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Page | decision on the material before it. (subject to statute) Although govt policy is a relevant consideration, the AAT cannot blindly follow it. AAT should question the policys propriety, and consider other factors. Remedies: S 43 AAT Act: AAT can affirm, vary, substitute or remit the decision. This amounts to full merits review power (Drakes case). Note: The AATs powers may be limited by the statute conferring jurisdiction. JUSTICIABILITY (NOT OF ADJR)
There is no automatic immunity

SOURCES OF REVIEW JURISDICTION Invoke which source of review jurisdiction? Possible avenues of review: State decisions can be reviewed by: State Supreme Court (r98 Supreme Ct Rules). Cth decisions can be reviewed by: High Court (s 75 Constitution); Federal Court (ADJR Act) only for a decision of an administrative character made under an enactment, OTHER THAN a decision by the GG or a decision [listed] in Schedule 1 (s 3). ABT v Bond: A reviewable decision is: a final & operative decision, or an essential preliminary step required by statute to reach an ultimate decision. Federal Court (s 39B Judiciary Act); AAT if the relevant statute confers AAT review jurisdiction (s 25 AAT Act). MERITS REVIEW
Standing (s 27(1)): Applications

may be made by any person whose interests are affected by the decision. Preconditions to AAT review satisfied? Any jurisdictional facts, procedural preconditions? Do the merits review: A fresh decision. Simply reargue law & facts: interpret statute and apply it to the facts. Has the facts changed since the decision? Did the original decision maker take a wrong view of the facts? Drake v Min Immigration: The AATs function is to independently determine the correct & preferable

from review merely because the decision was made by Ministers (Padfield; Murphy Ores), Crowns Representative (Re Toohey; FAI v Winneke) or Cabinet (SA v OShea; Peko-Wallsend); or made under a prerogative power (CCSU case; Peko-Wallsend). Key factors of justiciability: Subject matter? (eg. of nonjusticiable SM: National security (CCSU v Min Civil State); Treaty implementation (PekoWallsend); appointment of QCs (Waters v AG)) High-level policy decision? (complex weighing up of many competing policies; highly political; courts lack expertise: Peko-Wallsend). Or a Determinative decision? Position of decision-maker & nature of power? STANDING
Does the Pl have a special

interest; or Is the Pl a person aggrieved? (ie. the decision must affect the Pls interests more than the public at large) an individualised effect.

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2 Right to Life Assn v Dept: The

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Onus v Alcoa (Aboriginal custodians

special interest must be within the purposes of the relevant Act. Pl has standing only if there is a relationship between (a) the subject matter of the decision (from the Acts objects), and (b) the matters that the Pl alleges. (Decision was about quality/safety of goods; but Pls arguments had nothing to do with quality/safety. They were based on clinical trials being contrary to law no standing) Personal/Private Standing Personal standing may arise from: Directly interference with common law rights to life, liberty & property; Actual financial loss (eg. lowering of property values) (Howes v Vic Railways); Indirect effect on a right (eg. effect on residential amenity) (Exp Helena Valley v State PC); Competitors: Exp Cooke: Courts are unwilling to allow judicial review to be used as a tool to hinder competitors. Batemans Bay: Allowed standing to a competitor, who showed a significant effect on its commercial/financial interests. Ministerial directions indirectly affecting rights/interests (Riddell, Smoker, ADC v Hand). Public Standing ACF v Cth: A mere intellectual/emotional concern, or a strong belief that the law should be observed, is not enough to give standing. Vocational special interest Ogle v Strickland: If a necessary incident of the Pls vocation is to challenge the decision, the Pl has standing. (Priests had standing to challenge decision to allow imports of blasphemous film)

of relics had standing to challenge a decision to allow aluminium smelter which would interfere with Aboriginal relics on the land) Sutton v Warringah (Councillor had standing to challenge Councils decision to delegate powers) Participation in Statutory Process (objector status) US Tobacco v Min: A Pl has standing if the Pl participated in a statutory process that leads up to the making of the decision being challenged. But merely making submissions is not enough. Representative standing A body which is best placed to represent the interest of a section of the community that is specifically affected by the decision, has standing to challenge it. Shop Distributive v Min Industrial Affairs: An Union has the same interest as its members. North Coast Env Council v Min Resources: The more organised & recognised the body is, the more likely it can get representative standing. (peak organisation in region, govt funding, keen interest for many yrs, no body more representative standing) ACF v Minister for Resources (main body for protecting environment, govt funding, great public perception of protecting environment standing) Exec Council of Aust Jewry v Scully: The representative body need not have its operations confined to the geographical region affected by the decision.

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Page | Subject matter is determinate & rule-like? Consequences of invalidity?

PRECONDITIONS TO EXERCISE OF POWER Jurisdictional fact error (s 5(1)(c)) Is a fact a jurisdictional fact (precondition) or a nonreviewable question of fact (not precondition)? Factors: Statutory language makes the fact an essential preliminary to power jurisdictional (Enfield v DAC). Fact is phrased in objective language jurisdictional (Enfield v DAC). Subjective language (considers) nonjurisdictional (AHC v MIM). Fact is pivotal /central to the design of the statutory scheme jurisdictional (Enfield v DAC). Fact determined by detailed public consultation & consideration procedures non-jurisdictional (AHC v MIM). Fact incorporates strong value judgement non-jurisdictional (AHC v MIM) But if determinable by expert evidence jurisdictional (Enfield v DAC). Inconvenience of making admin decisions conditional upon a courts view of the facts nonjurisdictional (Project Blue Sky v ABA). Whether the facts exist has a strong impact on common law rights & liberties jurisdictional. Procedural UV (s 5(1)(b)) Is the requirement a procedural precondition? (something decision-maker had to do before making the decision) Project Blue Sky: Whether invalidity flows from non-compliance with statutory requirements, is a question of legislative intent. Factors indicating intent of invalidity:

Subjective preconditions are relevant considerations (PekoWallsend) & may be reviewable for unreasonableness/no evidence. SUBSTANTIVE GROUNDS OF REVIEW SIMPLE UV (S 5(1)(D)) Did the administrator go beyond the express words of the power? Swan Hill Corp v Bradbury: Powers authorising intrusion into common law rights & freedoms construed more narrowly. ERROR OF LAW (S 5(1)(F)) 1) What does the overall statute, or technical legal words, mean? (this is a question of law which the court can determine: Hope v CC Bathurst) 2) Did the decision-maker: Misunderstand the nature/limits of its functions/powers? Apply the wrong statutory test? BREACH OF PROCEDURAL FAIRNESS (S 5(1)(A)) Procedural fairness applies to the decision? Kioa v West: Decision has a direct & immediate effect on rights, interests or legitimate interests of an individual [in an individualised way]? Any contrary statutory intent? Cases show its hard to find contrary statutory intent: Ainsworth v CJC (could not use expressio unius maxim to impliedly exclude PF) Exp Miah (specification of certain procedures (Code) &

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Chen Zhen Zi v Min Immigration (PF

right of appeal to Tribunal, did not exclude PF) Kioa v West (requirement to give reasons PF applied) But PF may be excluded where its application would be inconsistent with the statutes operation/purposes. Statutory provisions affect content of, rather than exclude, PF. Ainsworth v CJC: Where a decisionmaking process involves different steps, procedural fairness is satisfied if the entire process entails procedural fairness. Fair hearing Kioa v West: Procedural fairness requires the administrator to notify the affected person about any adverse information in the administrators mind, that will influence the decision. This includes adverse information that is not crucial/decisive of the decision (Kioa). This includes information in the public domain (Exp Miah), as long as Pl could not reasonably have expected the info to be used against him. Russell v Duke of Norfolk: Procedural fairness requires the affected person to be given a reasonable opportunity to present his case (ie. an adequate hearing). 1) What is Pls defence argument? 2) What procedures are necessary in order to make Pls case? Any reason why not adopting it would still be fair? 3) Were those procedures actually adopted? Examples of procedures required by procedural fairness Ex parte Polemis (PF required adjournment, b/c need time to prepare evidence + poor English)

only required oral hearing where credibility is in issue, or the applicant is disadvantaged by being limited to written submissions) White v Ryde Municipal Council (PF did not require legal representation, b/c only simple factual matters, no legal arguments, no charge, and no witnesses) ORourke v Miller (PF did not require cross-examination or confrontation, b/c no reason why the witnesses lied) NCSC v News Corp (PF did not require adversarial procedures, b/c: statute requires expedition; only an investigation; can cross-examine & call witnesses in subsequent proceedings; and decision-maker is likely to call right witnesses inquisitorial procedures were sufficient) Deemed Bias Dimes v GJC: Decision-maker has a direct financial interest in the outcome of the decision? Ebner v OTB: If the decision has no effect on the financial interest of the decision-maker, then there is no deemed bias. Apprehended Bias Would a fair-minded observer reasonably apprehend that there might be bias (ie. a closed mind to the arguments), because: Decision-maker prejudged the case (Livesey v NSWBA; Vakauta) by expressing preliminary views on the case; Decision-maker conducted the matter in an unjudicial way (Damjanovic v Sharpe); or Decision-maker has a close relationship with a party.
Waiver of right to object:

Vakauta v Kelly; Damjanovic v Sharpe: Where Pl fails to object to bias before the decision, and is

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aware of the right to object, then Pl waived that right to object. Rule of Necessity: Laws v ABT: The bias rule cannot stop a body from performing its statutory functions; or frustrate the intended operation of a statute. (b/c statute > common law)

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Page | Edelston v Wilcox (massive financial effect) Phosphate v EPA (Environment Act, no mention of economic/public interests economic consequences are not relevant considerations) Roberts v Hopwood (City Mgmt Act, power to set wages social philanthropy & feminist ambition irrelevant; union rates & cost of living relevant) Green v Daniels (prevention of abuse relevant) 2) Was it actually considered? Proof? (look @ the reasons) ACF v Forestry Comm: Failure to mention a consideration does not necessarily mean failure to take it into account. (expressly considered in other cases + decision must be made quickly inferred consideration) Peko-Wallsend: The weight which a decision-maker gives to the relevant factors, is a matter for them. Norvill v Chapman (no physical access + no time not considered) Unreasonableness (s 5(2)(g)) Test: Is the decision so unreasonable, that no reasonable person could have so exercised the power? (Wednesbury) Discrimination without justification: Parramatta CC v Pestel (levied rates on some sites only within an area, to fund amenities to the whole area unreasonable) Sunshine Coast Broadcasting v Duncan (refused application for reasons that applied equally to other applications which were accepted unreasonable)

ABUSE OF DISCRETION Padfield v Min of Ag: Even formally unconfined & absolute discretions may be reviewed for abuse of discretion. Improper purpose (s 5(2)(c)) 1) What were the actual purposes for which the power was exercised? Proof? (can infer) 2) What is the authorised purpose for which the power is intended to be exercised? (statutory interpretation) 3) Are the actual purposes consistent with the purposes of the power/Act? 4) But for the unauthorised purpose, would the same decision still have been made? Are the proper purposes enough to justify the decision? Woollahra Council v Min for Env: Good motives are irrelevant. Irrelevant & Relevant Considerations (s 5(2)(a)(b)) 1) What is a relevant/irrelevant consideration in making the decision? If Act expressly states them: Define them in accordance with purposes of the Act. They are not exhaustive (R v Hunt). Can imply them from the subject matter, scope and purpose of the Act (PekoWallsend). Test: Does such a consideration have anything to do with the purposes of the power/Act? Examples of implied relevant considerations: Peko-Wallsend (preliminary inquiry; update on a relevant consideration is a relevant consideration)

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7 Disproportionate admin 2) Did he in fact do it

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response to a perceived problem: Ex parte Hook (decision took away Aps livelihood b/c of the trivial offence of urinating unreasonable) Edelston. Fares Rural Meat v AML (decision costed Ap millions of export trade loss, but potential serious consequences for export trade if no action taken + Acts express purpose was long term best interests of trade reasonable) Limited duty of inquiry: Prasad v Min Immigration: Where material which is central to a decision to be made is easily available, failure to obtain that material before reaching the decision would be unreasonable. (rejected VISA application on basis of suspicious marriage, without investigating these suspicions unreasonable) Unreasonable application of [ordinary English] statutory words to facts. (Hope v CC Bathurst; Chan Yee Kim v Min) No evidence to justify making of the decision (s 5(1)(h)).

personally? (look @ facts) 3) Did he have an implied power to delegate the decision/duty? Carltona: Powers to delegate may be implied where administrative necessity requires it. Eg. OReilly v Comm of State Bank (power exercised lots of times + express delegation power is limited implied power to delegate) Factors against implied power to delegate (Secretary DSS v Alvaro): *Power does NOT largely involve fact-gathering from objective evidence that can be tested; *Discretionary power (result doesnt necessarily follow); Power expressly vested in decision-maker; The repositorys discretion is central to the decision-making process, evidenced by preliminary inquiry procedures (Peko Wallsend); Exercise of discretion significantly affect rights & liabilities; Power likely to be exercised to implement broad policy objectives under the Act. Direction/Policy = valid/invalid? (simple ultra vires) No statutory power (policy) Are the policy guidelines consistent with the Act conferring the discretion? (Rendell v Release on Licence Board) Re Findlay (policy not to release prisoners in all but the most exceptional cases consistent with Act because decisions turn on public interest, not individual circumstances policy valid) Green v Daniels: If policy rigidly introduces an extra criterion for

FAILURE TO EXERCISE DISCRETION Failure to make a decision (s 7) Only where there is a duty to make the decision. No express time limit unreasonable delay? Thornton v Repatriation Commission (not unreasonable to wait for High Court decision on similar matter) Delegation 1) Who is supposed to make the decision (or perform the duty)? (look @ statute)

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eligibility, it is inconsistent with statutory criteria & ultra vires.

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Page | results of particular cases, because: Direction power & compliance rule did not refer to the Authoritys power, but to functions recognises that the Authority does not have discretion. Compliance rule says must comply with the guidelines suggests guidelines are to be mandatory rules. Direction power says the Minister must issue the guidelines the guidelines are essential to the statutory scheme. A prior agreement contemplated that the Minister could circumscribe the Authoritys discretion. Acting under dictation (s 5(2)(e)) 1) Did DM exercise its discretionary power at the direction of another, without examining the merits? 2) Is this consistent with the statute? Does statute require DM to exercise discretion for itself? Roncarelli v Duplessis Rendell v Release on Licence Board (Board applied policy not to release prisoner until served minimum 10 yr gaol w/o looking @ merits; but statute required Board to consider individual circumstances invalid decision) Inflexible application of policy in exercising a discretionary power (s 5(2)(f)) 1) Did DM apply its own policy inflexibly, without examining the merits? 2) Does the statute require DM to exercise more discretion? British Oxygen: As a minimum, the DM must be willing to listen to someone who has something new to say;

Statutory power (to issue directions/guidelines) 1) Does the direction/guideline take away discretion? 2) Is the power to issue intended to authorise this? Impermissible constraint of discretion? ADC v Hand: A power to issue general directions means that the direction must not be directed to a particular case arising for decision, but must be generally applicable. Ie. direction must be as to procedure, not outcome. (Direction to co-operate & give info was general) ALS v Min for Aboriginal Affairs (Direction allowing Special Auditor to override ATSICs discretion to grant in particular cases not general invalid) Riddell v Sec DSS: There is power to give general guidance only, not to dictate the result of all cases, because: Direction power & compliance rule refers to the Secretarys power recognises that the Secretary still has discretion. Compliance rule says must act in accordance with directions suggests directions are not to be mandatory rules. Direction power says the Minister may issue the directions the directions are not essential to the statutory scheme. Direction power did not exist before if Parliament intended the directions to circumscribe the Secretarys power, it would have addressed the ambit of the power itself. Smoker v PRA: There is power to make guidelines which dictate

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Page | PRIVATIVE CLAUSE

Hickman principle: A privative

[Inflexible application of policy] is more likely to be inconsistent with statute if: once the statutory criteria are satisfied, there is a legal entitlement (not merely a hope of receiving benefit) (Green v Daniels); or the decision turns primarily on the individual circumstances of the applicant (Tang v Min of Immigration, Cumbairux v Min Immigration) rather than the public interest (Re Findlay). Fettering statutory discretion by representations Kurtovic: Estoppel is not available against a government decisionmaker in its exercise of public powers. JURISDICTIONAL ERROR (only relevant if decision-maker is an inferior court) Craig v SA: An inferior court falls into jurisdictional error if it: Mistakenly asserts/denies jurisdiction [precondition not satisfied]; or Misunderstands the nature of its functions/powers (where it correctly recognises that jurisdiction exist). Errors of law made by inferior courts that are NOT ordinarily jurisdictional errors: Mistake in identifying relevant issues, formulating relevant questions and determining what is/isnt relevant evidence; Failure to take into account relevant considerations, or taking into account of irrelevant considerations, in determining a question within jurisdiction. If non-jurisdictional error cant get remedy.

clause can make a decision in excess of power valid, if the decision: (1) is a bona fide attempt to exercise the power; (2) relates to the subject matter; and (3) is reasonably capable of reference to the power. REMEDIES
Prerogative writs: Certiorari

(quash decision), Prohibition, Mandamus (remit matter back to decide according to law). Equitable remedies: Declaration, Injunction. ADJR flexible remedies (s 16(1)): (a) quash; (b) referring matter to original decision-maker with appropriate directions; (c) declare parties rights; (d) direct parties to do (or refrain from doing) anything. OBTAINING REASONS
S 13 ADJR Act: Can obtain reasons

for a decision, if: The Act applies to the decision (ie. decision of admin character made under an Act); and The person is a person aggrieved. CROWN IMMUNITY FROM STATUTES
The Crown is presumed not to be

bound by statutes of general application. Bropho v WA: Can infer Parliaments intention that the Crown be bound, from the content & nature of the legislation. S 20 Acts Interpretation Act (SA): An Act passed after June 1990 will, unless the contrary intention appears (expressly/impliedly), bind the Crown, but not as to impose any criminal liability on it.

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11 BHP v Bradken: If the Crown is not

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bound by a statute, any person having a contractual relationship with the Crown is also immune (if otherwise the Crowns interests would be prejudiced). Remedies: Hard to get prerogative writ against the Crown seek equitable remedies instead.

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