Administrative Law Semester 1 2008 Second Half of Course[1]

8/3/2019 Administrative Law Semester 1 2008 Second Half of Course[1]

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LAWS2115:

ADMINISTRATIVE LAW

FINAL EXAM NOTESRemedies

Angus J OBrien


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LAWS2115 Administrative Law End of Semester Exam NotesSemester 1, 2008 Angus J OBrien

INTRODUCTION TO THE ADJR AND JR ACTS.............................................................6

1. The ADJR Act...........................................................................................................................................................6

(a) Application of the AJDR Act................................................................................................................................6(b) Substance of the ADJR Act..................................................................................................................................6

2. The JR Act.................................................................................................................................................................7

(a) Application of the JR Act.....................................................................................................................................7(b) Substance of the JR Act........................................................................................................................................7

3. Differences between the ADJR Act and JR Act.....................................................................................................8

OVERVIEW OF ELEMENTS FOR STATUTORY REVIEW..............................................9

DECISION AND CONDUCT............................................................................................10

1. Legislative Guidance on the Defn. of Decision...................................................................................................10

2. Judicial Guidance....................................................................................................................................................10

(a) Is the decision final and determinative?.............................................................................................................10(b) Is the decision a substantive determination?......................................................................................................11(c) Is Mason CJs test still good authority?..............................................................................................................12

3. Evaluating Bond......................................................................................................................................................12

4. Conclusion................................................................................................................................................................13

FAILURES TO DECIDE..................................................................................................15

1. s22(1)........................................................................................................................................................................15

2. s22(2)........................................................................................................................................................................15

ADMINISTRATIVE CHARACTER..................................................................................16

1. General Principles of Interpretation.....................................................................................................................16

2. The 'Tests'................................................................................................................................................................17

(a) Distinguishing legislative and administrative acts..............................................................................................17(b) Distinguishing judicial and administrative acts..................................................................................................18

UNDER AN ENACTMENT..............................................................................................21

1. Is the decision made, proposed to be made, or required to be made?.............................................................21

2. If yes, is that so under an enactment?................................................................................................................21

(a) Is there an enactment?......................................................................................................................................21(b) If yes, is it under an enactment?.......................................................................................................................22

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NON-STATUTORY SCHEMES OR PROGRAMS..........................................................26

1. Is the decision of an administrative character?....................................................................................................26

2. Is the decision made, or proposed to be made, by, or by an officer or employee of the State or a State

authority or local government authority?................................................................................................................26

(a) Made or proposed to be made.............................................................................................................................26(b) By....................................................................................................................................................................26

3. Is the decision under a non-statutory scheme or program?................................................................................26

(a) Is there a decision under a scheme or program?..............................................................................................26(b) If yes, is the scheme or program non-statutory?.................................................................................................28

4. Public funds?...........................................................................................................................................................28

NON-JUSTICIABILITY....................................................................................................29

1. General Principles...................................................................................................................................................29

2. Cabinet Decisions....................................................................................................................................................29

3. Decisions of GG and Governor..............................................................................................................................29

AGGRIEVED...................................................................................................................30

1. Standing for Equitable Remedies..........................................................................................................................30

(a) If the right infringed is private........................................................................................................................30(b) If the right infringed is public.........................................................................................................................30

2. The Statutory Tests for Standing..........................................................................................................................34

(a) Sufficient interest................................................................................................................................................34

(b) Negatively affected.............................................................................................................................................35

3. Affection of Intangible Interests............................................................................................................................35

(a) Participation in decision-makers hearing..........................................................................................................36(b) Capacity to represent public interest..................................................................................................................36

4. Conclusion................................................................................................................................................................37

PROCEDURAL POINTS.................................................................................................38

1. Joinder of third parties...........................................................................................................................................38

(a) Joinder.................................................................................................................................................................38

(b) Amicus Curiae....................................................................................................................................................38(c) Intervention.........................................................................................................................................................38

2. Time limits for applications under Pt 3................................................................................................................38

(a) If written notice was provided........................................................................................................................39(b) If written notice was not provided..................................................................................................................39

3. Exclusion from review............................................................................................................................................39

(a) Matters expressly excluded in the Acts..............................................................................................................39(b) Ouster/privative clauses......................................................................................................................................39(c) Non-justiciability................................................................................................................................................41

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4. Powers of court hearing JR Act applications.......................................................................................................41

(a) Interlocutory orders.............................................................................................................................................41(b) Orders that can be made following successful review.......................................................................................42(c) Appeals...............................................................................................................................................................44

5. Costs orders under JR Act.....................................................................................................................................44

THE RIGHT TO REASONS.............................................................................................45

1. Is there a right to reasons?.....................................................................................................................................45

(a) Does Pt 4 apply?.................................................................................................................................................45(b) Is the person entitled to make an application under s20?...................................................................................46(c) Is the request for reasons made within time?......................................................................................................46(d) Do any exceptions to the right to reasons apply?...............................................................................................46

2. If yes, has there been an adequate response to the request?...............................................................................47

(a) If the decision-maker give notice refusing reasons........................................................................................47(b) If the decision-maker gives reasons................................................................................................................48

3. Use of reasons in subsequent proceedings............................................................................................................48

4. Costs.........................................................................................................................................................................49

5. Other ways of finding out about decisions............................................................................................................49

(a) FOI......................................................................................................................................................................49(b) Discovery............................................................................................................................................................49

THE PREROGATIVE WRITS..........................................................................................51

1. Prohibition...............................................................................................................................................................52

(a) Is the decision-maker subject to the writ?..........................................................................................................52

(b) Is the decision-maker's role continuing?............................................................................................................54(c) Is the writ available for the alleged ground of review?......................................................................................55(d) Does P have standing?........................................................................................................................................55

2. Certiorari.................................................................................................................................................................55

(a) Is the decision-maker subject to the writ?..........................................................................................................55

(b) Has the decision-makers role ceased?...............................................................................................................55(c) Is the writ available for the alleged ground of review?......................................................................................56

3. Mandamus...............................................................................................................................................................57

(a) Is there a public duty?.........................................................................................................................................57(b) Is there express or constructive refusal to perform that duty?............................................................................57

(c) Is the decision-maker subject to the writ?..........................................................................................................57(d) Does P have standing?........................................................................................................................................57(e) Are other remedies available?.............................................................................................................................58

4. Procedural points common to the writs................................................................................................................58

(a) Stays....................................................................................................................................................................58(b) Time....................................................................................................................................................................58(c) Early disposal......................................................................................................................................................58

DECLARATIONS AND INJUNCTIONS..........................................................................59

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1. Declarations.............................................................................................................................................................59

Is a declaration available?........................................................................................................................................59

2. Injunctions...............................................................................................................................................................62

(a) Are the prerequisites applicable to all injunctions satisfied?..............................................................................62(b) Are the pre-requisites specific to the type of injunction satisfied?.....................................................................64

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INTRODUCTION TO THEADJR ANDJR ACTS

Two relevant acts:1. Administrative Decisions (Judicial Review) Act 1977(Cth); and2. Judicial Review Act 1991 (Qld).

1. The ADJR Act

In the early 1970s, a number of reports were published which advocated reform of theprocedures for judicial review and the codification of the grounds of review: see Kerr CommitteeReport; Ellicott Committee Report. These reports highlighted that the common law remedieswere plagued by technical difficulties and recommended reform of judicial reviews proceduresand codification of its grounds.

TheAJDR Actwas the result of this call to reform. It was passed in 1977 and commencedoperation in 1980.

(a) Application of theAJDR Act

In accordance with constitutional principles (see ss76(ii), 77 and 122 Constitution;Evans vFriemann), theADJR Actapplies to the exercise of certain Cth Government powers; it does notapply to exercises of power under State legislation: s3ADJR Act(defn of enactment) read withs38(1)AIA.

The FC generally does the reviewing under theADJR Act: see ss3, 8. The FMC has also beengiven power to hear certainADJR Actapplications: see s8. The Family Court also has a verylimited jurisdiction: see s18A. State courts do not have the power to review exercises of Cth

government power: see s9ADJR Act.

Most cases of judicial review in the federal sphere involve applications under the ADJR Act.However, s39B is almost always pleaded cumulatively and in the alternative to a claim under theADJR Act: Aronson et al (2004); Creyke and McMillan (2004). Also, there are cases where theADJR Actreview is not available (due to technical limitations regarding the scope of the Act),but where prerogative writs or declarations are. If there is doubt over the applicability of theADJR Act, it is advisable to plead the traditional remedies in the alternative. This is permitted byO 54A R 3(2) FCR.

(b) Substance of theADJR Act

TheADJR Actintroduced certain changes to the law, but largely continued the existingframework.

Aronson recently considered whether theADJR Acts technical limitations meant it should berepealed. He concluded it should not, but recommended significant changes: see (2004)PublicLaw Review.

(i) Points of continuity

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The grounds of review are codified and are thus largely unchanged. There are two exceptions tothis the error of law and no evidence grounds are broader than their common law equivalents:seeMIMA v Rajamanikkam. Note that Kirby J complained inEx parte Applicant S20/2002 thattheADJR Acts codification to some extent retarded the development of the common law.

Note also that theAJDR Actwas not intended to extend the courts power to merits review: seesecond reading speech of Hon RJ Ellicott QC on the ADJR Bill 1977.

The other point of continuity is that the common law and equitable remedies continue to operate:see s10ADJR Act. The FC has statutory jurisdiction to review exercises of Cth governmentpower using these remedies: s39BJA (reflecting s75(v) Constitution); s32(1)FCA. This is alsopart of its accrued jurisdiction: Campbell (1998).

Note that the traditional remedies were also only available against officers of the Cth: VietnamVeterans Association of Aus (NSW Branch) v Cohen. However, s39B(1A) appears to changethis by giving the FC jurisdiction over "matters arising under any laws made by the [federal]Parliament": Transport Workers Union v Lee. In any event, a Cth Tribunal is an officer of theCth:SAAP v MIMIA.

(ii) Points of change

TheADJR Actmade two substantive changes to the law that existed prior to its enactment:1. It simplified the procedures for seeking judicial review by providing for an application

procedure, rather than the 2-step process involved with the prerogative writs; and2. It provided a right to reasons in respect of certain government decisions: s13ADJR Act.

2. The JR Act

TheJR Actarose as a result of similar concerns with the traditional administrative law remedies.The Fitzgerald Royal Commission (1989) described judicial review procedures as extremelycumbersome and recommended the establishment of the Electoral and Administrative ReviewCommission (EARC) and that EARC be directed to examine the establishment of simplerprocedures for obtaining judicial review of administrative decisions.

EARCs report, published in 1990, recommended Qld follow the Federal Governments lead andthis recommendation was generally endorsed by the Queensland Parliamentary Committee forElectoral and Administrative Review. TheJR Actwas passed in 1991 and came into forcemidway through 1992.

(a) Application of theJR Act

In the same way that theADJR Actis confined to Cth decisions, theJR Actis confined toexercises of Qld State government power: see ss3,4 read with s14EAIA 1954 (Qld). TheSupreme Court does the reviewing under theJR Act: ss3, 19.

(b) Substance of theJR Act

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Parts 3 and 4 of the Act contain the same fundamental features of the Federal Act:1. Simplified procedures for seeking judicial review;2. Codification of the traditional grounds of review (Part 3); and

a. Like theADJR Act, theJR Actonly authorises review on grounds of legality:Hoffman v Qld Local Govt Superannuation Board.

3. Provided a right to reasons in respect of certain government decisions (Part 4).

Qld courts applying theJR Actcan obtain guidance from decisions interpreting theADJR Act:s16(1)JR Act;see also EARC Report. Note that Schedule 3, incorporated by s16(2), is acomparative table of equivalent Federal sections.

One major difference between theADJR Actand theJR Actis the relationship between commonlaw/equitable remedies and statutory remedies. TheJR Actcontains two types of review:

1. An application for statutory order of review under Part 3; and2. An application for review under Part 5.

a. Part 5 attempts to draw the traditional remedies in as part of the Act. Thecoordination of remedies is therefore more effective in Qld.

b. An applicant can seek review under Part 3 or, in the alternative, an order in thenature certiorari or declaration or any other remedy found in Part 5.

c. The two types of applications can be combined together: r568.

3. Differences between the ADJR Act and JR Act

Certain significant differences appear to occur for two reasons:1. There were changes in administrative law between 1977 and 1991. In particular,

decisions of the Governor-General are not reviewable under theADJR Act, but decisionsof the Governor are reviewable under Part 3JR Act;

2. EARC sought to avoid perceived problems with theADJR Actor the law generally. Forexample:

a. s4(b)JR Actseeks to avoid the technicalities which have emerged in relation totheADJR Act's requirement that the decision be made "under an enactment" byallowing review of decisions made "under non-statutory schemes or programs";and

b. ss49, 50 make certain provisions in relation to court costs.

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OVERVIEW OF ELEMENTS FOR STATUTORY REVIEW

A person may apply for a statutory order of review under Pt 3 in three circumstances:1. Where the person is aggrieved by a decision to which the Act applies: s20(1)JR Act;

s5(1)ADJR Act; and

2. Where the person is aggrieved by actual or proposed conductof a person which conductis for the purpose of making a decision to which the Act applies (whether by the personengaging in the conduct or by another person): s21(1)JR Act; s6(1)ADJR Act.

3. Where the person is aggrieved by thefailure of a person to make a decision to which theAct applies which that person had a duty to make: s22(1) JR Act; s7(1)ADJR Act.

Per s4(a)JR Act; s3ADJR Act, a decision to which this Act applies is:1. A decision;2. Of an administrative character;3. Made, proposed to be made, or required to be made, under an enactment (whethernot in the exercise of a discretion).

Note s4(b)JR Actin relation to decisions made under a non-statutory scheme or program.

These elements cannot be construed in isolation. Each informs the meaning and content of theothers:Neat Domestic Trading v AWB per Kirby J; Griffith University v Tangper Gummow,Callinan and Heydon JJ.

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DECISION AND CONDUCT

1. Legislative Guidance on the Defn. of Decision

Per s5JR Act; s3(2)ADJR Act, a decision includes:

1. making orders, awards or determinations;2. giving certificates, directions, consents or permissions;3. issuing licences, authorities or instruments;4. imposing conditions or restrictions;5. making declarations, demands of requirements; or6. retaining or refusing to deliver up an article.

Note also s6JR Act; s3(3)ADJR Actbelow.

2. Judicial Guidance

InABT v Bond, Mason CJ, (with whom Brennan and Deane JJ agreed), took a narrower viewthan the FC had inLamb v Moss, holding that a reviewable "decision" is a determination forwhich provision is made by or under statute. On the other hand, 'conduct' points to action takenfor the purpose of making a reviewable decision.

Two elements for decision:1. The decision is final and determinative of the issues falling for consideration; and2. It must be a substantive, as distinct from procedural, determination.

(a) Is the decision final and determinative?

The word decision is not limited to a final decision disposing of the controversy between theparties:Bondper Mason CJ.

However, an intermediate conclusion reached as a step along the way in a course of reasoningleading to an ultimate decision is not ordinarily a reviewable decision, unless the statute providesfor the making of a finding or ruling on that point:Bondper Mason CJ.

NOTE that the Acts expressly provide that if provision is made by an enactment for the makingof a report or recommendation before a decision is made, the making of the report orrecommendation is itself taken, for the purposes of this Act, to be the making of a decision: s6JR Act; s3(3)ADJR Act.

TheADJR Actprovision has been narrowly construed. The enactment must specificallymake the report or recommendation a condition precedent to the making of thesubsequent decision:Ross v Costigan;Edelsten v HIC. Although the Qld provision isdifferently worded, this is not directed at overcoming the restrictive interpretation.Nonetheless, Qld cases have considered a more liberal interpretation:Resort MgmtServices v Noosa Shire Council;St George v Wyvill.

Courts applying this approach have had difficulty in applying it consistently. InHarris v Bryce,a decision by the Sex Discrimination Cmr to investigate sex discrimination was held not to be

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final or operative. However, inRe Excel Finance Corp a determination by ASIC to authorize areceiver to make an application for a public examination was held to be a 'decision'. These casesare possibly reconcilable on the basis thatBryce concerned a decision to investigate, whereasExcel Finance concerned a decision to allow an investigation to proceed. Nonetheless,ExcelFinance is hard to reconcile withBondand did not consider it in any detail.

To say that a reviewable decision is an ultimate or operative determination does not mean thatantecedent conclusions or findings which contribute to the ultimate or operative decision arebeyond reach; but the applicant must wait:Bondper Mason CJ.

Schokker v Commissioner of Taxation (1998) 51 ALD 654:Facts: related to the refusal to refer the complaint about alleged breaches of privacy to the DPP.The decision to prosecute was a decision of the DPP.Held: was a sufficiently final decision, because it settled a final determination of the complaint,and was not a mere step along the way

(b) Is the decision a substantive determination?

Mason CJ explains this element further only by juxtaposing it with conduct.

Conduct:

'Conduct' points to action taken for the purpose of making a reviewable decision. It looks to theway in which the proceedings have been conducted, rather than decisions made as part of thedecision-making process along the way to the making of a final determination. It is procedural,not substantive, in character: Bondper Mason CJ. Examples:

Admission/non-admission of evidence:Bondper Mason CJ; Courtney v Peters; and

Failure to adjourn:Bondper Mason CJ.

A challenge to conduct is an attack upon the proceedings engaged in before the making of thedecision. It is not a challenge to decisions made as part of the decision-making process except inthe sense that if the decisions are procedural in character they will precede the conduct which isunder challenge:Bondper Mason CJ.

Under this approach, factual findings will often lack the element of finality required to bedecisions. However, since they are substantive, and not procedural, factual findings wontqualify as conduct either: Cane & McDonald (2008).

InHarris v Bryce,a determination by the Sex Discrimination Commissioner to investigate sexdiscrimination was also held not to be substantive.

NOTE that, per s8, a reference in the JR Act to conduct engaged in for thepurpose of making a decision includes a reference to the doing of anythingpreparatory to the making of the decision, including

(a) the taking of evidence; or(b) the holding of an inquiry or investigation.

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The conduct need not be that of the decision-maker: s21(1). Whether conduct of a non-decisionmaker could be reviewable will turn on the nexus between the conduct and the decision:Gunaleela v MIEA. No equivalent federal provision.

Salerno v National Crime Authority (1997) 144 ALR 709:Facts related to a decision to authorise a warrant to raid + search premises

Held: Was a reviewable decision. Even though it related to investigation, the effect of the search warrantswas to interfere with the private property and privacy of the person.Was therefore a substantive determination, and not procedural.Was a serious infringement of a persons right to quiet enjoyment of propertyNote Salerno lost in the end because the decision was not made under an enactment

(c) Is Mason CJs test still good authority?

Bondwas applied in theADJR Actcontext inHarris v Bryce (above). It has also been applied inaJR Actcontext:State Bank of NSW v CSD;Summerson v CSD;Redland Shire Council vBushcliff. Note, however, that inRedland Shire Council v Bushcliff, Thomas J noted that therewas difficulty in directly transposing theBondcriteria to decisions of a body that performs 'non-adjudicative functions'.

The joint judgment of Gummow, Callinan and Heydon JJ in GU v Tang, whilst not expresslydisapproving of Mason CJ's approach, has given rise to doubts as to whether it commandsmajority support on the HC today, for two reasons:

1. The "substantive" requirement is absent in the joint judgment, which is particularlyconspicuous given the judgment quotes Toohey and Gaudron JJ inBond, who rejectedthe 'substantive' requirement. However, the joint judgment does use the relevant passagefrom Mason CJ's judgment to illustrate another point.

2. More significantly, the joint judgment suggests that there can be a 'decision' in caseswhere an enactment necessarilyimplies the making of the decision. This wouldundermine Mason CJ's 'substantive' requirement since the ABT's decision that Bond wasnot a fit and proper person was clearly impliedly authorised by the Act.

However, the FC has held that the joint judgment in Tangdid not intend to depart fromBond:Guss v Cmr of Taxation;Jilani v Wilhelm. This appears correct.

3. Evaluating Bond

Bondset out to reduce abuse of theADJR system by those with enough financial backing tomake repeatedADJR challenges to the administrative process before it had come to a finaldecision. Whilst the grand design was to force litigants to await the administrators final decision

before going to court, the decision left three significant avenues around this still open:1. Firstly, it allowed intermediate decisions to be treated as decisions in their own right,

provided they were substantive in nature, and provided the relevant Act gave sufficientindication of treating them separately.

2. Second, the seemingly unavoidable problem, of seeking ADJR review before making ofthe final decision, where the subject of challenge could be characterized as conduct.

3. Third, the decision offered no restriction to challenges under s39B of theJudiciary Act.

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However, in its defence, the decision inBonddid assist in focusing the minds of practioners andjudges on the need to identify exactly what was being challenged.

4. Conclusion

The FC has a general discretion to dismiss proceedings where the review application ispremature and the interests of justice require it. This is also true in Qld: see s14 JR Act. Thisgeneral discretion extends to the traditional remedies.

TheBondapproach is therefore interesting as its focus on fragmentation of governmentdecision-making suggests whether the exercise of this discretion is enough. In particular, notethat a broad interpretation of 'decision' would expand the obligation to give reasons, applicationsrelating to which are not subject to the general discretion.

Given that the traditional remedies, in particular declarations and the prerogative writ ofprohibition, are not constrained by this technical approach (but are subject to the generaldiscretion), it is understandable that commentators have asked whether it was worth all thetrouble.

ABT v Bond

Facts:

The case concerned an enquiry by the Australian Broadcasting Tribunal into whether or not tosuspend or impose conditions on the radio and television licences held by companies which wereeffectively controlled by Alan Bond.

At the heart of the Tribunal's enquiry were two major allegations.

o First, that Mr Bond caused a defamation action brought by the then Premier of

Queensland against one of Mr Bond's companies to be settled by paying a sum of$400,000 to the Premier, when the company's likely liability would have been in theorder of only $50 000 i.e. the additional amount was paid in the expectation that Bond's

companies would be able to continue to do business successfully in Qld. It was alsoalleged that Mr Bond tried to conceal this arrangement from the Tribunal;

o Secondly, that Mr Bond had personally threatened an executive of the AMP Society that

if the Society did not stop acting contrary to the interests of Mr Bond in relation to themakeup of the Board of Directors of Bell Resources Ltd, then Mr Bond would direct hisTV reporters to gather damaging material on the AMP Society and broadcast it.

The ABT was tasked with determining whether, under theBroadcasting Act 1942, to cancel orimpose conditions on the corporate licences held by Bond companies.

The statute required the ABT, in making that determination, to consider whether the companieswere "fit and proper persons" to hold the licences.

The ABT made the following series of determinations:o Mr Bond controlled the corporate licensees;

o Mr Bond was not a fit and proper person; and

o The corporate licensees where therefore not fit and proper.

Before the ABT made the final decision on whether to cancel/impose conditions on the licences,Bond and the companies sought judicial review of the Tribunal's determinations under theADJR

Act.

Bond and the companies were successful in the FC and Full FC. The ABT appealed to the HC.Held:

Appeal upheld.Reasoning of Mason CJ (with whom Brennan and Deane JJ agreed):

The meaning of 'decision' must be determined by reference to the text, scopeand purpose of the statute itself.

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No narrow view should be taken of the word 'decision'. In particular, the worddecision is not limited to a final decision disposing of controversy between theparties..

However, certain considerations point to the word having a relatively limited field of operation.

The relevant policy considerations are competing. On the one hand, the purposes of the AD(JR) Act areto allow persons aggrieved by the administrative decision-making processes of government a convenient and

effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of theconcept of "decision" is extended, there is a greater risk that the efficient administration of government will beimpaired. To interpret "decision" in a way that would involve a departure from the quality of finality would lead toa fragmentation of the processes of administrative decision-making and set at risk the efficiency of theadministrative process.

Set out the law.

On the facts , undoubtedly, the Tribunal's determination that the respectivelicensees were no longer fit and proper persons to hold their licences was adecision of an administrative character made under an enactment. The issueis whether the Tribunal's other determinations, particularly that Mr Bond wasnot a fit and proper person, was a "decision".

The Tribunal's determination that Mr Bond was not a fit and proper person to hold a licence was aconclusion reached as a step along the way in the course of reasoning leading to the decision as tothe suitability of the companies to hold their licences. Thus, review of that determination was notavailable under theADJR Act. The fact that it was an essential step does not make it reviewable.

The decision that the companies were not fit and proper 'people' was also a step in the course ofreasoning leading to a decision whether or not to revoke the licenses. However, it was reviewableunder theADJR Actbecause theBroadcasting Actspecifically provided for this decision .

As to the meaning of conduct , once it is accepted that "decision" connotes a determination forwhich provision is made by or under a statute, one that generally is substantive, final andoperative, the place of "conduct" in the statutory scheme of things becomes reasonably clear.

Examples of conduct decision to admit/non-admit certain evidence, failure to grant anadjournment /continuation of proceedings in a way contrary to natural justice.

On the facts , the decision by the ABT that Bond was not a fit and proper person to hold the

licences in question was not 'conduct' as it was substantive, not procedural. It was a determination,not 'action taken'.

Reasoning of Toohey and Gaudron JJ: Rejected the "substantive" requirement.

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FAILURES TO DECIDE

s22JR Act; s7(1)-(2)ADJR Actestablish two types of review of failures to decide.

Note that in relation to both s22(1) and s22(2), there must be a duty, not a

mere statutory power: Brownsville Nominees v Cmr Taxation.

1. s22(1)

Per s22(1), an aggrieved person may apply for a statutory order of review on the ground thatthere has been an unreasonable delay in making a decision if

1. A person has a duty to make a decision to which this Act applies; and2. There is no law that fixes a period within which the person is required

to make the decision; and3. The person has failed to make the decision;

An unreasonable delay is defined objectively as one which no reasonable person acting in goodfaith would, in the circumstances, have approved of the delay in making the decision. The delaymust not be capricious or irrational: Thornton v Repatriation Commission; CISC v de Lacy.

2. s22(2)

Per s22(2) an aggrieved person may apply for a statutory order for review onthe ground that the person has a duty to make the decision despite the endof the period if

1. A person has a duty to make a decision to which this Act applies;2. A law fixes a period within which the person is required to make the

decision; and3. The person failed to make the decision before the end of the period.

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ADMINISTRATIVE CHARACTER

The requirement that the decision must be of an administrative character maintains thetrichotomy between legislative, executive and judicial and is therefore reflective of theseparation of powers:Resort Mgmt Services v Noosa Shire Council;Evans v Friemann;MIC v

Tooheys Ltd; QML v Blewettper Gummow J. Legislative and judicial decisions are notreviewable under theJR ActorADJR Act.

1. General Principles of Interpretation

Since the Acts are remedial statutes, the phrase should not be given a narrow or technicalconstruction:Evans v Friemann; Resort Mgmt Services v Noosa Shire Council. PerEvans vFriemann, two factors compel a broad construction:

1. It is the decision which must be of an administrative character, not the subject matter ofthe decision; and

2. Administration is a process, not an isolated act. Particular decisions need to be

characterised in the context of any such process.

It is the character of the decision which is important, not the character of the decision maker.Since the approach is functional, not institutional, which branch of government the decision-maker comes from is not determinative: Glenister v Dillon. However, the nature of the decisionmaker is not completely irrelevant. For example, a decision of a judge of a superior court willusually be judicial:Hamblin v Duffy.

The phrase 'administrative character' cannot be construed in isolation from other sections of theJR ActandADJR Act. In particular, s5JR Act; s3(2)ADJR Actare relevant in interpreting thephrase:Evans v Friemann. Consequently, decisions granting or revoking licences or making or

revoking orders can be characterized as 'administrative'. Thus, decisions of an 'administrativecharacter' include quasi-judicial decisions e.g. tribunal decisions.

Evans v Friemann

Facts:

The applicant was a legal practitioner seeking admission as a patent attorney.

He sat the three exams required to gain admission.

He was notified in writing by the Board of Examiners that he had passed one and failed two. The

admission requirements were contained in thePatents Act 1952 and the Board of Examiners wasestablished by the Patent Attorneys Regulations passed under that Act.

He immediately wrote to the Secretary of the Board requesting reasons under theADJR Act.

The request was declined and he applied to the FC for an order of review.

The respondents filed a notice of objection to competency of the court on the basis that their actiondid not amount to a 'decision' of an 'administrative character' made 'under an enactment'.

Held (Fox ACJ):

The role of the Board of Examiners is one of carrying out a purpose of the Patents Act by ensuringthat there are specially qualified people to deal with applications that arise under it. The process ofarranging for, and promulgating the results of, examinations are, on any view, distinctlyadministrative, as are some aspects of conducting them.

Note: if a strict, analytical approach were taken and only the subject matter of a decision wasconsidered, then the decision to fail someone might be characterised as educational.

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2. The 'Tests'

It is difficult, if not impossible, to define simply 'legislative', 'judicial' or 'administrative':Hamblin v Duffy;Evans v Friemann;RG Capital Radio v ABA.

However, it is possible to identify certain indicia. Per Lockhart J inHamblin v Duffy:1. Legislative acts usually involve the formulation of new rules of law having generalapplication;

2. Judicial acts generally entail determinations of questions of law and fact in relation todisputes susceptible of determination by reference to established rules or principles; and

3. A decision of an administrative character includes at least the application of ageneral policy or rule to particular cases, the making of individual decisions.

(a) Distinguishing legislative and administrative acts

Whereas legislation determines the content of the law as a rule of conduct or a declaration as topower, right or duty, executive authority applies the law in particular cases:MIC v Tooheys; Cthv Grunseitper Latham CJ; QML v Blewettper Gummow J;RG Capital Radio v ABA.

If a decision has actually changed the law it will be legislative; its not necessary that itformulates a rule of general application: VVAA v Cohen; QML v Blewett.

NOTE that Allars criticises this 'transmission belt theory' as being overly simplistic, inparticular because it reflects a supposed distinction between administration and thecreation of government policy.

In QML v Blewett, the Minister's decision to adopt a new schedule of medical fees (which appeared at the end of aCommonwealth statute) had the effect of changing the law and was thus held to be legislative.

NOTE: Gummow J suggested that had the Minister, instead of endorsing a new schedule to the Act, decided not tochange the schedule, then that decision would have been administrative.

PerRG Capital Radio v ABA, factors relevant to distinguishing legislative decisions fromadministrative decisions are:

1. Generality legislative decisions generally determine the content of general, usuallyprospective, application, whereas administrative decisions apply rules of that kind toparticular cases;

a. Note, however, that individual norms which apply only to the action of a singleperson on a single occasion may still be classed as laws: RG Capital Radio vABA; QML v Blewettper Gummow J.

2. Parliamentary control where a decision is subject to parliamentary control, that willgenerally indicate that it is legislative;a. For example, with by-laws and regulations there is a process of disallowance.

3. Publication a requirement of publication of a decision suggests the decision is of alegislative character;

4. Public consultation in certain circumstances, a need for wide public consultation mayindicate that there is a natural justice concern and hence suggest the decision isadministrative. However, if anything, a wide public consultation may indicate the generalnature of the decision, suggesting it is legislative;

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5. Policy considerations if the decision involves complex policy decisions, that willindicate it is of a legislative character;

6. Executive variation or control the absence of a provision for executive variation orcontrol is an indicator the decision is legislative: see alsoAerolineas Argentinas vFederal Airports Corporationper Beazley J;

7. Absence of merits review the absence of merits review will indicate the decision is ofa legislative character.8. Effect if a decision has a binding legal effect, in that certain statutory provisions are

enlivened once the decision is made, that will indicate the decision is of a legislativecharacter.

NOTE: these rules work vice-versa.

A decision to pass subordinate legislation is legislative, not administrative. Similarly, a decisionto pass a by-law is generally legislative. Note, however, that the fact that something is called a'by-law' is not determinative. Something described as a 'by-law' may in truth be the application ofa law to a particular set of circumstances and in no way change the law:MIC v Tooheys.

InMIC v Tooheys, the relevant Minister had the power to allow duty free entry of goods into Australia if generalcriteria were satisfied. Decisions to allow duty free entry of particular goods were referred to as 'by-laws'.Notwithstanding the use of this term, the nature of the decision was held to be administrative.

Steps preparatory to a change in the law will often be administrative:Resort Mgmt Services vNoosa Shire Council(decision to amend a town plan did not change the law, but had thepotential to change the law).

The purpose of the decision will also often indicate whether the decision is legislative oradministrative. For example, where the decision is to discharge a commercial function, that willoften indicate that it is administrative:Aerolineas Argentinas v Federal Airports Corporation

(decision to impose a charge to cover security expenses administrative).

Note that the Qld SC appears to have created a distinction, in the case of prisons, betweendecisions of an administrative character and 'managerial' decisions about prisons: seeBartz vChief Executive, Dept Corrective Services. This distinction is problematic: Gilbert and Lane;Lane and Young.

(b) Distinguishing judicial and administrative acts

With respect to judicial power, the classic feature of judicial power is the capacity toconclusively determine facts and law in a dispute between two interests, or to decide that there

has been a breach of the criminal law and to impose a criminal penalty (e.g. fine, deprivation ofliberty note, therefore, a revocation of a licence is administrative, but a fine penalisingsomeone for continuing to operate without a licence is judicial).

Officials of courts, such as registrars, may sometimes make decisions of an administrativecharacter (see table below). Note, however, that procedural decisions in criminal proceedingsmay not be reviewed under the federal act: s9AADJR Act.

RG Capital Radio v ABA

Facts:

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RG Capital Radio (the applicant) held licences to operate two existing commercial radio services inGosford.

The ABA (the respondent) determined to make a plan for broadcasting services in the Gosford areapursuant to s26(1)Broadcasting Services Act 1992 (Cth), which required the ABA to "prepare in writinglicence area plans".

The plan included making available an additional broadcasting licence.

The applicant sought review of the determination under theADJR Act. The ABA contested that there was a decision of an administrative character.

Held (Wilcox, Branson and Lindgren JJ):

The court must make a judgment on the issue which takes into account all of the relevant considerations.No one consideration is decisive of the issue.

On the factors outlined above, the above suggest the decision to make the plan was legislative:o The licence area plan lays down general parameters within which takes place the decision-making

process (the allocation of licences), for which the Act provides.

o The requirement that the plan be published.

o The requirement of wide public consultation (emphasises the general nature of the licence area

plan).o The breadth of the considerations the ABA was required to take into account in making a licence

area plan.o The absence of a provision for executive variation or control.

o The plan was not subject to merits review.

o The plan has a binding legal effective in that it constitutes the background against which

applications for, and allocations of, licences are enabled to take place.

The fact that the ABA, by notice in writing, had power to vary the plan is neutral.

The fact that there is no provision for disallowance by parliament and thus no parliamentary controlindicates the decision is administrative.

On balance, the decision is legislative.

Examples

Legislative decisions

Making and review of statements of factors relevant to future determinations of veteransmedical claims: Vietnam Veterans Affairs Association v Cohen.

Decision to amend schedule to Health Insurance Act: QML v Blewett.

Decision establishing plan which stipulated number and characteristics of broadcastingservices for a certain area:SAT FM v ABA (affirmed in RG Capital Radio).

Decision under legislation providing for gazettal of principles upon which futuredecisions would be made:Melbourne Pathology v Minister for Human Services andHealth.

Judicial decisions

Federal and Supreme Court rule making powers are incidental to the exercise of judicialpower and are therefore judicial:Evans v Friemann.

Decision of Registrar of High Court to refer matter under Rules of Court to a judge:Lettsv Cth.

Decision of Supreme Court not to grant stay of committal proceedings:Emanuele vCahill.

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Decision by State Crown Law Officer in criminal trial to exercise right of reply:Bellinov Clair.

Administrative decisions

Decision of a Registrar of the High Court to strike practitioners name from Register of

Practitioners:Little v Registrar of High Court.

Decision of Registrar of Federal Court to dispute Bill of Costs under Family LawRegulation:Legal Aid Commission of Western Australia v Edwards.

Decision to issue warrants under Quarantine Act: Ferris v Commonwealth Director ofQuarantine.

Decision of a Magistrate to issue a search warrant under the Crimes Act:Harts Australiav Commissioner, Australian Federal Police (but note s 9Aprovides a person who issubject to prosecution or appeal of prosecution may not bring application underADJRA).

Decision of CJC not to recommend police disciplinary action: Walker v CJC.

Decision of Magistrate during committal hearing re criminal charges:Lamb v Moss.

Decision of Magistrate to order supply of fingerprints: Grollo v Bates.

Decision to arrest underMigration Act: Grech v Featherstone.

Decision of DCT to institute proceedings for recovery of tax: Terule Pty Ltd v DCT.

Decision by deputy district registrar of Federal Court to allow question to be asked inexamination under theBankruptcy Act: Clark v Wood.

Decision by ASC to authorize another to publicly examine Director of company: ReExcel Finance Corporation.

AAT decision refusing to set aside summons to produce documents:PancontinentalMining Ltd v Burns.

Decision of Magistrate underMarriage Actre permission to marry under 18 years:K vCullen.

Decision of AG or Minister to plead limitation statute:Dickson v AG.

Decision of Royal Commission as to whether it had jurisdiction: Queensland v Wyvill.

Decision to amend strategic plan:HA Bachrach v Minister for Housing.

Decision to start process of amendment of town plan:Resort Management Services Ltdv Noosa Shire Council.

Decision to fail someone in Patent Attorney Exam:Evans v Friemann.

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UNDER AN ENACTMENT

Two elements:1. Made, proposed to be made, or required to be made; and2. Under an enactment.

1. Is the decision made, proposed to be made, or required to be made?

Proposed to be made' speaks not of a decision that must be made, one way or the other, but of adecision that has been put forward to the decision-maker and adopted by him as one that heproposes to make.

The participle proposed leaves open the question by whom it is proposed. However thecontext of the legislation suggests that the proposal must be of the decision maker, rather than of,for example, a public servant who has recommended that decision: Vic. Broadcasting Network(1983) v Minister for Transport and Communications.

2. If yes, is that so under an enactment?

Two requirements:1. There is an enactment; and2. The decision is under that enactment.

(a) Is there an enactment?

An enactment is an Act or statutory instrument, and includes a part of an Act orstatutory instrument: s3JR Act. Per s7(3) SIA 1992 (Qld); s36AIA (Qld) a

'statutory instrument' includes:1. A regulation2. An order in council;3. A rule;4. A local law;5. A by-law;6. An ordinance;7. A subordinate local law;8. A statute;9. A proclamation;10. A notification of a public nature;

11. A standard of a public nature;12. A guideline of a public nature; and13. Another instrument of a public nature by which the entity making

the instrument unilaterally affects a right or liability of another entity.

An 'instrument' is defined broadly in s6JR Actas any document. However, not every documentbrought into existence by a statutory authority is a statutory instrument. The true distinction isbetween the making of a document in the exercise of an administrative power that unilaterallyaffects the rights of another person (which is reviewable), and making a document in the exercise

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of a power to enter into a contract where the rights of the other party depend upon what hechooses to agree to (which is not reviewable):Blizzard v O'Sullivan (Thomas J); Cane &McDonald (2008).

(b) If yes, is it under an enactment?

Under means 'in pursuance of' or 'under the authority of' a statute:Evans v Friemann per FoxACJ; Glasson v Parkes Rural Distributions (authority from certificate derives from State act). Itdoes not suffice that a decision could ultimately be traced back to an Act or was ultimately thesource of the power to make the decision.

The early cases referred to the Act being the immediate or proximate source of the power:ANUv Burns;Post Office Agents Association v APCper Davies J. However, in GU v Tangthe jointjudgment and Kirby J criticised notions of immediate and proximate relationships as deflectingattention from the interpretation of the Act, and descriptive of the outcome rather thanprescriptive of the way the outcome is to be reached.

Per Gummow, Callinan and Heydon JJ in Tang, a decision will be made under an enactment if

two criteria are satisfied:

1. The decision must be required or authorised by the enactment; and

2. The decision must itself confer, alter or otherwise affect legal rights or obligations.

(i) Is the decision required or authorised by the enactment?

This requirement changed the old position that a decision may still be under an enactment

despite its not being authorised by the enactment: seeBlurton v Minister for Aboriginal Affairs;Innou v Fowell.

The decision may be expressly required or authorised: Tangjoint judgment. Alternatively, thepower to make the decision may be discerned as a matter of implication:MIEA v Mayer.

NOTE: this element is broader than Mason CJs requirement in Bondthat the decision be one for

which provision is made by or under statute.

(ii) Does the decision itself alter rights/obligations?

This does not require the relevant decision to affect or alter existing rights or obligations. It will

be sufficient that the enactment requires or authorises decisions from which new rights or

obligations arise: Tangjoint judgment.

Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the

enactment in question. Affection of rights or obligations derived from the general law or statute

will suffice: Tangjoint judgment.

NOTE: in Guss v Cmr Taxation, Edmonds J held the obligation must be that of the person

aggrieved and not the decision-maker. This is plainly wrong.

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NOTE: Gummow, Callinan and Heydon JJ attempted to justify their restriction of statutory

review to decisions affecting right or obligations (and not mere interests) in part by reference to

the concept of a matter under the Constitution. This may have implications for the availability

of statutory review for breaches of natural justice (where legitimate expectations are affected).

Cane & McDonald (2008) criticise the finding that Mrs Tang enjoyed no legal rights, and GU no

obligations, under the legislation on the basis that, on this view, there is no body of legal

principles by which the relationship between the parties would be regulated or structured. This is

quite different to the denial of judicial review of decisions based on private contractual powers,

which are at least regulated by contract law. There is no general law governing voluntary

relationships. The only applicable legal principle is that which is not forbidden is not allowed.

(iii) Specific circumstances decisions to exercise rights under/enter contracts

(i) Decisions to exercise rights under contracts:

Even where the decision-maker is a public body, where a decision is an exercise of powersderived from a contract, that decision will not be made under an enactment:ANU v Burns;Blizzard v OSullivan (Act provided terms of employment would be governed by contract).

Where the decision-maker has the particular power both under contract and under an Act, theanswer to the question lies in the true characterisation of the decision itself, that is, whether thedecision was truly made under the Act or under the contract. This depends on the language andmeaning of the relevant contract and statute:ANU v Burns.

A decision may be made under both a contract and an enactment e.g. where the contract simplyre-states the relevant provisions of the Act:ANU v Burns.

ANU v Burns

Facts:

The applicant was a professor at the ANU, the ANU having entered into a contract of employment with

him pursuant to s23Australian National University Act.

The Council of the ANU resolved to terminate his employment after declining academic performance andan extended period of sick leave, which power was also conferred by s23.

Burns made a request for reasons under theADJR Act. The ANU replied that he was not entitled to make a

request. Burns commenced proceedings for an order that the ANU provide him with reasons for thedecision.

Held (Bowen CJ, Lockhart and Sheppard JJ):

The decision to terminate Burns' employment was not made under an enactment. In one sense, every decision of the Council may be said to be made under the University Act in the sense of

in pursuance of or under its authority.

However, notwithstanding that s23 was the source of the Council's power to appoint and dismiss therespondent, the decision to dismiss him was not made under the Act.

The answer to the question lies in the true characterization of the decision itself. It was not a decision to

dismiss the respondent simpliciter. It was a decision to dismiss him on a particular ground namely, that hehad become permanently incapacitated from performing the duties of his office. This was one of thegrounds expressly provided for in condition 2(b)(ii) of the conditions of appointment which formed part ofthe respondent's contract of engagement. The University Act prescribes no essential proceduralrequirements to be observed before a professor is dismissed and lays down no incidents of a professor's

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employment.

In our opinion the rights and duties of the parties to the contract of engagement were derived under thecontract and not under the University Act.

(ii) Decisions to enter into contracts:

A decision to enter into or exercise rights under a contract will not be made under an enactmentwhere they are exercises of an inherent or prerogative governmental power:Hawker Pacific vFreeland(no statutory power to contract, just conditions precedent set out to award of contract);Concord Data Solutions v D-G (Education).

Initially, it sufficed that legislation granted the decision-maker the power to enter into contracts,with the early cases distinguishingBurns on the grounds that it involved an exercise of rightsunder a contract rather than a decision to enter a contract: seeACT Health Authority v BerkeleyCleaning Group;James Richardson v Federal Airports Corp.

However, the approach inBerkeley Cleaningwas rejected in General Newspapers v Telstra

where it was held that theADJR Actwas concerned with decisions which, being authorised orrequired by the enactment, are given force or effect by the enactment. This was subject to 2possible exceptions. It may be may be proper to bring a proceeding under the ADJR Act where:

1. The contract may have been entered into for an ulterior purpose; and2. The validity of the act is challenged by reference to the statute under the general aegis of

which the act or thing is done.a. If the challenge to validity is made by reference to a federal enactment, then the

challenge may be appropriate, even in relation to a contract, because the statuteaffects the force and effect of that which was done.

The approach in General Newspapers was applied in CEA Technologies v Civil Aviation

Authority (Act simply set out functions, didnt authorise or require particular decisions made)and cited without apparent disapproval by Thomas J inKC Park Safe v Cairns City Council. Itscorrectness was affirmed by the joint judgment in Tang, who held that the legislative capacity tocontract will not, without more, be sufficient to empower a government body to unilaterallyaffect the rights of liabilities of any other party.

General Newspapers v Telstra

Facts:

General Newspapers sought judicial review under the ADJR Actof a decision by Telecom/Telstranot to award it a contract to print the White and Yellow Pages phone directories.

The facts of the case are complicated by the fact that they straddle the dissolution Telecom andthe creation of the new entity Telstra.

General Newspapers had approached Telecom to see if it could be considered in future for theYellow and White Pages printing contracts. It was told by a Telecom employee that they would beplaced on a tender list.

There does not appear to have been any specific statutory provision dealing with the tenderingprocess.

The statutory change from Telecom then occurred and Telstra was incorporated under the ACTsCorporations Law.

After this change, Telstra decided not to go through a tender process after all, and decided to awardthe printing contract to the companies that were currently doing its printing work.

The old Act which governed Telecom, did have a provision like those considered in Berkeley i.e.a

provision that stated that Telecom had the power to enter into contracts.

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The new Act, which allowed for the incorporation of Telstra under the Corporations Law, had no

such provision. It did, however, have a provision in section 238, which indirectly dealt with theproduction of telephone directories. General Newspapers did not rely on this provision, but insteadrelied upon s161 of the Corporations Law, the general company provision which says thatcompanies have all the powers of a natural person.

Held:

Claim unanimously rejected.Reasoning of Davies and Einfeld JJ: The ADJR Act is concerned with 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.

Berkeley CleaningandJames Richardson should not be followed.ANU v Burns is preferable.

However, they identify (2??) exceptions:It is unnecessary to consider the exceptional case whereit may be proper to bring a proceeding under the ADJR Act because an act or thing, such as acontract, may have been entered into for an ulterior purpose, such as private gain, and thevalidity of the act is challenged by reference to the statute under the general aegis of which theact or thing is done. If the challenge to validity is made by reference to a federal enactment, thenthe challenge may be appropriate, even in relation to a contract, because the statute affects theforce and effect of that which was done.

In the present case, the decisions relied upon involved the entry of contracts and the conductchallenged was conduct leading to the making of the contracts. No statute made specific provisionfor such contracts, merely conferring upon Telecom all the powers of a natural person includingthe power to enter into a contract. That was a mere conferral of capacity to act. The contracts

were not relevantly authorised or required by and were not made under an enactment. Thevalidity of the contracts and of the acts done was governed entirely by the law of contract, not bythe statutes. Thus, the ADJR Act had no application to the conduct or to the alleged decisions.

(iii) How do these cases fit into the Tangframework?

Tangfavoured the decision in General Newspapers and disapprovedBerkeley Cleaning.However, it is unclear how these cases fit into the two elements laid down in the joint judgment.If they were to fit anywhere, it would be into the first limb. However, this does not appear to bethe case since on the facts in General Newspapers the first limb would have been satisfied. It istherefore difficult to understand the joint judgments approval ofGeneral Newspapers.

(iv)Decisions by non-government entities under statutory schemes of regulation:

Decisions by private companies will not be under an enactment where the authority to make

them derives from their mere incorporation; there must be some other statutory source of their

power. Further, where a private companys exercises its powers unrestrained by statute,

administrative law obligations could not sensibly be accommodated with its commercial

interests:Neat Domestic Trading v AWB (s57(3B) Wheat Marketing Actgave statutory

significance to consent decision, but was not the source of its power).

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NON-STATUTORY SCHEMES OR PROGRAMS

As foreshadowed above, s4(b)JR Act, which does not have a federal equivalent, provides analternative to s4(a), providing that 'a decision to which this act applies' means,

1. a decision of an administrative character;

2. made, or proposed to be made, by, or by an officer or employee of, the State or a Stateauthority or local government authority;

3. under a non-statutory scheme or program involving funds that are provided or obtained(in whole or part)

a. out of amounts appropriated by Parliament; orb. from a tax, charge, fee or levy authorised by or under an enactment.

1. Is the decision of an administrative character?

See above.

2. Is the decision made, or proposed to be made, by, or by an officer or employee of the Stateor a State authority or local government authority?

(a) Made or proposed to be made

See above.

(b) By

The decision may be made or proposed to be made by:1. The State;

2. An officer or employee of the State;3. A State authority; or

a. 'State authority' means an authority or body (whether or notincorporated) that is established by or under an enactment, butdoes not include a local government authority: s3.

4. A local government authority.

3. Is the decision under a non-statutory scheme or program?

(a) Is there a decision under a scheme or program?

While theJR Actis remedial, s4(b) should not be construed too broadly lestthere be fragmentation of the processes of administrative decision-making:Bituminous Products per Holmes J (decision under roads implementation plan re oil waste). InBituminous Products, Holmes J identified two considerations:

1. Whether there were specific, as opposed to general, statutoryappropriations; and

2. Whether the arrangements exhibited coherence or were systematic intheir operation.

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The phrase covers both single projects and repetitive/ongoing projects since, although programsuggests a repetitive or ongoing project, scheme is apt to apply to single projects: Anghel vMinister for Transport (No. 1) per Derrington J (decision to construct extra railway line throughSouth-east Brisbane to the Port of Brisbane).

Per EARC report, two examples of where s4(b) would apply are:1. A decision which adversely affected a citizen, made under a scheme operated by amunicipal or shire council funded by rate collections, but having no statutory basis; and

a. For example, if the Brisbane City Council established a 'green tick' program forenvironmentally friendly products, funded by public monies, and it decided torevoke a company's right to bear the tick on its products.

2. A decision ...of a primary producer body established under statute which operated ascheme that had no particular statutory basis but was funded by compulsory exactionsfrom producers pursuant to statutory authority.

Note also that the reasoning ofGeneral Newspapers v Telstra/ANU v Burns and Tangmayrestrict review. It is not clear whether under a non-statutory scheme or program gives rise to thesame issues as under an enactment. It may well do, but AC thinks this would be contrary toParliaments intention.

Exercises of rights under contracts:

Gilbert and Lane favour a narrow interpretation such that the expression relates only to decisionswhich unilaterally affect rights or expectations.

This conclusion is supported by Thomas J inBlizzard v O'Sullivan (termination of policemansemployment),who rejected the argument that a contract could be a statutory instrument and heldthat it is implicit in s7 Statutory Instruments Actthat an instrument is something having effectthrough a unilateral exercise of power (however, the decision did not refer specifically to s4(b)).It is also consistent with the result in Wide Bay Helicopter Rescue Service v Minister forEmergency Services.

Decisions to enter contracts:

It is unlikely that s4(b) provides assistance to applicants seeking review of governmentcontracting decisions. EARC rejected a potential third limb to s4, which would have allowedreview of a decision of an administrative character otherwise operating in law to determine aquestion affecting the rights, interests or legitimate expectations of any person on the basis thatit would allow review of:

Decisions on the outcome of government tendering process;

Decisions to enter into contract;

Decisions made pursuant to rights of State of Queensland to manage and control itsproperty;

Welfare type decisions, eg adoptions, placement with foster parents, etc;

Decisions made by prison administrators; and

Decisions made by police under common law powers.

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This is consistent with the decision of Thomas J in Concord Data Solutions v D-G Education.

Note also, however, Clause 13 of Schedule 2 ofJR Actwhich excludes the right to reasons fortendering decisions this suggests that Part 4 (and therefore Part 3) of the Act would otherwisebe applicable. Alternatively Clause 13 may have been inserted out of an abundance of caution.This does not, however, explain why, if such a cautious approach was being taken, thedraftsperson did not include a similar exclusion from review in Schedule 1 of theJR Act.

(b) If yes, is the scheme or program non-statutory?

In Bituminous Products, Holmes J considered that although the decisionwas not under an enactment (because, applying Tang, the applicant had noexisting right or obligation), it could not be described as non-statutory; thiswould have been absurd.

4. Public funds?

The funding qualification relates to the scheme or program; it is not necessary that theparticular decision involves public funds:Bituminous Products.

In Wide Bay Helicopter Rescue Service v Minister for Emergency Services, Williams Jheld otherwise but this is plainly wrong in light of the examples given by EARC ofdecisions caught by s4(b).

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NON-JUSTICIABILITY

Although theADJR Actmight otherwise apply to certain decisions, these decisions maynonetheless be non-reviewable if they are non-justiciable. NOTE: non-justiciability does notapply to reasons, but the public interest exception is analogous.

1. General Principles

Justiciability refers to the aptness of a decision for judicial determination: Cane & McDonald(2008).

The non-justiciability of certain decisions is justified by reference to two general and relatedthemes:

1. The comparative and institutional capacities of judges and courts;a. It is often argued that courts are ill-equipped to involve themselves in

polycentric problems that is, disputes characterised by numerous, complex,

interrelated issues, often involving issues of policy.b. See, for example,Minister for Arts, Heritage and Environment v Peko-

Wallsend(nomination of Kakadu for inclusion on World Heritage List);SA vOShea (Cabinet decision re release of prisoner).

2. The relative political responsibility of judges and courts.a. Here it is argued that political responsibility for certain decisions should rest with

the executive, not the judiciary.b. For example, in CCSU, the judges concluded that judges should fear to tread into

areas raising questions of national security, an area where those upon whomresponsibility rests, and not the courts of justice, must have the last word.

2. Cabinet Decisions

One member of the HC has suggested that a Cabinet decision which breaches the rules of naturaljustice may be open to review at common law: seeSA v OShea per Mason CJ.

In the context of the JR Act, it seems that Cabinet decisions are reviewable as long as therequirements in s4(a) or 4(b) are satisfied: see s32(2)(a). Gilbert and Lane reconcile this with theprinciples of non-justiciability by considering that review of Cabinet decisions is limited to thosethat are tantamount to decisions on a particular case that affects the rights and interests ofindividual persons. Polycentric disputes should remain non-justiciable: see also Allars.

3. Decisions of GG and Governor

Prior to the enactment of the ADJR Act, the view prevailed that decisions of the GG were non-justiciable. Thus, s3ADJR Actexpressly excludes these decisions from its scope.

However, the common law has subsequently developed to allow administrative review of certaindecisions of the GG: R v Toohey ex parte Northern Land Council; FAI v Winneke.Consequently, s4(a)JR Actalso allows review under Part 3 of Governors decisions. Part 4 alsoapplies to the decisions of the Governor in Council. Note that it is the relevant Minister who isthe respondent: s53JR Act.

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AGGRIEVED

A person aggrieved includes one whose interests are adversely affected: s7JR Act; s3(4)ADJRAct. The expression is not to be encased in technical rules:Australian Institute of Marine andPower Engineers v Secretary, Dept of Transportper Gummow J.

Although the HC has recently warned against reliance on cases dealing with standing forequitable remedies (Allan v Transurban City Link), this has been the traditional starting pointfor standing under the Acts: see, for example,Right to Life Association;ACF v Minister forResources;Re Boe and the CJC; Friends of Castle Hill Assoc.

Standing may be determined at an interlocutory hearing, though if the case is arguable it willusually be determined at trial. Considerations of costs and convenience favour an earlydetermination of the issue:ACF v Cth per Mason J; Central Qld Speleological Society v CentralQld Cement.

1. Standing for Equitable Remedies

The rules of standing seek to balance the conflicting considerations of enforcing the rule of lawby providing open access to courts and on the other hand preventing busybodies and cranks fromputting others, with whom they have no relationship, to considerable cost: Onus v Alcoa perGibbs CJ.

To determine standing for the equitable remedies, it is necessary to determine whether the rightallegedly infringed is public or private.

Public right a right conferred on the public at large. They often arise out of legislationrequiring public bodies to conduct or administer activities in a particular way.

Private right a benefit conferred on an individual or group in society (even if viastatute) may be classified as private.

(a) If the right infringed is private

The applicant will have standing.

Private rights may include proprietary/financial rights/interests:ACF v Cth per Mason J. Theymay also include statutory rights: seeACF v Cth per Gibbs J.

InACF v Cth, Gibbs J left open the question of whether s10 of the Act, which required the

Minister to promptly inform any person who has made written submissions of the decision,created a correlative right to receive a prompt reply the point had not been pushed by Counsel.

(b) If the right infringed is public

Generally, the AG is the appropriate plaintiff. The AG may:1. commence proceedings on his/her own motion (ex officio proceedings); or2. give an individual his/her fiat.

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However, the AG is not bound to do either of these things and decisions of the AG in this regardare not reviewable: Gouriet v Union of Post Office Workers;Barton v R. InBatemans Bay,Gaudron, Gummow and Kirby JJ contrasted the role of the AG in the UK and in Australia;whereas the AG in the UK has some degree of independence, he does not in Australia. Theyconcluded that it may be somewhat visionary for citizens to expect the AGs fiat in relation to

decisions over which a ministerial colleague has oversight.

In Qld, the AG is required to report to Parliament if he refuses to grant his fiat or does notrespond to a request within 60 days: s10AG Act 1999.

PerBoyce v Paddington Borough Council, there are two exceptions to the rule that privatecitizens generally lack standing to vindicate public rights:

1. Where the interference is such that some private right of P is at the same time interferedwith; and

2. Where P suffers special damage peculiar to herself.

(i) Concurrent interference with private right

The public and private rights may be vindicated in the same action.

Documents

Administrative Law Semester 1 2008 Second Half of Course[1]