pre-determined standards to facts (determinative
decisions) than balancing a multitude of interests (polycentric decisions).

Key factors of justiciability

o Position of decision-maker & nature of power?
o Individualised effect?
o Policy decision / determinative decision?
Policy decision = weighing of many competing policies. Largely a matter of
merits + Courts lack expertise + usually politically sensitive non-justiciable.
Determinative decision = application of reasonably clear standard to facts as
found. Court has expertise justiciable.
o Subject matter?
o Ground of Review?

Examples of non-justiciable decisions

CCSU v Min Civil State: National security decisions are non-justiciable

o Minister decided (under prerogative power) to ban unionship at a spy centre without prior
consultation. There was an established practice that the union will be consulted on important
alterations in the terms & conditions of staff employment legitimate expectation of consultation.
o Union sought review on procedural fairness ground.
o The decision is not immune from judicial review simply because it stemmed from a prerogative
power. But the Ministers decision was in the best interests of national security nonjusticiable.
Minister for Arts, Heritage and Environment v Peko-Wallsend: Polycentric (complex policy) decisions, &
treaty implementation decisions are non-justiciable
o PW held mining interests in land. A Cth cabinet decided (under prerogative power) to place the land
on the World Heritage list, which would have the effect of confining mining operations.
o PW commenced proceedings on the basis that there was denial of procedural fairness. The mere
fact that a decision is made by Cabinet, and/or is an exercise of prerogative power, does not
exclude judicial review.
o The Cabinets decision was non-justiciable, because:
Subject-matter: The decision was made in the implementation of a treaty;
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Polycentric decision: In making the decision, Cabinet was weighing up effects on: PW,
international relations, treaty obligations, environmental considerations, impact on
Aboriginals, and economic effect on Australia. This is a complex political decision best
left to Cabinet.
o The ground argued was procedural fairness, not a policy issue. This was all the court had to decide
the fact that the decision was a policy one was irrelevant.
Church of Scientology v Woodward
o
National security decision made under a limited power (i.e. power to collect information
relevant to security only) was justiciable.
Coutts v Cth
o Decision made under employment power for armed services non-justiciable. Formerly was under
prerogative power but now in regulations.
Re Ditford; exp DCT
o A decision made under Bankruptcy Act, to extradite a person from Germany back to Australia, was
justiciable (despite subject matter being foreign relations).
McCrae v AG
o Decision not to re-appoint certain magistrates were justiciable.
Waters v AG
o Decision not to appoint a QC despite recommendations, was non-justiciable.

Criticism on Justiciability

The decision in Peko-Wallsend is wrong.

o The Plaintiff only asked the Court to look at whether there was denial of procedural fairness. The
Court could do this without re-determining the complex policy decisions. Therefore, the Courts
reason for choosing not to review the decision should not be the fact that the decision was a
complex policy one.
o The Court essentially said that since the decision involved merits, it cannot review anything, even
the legalities.
o Also, courts engage in complex policy decisions all the time (Teoh)
It has been argued that we should get rid of justiciability, and just rely on legalities/merits distinction to
determine what courts can review.

ADJR and justiciability

Justiciability issues far less likely to arise under ADJR Act

o Act only involves statutes
o Schedule 1 excludes all contentious issues
The view less substantial under recent case Griffiths University v Tang
o Majority of judges did not consider issue of entry into a PhD program was justiciable; however Kirby
J was in dissent.
o Many areas of university institutions where decisions are non-justiciable (like marking of academic
paper). Differentiated between academic and disciplinary decisions. In the present appeal, the
respondents claim fell squarely within the former class.
o Academic judgement is one thing, but where an individual who has the requisite interest is affected
by disciplinary hearings of an administrative nature made by a university body acting according to its
power under a stature, outside the few categories peculiar to pure academic judgement such
decisions are susceptible to judicial review.

21

Standing

Standing = question of who can bring an action to challenge the administrative decision.
Standing requires a special interest and be a person aggrieved. The Plaintiffs interests must be affected
in a way over & above the way the decision affects the public.

Personal/Private Standing

A plaintiff may have standing if the decision directly interferes with their common law rights to life, liberty &
property.
Howes v Vic Railways: Actual financial loss (e.g. lowering of property values) may give standing.
o Depreciation in house value due to Vics decision gave standing.
Day v Pinglen
o Building of townhouses that would block Plaintiffs view of Sydney Harbour gave standing.
Exp Helena Valley v State PC: Indirect effect on a right (e.g. effect on residential amenity) may give
standing.
o SPC decided that re-zoning land from Rural to Urban was not a substantial alteration to the
planning scheme less rigorous procedures applied.
o The individuals living in land adjoining the re-zoned land had standing, because the enjoyment of
their land would be detrimentally affected (even though the value of their land would not be
diminished).

Commercial Interests

R v Comm of Customs exp Cooke: Courts are unwilling to allow judicial review to be used as a tool to
prevent/hinder competitors.
o Plaintiffs financial interest was burdened by the decision, more than other members of the public.
o But motivation of Plaintiff was to simply put financial strain on its competitors commercial interest
is not enough.
Batemans Bay v Aboriginal Community BF: The Court appears willing to give standing to a Plaintiff who
shows a sufficient effect on his interests, even where the interest is commercial.
o Appellant (Bateman) & Respondent were competitors in a limited market (funeral benefits to
Aboriginals within NSW).
o Appellant (Council) granted Appellant (Bateman) approval which caused financial detriment to
Respondents commercial interests.
o This case involved a purely legal issue in which the Plaintiff had a clear special interest over that
of the public at large standing.

Standing in Public Interest Litigation

If the whole community is affected, who has a special interest?

Attorney-Generals role:
o The AG has standing to sue to protect a public right.
o The AG can give a fiat (consent to relator action). AGs decision whether to give a fiat is nonjusticiable.
A body may bring a public interest action, if the body has a special interest (for common law review) or is a
person aggrieved (for ADJR review).
o Although judges say that standing under the ADJR Act is to be construed liberally, in line with the
remedial intent of the Act, they have not taken a more open approach (probably because the
common law itself has become more liberal in granting standing) no real significant distinction
between CL & ADJR standing.
22

E.g. Judges cite ADJR standing cases to support common law standing.

Basic position

Australian Conservation Foundation v Cth: A mere intellectual/emotional concern, or a strong belief that
the law should be observed, is not enough to give standing.
o Plaintiff challenged Ministers approval of a Qld tourist development before making a final
Environmental Impact Statement (which was clearly in breach of admin procedures). ACF had no
standing.
o Gibbs: A mere intellectual/emotional concern, or a strong belief that the law should be
observed, is not enough to give standing A person only has a special interest if he is likely to
gain some advantage (other than mere satisfaction) if his action succeeds, or to suffer some
disadvantage (other than grievance/costs) if his action fails.
o Mason: A Plaintiff will generally have standing, when he can show actual/apprehended damage to
his proprietary rights, business interests, or perhaps social/political interests.

Courts have developed 3 ways to distinguish Australian Conservation Foundation v Cth & find a special
interest/person aggrieved in public interest situations:

1) Vocational Special Interest

If the Plaintiffs vocation closely relates to the subject matter, then that Plaintiff has a special interest
an interest greater than the interest of the public at large.
Onus v Alcoa: A Plaintiff has standing, if there is a close relationship between the Plaintiff and the subject
matter.
o Aboriginal custodians of relics challenged the decision to allow aluminium smelter, which would
interfere with Aboriginal relics on the land.
o The custodians, despite having no proprietary interest in the land, had standing.
o Stephen J: special interest involves an assessment of the importance of the Plaintiffs concern with,
and the closeness of the Plaintiffs relationship to, the subject matter.
Sutton v Warringah
o Councillor challenged Councils unlawful decision to delegate powers to a sub-committee.
o Councillor was granted standing to challenge the decision.
Ogle v Strickland
o Customs Regulation 13: A film shall not be registered if, in the opinion of the Board, the film is
blasphemous.
o Censorship Board approved registration of an imported film and Priests sought review of the
decision under ADJR Act.
o The opinion of the Board is a jurisdictional fact priests are arguing that no reasonable person
would have thought that the film was not blasphemous (a legalities argument)
o Lockhart: A necessary incident of the priests vocation was to repel blasphemy they were
persons aggrieved.
If the Board found that the film was blasphemous, the importers would clearly be a person
aggrieved [party interest]. So, if the Board found that the film was not blasphemous,
somebody should have standing too priests must have standing (because nobody else
would have standing).
o Fisher: Concerns of committed Christians in general were only intellectual/emotional, but the priests
vocation extended their interest beyond that.
o Need to consider if there was no organised Christian group? Then maybe no standing. Is this fair?

23

2) Participation in a Statutory Process (Objector Status)

A person who has participated in a statutory process has a right to see that the process is conducted
according to law.
Sinclair v Mining Warden: Participation in a statutory process will give standing to challenge the
conduct of those proceedings.
o Regulations required the Warden to hear any objections to applications for a sand mining licence,
before forwarding a recommendation to the Minister. Plaintiff presented strong objections, but the
Warden did not consider them. Standing was taken for granted.
o Gibbs: Distinguishable from ACF v Cth, because the admin procedures violated in ACF (though
derived from statute) were not themselves of statutory force & hence conferred no rights sufficient
for standing (not convincing)
o (Appears that you need objection in person, rather than mere written objection, to have
standing.)
US Tobacco v Minister Consumer Affairs: A Plaintiff has standing if the Plaintiff participated in a statutory
process that leads up to the decision being challenged.
TPA s 65C (5): Where goods may cause injury, the Minister may declare the goods to be
unsafe.
TPA s 65J: [If the Minister does so,] he must invite suppliers of goods of that kind to request
the Commission to hold a conference. The Commission may invite any person it considers
as appropriate to be present at the conference.
TPA s 65K: After the conference, the Commission must recommend to the Minister.
o Minister declared that certain smokeless tobacco products were unsafe (pursuant to s 65C (5)).
o US Tobacco requested a conference under s 65J. Commission invited AFCO to attend the
conference (under s 65J), as its presence was considered by the Commission to be appropriate.
o At the conference, AFCO challenged US Tobaccos material & views. US Tobacco sought review of
the Ministers decision to declare the goods unsafe & therefore call the conference. AFCO sought to
be joined in the proceedings under s 12 ADJR Act.
o The mere fact that AFCO made submissions to ban the goods is not enough, as many other
organisations made submissions to. (similar to ACF)
o But AFCO has a sufficient interest, because the decision challenged has benefited AFCO in a
special way the special interest arose when the Commission invited AFCO to attend conference,
because AFCO can then insist that the Commission take into account its views in the conference
when making a recommendation.

3) Representative Standing

A body which is best placed to represent the interest of a section of the community that is specifically
affected by the decision has standing to challenge it.
Shop Distributive v Min Industrial Affairs: A Union has the same interests as its members.
Australian Conservation Foundation v Minister for Resources
o Minister issued a 17 year woodchip export licence, which would involve logging within the National
Estate. The Minister had to decide if there was a feasible & prudent alternative to logging within this
area. The ACF argued that the Minister didnt consider this.
o ACF had a special interest in relation to the particular forests under threat (unlike in the 1 st ACF
case), because:
The forests were part of the National Estate were of national interest ACF, a
national organisation, had a special interest in their preservation.
Public perceptions of the need to protect the environment had increased community
expected a body like the ACF to concern itself in this issue.
24

ACF was now established as the main body for protecting the environment. It was
recognised by the government & received government funding (though still a private body).
It was not a busybody. If the ACF does not have a special interest in the forests, there
is no reason for its existence.
North Coast Environment Council v Minister Resources: The more organised & recognised the body is, the
more likely it can get representative standing.
o Minister decided to grant an export licence to a sawmilling company, for the export of woodchips
from NSW forests.
o NC sought reasons for the Ministers decision to grant the licence, under s 13 ADJR Act.
o Issue was whether NC was a person aggrieved by the Ministers decision (ss 13, 5).
o Factors suggesting special interest and therefore person aggrieved
NC is the peak environmental organisation in the NC region. Its activities relate to the
areas affected by the licence;
Cth gave regular financial grants;
State allowed NC to represent environmental concerns on advisory committees;
NC had conducted projects, conferences, made submissions on environmental matters
NC had a keen interest in wood chipping operations for a number of years;
There is no other conservation body with a greater interest/commitment to the issue
NC is well-placed to represent the public on conservation issues.
o Note: Although government funding is a factor in favour of standing, lack of funding should NOT
disqualify standing. If only government funded bodies have representative standing, then effectively
excluding all representative bodies that the government does not financially influence.

Statutory Zone of interests

Statute can modify the common law standing position.

Courts are increasingly interpreting standing according to the purpose of the statutory scheme (e.g.
who did parliament intend to be able to challenge this decision? What interests was it intended to protect?)
Under the zone of interests test, the Plaintiffs concern has to be within the concerns of the Act in order to
have standing.
Right to Life Association v Dept of Health: Plaintiff has standing only if there is a relationship between
o (a) the subject matter of the decision (from the relevant Acts objects), and
o (b) the matters that the Plaintiff alleges
Permission granted for importation & clinical trial of an abortion inducing drug was subject
to the drug being used in compliance with legislation.
Therapeutic Goods Act regulations Item 3(e)(ii): The drug cannot be used, if the Secretary
becomes aware that the trial would be contrary to the public interest.
RTL advised the Secretary that the trials were contrary to State laws against procuring
abortions, and were thus contrary to the public interest. But Secretary refused to stop the
trials. RTL sought review of the decision not to stop 3 trials.
RTL was not a person aggrieved by the decision:
The Secretarys decision was made under the TG Act. Its objects are to establish
quality, safety, efficacy and timely availability of therapeutic goods. RTLs
arguments were not based on quality etc; rather, they were based on the trials
being contrary to law & loss of life.
Not sufficient that RTL was incorporated since 1984, is a successor, and has
objects concerned principally with protection of life from moment of conception.
RTL has no greater interest than any ordinary public member. There is only
intellectual, philosophical & emotional concern. There is no advantage likely to be
25

gained, or disadvantage likely to be suffered, in the proceeding. The most it can

achieve is satisfaction of correcting a wrong decision & winning a contest.
The fact that the government does not fund RTL is not a negative factor
(presumably because otherwise, the government can manipulate bodies actions
against them by ceasing to fund them.)
Can interpret this case as saying: Mere special interest is not enough; must have a special interest within
the purposes of the relevant Act.
Right to Life is hard to reconcile with other standing cases:
o If apply North Coast, then RTL should have standing because there is no-one better to represent the
publics interests. Lack of government funding should not matter.
o Analogous to Ogle v Strickland, because RTLs vocation is to defend the right of life against
abortion.
Also, the case gives a lot of judicial discretion as to standing.

Important Cases
Minister for Immigration and Multicultural Affairs v Vadarlis
Onus v Alcoa of Australia Ltd
Shop Distributive and Allied Employers Association v Minister for Industrial Affairs
North Coast Environmental Council v Minister for Resources
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health

26

Week 6 - Preconditions to Power:

The Fact/Law Distinction
TOPICS TO BE COVERED:
Preconditions to power; the types of preconditions to the exercise of power; the legal effect of
failing to comply with preconditions
Jurisdictional facts
The distinction between questions of fact and law.

Facts/Law distinction

The facts/law distinction is due to the separation of powers:

o Marbury v Madison: Constitutionally, only courts can ultimately determine Questions of law.
o Courts have no expertise in finding Questions of fact Executive determines Questions of fact.
The facts/law distinction is important because it determines what Courts can review, and therefore what
decisions the administrator must get correct.

Merits review of Questions of fact & law

In merits review of an admin decision, the tribunal stands in the shoes of the original decision-maker & redecides both Questions of law & fact:
o The true meaning of the relevant statutory provision (Question of law);
o The relevant facts, including primary facts & secondary conclusions of facts (Question of fact);
o How the interpreted statute applies to those facts (can be Question of law/fact).
Since a tribunal is an Executive body:
o Its determination of Questions of law is not final & conclusive.
o It will freely replace the original decision-makers judgement on Questions of fact.

Judicial review of Questions of law

In judicial review of an admin decision, the Court readily substitutes their opinions on Questions of law.
Examples of Questions of law:
o Was the correct statutory test applied? (statutory interpretation)
o Was the procedure fair?
o Was the DM within its power?
o Did the DM exercise its power reasonably?

Judicial review of Questions of Fact

Courts generally cannot review Questions of fact.

o Why? Determinations of Question of fact are merit outcomes The Court will show considerable
deference to an administrative determination of fact, and will challenge it only in extreme cases.
Only 3 ways a Court can review/determine Questions of fact:
o Courts can directly review facts that are essential preconditions to the administrators
power/jurisdiction (i.e. jurisdictional facts).
Why? Courts must review jurisdictional facts in order to determine the legal question of
whether the administrator had power to act.
o Court can determine facts that relate to the process by which the original decision was made.
27

Why? If a ground of review is argued, Courts often must determine additional facts that
relate to the process by which the original decision was made.
o Courts can indirectly review substantive conclusions of fact that are unreasonable or based on
no evidence.

What constitutes Questions of fact & Questions of law?

Questions of fact
Questions of Primary Fact: who did what, where & when?
Questions of Secondary Fact: what inferences may be drawn from primary facts?
What is the meaning of ordinary words in a statute?
Questions of law
Do the facts (as found) fall within/outside the statutory limits?
What is the meaning of legal words in a statute?

Questions of Fact/Law in Statutory interpretation

Overall statutory interpretation is a question of law (e.g. whether the word is used in a technical legal sense,
or an ordinary English language sense).
o Word is defined in the statute, or is given a specific legal meaning in a previous judicial
decision technical.
o Overall statutory context indicates that a specific legal meaning is intended technical.
If the word is used in a technical legal sense, its meaning (and application to the facts) is a question of law.
If the word is used in an ordinary English language sense, its meaning (and application to the facts) is a
question of fact.
o But if the administrator gave an ordinary word a meaning to that is unreasonable (i.e. a meaning so
unreasonable that no reasonable administrator could have supposed such a meaning to have been
intended by Parliament) an error of law.
o So, courts will not interfere with an administrators reasonable interpretation of an ordinary word
(even though they might not agree with the administrators particular interpretation.)
Reason why meaning and application of ordinary words are questions of fact and therefore usually
unreviewable?
o Practicality: If the meaning of every single statutory phrase is classified as a question of law, the
potential for judicial intervention would be enormous.
o Intent of Parliament.

Preconditions to Existence & Exercise of Power

As a matter of statutory interpretation, statutes may contain certain preconditions to power:

o Factual preconditions (jurisdictional facts): The statute requires certain facts to exist in order for
the power to exist.
Ground of review = show the jurisdictional facts did not exist at the time.
o Procedural preconditions: The statute requires certain procedures to be carried out prior to the
exercise of power.
Ground of review = show the procedures have not been carried out.
o Subjective preconditions: The statute makes the existence of the power dependent on the
administrators subjective opinion that certain facts exist.
Ground of review = unreasonableness only.
Distinguish preconditions to power from requirements during exercise of power.
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Jurisdictional facts

To make a fact jurisdictional, the Act must do 2 things:

o it must condition the power on the facts existence (objectivity); and
o It must condition the validity of the decision-makers act upon that existence (essentiality).
Factors on whether a particular question of fact is jurisdictional (& therefore reviewable by courts):
o Statutory language makes the fact a precondition, not a mere procedure jurisdictional.
Project Blue Sky: Language used assumes that power already exists not jurisdictional.
Enfield v DAC: Provision directly stipulates that the fact is a precondition jurisdictional.
ABT v Bond: Statute required administrator to decide a fact (fitness) before the power to
revoke flows jurisdictional.
Project Blue Sky v ABA: Fact was a procedure not jurisdictional.
o Objective language v Subjective language: Objective language supports the conclusion that the
fact is jurisdictional (Enfield v DAC).
Acts factual requirements are drafted subjectively in some places, and objectively in others.
AHC v MIM: A power of consideration was objective.
o The fact is pivotal /central to the design of the statutory scheme jurisdictional.
Enfield v DAC: Whether special industry or general industry was a choice between 2
different regulatory schemes jurisdictional.
Statute provides detailed public consultation & consideration procedures not
jurisdictional (AHC v MIM).
o Inconvenience of making administrative decisions conditional upon a courts view of the facts
not jurisdictional.
Project Blue Sky v ABA: Invalidity would seriously inconvenience people who relied not
jurisdictional.
o Facts that incorporate strong value judgement not jurisdictional.
AHC v MIM: Whether a place had aesthetic/historic/scientific/social significance, or other
special value was a political & value-laden question (better decided by admin) not
reviewable by court not jurisdictional.
Enfield: Whether a development is special/general industry (i.e. how smelly it is) is
assessable by expert witnesses jurisdictional. Distinguish from AHC because there,
expert witnesses cant decide whether the place was aesthetic etc.
o Whether the facts exist has a strong impact on common law rights & liberties jurisdictional.
Criticism of courts review of jurisdictional facts:
o If a fact is jurisdictional, its the courts (not administrators) opinion of the facts existence that
counts. But is the court any better at finding whether these facts exist? No!

Effect of non-compliance with statutory requirements

Project Blue Sky v ABA: Non-compliance with procedures will not necessarily lead to invalidity of a decision.
Whether there is invalidity depends on statutory interpretation.
o If there is no invalidity, people who relied on the unlawful decision, can get injunctions against the
regulator.
Factors indicating intent of invalidity:
o Statutory language makes the fact an essential preliminary?
o Subject matter is determinate and rule-like?
o Consequences of invalidity?
29

Project Blue Sky v Australian Broadcasting Authority (discretionary power, breach of an essential
preliminary)
Validity of legal error
Broadcasting Services Act
o s 122: ABA must determine standards to be observed by broadcasting licensees.
o s 160(d): The ABA is to perform its functions consistently with Australias international
obligations.
ABA determined (pursuant to s 122) a standard which contained clause 9: Australian programs
must comprise at least 50% of broadcasts.
Trade Protocol: Australia should give NZ programs access rights in its market no less favourable
than Australian programs. NZ companies argued that the making of the Standard was inconsistent
with the Protocol. Section 122, when read with s 160(d), is intended to have a legal meaning: it
gives the ABA power to determine Standards only to the extent that they are consistent with s
160.
Did the making of the Standard breach s 160?
The Standard, by giving Australian programs at least 50% of broadcasting time, makes it harder
for NZ programs to compete NZ programs have less favourable access rights than Australian
programs clause 9 is inconsistent with the Protocol breach of s 160(d).
Was the Standard invalid?
Principle: Whether an act done in breach of a condition regulating the exercise of a statutory power
is invalid, depends on legislative purpose.
Factors why the Standard in breach was not intended to be invalid:
o Language: Section 160 assumes that the ABA already has power it regulates the
exercise of functions already conferred on the ABA, rather than imposes essential
preliminaries to the exercise of its functions.
o Subject matter: Many international conventions & agreements are expressed in
indeterminate language (e.g. described as goals rather than rules). Also, the obligations
here did not have a rule-like character (i.e. could not be easily identified and applied).
Rather, they were matters of policy.
o Consequences: Invalidity of acts done in breach of s 160 is likely to result in
(1) much inconvenience to members of the public who have acted in reliance on
the ABAs conduct;
(2) Licensees having difficulty in ascertaining whether the ABA was acting
consistently with obligations imposed by s 160; and
(3) Loss of investor confidence.
But an act done in breach of s 160 is unlawful. So a person with sufficient interest can sue to obtain
an injunction restraining action based on the ABAs unlawful action.
o (This means that all the people who acted in reliance on the Standard are safe. But the
unlawful Standard cannot be relied on in future.)
Evaluation

This is a Green Light decision, because it considered the impact on the administrator. The remedy was
sensitively handled. Even though the administrators decision was unlawful, it was not invalid if
Parliament did not intend it to be.

Corporation of the City of Enfield v Development Assessment Commission

Jurisdictional Fact
o Development Act ss 32 & 33 forbid development unless the DAC grants consent.
30

Section 35(3) (a): A special industry development must not be granted consent, unless the
Council concurred & DAC gave public notice.
DAC determined that the proposed development was general industry rather than special industry
s 35(3) (a) did not apply DAC decided to give consent without public notice.
On appeal, Debelle J decided on expert evidence that the development was special industry s
33(3) (a) applied DAC exceeded its powers by acting without Councils consent.
But Full Court the Question of fact was non-jurisdictional.
Question of fact = Whether the development is special/general industry? Issue = is this a
jurisdictional fact? Whether the development is special/general industry is a reviewable
jurisdictional question of fact, because:
The fact is central/critical to the statutory scheme. How the consent power (s 35(3)) works
will depend on this fact. It is the turning point that leads to 2 different statutory schemes:
If general industry, not many procedures for consent DAC can consent.
If special industry, totally different & more onerous procedures for consent
Council can veto DACs consent, and need public notice .
The fact is phrased in objective language.
The fact is phrased as a precondition that prohibits s 35(3) consent without Council
concurrence [[special industry] must not be granted].
If the court is in doubt upon a particular factual matter, it would be open to the court to resolve that
doubt by giving weight to any determination upon it by the Commission.

o
o

Hope v Council of City of Bathurst (subject preconditions, fact/law distinction)

Question of law or fact?; Unreasonableness
o Hopes land was used to regularly agist other peoples cattle, there were fences & troughs, and 90%
of the land was pasture improved. Hope advertised for agistment.
o Section 118(1) defined rural land (in which lower rates applied) to mean land used for carrying on
the business of grazing.
o Land and Valuation Court decided that H had no business lower rates did not apply.
(Note: this is not a jurisdictional fact, because power does not depend on it; it is merely a
step along the way to deciding the rate.)
o Issue = is the meaning of business a question of fact/law?
Principles
o Whether the facts fall within the statutory provisions properly construed (i.e. overall statutory
interpretation,) is a question of law. SO: Whether a word is used in a technical legal sense or an
ordinary sense, is a question of law. The meaning of an ordinary word is a question of fact. (The
meaning of a legal word is a question of law.)
o Whether the material before the court reasonably admits of different conclusions as to whether the
facts fall within the ordinary meaning of the words as so determined, is a question of law.
If different conclusions are reasonably possible, the decision of which is the correct
conclusion, is a question of fact [to be decided by the administrator]. [Courts cannot change
it.]
[Whether the facts fall inside the conclusion(s) reasonably possible, is a question of law]
Application
o Business in Act has an ordinary meaning. It denotes activities done for the purpose of profit on a
continuous & repetitive basis. This is a question of fact.
o Hopes activities would amount to a business under any reasonable ordinary meaning of business
that the decision-maker uses It was unreasonable for the primary judge to conclude that there
was no business, as all the essential characteristics required of a business were present:
Transactions were entered into on a continuous & repetitive basis, for the purpose of
making profit.
31

The appellant sought customers by advertising.

The land was put to its best potential use, the pastures were improved, and facilities
including fences were provided for use.

Collector of Customs v Pozzolanic Enterprises Pty Ltd (Fact Law distinction)

Customs Act provided rebate for diesel fuel for use in primary production. Question was whether fuel
rebate could be claimed for equipment that unloaded stock feed from a truck to a farm silo.
On appeal, the Full Court of FC held that the meaning of the statutory phrase raised a question of law, but
that the tribunal had not reached an erroneous construction of the phrase.
o The nature of the task of the court is clear. It is to leave the tribunal of fact decisions as the facts
and to interfere only when the intended error is one of law.
o The proper interpretation, construction and application of a statute to a given case raise issues
which may be or involve questions of fact or law or mixed fact and law.
o The question whether a word or phrase in a statute is to be given its ordinary meaning or some
technical or other meaning is a question of law
o The ordinary meaning of a word or its non-legal technical meaning is a question of fact
o The meaning of a technical legal term is a question of law
o The effect or construction of a term whose meaning or interpretation is established is a question of
law
o The question of facts fully found fall within the provision of a statutory enactment properly construed
is generally a question of law.
Although the words of the statute are construed according to their ordinary English
meaning that does not mean that their application to a set of facts is simply described as
the matching of that set of facts with a factual description. There is necessarily a selection
process involved. The range of relationships to which apply for the purpose of the Act
depends upon a judgment about that purpose In the end this is not a process of fact
finding. The facts are already found. What is left is a value judgment about the range of the
Act and that is a question of law.
Collector of Customs v Agfa-Gavaert (Fact/law distinction, ordinary use of Trade, context is important)
Question with regards to the interpretation of silver dye bleach reversal process
Brennan CJ, Dawson, Toohey, Gaudron & McHugh JJ:
o the meaning attributed to individual words in a phrase ultimately dictates the effect or construction
one gives to the phrase when taken as a whole and the approach that one adopts in determining the
meaning of the individual words of that phrase is bound up in the syntactical construction of the
phrase in question.
o The determination of whether an Act uses an expression in any other sense than that which they
have in ordinary speech is a question of law.
o OK to look at the trade meaning of part of phrase where whole phrase does not have a trade
meaning provided does not lead to a result which is absurd in the sense that the result may be
unworkable or impractical, inconvenient, anomalous or illogical, futile or pointless or artificial.
Applying legislation to the facts
o Step 1 Fact finding
establish the primary facts by evidence and observation and use to prove other facts
through inference
error here results only in error of fact (non-reviewable) unless no evidence to support
decision which is an error of law see below
o Step 2 Rule stating
deciding what the statute says, consider meaning of each word, phrase etc
rules as above
o Step 3 Rule application
Legislation must be applied to the facts to reach a decision
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application of a word used in an ordinary sense is a process of fact
application of a technical legal word or phrase is a process of law

Important Cases
Project Blue Sky Inc v Australian Braodcasting Authority
Corporation of the City of Enfield v Development Assessment Commission
Hope v Bathurst City Council
Collector of Customs v Pozzolanic Enterprises Pty Ltd
Collector of Customs v Agfa-Gavaert

33

Week 7 - Procedural Fairness: The Hearing Rule

NB s 5 ADJR Act
TOPICS TO BE COVERED:
The principal limbs of the procedural fairness doctrine
The scope of procedural fairness and the implication test for the hearing rule following Kioa
The remaining limits on the scope of the hearing rule
Statutory exclusion of the hearing rule
The flexible content of the hearing rule.

Nature of Procedural Fairness (natural justice)

Rules of procedural fairness regulate actual conduct of the decision-maker, while other grounds of judicial
review (e.g. irrelevant consideration, act for improper purpose) regulate the process of reasoning.
o A right to be informed of adverse allegations or information the right to know the case against
you
o The right to present ones case in response the right to answer the case against you tell
your side of the story
o Procedural fairness is not concerned with fair outcomes, it s concerned with a fair process
o Procedural fairness conduct not the process of reasoning
o ADJR Act
Section 5(1)(a) and 6(1)(a) allows for a review for a breach of the riles of natural justice
Review under ADJR Act to be determined under the common law doctrines of the PF,
therefore the same.
Hearing rule requires that before a decision is made adversely affecting a persons right. Interests
or legitimate expectations, the decision of the maker must give the person prior notice that a
decision may be made, the information (particularly adverse information) on which the decision may
be based and their right to make a submission in reply.
Whether judicial review is available for breach of procedural fairness (in particular, the hearing rule) is
approached through a 2-stage analysis.

Value of Procedural Fairness

Procedural fairness is valuable because of:

o Instrumental importance: fair procedures help achieve the purposes of substantive
rules/principles achieve the right outcome.
o Intrinsic benefits: participation, justice is seen to be done, equal treatment, psychological
contributions, democratic, gives people respect and dignity.
Rules of PF create tension between administrative efficiency, and fairness to the Plaintiff. The more
procedures required the more difficulty to the administrator (more red lights).

1) When does procedural fairness apply? (Scope)

Kioa v West: Procedural fairness applies to an administrative decision which has a direct & immediate
effect on rights, interests or legitimate interests of an individuals; subject to clear contrary statutory
intent. Since this case there is a presumption that PF applies, but subject to statutory intent.
If there is sufficient interest for standing, then usually procedural fairness applies (Bropho).

34

Direct & immediate effect

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

Rights, interests or legitimate interests

Kioa v West (Mason):

o Rights means legal rights (E.g. proprietary right).
o Interest is very broad (E.g. personal liberty, status, preservation of livelihood & reputation, financial
interest). Same as the standing test.
o Legitimate expectation fills the situation where the decision does not deprive of a legal right or
interest (e.g. renewal of licence) procedural fairness applies even if the decision takes away
something you have not got, as long as you legitimately expected to get it.

Contrary statutory intention

Cases show that judges are reluctant to say that Parliament did not intend procedural fairness to apply a
shift in focus to content of procedural fairness (Kioa v West).
o Ainsworth v CJC:
Could not use expressio unius maxim to impliedly exclude procedural fairness.
o Ex parte Miah:
Specification of certain procedures (Code) & right of appeal to Tribunal were insufficient to
exclude procedural fairness.
o Kioa v West:
A strong manifestation of contrary statutory intention is needed to exclude procedural
fairness.
35

Procedural fairness may be excluded where its application would be inconsistent with the
statutes operation or purposes.
But the court allows Parliament to exclude procedural fairness expressly & clearly (e.g. Migration Act
successfully removed procedural fairness).

2) What does procedural fairness require? (Content)

A) Hearing rule: Fair Hearing
Procedural fairness requires a fair hearing.
A fair hearing may require:
o Disclosure of the adverse material;
o Opportunity to rebut adverse allegations;
o Adequate notice (More time);
o Oral hearing;
o Legal representation;
o Cross-examination of adverse witnesses.
Notice of adverse information influencing decision making
Kioa v West: The administrator must notify the affected person about adverse information in the
administrators mind, that is prejudicial to the persons interests (including reasons). How much the
person needs to know, depends.
o Put another way, the administrator must give the Pl a reasonable understanding of the adverse
allegations which could influence its decision-making.
Kioa v West: Even adverse information that is not crucial/decisive of the decision, must be disclosed to the
Pl (if its in the decision-makers mind).
o *Information that the applicant was consorting illegal immigrants was not decisive of the decision to
deport (b/c not in the reasons given).
o Held: K should have the opportunity to reply to the prejudicial allegations denial of PF.
Exp Miah: Even adverse information that is in the public domain, must be disclosed (if its in the decisionmakers mind).
Reasonable opportunity to prepare defence
Exp Polemis: The affected person must be given a reasonable opportunity to reply to the case made
against him. What is a reasonable opportunity, depends on what his argument is.
Kioa v West; Russell v Duke of Norfolk: The procedures required depends on the circumstances of the
particular case (ie. are flexible). Relevant circumstances include:
o The nature of the inquiry;
o The subject-matter; and
o The rules under which the decision-maker is acting.
Pl bears the burden of proving that the decision was unfair because it did not involve a procedure required
by fairness.
Test is to ask:
o What is Pls defence argument to the allegation? Possible responses:
Wrong facts: The alleged event never happened.
Wrong interpretation of statute: The allegation is false/mistaken need to X-examine.
Poor credibility: The allegers are biased or dislike me need to X-examine.
o What procedures are necessary in order to make Pls case? Why?
o Were those procedures adopted in the hearing? No denial of PF.
36

3 basic questions that can be distilled out of the Kioa Test and which underpin what might be
described as the presumption that PF will be required in the making of an administrative decision.
1. Does the decision have an effect upon rights, interests or legitimate expectations?
Rights legal, CL or statutory
Interests broader and includes social interests such as reputation
LE now basically redundant but may help indicate content
2. Is the effect sufficient and direct and immediate?
Similar to standing test
Where policy decision affects the population rather than just an individual or identifiably
small class not subject to PF requirements
3. Has the statute excluded procedural fairness expressly or otherwise?
Requires explicit statement - Like in Miah
Provision of de novo review may be argued to displace the requirement of PF not
usually upheld in court often used by a court to decline a remedy on basis that their s
an alternate remedy.
Kioa v West
Scope & content of Procedural Fairness.
o K applied for an extension to his temporary entry permit.
o After the permit expired, K remained in Australia allegedly because his home country was
devastated by a cyclone.
o Minister decided to refuse Ks applications for entry permits, because of certain allegations about K
that were not put to K.
o K argued that the Ministers decision to refuse his application breached procedural fairness.
Threshold:
o [The deportation order clearly affected the interest of K (personal liberty) in an individualised
way.]
o The Migration Act as amended required the administrator to give reasons for his decision statute
did not displace the obligation to comply with procedural fairness requirements.

Content:
o Procedural fairness requires the administrator to bring to a persons attention the critical factor
on which the admin decision is likely to turn, so that he may have an opportunity of dealing with
it.
o Procedural fairness demands that K should have the opportunity of replying to allegations
which were extremely prejudicial to K. There were 2 such matters:
The comment that: had K been genuine, he would have sought a decision on his application
rather than change his address without notifying the Dept.
The comment that: Ks concern for illegal immigrants & his active involvement with others
seeking to circumvent Australias immigration laws, must be a source of concern.
o The other materials which K complained of consist of policy & undisputed statements, which does
not call for a chance to reply.
o Appeal allowed, deportation quashed order.
o Obiter: In the case of a prohibited immigrant who intends to remain without lawful right and evades
authorities, procedural fairness does not require giving of advance notice of the deportation order.

37

Ex Parte Miah
Exclusion/modification of procedural obligations by statute: How clear contrary statutory intention
has to be.
M, a Bangladesh national, applied for a protection visa on the basis that he was a refugee.
*After the date of application, the delegate received new information that the Bangladesh
government changed. The delegate thought that the ousting of the BNP meant people were more
tolerant delegate considered it decisive against Ms application.
*Delegate did not inform M of the new material and give him an opportunity to respond to it before
deciding to refuse.
Procedural fairness applied?
Legislation was not intended to exclude common law procedural fairness requirements, because:
o there are no clear words to that effect;
o the subject matter of the Act;
o the Act implemented international obligations.
Content of procedural fairness requirements?
Defs 1st argument
Def argued that use of the word Code in the heading of subdiv AB excludes any procedural
fairness requirements outside subdiv AB.
o But this is a weak reason. Eg: Parliament could not have intended to exclude
bias/corruption rules.
Examples of material that would NOT require comment by the applicant include:
o Non-adverse country information;
o Favourable/corroborative information in the public domain; and
o Information based on circumstances described in the application.
An applicant must be given an opportunity to comment where the delegate proposes to use new
material (of which the applicant may be unaware) and which could be decisive against the
application;
o This disclosure is stronger where the material concerns circumstances that have changed
since application date, and is being used after considerable delay.
o It is even stronger if the material is equivocal or contains info that the applicant could not
reasonably have expected to be used.
Here, the new information was decisive of the claim, and was totally new, was considered 13 mths
after date of application, and M could not have reasonably expected this information to be
used against him (since both parties were arguably unwilling to offer M protection). The delegate did
not inform M he would use the election results, nor offer M an opportunity to comment breach of
procedural fairness.
Defs 2nd argument
Def argued that because the Act gave a right to full de novo review by the Tribunal, Parliament
intended to limit requirements of natural justice at the stage where a delegate is examining the
application.
Factors relevant in determining whether a right to full review excludes/limits rules of natural justice:
o Preliminary/Final original decision: The more final the decision is, the more likely natural
justice applies.
Here, the decision was final natural justice.
o Public/Private original decision: If private decision, it is less likely that natural justice
applies (because reputation not affected as much).
Here, the decision was private no natural justice.
o Formalities required for original decision.
38

Here, the requirement to give reasons made it harder to say that an appeal right
was intended to limit natural justice requirements natural justice.
o Urgency of original decision.
Here, there was no urgency natural justice.
o Judicial/Internal appellate body: If the appellate body is a court, it is easier to infer that
the right to appeal was intended to limit/exclude rules of natural justice at the earlier level.
Here, the appellate body is a Tribunal natural justice.
o De novo/Limited appeal: If de novo, easier to infer that natural justice was intended to be
excluded/limited.
Here, there was de novo no natural justice.
o Nature of interest; Consequences for individual, Subject matter of legislation.
Here, nature of interest = personal security; Consequences = serious threats;
Subject matter = international obligations towards vulnerable citizens natural
justice.
Balancing these factors, the right to appeal to the Tribunal is NOT intended to exclude/limit natural
fairness.
Denial of procedural fairness is grounds for relief under s 75(v).

Important Cases
Kioa v West
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah
Minister for Immigration and Multicultural Affairs v Teoh
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam

39

Week 8 - Procedural Fairness: The Rule Against Bias

TOPICS TO BE COVERED:
The various categories of bias
The relevant test for establishing bias
The qualifications of the rule.

Bias rule: Impartial decision-making

Basic rule: The decision-maker must have an impartial mind open to persuasion during the hearing,
actually and in appearance.
o It applies to judges, and also administrators (but with less stringency).
o Rationale of bias rule = to maintain public confidence in the integrity of decision-makers.
The rule against bias is flexible (because of reasonable in ostensible bias test).
3 categories of bias: Actual bias, Deemed bias, Ostensible bias.

Actual Bias

Courts are reluctant to find actual bias:

o because it destroys public confidence in the justice system, and the whole point of the bias rule is
to make the decision-maker look trustworthy; and
o NOT because it is hard to determine the subjective state of mind of the decision-maker (we do it in
criminal law all the time).
o Jia a state of mind so committed to a conclusion already formed as to be incapable of alteration,
whatever evidence of arguments may be presented
o Sun the DM has pre-judged the case against the applicant, or has acted with such partisanship or
hostility as to show that the DM had a mind made up against the applicant and was not open to
persuasion.

Deemed Bias

Dimes v Grand Junction Canal: Where the decision-maker has a direct financial interest in the outcome of
the decision, he is deemed to be biased.
o Court of Chancery affirmed orders made in favour of a canal company, in which the Lord Chancellor
(who sat on the appeal) held shares.
o There was no evidence that the Chancellors decision was actually affected by the shareholding.
o The HOL set aside the decree.
Ebner v OTB: If the decision has no effect on the financial interest of the DM, then there is no deemed bias.
(The outcome of the decision would not affect the price of the shares that the judge owned no deemed
bias.)

Apprehended Bias

Livesey v NSWBA: There is ostensible bias if a fair-minded observer would reasonably apprehend that the
judge is not bringing an impartial mind to the issue.
Grounds for a reasonable apprehension of bias include:
o The decision-maker has previously expressed views about a case, or announces preliminary views
during a case (Livesey v NSWBA) (i.e. has prejudged the case);
40

o The decision-maker conducted the matter in an unjudicial way (Damjanovic v Sharpe & Hume);
o The decision-maker has a close relationship with a party; and (Kayliff v ABT, Beinstein)
o The decision-maker acts as prosecutor & judge (Stollery v Greyhound Racing).
Test = (Given the remarks made, relationship etc) would a fair-minded observer reasonably think that there
might be bias?
Preconceptions
Livesey v NSWBA: A fair-minded observer might entertain a reasonable apprehension of bias by
reason of prejudgment, if a judge hears a case at 1st instance after he has, in a previous case,
expressed clear views about:
o a question of fact which constitutes a live & significant issue in the subsequent case; or
o the credit of a witness whose evidence is of significance on such a question of fact.
Vakauta v Kelly: Ostensible bias does not exist merely because a judge has preconceived views
about the reliability of the evidence of a particular medical witness, even if the judge discloses
the existence of such views in the course of dialogue.
o Distinguish preconceived views about reliability of medical witnesses, from preconceived
views about credibility of non-expert witnesses.

2 exceptions to the ostensible bias rule:

Waiver of right to object
o Vakauta v Kelly: Where a party is aware of a right to object on grounds of apprehended bias, but
fails to do so prior to the decision, then the party has waived that right to object. (cant wait for
final judgment and then attack it). Works most effectively with issues of prejudgement.
o Good or bad rule? Depends on whether it enhances the purpose of the bias rule (i.e. public
confidence).
Its good because: If counsel is forced to object during the trial, the judge can correct
himself by declaring that although he has preconceptions of the witnesses, he is open to
persuasion on the evidence (Vakauta v Kelly). Also saves time. Thus, improves public
confidence.
Its Bad because: The bias rule (especially ostensible bias) is for the benefit of the
community, not just the individual individual should not be able to waive away the
communitys interest in the bias. Also, waiver defeats the purpose of a hearing, which is
supposed to be free from bias in all cases. Thus, damages public confidence.
Rule of Necessity
o Laws v ABT: Because statute can override common law, the bias rule cannot:
Stop a body set up to do statutory functions from performing those functions; or
Frustrate the intended operation of a statute.
o Deane J: But the rule does not apply where its application would involve positive & substantial
injustice; and when it applies, the rule does so only to the extent that necessity justifies.
o Usually no issue of necessity, because a body has lots of delegates, and there are changes in
members over time.
Vakauta v Kelly (procedural fairness, bias rule, apprehended bias, waiver)
Ostensible bias (prejudgement); waiver
During a trial, the judge criticised evidence given by the Defences medical witnesses in previous
cases, including:
o that unholy trinity;
o the GIOs usual panel of doctors who think you can do a full weeks work without any arms
or legs;
o The doctors views are almost inevitably slanted in favour of the GIO by whom they have
been retained, consciously or unconsciously.
41

Defences counsel did not object to the remarks.

In a reserved judgment, the judge:
o said that the evidence of the doctor was as negative as it always seems to be and based
as usual upon his non-acceptance of the genuineness of any plaintiffs complaints of pain;
and
o Prefaced concessions made by the doctor with Even Dr Lawson thought.
During the trial
Ostensible bias? Yes. The remarks show an adverse attitude to the expert witnesses would
have led a fair-minded observer to reasonably apprehend that the judge might not have an
unprejudiced mind.
o But Dawson J no apprehensive bias because alerting the parties to a preconception
assists an impartial approach. The judge can still assess the evidence fairly.
Waiver? By not objecting to the judges remarks, the Defence waived any right to appeal against
an adverse decision on the ground of what had been said at the hearing.
Reserved judgement
Ostensible bias? The observations made about the doctor in the judgement (in the context of
remarks made during the trial) amounted to ostensible bias, because they would lead a reasonable
or fair-minded observer to conclude that the judge was heavily influenced by views he had
formed on other occasions rather than by an assessment based on the case in hand.
Waiver? No. Since the judgment was reserved, there was no opportunity for Defence to object to its
contents.

Ebner Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and NZ Banking Group Ltd (procedural
fairness, bias rule, apprehended bias)
Brief Case details
o Ebner
Trial judge disclosed during trial that he was a beneficiary under a family trust 8000
shares in a bank and was a creditor in bankruptcy proceedings being heard by him.
The Share value would not be affected by the proceedings and the HCA held that trial judge
was not disqualified under the apprehended bias rule.
o Clenae
Trial judge inherited 2400 shares in ANZ bank after an 18 day trial but before decision.
During the trial the principle witness had died. Judge did not disclose his inheritance
Judge rules for bank. HCA held that trial judge was not disqualified under apprehended
bias
Important quotes/ratio
o Gleeson CJ, McHugh, Gummow & Hayne JJ:
The application of the principle in connection with DM outside the judicial system must
sometimes recognise and accommodate differences between court proceeding and other
kinds of decision making.
o It is a statutory requirement that the tribunal must perform the functions assigned to it and these
should prevail over and displace the application of the rules of NJ.
o Subject to qualifications of waiver or necessity a judge is disqualified if a fair minded
lay observer might reasonably apprehend that the judge might not bring an impartial mind to
the resolution of the question the judge is required to decide.
o The question is one of possibility (real and not remote), not probability. Similarly, if the matter has
already been decided, the test is one which requires no conclusion about what factors actually
influenced that outcome. No attempt need to be made to inquire into the actual thought processes of
the judge or juror.
o Application requires 2 steps
42

identification of what is said might lead a judge to decide a case other than its legal and
factual merits
Must be an articulation of the logical connection between the matter and the feared
deviation from the course of deciding the case on its merits. The bare assertion that a judge
has an interest in litigation, or an interest in a party to it, will be of no assistance until the
nature of the interest, and the asserted connection with the possibility of the departure from
impartial decision making is articulated. Only then can the reasonableness of the asserted
apprehension of bias be asserted.
o The circumstance that a judge has a not insubstantial, direct, pecuniary interest or proprietary
interest in the outcome of litigation will ordinarily result in disqualification.
o This was not the case here in either situation.
Necessity
o Clenae - witness had died. Mans credibility was central to the case. Judges duty was to give his
decision in the case, as a rehearing based on diary notes would not have been an adequate
substitute
Disclosure
o Prudent and professional practice for a judge to disclose interests and associations if there is a
serious possibility that they are potentially disqualifying
o Allows parties to decide whether or not to waiver

Minister for Immigration and Multicultural Affairs v Jia (Procedural fairness, bias rule, decision of a minister
and apprehended bias, prejudgment)
Brief Case details
o Decision by Minister that Mr Jia and Mr White not permitted to remain in Australia by reason of
conviction of rape and manslaughter. The AAT reversed decision of the Minister. The Minister
before making the decision had commented adversely on the radio about the leniency of the AAT
and had written a letter to the AAT president on the same issues.
o HCA held that the actions of the Minister did not constitute either actual or apprehended bias
Important information
o Gleeson CJ and Gummow J:
The state of mind described as bias in the form of prejudgment is one so committed to a
conclusion already formed as to be incapable of alteration, what ever evidence or argument
may be presented. NJ does not require the absence of any predisposition or inclination for
or against an argument or conclusion
o Minister has issues of parliamentary accountability and to consider the nations interest
The position of the minister is substantially different from that of a judge or quasi judicial
officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct
the standards of detachment which apply to judicial officers or jurors. There is no
reason to conclude that the legislature intended to impose such standards upon the
ministers, and every reason to conclude actual bias.
Hayne J: There is no prejudgment in such a case because of the nature of the statutory
task. It is to reach a degree of persuasion (satisfaction) that a value laden standard (is not
of good character) is met. The determination of that standard is not a task which the Act
required=s to a minister to undertake wholly anew each time it is suggested that there may
be a case for the exercise of the discretionary power.
o Once it is recognised that there are elements of the decision making process about which a
decision maker may legitimately form and hold views before coming to consider the exercise
of a power in a particular case, it is evident that the area within which questions of actual or
apprehended bias by prejudgment may arise is reduced accordingly.
Hot Holdings Pty Ltd v Creasy (procedural fairness, bias rule, financial interest)
43

Case details
o Minister for Mines granted exploration licence to HH, following a recommendation by a mining
warden. Ballot done by warden due to number of applications. The Minister sought departmental
advice on the recommendation. The unsuccessful applicant argues that two officers in the process
had pecuniary interest in the outcome and that their interest tainted the Ministers decision
with bias. One owned shares in the company that held an option to purchase an interest in
exploration if HH was successful
o Son of Director of the Mineral titles division who was a party to the discussions with what the DG
should recommend to the Minister
o HCA allowed the appeal against the finding of bias by FC of WASC.
Important details
o Gleeson CJ: Minister had no pecuniary interest, nor knowledge of the shareholdings of those
implicated, and no ground to apprehend that he might have been influenced to promote their
interests
A fair minded member of the public, informed of all the facts set out above, would know that
the Minister was personally impartial. Such a person would have no reason to apprehend
that the Minister was seeking to do anything other than his statutory duty.
It is not enough that an observer who knew some of the facts about the decision making
process, and did not wish to know others, might have entertained a suspicion that the
decision was influenced by one of the interests. No person with a personal financial interest
in the outcome of the matter participated in a significant manner in the making of the
impugned decision.
o McHugh: It is erroneous to suppose that a decision is automatically infected with an apprehension
of bias because of the pecuniary or other interest of a person associated with the decision maker.
Each case must turn on its own facts and circumstances
To consider:
nature of the association
the frequency of contact
the nature of the interest of the person associated
o NB: Must be a logical connection

Important Cases
Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and NZ Banking Group Ltd
Minister for Immigration and Multicultural Affairs v Jia
Vakauta v Kelly
Hot Holdings Pty Ltd v Creasy

44

Week 9 - Ultra Vires

Ultra Vires
Beyond Power

Express Ultra Vires

(Narrow UV)

Substantive Ultra
Vires
(Simple UV)
lack of power to
act

Procedural Ultra
Vires
Power exists but
only after
following a certain
procedure
The outcome of
failure to comply
is a question of
legislative intent
Project Blue Sky

Implied Ultra Vires

Wide UV
Limits implied by C.L.

Abuse of discretion
Unreasonable exercise
of a discretion
unreasonableness
failure to take
account of a
relevant
consideration
the taking into
account of an
irrelevant
consideration
acting in bad faith
or for improper
purpose

Failure to exercise
discretion
improper
delegation of a
discretion
acting under
dictation
inflexibly applying
a policy
improperly
fettering a
discretion by
constraint or
estoppel

45

Week 9 - Ultra Vires: Abuse of Discretion

TOPICS TO BE COVERED:
Grounds of review, collected under the general heading of abuse of discretion. These grounds
relate to the manner in which the power in question is exercised.

Ultra vires means beyond power. Administrator has no power to take that action.
Ultra vires doctrine: An administrator must act within the limits of powers which have been conferred
on them, by statute or common law.

Narrow ultra vires

where an administrator goes beyond the express limits of their power

Matter of statutory interpretation exact meaning is examined
Substantive or Simple ultra vires
o ADJR Act ss 5(1)(d) & 6(1)(d): Review is available where the decision was not authorised by the
enactment in pursuance of which it was purported to be made.
o This occurs where the administrator lacks the power to act as they did (as a matter of statutory
interpretation).
o Swan Hill Corp v Bradbury: Regulations authorising intrusion into common law rights & freedoms
are likely to be construed narrowly by the courts.
A statutory power to make regulations regulating building activity did not authorise
regulations which prohibited that activity entirely.
Procedural ultra vires
o ADJR Act ss 5(1)(b) & 6(1)(b): Review is available where the procedures that were required by
law to be observed in connection with the making of the decision were not observed.
o This occurs where the administrator has the power to act as they did only after following a certain
procedure (a precondition), and the administrator purported to exercise the power without
following the procedure.
Look for preconditions things you need to do before (not during) you make the decision.
o Project Blue Sky
Whether invalidity flows from non-compliance with statutory requirements, is a question of
legislative intent.
o Norvill v Chapman
Difference between procedural UV & procedural fairness:
If have statutory steps & didnt do them, then use procedural UV.
If dont have a hearing, or an adequate one, then use common law procedural
fairness.

46

Wide (implied) ultra vires

o (where an administrator goes beyond the implied limits of their power. These limits are implied by
common law)
Abuse of discretion (grounds relating to the unreasonable exercise of discretion. Where one goes
beyond the implied limits of their power (limits implied by CL)
o Acting for an improper purpose (or bad faith);
o Failure to take account of a relevant consideration;
o Taking account of an irrelevant consideration;
o Unreasonableness
Failure to exercise discretion
o Improper delegation of a discretion or acting in bad faith;
o Acting under dictation;
o Inflexibly applying a policy;
o Improperly fettering a discretion by contract/estoppel.

Week 10

Abuse of discretion

These are rules which relate to the manner in which a discretionary power is exercised.
Padfield v Min of Agriculture: No such thing as an unfettered discretion. Even formally unconfined & absolute
discretions may be reviewed for abuse of discretion.
Differences between irrelevant consideration ground, and improper purpose ground:
o Irrelevant consideration ground is easier to establish, because it doesnt matter that other relevant
considerations are taken into account. No but for test (dont have to show the irrelevant
consideration determined the outcome).
o But success in establishing the improper purpose ground is more useful, because when the power
is exercised again, it will be much harder for the administrator to reach the same conclusion (due to
the but for test). If succeed on irrelevant consideration ground, then the administrator can still
arrive at the same conclusion easily.

Improper purpose

Two improper purposes cases: Sydney Municipal Council v Campbell and also Shop
Distributive and Allied Employees Association v Min for Industrial Affairs

ADJR Act ss 5(2)(c) & 6(2)(c): Review is available where an administrator exercises a power for a purpose
other than a purpose for which the power is conferred.
Padfield: A discretionary power may only be exercised in pursuance of the purpose for which it was
originally conferred (even if the power is expressed on its face to be unfettered). There is no such thing as
a truly unfettered discretion
o Not an improper motive just an incorrect sued of the power
o An innocent mistake as to the purpose of the power will be sufficient to enable this ground of review
o Bad faith requires proof of improper motivation difficult and quite unnecessary

Establishing this ground of review

1) Authorised purpose? (A matter of statutory construction: question of law).
o Ask: What is the purpose for which the power is intended to be exercised [or for which the power
was conferred]? What purposes are consistent with the Act?
o Sometimes the power expressly states its purpose.
o If not express, then the purpose must be implied from
47

(i) the object of the Act, or

(ii) if no objects clause, the Act as a whole (e.g. Woollahra Council v Min for Env).
The power is read down to its intended purposes.
2) Actual purpose? (A matter of evidence: question of fact).
o Ask: What were the actual purposes for which the power was exercised? Are they consistent with
the purposes of the Act?
o Established using documentation (letters, minutes, and interview transcripts, cross examination.)
If the power is exercised for multiple purposes, ask: But for this unauthorised purpose, would the same
decision still have been made?
If yes, the decisions valid.
If no, the decisions invalid.
(Note: Need cross-examination to be sure of answer. But if the proper purposes are enough to justify that
decision, then probably fail but for test ground fails)
So, real question is: Is the power actually exercised for a purpose that is consistent with the statute?
o Motive is irrelevant. E.g. Sydney Municipal Council (motive is to make profit lower rates, but still
improper purpose).
Examples
Sydney Municipal Council v Campbell (true purpose was to make profit)
o Council had power to compulsorily acquire land:
for the purpose of making or extending streets; or
for the purpose of carrying out improvements or remodelling any portion of the city
o Council decided (under 1st power) to acquire:
land necessary for extension of Martin Place; and
Adjacent land not necessary for the extension of the street.
o After the acquisition, Council said that the 2 nd acquisition was made using the 2nd of its compulsory
powers. Council minutes revealed that the purpose required by statute was lacking, and was only
invoked as an afterthought.
o The adjacent land was not being acquired for either of the given statutory purposes, because the
purpose of the acquisition was to make profits from expected future increases in land value
once the street was extended (established from Councils minutes) improper purpose.
Irrelevant that the Council had a good motive
Shop Distributive v Min Industrial Affairs (authorised purpose = to exempt particular shops totally;
actual purpose = to exempt all shops partially)
o Legislation limited shop opening hours. Its purpose was to protect shop assistants so they wont be
called to work all hours.
Section 14(3) provided that shops were to be closed on Sundays, except otherwise
provided in the Act.
Section 5 gave the Minister power to issue certificates to individual shops, to exempt
them from s 14(3)
Section 13 allowed the Governor to alter closing times by proclamation, after some
consultation procedures
o Minister decided to adopt Sunday trading by issuing certificates under s 5, rather than by s 13
proclamations. The s 5 power was conferred for the purpose of exempting particular shops totally
from the legislation, not to provide a partial exclusion for all shops from 11-5 on Sundays only the
s 5 power was used for an improper purpose invalid.
o Also, if it were possible to use exemption certificates to alter trading hours, then protections given by
s 13 could be bypassed. This cannot be the legislatures intention.
Woollahra Council v Minister for Environment

48

Relevant & Irrelevant Considerations

ADJR Act ss 5(2)(a)-(b) & 6(2)(a)-(b): Review is available where the administrator:
o (a) takes an irrelevant consideration into account in the exercise of a power; or
o (b) Fails to take a relevant consideration into account in the exercise of a power.
There are some considerations that the decision maker is free to take into account or ignore.
o Min for Aboriginal Affairs v Peko-Wallsend:
Every statute implies that the decision is to be made on the basis of the most current
material available to the DM.
An update on a relevant consideration is itself a relevant consideration.
Principles
For relevant considerations: (Min for Aboriginal Affairs v Peko-Wallsend):
o Relevant considerations are considerations that a decision maker is legally bound to take into
account.
o The relevant considerations are determined by construction of the statute conferring the
discretion.
If the statute expressly states relevant considerations, the court must decide (by
interpretation) if they are exhaustive or merely inclusive.
If the statute does not expressly state relevant considerations, they must be implied from
the subject matter, scope and purpose of the Act.
o Failure to take into account a relevant consideration will not invalidate the decision, if the factor is
insignificant and the failure to take into account could not have materially affected the decision.
o The weight given to various considerations is generally for the decision-maker (not the court) to
determine.
However, if a factor has been given far too much weight, or far too little weight, the decision
may be reviewed if the decision is unreasonable.
For irrelevant considerations:
o Irrelevant considerations are considerations that a decision-maker is legally bound to NOT take
into account.
o The irrelevant considerations are implied from the subject matter, scope and purpose of the
statute (even where the discretionary power is in its terms unconfined).
o Taking into account an irrelevant consideration will not invalidate the decision, if the factor is
insignificant and would not materially affect the decision.
Establishing this ground of review
1) What is a relevant/irrelevant consideration? (question of law statutory interpretation)
o If the Act expressly states them, then they may be exhaustive or merely inclusive (depends).
o If the Act does not expressly state them, then must imply them from the subject matter, scope and
purpose of the Act.
Always link to the purposes of the Act ask: Does this consideration have nothing to do
with the purposes of the Act?
2) Was it in fact considered? (Question of fact evidence)
Unconfined discretionary power
Padfield v Min of Agriculture: Even in the case of unconfined/absolute discretions, there are some matters
which are irrelevant and must not be taken into account.
o (political embarrassment was held to be an irrelevant consideration)
Peko-Wallsend: The exact determination of these matters depends upon the subject matter, scope and
purpose of the statute.
49

Confined discretionary power (i.e. express relevant considerations) where the discretionary power
contained in statute expressly refers to the relevant factors;
Identification of legally relevant/irrelevant considerations
R v Hunt; ex parte Sean Investments: The specified factors are not necessarily exclusive.
o Section 40AA (7) National Health Act conferred a discretion to fix fees chargeable by Private
Nursing Homes, having regard to the costs necessarily incurred in running the home.
o Since this costs factor is the only one mentioned by the statute, it is necessarily a fundamental
factor in the determination of fees.
o However, costs necessarily incurred is not an exclusive factor the decision-maker could have
regard to other factors, such as those which show the fees are excessive or unreasonable.
Sean Investments v McKellar (certain non-express factors are not irrelevant considerations)
o The Minister made his decision under s 40AA(7) National Health Act, giving reasons that included
(i) the costs necessarily incurred in running the home,
(ii) the effect upon the patients, and
(iii) a concern that rents would not be unduly subsidised.
o Considerations (ii) & (iii) were not irrelevant to the Ministers exercise of the statutory discretion.
o The relevant factors, and the weight to be given to them, will vary from case to case.
Phosphate v EPA (economic concerns are not relevant considerations)
o Section 20(6) Environmental Protection Act gave EPA power to grant licences subject to such
conditions it thinks fit. EPA, after having regard to environmental considerations only, licensed
a factory subject to a condition that there will be no release of sulphuric gas when an offshore wind
was blowing. The company argued that other factors, in particular economic consequences to
the community of imposing the condition, should have been considered.
o Environmental factors were obviously relevant. But the other factors were not relevant:
There was no indication in the Act that either economic concerns or the public interest
were to be taken into account.
The Acts sole and only purpose was to reduce pollution to specified levels. It was not to
minimise pollution consistent with the maintenance of commercial activity. The Act did not
contemplate some balancing of considerations.
The Board was comprised entirely of experts in environmental matters; there were no
members chosen for their financial/industrial expertise.
Whether failed to take into account a relevant consideration?
ACF v Forestry Commission
o Commission decided that certain areas of forest were definitely not qualifying areas for World
Heritage Listing. The Act required the Commission to identify any such areas as soon as
practicable, presumably so that they could be logged. ACF argued that it was a relevant
consideration that the identified areas had a relationship with existing World Heritage areas, which
the Commission did not consider.
o The relationship of the identified areas to an existing World Heritage area WAS a relevant
consideration. However, the relationships have been considered (by inference), because:
The Commission had refused, with respect to a number of other areas, to say they were
definitely of no value on precisely this ground. It was unlikely that the Commission
would have regard to such factors in one case, and then ignore them in the next.
This was an interim report which was required to be prepared quickly; thus, a large
amount of detail was not to be expected the report did not have to expressly consider it.

Unreasonableness (quite an uncommon ground of review)

ADJR Act ss 5(2)(g) & 6(2)(g): Review is available where an exercise of power is so unreasonable that no
reasonable person could have so exercised the power.
50

Is a catch all or residual category, to argue when the facts do not really suggest either an improper purpose
at work, or an argument based upon relevant/irrelevant considerations.
Wednesbury: A decision will be reviewable where no reasonable person/body/administrator could have
made that decision. A decision is not unreasonable simply because the Court or reasonable person would
have made a different decision.
o Act allowed a cinema licence to be granted subject to such conditions as the Authority thinks fit to
impose. The condition attached was that no children under 15 should be admitted to Sunday
performances. This condition was NOT unreasonable.
Some judicially recognised forms of unreasonableness are:
o Discrimination without justification

Parramatta City Council v Pestel

Statute: The Council has power to determine a special rate where specified works
would be of special benefit to a portion of its area.
The Council, by purporting to exercise this power, levied a special rate on an
industrial area, to raise revenue to provide amenities of special benefit to the area
(e.g. roads, kerbing, guttering, and drainage). Only industrial sites were levied; 90
residential purposes were not levied.
The Council could not reasonably have concluded that the work only benefited
industrial sites. The improvements by the Council benefited industrial & nonindustrial sites alike it was unreasonable to levy some sites and exempt
others.
Sunshine Coast Broadcasting v Duncan
o A guideline said that applications for the right to service an area should be refused,
if the area is already adequately serviced by other stations. On the basis of this
guideline, a stations application was refused, while 8 other stations applications
were accepted.
o Lack of consistency unreasonable. Also a relevant consideration (the public
interest) was not adequately considered.
Decision is out of proportion to the goal to be achieved

R v Barnsley Corp; ex parte Hook (minor incident)

o Hook, a stallholder, was caught urinating in a side street when the toilets were
closed. The Council decided to revoke his licence to trade in the market.
o The decision to revoke was unreasonable, because it was disproportionate to the
offence: Hook was deprived of his source of livelihood, because of this minor
incident. Also invalid for breach of natural justice
Fares Rural Meat v Australian Meat & Livestock Corp (long term purpose)
o Act gave power to revoke an approval to engage in live stock, only for the purposes
of promoting, controlling, protecting and furthering the interests of the Australian live
stock industry. The applicants approval was revoked after Saudi Arabia rejected
its shipment.
o The decision was invalid for failure to accord procedural fairness. However, since
the purpose for which the power had to be exercised is the long term best
interests of trade, the decision was not disproportionate to that purpose (even
though the applicant was likely to suffer substantial commercial losses).
Limited duty of inquiry

Prasad v Min Immigration and Ethnic Affairs: Where material which is central to a
decision to be made is easily available, failure to obtain that material before reaching the
decision would be unreasonable (if a reasonable decision-maker would have obtained that
material).
51

o The Department rejected Prasads application for permanent residency, because of

a suspicious marriage. This suspicion was based on inconsistent answers that the
Prasads gave in interviews.
o The decision is invalid, because of a failure to take into account the relevant
considerations of 8 statutory declarations from various persons declaring that they
knew the Prasads as a happily married couple.
o It was unreasonable of the decision-maker not to make further inquiries to
investigate the discrepancies.
Unreasonable application of statutory words to facts (where theres discretion, e.g. satisfied)

Chan Yee Kin v Minister for Immigration: A decision may be unreasonable because the DM
misconceived the legal concept involved.
o Chan claimed refugee status. The grant was dependent on a well founded fear of
persecution. Minister decided that Chan did not have a well founded fear of
persecution. Chan had been detained and interrogated in China, been listed in
public as an opponent of the State, had been exiled, and had been detained for
some months after unsuccessful attempts to escape.
o The Ministers decision was unreasonable, because given the accepted facts and
the meaning of the phrase; no reasonable decision-maker could have reached the
conclusion that Chan did not have such a fear.
Austral Fisheries: Delegated legislation may be invalid on the ground of
unreasonableness, if it leads to manifest arbitrariness, injustice or impartiality.
o Delegated legislation was made, which reduced quotas of every boat in the
industry, except one boat which had its quota doubled. The stated objectives of the
delegated legislation were to develop a fair and equitable process of allocation, to
reflect existing market shares for fish, and to minimise disruption to the industry.
o Held unreasonable delegated legislation was invalidated.

Cases
Woollahra Council v Minister for Environment
Improper purpose.
National Parks and Wildlife Act:
o Section 151(1)(f): The Minister may grant licences to occupy/use national park lands.
o Section 152: The Minister may grant licenses to carry on business within a national park.
A private business school proposed to renovate and lease a building in a national park. Minister and
Director (under ss 151 & 152) granted the school a licence to use the building, and to carry on its business
there. They were motivated in reaching their decisions by the opportunity to restore the building & improve
the surrounding land, at no cost to the government.
Authorised purpose?
Since the power does not expressly state the authorised purposes, these purposes must be derived from
the general structure of the legislation.
Preservation, care, control and management of national parks kept appearing in the Act The Acts
overall purpose is the maintenance, preservation and defence of national parks against outside
encroachments.
Thus, the broad ss 151 & 152 powers are read down to this authorised purpose
Actual purpose?
The actual purpose of the development is inconsistent with the purposes authorised by the Act, because:
o Documentation showed that the schools offer was the trigger for the application.
o The school proposed was private and not public.
52

o Its curriculum related to business matters and had nothing to do with the parks such as
botany/horticulture.
o The schools use of public buildings and land would restrict the public enjoyment of the park for
some time.
Thus, the powers conferred by ss 151 & 152 do not extend to the grant of the licence invalid licence.
The good motive of the Minister and Director in saving money on park improvements was irrelevant.

Minister for Aboriginal Affairs v Peko-Wallsend

Implied relevant consideration; implied delegation.
Aboriginal Land Rights Act:
o Section 50(1)(a): If the Aboriginal Land Commissioner finds that Aboriginal applicants for land are
traditional owners, he must recommend the land grant to the Minister.
o Section 50(3)(b): The Commissioner must comment in his report on the detriment to persons
that might result, if the claim were acceded to.
o Section 11(1)(b): Where the Minister is satisfied that the land grant should be made, he must
recommend that to the GG.
The Commissioner held an inquiry into Aboriginal claims, and PW made vague submissions about the
location of uranium it discovered in the block. The Commissioner recommended a grant of 10% of the
block. He commented on the detriment that a grant might have on the companies, but was unaware that the
whole deposit lay within the 10% block recommended for grant.
After the Commissioners report, PW informed the Minister of the deposits real location by submission. A
successor of the Minister, without reference to PWs submission, decided to recommend to the GG that the
grant should be made. The Minister was in fact unaware of the companies submissions.
1) Is PWs submission a relevant consideration?
The purpose of s 50(3) (requirement of Commissioner to comment on detriment) must be to ensure that the
Minister considers detriment when making his decision under s 11 the Act implies detriment to be a
relevant consideration in deciding under s 11.
Furthermore, the Ministers consideration of detriment must be based on the most recent and accurate
information that he has at hand. Since PWs submission is the most recent information on detriment, PWs
submission is a relevant consideration.
2) Was it taken into account?
No evidence that Minister took it into account.
The Minister could not have impliedly delegated consideration of PWs submission to someone else,
because:
o he did not use his express power to delegate;
o the Ministers function under the section is a central feature of the statutory scheme (its
importance evidenced by the preliminary procedures, e.g. Holding an inquiry under s 50);
o the exercise of the power has important consequences; and
o The power (s 11) requires that the Minister is satisfied (i.e. personal to Minister).
Tickner v Chapman (Norvill v Chapman)
Minister Tickner made a declaration prohibiting construction work for a period of 25 years in connection with
building a bridge across Murray River to Hindmarsh Island. (400 submissions).
Minister made decision 2 days after receiving report. Hadnt read all submissions, and not content of sealed
envelopes (womens business) but was briefed by a female staff member. Ministers declaration was ruled
as invalid at first instance and appeal was dismissed by FC.
o Black CJ: Ministers duty to consider report is a provision of compliance with which is a
necessary step in the exercise of power under s 10.
Minister must personally consider the report and any representations attached to it. Delegation specifically
removed by the Act.
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The consideration of a representation involves the active intellectual process directed at that representation
and again the point must be made that s10 is explicit in its requirement that not only must the reporter give
consideration to the representations, but the minister must do so as well.
The reliance on female staff member opinion as to whether adequate reflection of the representations was
insufficient.
Minister was required to look at the representations on the sealed envelope. Minister did not consider
the representations as required by the Act.

Minister for Environment & Heritage v Qld Conservation Council

Important Cases
Woollahra Municipal Council v Minister for the Environment
Shop Distributive and Allied Employees Association v Minister Industrial Affairs
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
Tickner v Chapman (Norvill v Chapman)
Minister for Environment & Heritage v Qld Conservation Council

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Week 10 - Ultra Vires: Failure to Exercise Discretion

TOPICS TO BE COVERED:
Continue the discussion of ultra vires grounds of review. Having examined the abuse of
discretion grounds last week, we now consider those that can be grouped under the general
heading of a failure to exercise discretion.
o Improper delegation
o Acting Under dictation
o Inflexible application of policy
o Estoppel arguments in administrative law

Preservation of discretion

These are rules which relate to the agent who is exercising the discretionary power.
If Parliament has conferred a discretion on a particular decision-maker:
o Only that DM may use the discretionary power; and
o The powers discretionary nature must be preserved.
Sub-doctrines:

Failure to Act (s 7: unreasonable delay in making the decision)

Failure to perform a non-discretionary duty remedy is mandamus or mandatory injunction.

This ground of review is also available where the time limit for making the admin decision has been
exceeded.
If no express time limit, review is available for unreasonable delay.
Thornton v Repatriation Commission: Test of reasonable delay is objective.
o Deferring a decision to the outcome of a High Court appeal on a similar matter not
unreasonable.

Rule against delegation

Rule against delegation: There is a presumption against the delegation of discretionary power. Prima
facie, the power has to be exercised by the person to whom it is conferred.
Express powers to delegate override this rule.
o If express delegation is used, the power must be exercised within the limits of the express
delegation. If not, then ultra vires.
Carltona: Powers to delegate may be implied where administrative necessity requires it.
o The functions that are given to Ministers are so multifarious that no Minister could ever personally
attend to them this cannot mean that in every case the Minister must personally direct their mind
to the matter the duties imposed upon the Minister and the powers given to Ministers are
normally exercised under the authority if the Minster by responsible officials of the Department
public business could not be carried on if that were not the case.
OReilly v Commissioner of State Bank of Vic (lots of times the discretionary power would be exercised
implied power to delegate)
o ITAA:
Section 264: The Commissioner of Tax may require persons to give such information as the
Commissioner required, and also to attend and give evidence and produce documents.
Section 8: The Commissioner may delegate the power under s 264 to Deputy
Commissioner.
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o Notices under s 264 were issued by an Investigating Officer. Deputy Commissioner had authorised
the Investigating Officer to issue notices of this sort & stamp on them the Deputys signature. Issue
= did Deputy Commissioner have implied power to sub-delegate?
o Lots of cases in which the power to issue notices would be exercised the express power to
delegate to the Deputy Commissioner was insufficient for the day-to-day operation of the
Department Deputy had implied power to delegate.
Peko Wallsend (Ministers function was central to the statutory scheme, evidenced by the preliminary
procedures, thus requiring a personal decision no implied power to delegate)
Secretary DSS v Alvaro (factors)

Acting under dictation (ss 5(2)(e) & 6(2)(e))

Sections 5(2)(e) & 6(2)(e): Review is available for an exercise of a personal discretionary power at the
direction of another person.
Acting at the behest of another. Relevant when the statute confers power upon an identified DM but it is
apparent that following of someone elses order. Basic principle is that the statutory requirements should be
met decision should be made by the person that Parliament intended.
Roncarelli v Duplessis
o Licensing Commission had sole responsibility for the grant and withdrawal of licences.
o Premier directed the Commission to withdraw the liquor licence of Plaintiff, which the Commission
did. The Commissions decision was void.

Direction/Policy simple ultra vires

Formulation of policy rules/guidelines serves 2 important aims:

o Consistency of decision-making. This is particularly important where many administrators
exercise the same discretion.
o Easier decision-making. Administrators dont have to consider afresh every case.
However, policy rules/guidelines must still allow the administrator to respond to particular needs of a given
case (because statute, by conferring discretion, demands this).
Basic position: Despite the legal principle that discretion must not be fettered, administrators are entitled
to formulate policy guidelines to assist them in exercising their own discretion but not until they are
deprived of any real discretion.

Where there is statutory power to issue directions/guidelines

An express power to formulate directions/guidelines for use by other decision-makers in exercising their
discretionary powers, shows that Parliament intends the discretion to be constrained to some extent.
Fine differences in statutory wording affect the scope of a power to issue directions, and the degree to which
those directions may constrain the exercise of discretion.
o ADC v Hand
o NSW Aboriginal Legal Service v Min Aboriginal Affairs
o Riddell v DSS
o Smoker v Pharmacy Restructuring Authority

Where there is no statutory power to issue directions/guidelines

Rendell v Release on Licence Board:

o Policy guidelines must be consistent with the legislation conferring the discretion.

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o Rendell v Release on Licence Board (policy not to release prisoner until served minimum 10 yr gaol;
but statute required consideration of individual circumstances policy inconsistent with Act
invalid decision)
Re Findlay (policy not to release prisoners in all but the most exceptional cases consistent with Act
policy valid)

Inflexible application of policy in exercising a discretionary power

(ss 5(2)(f) & 6(2)(f))

Section 5(2)(f): Review is available for an exercise of a discretionary power in accordance with a
rule/policy without regard to the merits of the particular case.
Inflexible application of policy = applying policy guideline like a rule to reach a decision, without considering
individual circumstances of a particular case.
The minimum content of the rule against inflexible application of policy is:
o British Oxygen v Minister of Technology: Policy guidelines can be used, provided that the decisionmaker is always willing to listen to anyone with something new to say.
The degree to which policy guidelines may control discretion in advance, depends on
o The nature of the entitlement/right which the statute confers. If, once the statutory criteria are
satisfied, there is no legal entitlement (i.e. only a hope of receiving any benefit), and then policy
guidelines can be applied more inflexibly.
e.g. Green v Daniels (once the statutory criteria are satisfied, legal entitlement to
unemployment benefits follows unlawful to automatically apply policy guideline without
regard to individual merits).
o The matters relevant to the exercise of the discretion. If the decision on the merits turns
primarily on the individual circumstances of the applicant, then policy guidelines cannot be
applied as inflexibly.
e.g. Tang v Min of Immigration, Chumbairux v Min Immigration (immigration decisions turn
primarily on individual circumstances of the applicant unlawful to apply policy inflexibly)
e.g. Re Findlay (parole decisions turn primarily on policy reasons unrelated to the individual
circumstances of the applicant lawful to apply policy inflexibly)
So look at the relevant considerations in exercise of the discretion.
o The more personal they are, the less scope there is for policy guidelines to control discretion in
advance (Chumbairux).
o But if the personal circumstances are not such important considerations (e.g. public interest is more
important) then there is more scope to make policy to control in advance (Re Findlay).

Examples
Green v Daniels (administrator applied general policy like a rule inflexible application of policy)
o Social Security legislation provided that a person (subject to age & residence requirements) would
be eligible for unemployment benefit, when the Director General of DSS was satisfied that
(i) they were unemployed,
(ii) willing & able to undertake suitable work, and
(iii) Had taken reasonable steps to obtain work.
o The Department applied a policy guideline, which said: As a general rule people who leave
school and register for employment within 28 days prior to the end of the school year, or at any time
during the long vacation, will not be in a position, until the end of the school vacation, to satisfy the
conditions of eligibility for unemployment benefit.
o People who are legally entitled under the statute, may be denied benefits because they have not
satisfied the 12 week waiting period imposed by the policy the policy guideline effectively
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introduced an extra criterion for eligibility it is inconsistent with the statutory criteria (since applied
inflexibly as a rule) ultra vires invalid.
o Also: If the policy was only a guide, the Dept applied it inflexibly, by automatically imposing the
waiting period on Green without giving her an opportunity to establish her eligibility according to the
statutory criteria.
Tang v Min of Immigration: If the decision turns primarily on the individual circumstances of the applicant,
then the decision cannot be reached by simply applying policy guidelines without considering the merits of
the case.
o Section 6A Migration Act: Prohibited non-citizens should not be considered for an entry permit,
unless they fall into an exceptional category. One of these was that they were the spouse of an
Australian citizen.
o Tang, married to an Australian citizen, applied for permanent residency. His application was refused
on the basis of a policy statement (against queue-jumpers), before his application was considered
on its merits.
o Since Tang was the spouse of an Australian citizen, he was (under s 6A(1)(b)) entitled to have his
case considered on the merits & not pre-emptively rejected on the basis of the policy unlawful to
merely apply the policy without considering the application on the merits, as the statute requires.
o Note: The fact that he is a queue-jumper might still be a relevant consideration in assessing the
merits application could still be refused.
Re Findlay: If the discretionary power is likely to be exercised primarily for policy reasons unrelated to the
individual circumstances of the applicant (e.g. public interest), then the decision is more capable of being
regulated by guidelines.

Fettering discretion by representations (estoppel)

Minister for Immigration v Kurtovic: Estoppel is not available against a government decision-maker in its
exercise of public powers.
o This rule against estoppel does not apply to exercise of the governments private (e.g. contractual)
powers.
o But Ansett Industries v Cth: A contract with Government cannot fetter a statutory power.
Theoretical reason for the rule against estoppel:
o If an administrator does not have a power, they cannot give themselves that power by falsely
representing to a 3rd party that they possess it, because that would be against Parliaments
intention.
o Equally, if an administrator has a power, but mistakenly claims that they have no such power,
estoppel cannot take away that power because statute has conferred that power.
Practical reason for the rule against estoppel:
o If estoppel can fetter discretion, administrators would refuse to take the risk of giving any
opinions/undertakings at all in response to inquiries. This would be inconvenient to the public.

Cases
Secretary, Dept of Social Security v Alvaro
Implied delegation; decision
Social Security Act:
o Power 1 (s 1224): If money was paid because of a false statement, and is not repaid, the amount is
a debt due to the Cth.
o Power 2 (s 1237): The Secretary may waive the debt.
o Delegation power (s 1299): The Secretary may formally delegate any of its powers to an officer.
Alvaro made false statements to the DSS, and consequently received payments under the Act. An officer in
the Department decided that Alvaro was indebted to the Cth (pursuant to s 1224). An authorised review
58

officer affirmed the decision, and decided not to waive the debt (under s 1237). Neither powers were
expressly delegated to the decision-makers. Issue = can they be impliedly delegated to someone?
Alvaro appealed to the AAT, which decided it had no jurisdiction to review the decisions because there was
no valid decision (since neither the officer nor review officer held valid delegations from the Secretary under
s 1299).
Secretary appealed to the Federal Court under s 44(1) AAT Act.
Decision
The AATs review jurisdiction extended to review of decisions made in purported exercise of powers (even
where the decision is not legally ineffective) matter should be remitted to the AAT.
Can the decision-maker make decisions without a formal delegation of power from the Secretary?
Parliament could not have intended that the Secretary personally perform all the functions necessary to
carry the Act into effect; some of the functions must be performed by authorised officers. Does this include
the 2 powers?
For s 1224: The power can be impliedly delegated to an authorised officer, because:
o A decision under s 1224 only involved ascertainment of facts from objective evidence;
o The power is not discretionary (no may). The result automatically follows; and
o The decisions correctness could be tested against evidentiary material.
In short, it is a straight-forward decision that does not require much thought.
For s 1237: The power cannot be impliedly delegated to an authorised officer, because:
o The power is a discretionary power (may);
o It is vested expressly in the Secretary;
o The exercise of the discretion significantly affects rights & liabilities of people liable under s
1224; and
o The discretion is likely to be exercised to implement broad policy objectives under the Act.
Rendell v Release on Licence Board
Dictation (no express power to issue guidelines)
Decision-making process:
o Statute required the Release on Licence Board to consider the individual circumstances of an
application, and advise the Minister.
o The Minister then looks at the public interest (deterrence), and advises the Executive Council.
Life-term prisoner applied to the Board seeking consideration of his release on licence.
The Board decided to reject the application, by saying that the Government would not recommend release
of a life-term prisoner until [he] served a minimum of 10 years in gaol. It will be noted that this is a
minimum.
The minute & correspondence was proof that the Board exercised its discretion by applying a policy rule
adopted by another body without regard to the particular circumstances of the prisoner (as required
by statute) unlawful decision.
o The Board never considered the merits of the application.
o Boards repeated use of minimum shows that it applied the governments policy because it felt
it had no alternative.
o Also, a practical consideration: If the Board considers it appropriate in a particular case to
recommend release before 10 years, its recommendation would discharge its functions of offering
its best advice to the Minister.
Riddell v Secretary, Dept of Social Security
Ultra vires direction (express power to issue directions)
Section 1237 Social Security Act:
o (1) The Secretary may waive the Cths right to recover a debt.
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o (2) In exercising its power, the Secretary must act in accordance with directions issued under (3).
o (3) The Minister may give directions relating to the exercise of the Secretarys power.
Minister made a determination: The Secretarys power must be exercised in the following circumstances
only.
Riddell asked that recovery of his debt be waived under s 1237 because of extreme financial hardship.
On appeal, the AAT decided not to waive the debt by applying the Ministers direction.
Is the determination valid?
The determinations purpose & effect was to limit the very wide discretion conferred on the Secretary by s
1237(1).
The directions were inconsistent with the statute, because:
o The statutory language:
Subs (3) refers to the Secretarys power and subs (2) stated in exercising the power
statute regards the Secretary as exercising the power authorises directions which
affects the manner of its exercise, but will leave the power itself intact.
Therefore, s 1237(3) gives the Minister power to give general guidance to the Secretary
only, leaving him free in any particular case to depart from the guidance.
The determination, by stating precise rules dictating the result of all applications, is not
giving guidance in the exercise of the power, but is attempting to deny the existence of
the power inconsistent with statute.
o The legislative history: A predecessor of s 1237 did not allow the Ministers to give directions. If
Parliament intended the Minister to circumscribe the Secretarys power, the language would have
addressed the ambit of the power itself rather than simply its exercise.
Therefore, since the AATs decision was based on the invalid determination, its decision involves an error of
law and must be set aside. The matter is remitted to the AAT.
Smoker v Pharmacy Restructuring Authority
Guideline not ultra vires (express power to issue guidelines)
National Health Act:
o Section 99K(1) gives the Pharmacy Restructuring Authority power to make a recommendation
with respect to applications for approval of premises as pharmacies.
o s 99K(2): In making a recommendation under s 99K(1), the Authority must comply with the
relevant guidelines determined by the Minister under s 99L.
o s 99L(1): The Minister must determine the guidelines subject to which the Authority is to make
recommendations under s 99K(1).
Ministers determination, Para 3(a): approval of a pharmacist shall not be recommended in respect of
premises located within 3 km [of an already approved pharmacist].
Smoker applied for approval. The premises for which approval was sought was within 3 km of other
pharmacists the Authority considered itself bound to comply with Para 3(a) Secretary decided against
recommending an approval.
Guideline valid?
The Ministers guidelines were more properly described as rules which circumscribe the Authoritys
discretion.
Legislature intended to authorise the Ministers guidelines, because:
o Statutory language:
Section 99K is expressed in terms of function rather than discretionary power
(distinguishable from s 1237 in Riddell, which conferred a broad discretion).
The mandatory language of s 99K(2), that the authority must comply with the relevant
guidelines, suggests that the guidelines are to be mandatory (i.e. rules).
(The Ministers directions were essential to the statutory scheme, because the Minister
must issue them: s 99K(2).)
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o Legislative history: The provisions and guidelines originated from an agreement reached between
the Minister & the Pharmacy Guild, which contemplated that the Minister could radically limit
the Authoritys discretion Parliament would have intended the Authoritys discretion to be
circumscribed by the Ministers guidelines.
Thus, the guidelines were valid Authority was correct in applying Para 3(a) in refusing the application.
Differences:
o Discretion. In Riddell, the power conferred a broad discretion, while in Smoker, the power was
expressed in terms of function.
o Mandatory language. Riddell: must act in accordance with; Smoker: must comply with.
o Importance of directions to the statutory scheme. Riddell: Minister may give directions. Smoker:
Minister must give directions.
o Legislative history.

Important Cases
OReilly v Commissioner of State Bank of Victoria
Secretary, Department of Social Security v Alvaro
Rendell v Release on Licence Board
Green v Daniels
Riddell v Secretary, Department of Social Security
Smoker v Pharmacy Restructuring Authority
Nemer v Holloway

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Week 11 - Jurisdictional Error

TOPICS TO BE COVERED:
The nature and historical basis of the jurisdictional error doctrine
The meaning of jurisdiction and the identification of errors go to jurisdiction;
The operation of jurisdictional error in Australia

It is said that administrative decision-making bodies must not exceed their jurisdiction. Such bodies can fall
into error in one of three ways:
1. Either by purporting to exercise a jurisdiction which they do not possess (excess of jurisdiction)
certiorari/prohibition
2. Failing to exercise when called upon to do so, a jurisdiction which they do in fact possess.
(wrongful failure to exercise jurisdiction) mandamus
3. Constructive jurisdictional error.
o Arises where jurisdiction has been exercised, but a fundamental misconstruction of that
jurisdiction has occurred, with the result that the administrative body has misconstrued its
power, misunderstood the nature of its power and functions, applied the wrong statutory test or,
as it is sometimes or more quaintly put, asked itself the wrong question.
Difference between UV and JE is the identity and nature of the decision maker
o JE is the preferred term where the decision maker under review is an inferior court (e.g.
Magistrates Court, a Licensing Court or an Administrative Tribunal. UV is the preferred term
where the decision maker is simply an individual administrator including those at the top of the
hierarchy such as a Minister.
The concept of a non-jurisdictional error of law implies: There will be some questions even some questions
of law where a supervising court will not intervene and overturn the administrators decision, even though
the court might consider that determination of the question to be incorrect.
Craig v SA: Jurisdictional errors are:
o All errors of fact/law made in the preliminary stage; and
o (If administrative tribunal) all errors of law made past the preliminary stage; and
o (If inferior court) some errors of law made past the preliminary stage
o Never errors of fact made past the preliminary stage
Whether a question is preliminary, depends on statutory interpretation
This means that some errors of law made past the preliminary stage (i.e. In the course of exercising
jurisdiction correctly assumed) are non-jurisdictional, and therefore non-reviewable against the
rule of law
Jurisdictional errors are reviewable; non-jurisdictional errors are non-reviewable.

Classical doctrine of jurisdictional error

Only errors made at the preliminary/threshold stage (i.e. when jurisdiction to determine a matter is
initially assumed/declined) are jurisdictional errors reviewable errors.
o E.g. jurisdictional fact errors concern preliminary questions upon which the very existence of
a jurisdiction depends reviewable.
Errors (of fact/law) made in the course of the exercise of a jurisdiction properly assumed, would
never be jurisdictional errors non-reviewable errors.
Thus, a reviewing Court would defer to the administrators determination of questions (even questions
of law) if they arise in the course of exercise of jurisdiction.
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Rationale
Courts should defer to decisions of admin bodies which are non-jurisdictional, because of:
o Constitutional reason;
o Expertise;
o Speedy issue resolution.

Expanded theory of jurisdictional error

o Anisminic v Foreign Compensation Commission rejected the classical view that jurisdictional errors
can only be made in the preliminary stage.
o Some errors of law made during the exercise of a jurisdiction correctly assumed, will cause loss
of that jurisdiction. These are jurisdictional errors (Lord Reid gives a non-exhaustive list of
examples).
o Practical effect = to expand scope of judicial review of inferior courts & admin tribunals, to that which
have always applied to individual decision-makers.

Jurisdictional error in Australia

o Craig v SA accepts that some errors of law made after the initial & correct assumption of jurisdiction
by a decision-maker, will be sufficiently serious as to take that body outside its jurisdiction
jurisdictional error.
o Where the decision-maker is an administrative tribunal, there is a presumption that an error of law
at any stage will be jurisdictional, and hence reviewable.
o Where the decision-maker is an inferior court, considerable deference is paid to the inferior court
a large category of non-jurisdictional errors of law which cannot be reviewed.

Anisminic and the expanded theory of jurisdictional error

o Anisminic v Foreign Compensation Commission
Applicants property in Egypt was sequestrated. Plaintiff sold it to TEDO. Applicant applied
Facts
to Foreign Compensation Commission claiming they were entitled to participate in the
Egyptian Compensation Fund.
Relevant provisions
Art 4(1) Foreign Compensation Order: A claim is established if the applicant
satisfies the Commission of the following matters: - (1)(b)(ii) [the applicant] and
any person who became successor in title of such person were British
nationals
Also had
Foreign Commission Act: The determination by the Commission of any application
privative
made to them under this Act shall not be called into question in any Court of law.
clause
(the privative clause only protects valid determinations; not a purported
determination which is invalid)
Commission rejected Plaintiffs claim, because TEDO was the applicants successor in title
and was not a British national
Applicant brought action, arguing that the Commission misconstrued the Order in finding
that TEDO was their successor in title.
What is jurisdictional error?
Some errors of law made by tribunals in the course of proceedings (past the preliminary
stage) are jurisdictional errors.
Deciding in bad faith
Making a decision it had no power to make
JE errors
Failing to comply with natural justice
include
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 Misconstruing the provisions (statutory power) giving it power to act

Refusing to take into account a relevant consideration
Taking into account an irrelevant consideration
Some non-jurisdictional errors of remained. Presumably, minor errors are still nonjurisdictional.
Is the purported determination a nullity?
There can only be a successor in title where the title of the original possessor has
passed to his successor, so that the original possessor of the title can no longer
make this claim.
Decision

This can only happen when the original owner ceases to exist the provisions
was a
with regard to successors in title did not apply where the applicant is the
nullity
original owner and still in existence.
Since the applicant is the original owner, the Commission had no right to take into
account the ground in Art 4(1)(b)(ii) their decision was a nullity
o Craig v SA
Craig was charged with larceny and there was a hearing in SA District Court. Russell J
found that Craig was unable to obtain legal representation through no fault of his own and
that Craig could not receive a fair trial without representation. Appling Dietrich v R, the
Facts
Dietrich Principle is that trial should be stayed and the State sought a certiorari quashing
the stay order.
Full SASC made the order that Russell J misconstrued the reference in Dietrich to fault
because he failed to refer to certain facts:
Craig was granted legal assistance and received inheritance of $20 000;
He broke bail and also bought a car and lost it
Craig appealed to the HC and the State argued that the trial judges finding was a
jurisdictional error, or an error of law on the face of the record.
o Was there jurisdictional error?
Arguably there was no error of law at all
No JE error
HC indicated that neither the judges stay order, nor his failure to refer to all the
facts was enough to show a misunderstanding of Dietrich on the issue of fault.
Even if Russell misinterpreted Dietrich, it would not be a jurisdictional error.
The trial judge possessed jurisdiction to hear and dispose of Craigs application for
a stay of proceedings
That jurisdiction encompassed the identification and determination of relevant
questions of law and fact, including whether Craigs inability to obtain legal
representation is through no fault of his part.
Regardless of whether it is a question of law, or mixed question of law and fact, any
error would be within the trial judges jurisdiction.
The Full Court could not order certiorari set aside Full Court error + dismiss States
Could not order
certiorari
application for judicial review of Russells order.

What is jurisdictional error?

o A critical distinction exists between administrative tribunals and inferior courts.
Inferior courts are constituted by persons with formal legal qualifications or legal training.
They are part of the hierarchical legal system.
Admin tribunals are commonly constituted by persons without formal legal qualifications or
legal training. They are not part of the ordinary hierarchical judicial structure.
Tribunals
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o Administrative tribunal lacks authority to authoritatively determine questions of law or to make an

order or decision otherwise than in accordance with the law.
o An administrative tribunal makes a jurisdictional error if it falls into an error of law which causes it to:
(from Craig)
Identify a wrong issue
Admin Tribunal
Ask itself the wrong question (apply a wrong statutory test)
makes a JE if it
Ignore relevant material
does these
Rely on irrelevant material
things
Make an erroneous finding or reach a mistaken conclusion
Denial of procedural fairness authority = S157 (not from Craigs list)
o And the tribunals exercise or purported exercise of power is thereby affected.

Inferior Courts
o Lord Reids speech in Anisminic applies to administrative tribunals only, not to inferior courts.
An inferior court does not commit jurisdictional error whenever it addressed the
wrong issue or asked itself the wrong question.
The ordinary jurisdiction of a court encompasses authority to decide questions of law/fact
involved in matters which it has jurisdiction to determine.
An inferior court falls into jurisdictional error if it:
o Mistakenly asserts or denies the existence of jurisdiction; or
JE
o Misapprehends or disregards the nature/limits of its functions/power, in
a case where it correctly recognises that jurisdiction does exist.
Examples of such error:
o Where the court purports to act outside the general area of its
jurisdiction, by entering a matter outside the theoretical limits of its
Examples of
functions and powers.
errors
A civil inferior court attempting to hear and determine a
criminal charge
Making an order beyond power such as specific performance
when powers limited to awarding damages for breach
o If it does something which it lacks authority to do.
o Where the court disregards or takes account of some matter that the
statute requires to be taken into account or ignored as a pre-condition
of the existence of any authority to make an order/decision in the
circumstances of the case.
o If it misconstrues that statute and thereby misconceives the nature of
its function or the extent of powers.
Examples of errors of law committed by an inferior court that do not ordinarily
constitute jurisdictional error:
Examples of
o Mistake in identifying relevant issues, formulating relevant questions
errors that do
and determining what is and what is not relevant evidence;
no constitute
o Failure to take into account relevant matters, or taking into account
JE
irrelevant considerations, in determining a question within jurisdiction.
For inferior courts, the distinction between jurisdictional and nonjurisdictional errors of law remain critical

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Key Questions for Jurisdictional Error

Was it an error of law or error of fact? If fact, was it a jurisdictional fact?
At what part of the process did the error occur?
o Both tribunals and inferior courts will commit a JE if error is in determining actual
jurisdiction
o If the error was made during the decision making process, was it sufficiently serious that
it ought to be classified as jurisdictional in nature?
I.e. should a court intervene and quash the decision, or should it allow the error
to go uncorrected? (E.g. procedural fairness Look at how it affects the parties
and the process.)
Is the decision making body an inferior court or is it a tribunal?
JE and State
o When seeking JR in State Supreme Court, it is required to be determined whether the
error of law is a jurisdictional error to allow review
Important Cases
Anisminic v Foreign Compensation Commission
Craig v South Australia

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Week 12 - Privative Clauses

TOPICS TO BE COVERED:
The operation and effect of privative (or ouster) clauses, both at Commonwealth and State
level.
Privative Clauses present the final complication in the law of judicial review.

What is a privative clause?

It is a legislative provision whose intent is to exclude judicial review, either in whole or in part. Sometimes it
is referred to as an ouster clause.
Bring into sharp focus the constitutional tensions between the various branches of government. They bring
the parliament and the Courts directly into conflict.
o The privative clause expresses a legislative intent that the Courts not review a particular class
of decisions. It could hardly be more clearly expressed than it is in many of the privative clauses
found in statutes.
o In practice, Courts are extremely reluctant to simply affect to the plain meaning or the privative
clause. They tend to read these clauses down, often quite dramatically and sometimes to the stage
that the clause has very little substantive effect.
Decisions need to be considered in the High Courts judgement of Plaintiff S157 where denial of procedural
fairness was held to be a jurisdictional error not protected by the privative clause. Subsequent decisions
have applied this decision.
Arguments supporting legislative
o Specialist expertise
o Finality and efficiency
o Quick and effective decision making otherwise justice can become lengthy and costly.
o Parliamentary supremacy (legislative will must prevail over the Courts)
Arguments supporting the judiciary
o Rule of law must be maintained irrational, unfair or otherwise unlawful behaviour must be
controlled by the courts when conduct JR.
o Courts argue they are giving effect to the will of Parliament (enforcing the limits imposed on the
decision maker by Parliament
o JR is entrenched in s 75(iii) and s 75(v) of the Constitution
o If administrative bodies are insulated from review, they can effectively determine their own
jurisdiction (a clear breach of separation of power)

How much affect will a privative clause have?

Current treatment of privative clauses

Such a clause will not wholly exclude review at least not where the ground argued is a manifest and
fundamental jurisdictional error.
Where a decision is made, for example, grossly in excess of jurisdiction, the courts are likely to respond that
this is not the sort of decision which Parliament could have intended to protect by the private clause.
It seems that review of serious jurisdictional errors will no be excluded, but review of less grave errors of law
on occasions be prevented by a suitably worded privative clause.
The treatment of privative clauses by the courts is less than consistent; they differ in the approach to less
grave errors. This is an area in which considerable judicial discretion is evident.
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Examples of what can/cannot be protected by privative clauses

o NAAV v Minister for Immigration: Where there is a relevant privative clause
Breaches of natural justice are not reviewable;
Non-performance of important precursor facts needed prior to a decision being made, are
reviewable
o Wang (failure to give reasons as required by Migration Act, was such a fundamental defect that the
privative cause will not protect it.)
o R v Hickman; ex parte Fox & Clinton
National Security (Coal Mining Industry Employment) Regulations (Cth):
r 14(1)(a): Subject to Regulations, a Local Reference Board shall have power to
settle disputes in the coal mining industry.
r 4 industrial dispute and local matter are defined in relation to the coal mining
Privative
industry.
Clause
r 17: A LRBs decision shall not be challenged, appealed against, quashed or
called into question, or be subject to prohibition, mandamus or injunction in any
court and any account what ever.
The Board was asked to determination a dispute is relation to the application of an award to
lorry drivers. The Board decided (r 14) to make and order that F was engaged in the mining
Facts
industry and were required to pay their drivers the minimum wages and conditions
prescribed by this award. F sought a writ of prohibition against the Boards chairman,
prohibiting further proceeding upon the order.
Issues are that dispute and coal mining industry are jurisdictional facts, there was
a dispute, Fs lorry operations do not fall within the natural meaning of coal mining
Issues
industry and that that the privative clause must be taken into account in
ascertaining what the true limits of the LRBs authority are.
Hickman provisos see as expanding the power of the DM originally.
A privative clause will protect the decision (no decision will be invalidated) so
long as the decision:
o (1) was a bona fide attempt to exercise the power
Hickman
o (2) relates to the subject matter of the legislation
principle
o (3) is reasonably capable of reference to the power given to the body
(tribunal)
It is impossible for the legislature to
o Give power to any authority which goes beyond the subject matter of the
legislative power conferred by the Constitution
o Impose limits on an authority which it sets up with the intention that any
excess of the authority means invalidity, and yet deprive the HC of authority
to restrain the invalid act of the authority.
Dixon Js famous Hickman compromise
The idea of this compromise is the idea that the statutory provisions conferring a
limited jurisdiction and the privative clause must be read together being part of
the same statue, which is not interpreted and read as a whole, giving effect to all its
provisions.
The result was that an exercise pf power which was protected by a privative clause
should not be invalidated so long as it was a bona fide attempt to exercise the
power and appeared on its face to be within power. The effect of this approach was
said to be not so much to immunise jurisdictional errors from review but to expand
the jurisdiction so as to include bona fide attempted to exercise the power.
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Decision

Writ of prohibition
issued

Privative clauses do not exclude review: they only expand the jurisdiction.
o Cant exclude review because we cant override s 75(v) Constitution.
The LRBs powers are concerned entirely with the settlement of disputes. The Regulations
are not intended to give the LRB any power to conclusively determine the scope of coal
mining industry, or the extent of their own jurisdiction as so governed by that expression.
The LRBs authority is limited to the coal mining industry
The board has tried to decide the lorry dispute completely outside its authority. The private
clause did not expand to the tribunals jurisdiction enough to cover the actual decision.
(LRBs decision did not fit in the 3 provisos invalid decision)

R v Hickman; ex parte Fox & Clinton has recently been rejected by the HC in preference for Plaintiff
S157. Instead of seeing the effect of privative clauses expanding the power of a decision maker, the Court in
their view, the effect of a privative clause is to protect decisions provided that they comply with the 3
Hickman provisos in addition to any inviolable limitations or imperative duties contained within the
statute.
The Court rejected the claim that an invalid decision could be remedied by a privative clause, but accepted
that errors that were neither jurisdictional, nor in conflict with one of the Hickman provisos, would be so
protected from judicial review.
Any decision involving the breach of an inviolable limit or an imperative duty upon a decision makers
power would also not be protected by the privative clause.
o Plaintiff S157
o Looking at the privative clause inserted into the Migration Act in s 474
(1) A privative clause decision :
Is final and conclusive; and
Privative
Must not be challenged, appealed against, reviewed, quashed or called into
Clause
question in any Court; and
Is not subject to prohibition, mandamus, injunction, declaration or certiorari in any
court on any account
The HC held that this clause was valid and read down as only applying to decisions made
under the act.
The essential problem is the inconsistency between a provision in a statute or an
instrument, conferring a limited power or authority, and a provision which appears to mean
that excess of power or authority may not be prohibited.
The meaning of the privative clause must be ascertained from its terms, and if that
meaning appears to conflict with the provision pursuant to which some action has been
taken or some decision made, its effect will depend entirely on the outcome of its
reconciliation with that other provision.
Reconciliation
Reconciliation: gives effect to the whole of the statute which confers power or jurisdiction,
or imposes duties, regulates conduct, and which contains a privative provision.
Purported decisions: meant to be a decision but infected by jurisdictional error = invalid,
Purported
void, nullity. Purported decisions are not decisions so not protected by the privative clause.
decisions not
This court has held that an administrative decision which involves a JE is regarded
protected by
in law as no decision at all. Thus if there has been JE because of a failure to
privative clause
discharge imperative duties, or to observe inviolable limitations or restraints, the
decision cannot properly be described in the terms used in s 474(2) as a decision
made under this act and is thus not a privative clause decision.
Clause could not stop review of any JE, so no conflict with s 75(v) of Constitution
A decision flawed for reasons of a failure to comply with the principles of natural
justice is not a privative clause decision.
Applying
Process of statutory interpretation
S157
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Reconcile the privative clause with the inviolable limits and imperative duties found
elsewhere in the statute
If any of the 3 Hickman provisos is breached then the privative clause will not protect the decision.
Hickman provisos simply a rule of construction that requires the privative clause to be interpreted in light of
the whole statute.
In addition inviolable limits must be respected and imperative duties complied with. These are found in
the statute.
JE will not be protected from review (lack of procedural fairness is likely to lead to a JE)

Privative clauses in State legislation have also been given greater weight than their counterparts in Cth Acts. No
equivalent to s 75(v) of the constitution and no entrenched separation of powers.
o Two approaches taken in State with privative clause
regard to the plain will of the legislature and given the privative clause full effect thus excluding
JR
Application in federal system of Hickman and S157
o Mitchforce v Industrial Relations Commission (Post S157)
Clause excluded even purported decisions
Spigelman CJ: A privative clause does not protect from review even a purported decision which
PC in SA
does not satisfy the Hickman provisos or which breaches inviolable limits. However
Decisions
Jurisdictional Error outside this is exempt from review.
Sheds no light on the situation.
In SA, the SC has often taken what seems a quite literalist approach to the application of privative clauses.
However the issues are complex, as a number of SC decisions illustrate.
o Tsimpinos v Allianz
There were 4 grounds of appeal argued by Tsimpinos but Debelle J held that none of them
involves an excess or want of jurisdiction of the Tribunal either as constituted by the single
member or by the Full Bench.
As a result the application failed. There was no suggestion that the SC was prepared to do
anything other than apply the privative clause in its literal terms.
o Craig v Workers Compensation Tribunal
Accepted without any discussion that the WCT was an inferior Court.
Privative clause s 88I of the Workers Compensation and Rehabilitation Act prevented the Court
from intervening on any ground other then an excess or want of jurisdiction.
The ground in fact alleged was a denial of procedural fairness.
The Full SC agreed that there had been a denial of procedural fairness, however applying the
HC decision in Craig v SA, they held that as the WCT was an inferior Court this was not a
jurisdictional error. In particular it was not an error involving either excess of a want of
jurisdiction.
The privative clause denied Mr Craig any possibility of a remedy from the Court.
o McGee v Gilchrist-Humphrey
The plaintiff sought a declaration that the Royal Commission Act did not abrogate the CL
privilege against self incrimination
In view of the lack of any express reference to the remedy of a declaration in this clause, Doyle
CJ had no difficulty in finding that the sought after declaration was available. His Honour
referred to the Plaintiff S157 decision and the maxims of statutory construction discussed in that
case, such as the presumption against taking away fundamental rights except by the plainest of
words.
In these 3 cases it is notable that the SC has accepted that the relevant privative clause meant exactly what it
said. This is an easier conclusion to reach in the case of these partial privative clauses, none of which purported
to exclude judicial review entirely.
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Important Cases
R v Hickman; ex parte Fox & Clinton
Plaintiff S157 v Cth
Mitchforce v Industrial Relations Commission

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